ORDER OF THE PRESIDENT OF THE GENERAL COURT
6 August 2024 (*)
(Interim measures – Common foreign and security policy – Restrictive measures adopted in view of Russia’s actions destabilising the situation in Ukraine – Prohibition for any non-Russian-registered aircraft which is owned or chartered, or otherwise controlled by any Russian natural or legal person, entity or body, to land in, take off from or overfly the territory of the European Union – Article 3d of Regulation (EU) No 833/2014 – Manifest inadmissibility of the main action – Act not open to challenge – Inadmissibility)
In Case T‑213/24 R,
Cortex Havacilik ve Turizm Ticaret AŞ, established in Kepez (Türkiye),
represented by R. Antonini, E. Monard, B. Maniatis and E. Zachari, lawyers,
applicant,
v
European Commission, represented by M. Bruti Liberati, M. Carpus Carcea and B. Sasinowska, acting as Agents,
defendant,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
1        By its application based on Articles 278 and 279 TFEU, the applicant, Cortex Havacilik ve Turizm Ticaret AŞ, seeks suspension of the operation of the email of the European Commission of 29 March 2024 by which, allegedly, the aircraft which it operates were subject to a landing, take-off and overflight ban pursuant to Articles 3d and 12 of Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 229, p. 1) (‘the contested act’).
Background to the dispute and forms of order sought
2        The applicant, which does business as
Southwind Airlines, is a private company incorporated under Turkish law, which provides air passenger transport services.
3        By email of 25 March 2024, the Finnish authorities denied the applicant’s flight permission request to Finland, on the ground that they had significant doubts that the substantial ownership and effective control of the applicant’s airline were not vested in the Republic of Türkiye or in its nationals.
4        By email of 28 March 2024, the German authorities informed the applicant that they had been informed by the Commission that the applicant was subject to a landing, take-off and overflight ban pursuant to Article 3d of Regulation No 833/2014.
5        On 29 March 2024, after having been contacted by the applicant, the Commission confirmed, by the contested act, that the ban on the applicant’s aircraft from landing in, taking off from and flying over the airspace of the European Union had been implemented based on Article 3d and Article 12 of Regulation No 833/2014. As regards the reasons for the flight ban, the Commission indicated that the applicant’s operation had been inspected by several Member States, supported by the Commission in data collection. It explained that itself and the Member States had coordinated their work at the level of the European Union and that flight bans were implemented centrally. The Commission also referred to a decision of the Finnish authorities rejecting
the applicant’s application to effect scheduled flights between Türkiye and Finland. According to the Commission, the decision of the Finnish authorities stated that the airline was under the control of the Russian Federation and used for circumvention of the sanctions imposed on that State.
6        On 29 March 2024, the European Union Aviation Safety Agency (EASA) sent an email to the applicant stating that it had been informed by the Commission that the applicant’s aircraft were subject to restrictive measures under Article 3d(1) of Regulation No 833/2014 and that, consequently, the EASA had been required to remove, with immediate effect, the aircraft from the list of authorised aircraft to be used to EU territories under a third-country operators authorisation.
7        By application lodged at the Registry of the General Court on 19 April 2024, the applicant brought an action for annulment of the contested act.
8        By separate document, lodged at the Court Registry on 10 May 2024, the applicant brought the present application for interim measures, in which it claims, in essence, that the President of the General Court should:
–        order that the operation of the contested act be suspended;
–        order the EASA to restore the third-country operators authorisation granted to the applicant on 12 August 2022, and suspend the EASA’s decision dated 29 March 2024 pursuant to which the applicant’s aircraft were removed with immediate effect from the list of authorised aircraft to be used to EU territories under a third-country operators authorisation;
–        order the EU Member States, including the Republic of Germany and the Republic of Poland, to suspend any existing action or measure and/or refrain from any future action or measure taken pursuant to or in relation to the contested act that will impair the applicant’s ability to overfly their airspace, and land in or take off from their airports, until the Court has given a judgment on the action for annulment in the main proceedings.
9        In its observations on the application for interim measures, lodged at the Court Registry on 30 May 2024, the Commission contends, in essence, that the President of the General Court should:
–        dismiss the application for interim measures as inadmissible;
–        in the alternative, dismiss the application for interim measures as unfounded;
–        order the applicant to pay the costs of the present proceedings.
Law
The admissibility of the action in the main case
10      The Commission contends, in its observations on the application for interim measures, that the main action is directed against an act which does not have binding legal effects on the applicant’s legal position. The action of the Commission’s services is limited to the gathering of information and the dissemination of the list of authorised aircraft, on the basis of the decisions of the competent national authorities, and that act cannot be considered as a challengeable act that would produce legal effects.
11      Indeed, the application for annulment is directed against an alleged Commission decision, the existence of which is indicated by the applicant by reference to various emails and communications. However, those emails and communications in no way indicate that such a binding decision was taken by the Commission. The applicable legal framework, the context of those communications and the Commission’s powers confirm, without any doubts, that such a binding decision was not taken and could not have been taken by the Commission.
12      By the emails in question, the Commission was simply informing relevant agencies, third countries, and authorities, as well as the applicant, about the Member States’ decisions and their assessments taken in the implementation of Regulation No 833/2014.
13      According to the Commission, it follows from those considerations that a flight ban under Article 3d and measures taken pursuant to Article 12 of Regulation No 833/2014 are not attributable to the Commission. The legal context of implementing flight bans and the division of the roles between the Commission, the Member States, the European Organisation for the Safety of Air Navigation (Eurocontrol) and the EASA in that process preclude the contested act from being regarded as a measure intended to produce binding legal effects in respect of the applicant.
14      The applicant submits that the contested act is a challengeable act. In its view, the actions of the Commission’s services have gone well beyond the mere gathering of information and dissemination of the list of prohibited airlines on the basis of the decisions of the competent national authorities, and those services have, on the contrary, played a key role in the imposition of the flight ban across the European Union.
15      In that regard, the Court notes that, according to settled case-law, the question of the admissibility of the main action should not, in principle, be examined in the context of proceedings for interim measures. However, when the manifest inadmissibility of the main action is raised, the party seeking interim measures must prove the existence of matters permitting the conclusion, prima facie, that the main action to which his or her application for interim measures relates is admissible, so as to prevent him or her from obtaining, by way of proceedings for interim measures, the suspension of the operation of a measure which the Court may subsequently refuse to annul, his or her action having been ruled inadmissible when examined on its merits in the main proceedings. Such examination, by the judge hearing the application for interim measures, of the admissibility of the main action is necessarily summary, because the proceedings for interim measures are by nature urgent (see, to that effect, orders of 18 November 1999, Pfizer Animal Health v Council, C‑329/99 P(R), EU:C:1999:572, paragraph 89, and of 12 October 2000, Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council, C‑300/00 P(R), EU:C:2000:567, paragraphs 34 and 35).
16      Thus, in proceedings for interim measures, the admissibility of the main action may be subject only to a prima facie examination, and the judge hearing the proceedings should declare that application inadmissible only if the admissibility of the main action can be wholly excluded. Otherwise, to rule, at the stage of the proceedings for interim measures, on the admissibility of the main action, when its admissibility is not, prima facie, wholly excluded, would be tantamount to prejudging the Court’s decision in respect of that action (see order of 20 June 2014, Wilders v Parliament and Council, T‑410/14 R, not published, EU:T:2014:564, paragraph 20 and the case-law cited).
17      It is apparent from the case-law of the Courts of the European Union that, in order to determine whether an act produces legal effects, it is necessary to look, in particular, to the substance of that act, as well as the intention of those who drafted it (see, to that effect, judgment of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 42);
it is also necessary to assess those effects on the basis of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the act (see judgment of 22 April 2021, thyssenkrupp Electrical Steel and thyssenkrupp Electrical Steel Ugo v Commission, C‑572/18 P, EU:C:2021:317, paragraph 48 and the case-law cited). By contrast, the form in which an act or decision is adopted is in principle irrelevant to the admissibility of an action for annulment (see, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and of 7 July 2005, Le Pen v Parliament, C‑208/03 P, EU:C:2005:429, paragraph 46).
18      In the present case, the action for annulment is directed against a Commission act, the alleged existence of which is indicated by the applicant by reference to various emails and communications. It is, therefore, necessary to examine whether that act, in the light of its content, the factual and legal context of which it forms part and the intention and powers of the Commission, may be classified as a decision adversely affecting the applicant.
19      First, as regards the email sent to the applicant by the Commission’s
services on 29 March 2024, it should be noted that that email does not contain any reference to any decision taken by the Commission or by the EASA, or to any provision conferring on the Commission the power to adopt a decision relating, in particular, to the flight ban concerning the applicant. As the Commission observes, although its member of staff, the author of the email, provided, in the context of an exchange of views requested by the applicant, some explanations concerning the reasons justifying the inclusion of the applicant’s aircraft on the list of aircraft subject to a flight ban, those explanations were not given in the context of any decision-making procedure and do not mean that the Commission was empowered to impose such a flight ban on the applicant under Article 3d or Article 12 of Regulation No 833/2014. On the contrary, the email of 29 March 2024 informed the applicant of the fact that the information which had led to the inclusion of its aircraft in the list at issue came from a Member State. This is consistent with the role of the Commission under Article 3d of Regulation No 833/2014, namely that of gathering and disseminating information enabling the list of authorised aircraft to be drawn up, on the basis of the decisions of the competent national authorities.
20      In that regard, it should be noted that the provisions contained in Article 3d of Regulation No 833/2014 are of general application and must be implemented by the competent national authorities, which, where appropriate, are to adopt individual measures to enforce them. Moreover, under Article 8(1) of Regulation No 833/2014, as amended, in the version applicable in the present case, the Member States are also to lay down the rules on penalties applicable to infringements of the provisions of that regulation and are to take all measures necessary to ensure that they are implemented (order of 29 April 2024, Global 8 Airlines v Commission, T‑277/23, not published, under appeal, EU:T:2024:285, paragraph 40).
21      Thus, it is for the Member States to ensure the implementation of Article 3d of Regulation No 833/2014, inter alia, in the context of the processing of flight plans submitted by the aircraft operators concerned (order of 29 April 2024, Global 8 Airlines v Commission, T‑277/23, not published, under appeal, EU:T:2024:285, paragraph 41).
22      It follows from those considerations that a flight ban under Article 3d of Regulation No 833/2014 is not prima facie an act attributable to the Commission. The legal context of the implementation of flight bans and the division of the roles between the Commission, the Member States, Eurocontrol and the EASA preclude the contested act from being regarded as a measure intended to produce binding legal effects in respect of the applicant, within the meaning of the case-law cited in paragraph 17 above.
23      The fact that the email sent to the applicant on 29 March 2024 was sent by a member of the Commission’s staff in response to emails from the applicant in which the latter expressly requested the Commission’s Directorate-General (DG) for Mobility and Transport to state its position on the flight ban concerning it does not call into question such a conclusion.
24      Indeed, the mere fact that correspondence, be it by letter or by email, is sent by an EU institution in response to a request made by its addressee is not such as to demonstrate the existence of an actionable measure pursuant to the fourth paragraph of Article 263 TFEU. That is all the more so where, as in the present case, that correspondence originates from a mere member of staff of the Commission (see order of 29 April 2024, Global 8 Airlines v Commission, T‑277/23, not published, under appeal, EU:T:2024:285, paragraph 51 and the case-law cited).
25      Next, it is true that, in their email to the applicant of 28 March 2024, the German authorities refer to a communication from the Commission. However, it should be noted – like the case of correspondence between the Commission’s services and the applicant – that the Commission’s services communications sent to a Member State do not prove the existence of binding measures taken by the Commission in the implementation of Regulation No 833/2014, that being a matter for the Member States. The fact that the German authorities stated, also in response to emails from the applicant, that the applicant had to approach DG Mobility and Transport cannot support the argument that, in the present case, the Commission had the power to adopt a binding act capable of producing binding legal effects in respect of the applicant.
26      Last, the fact that the EASA referred, in its email of 29 March 2024 to the applicant, to the Commission’s communication and to the list of authorised aircraft mentioned in its file management portal concerning the authorisation of third-country operators and relating also to the applicant’s aircraft does not mean that the Commission took or was empowered to take a binding decision. As the Commission observes, in view of the applicable legal framework for the processing of third-country operator authorisation requests, it is the EASA and, in some cases, Member States which take decisions with respect to the validity of third-country operator authorisations. The Commission merely assists the EASA and Member States, by exercising in particular the role of gatherer and distributor of information on the list at issue.
27      Thus, none of the emails or communications referred to in the application for interim measures indicate, prima facie, the existence of a binding decision of the Commission.
They prove, at most, the existence of contact between the applicant and the Commission’s internal department responsible for monitoring air transport issues. By the emails in question, the Commission merely informed relevant agencies, third countries, and authorities, as well as the applicant, about the Member States’ decisions and their assessments taken in the implementation of Regulation No 833/2014.
28      In the light, first, of the case-law referred to in paragraph 17 above – relating to the content and substance of the contested act – and the Commission’s intention and, second, of the Commission’s powers and the context in which the contested act was adopted, it cannot, therefore, be concluded that the contested act produces binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in its legal position.
29      Furthermore, since it is for the Member States to ensure the implementation of Article 3d of Regulation No 833/2014, it is also for the Member States, in accordance with the second subparagraph of Article 19(1) TEU, to provide remedies sufficient to ensure effective legal protection in that field (see, to that effect, order of 29 April 2024, Global 8 Airlines v Commission, T‑277/23, not published, under appeal, EU:T:2024:285, paragraph 54).
30      In the light of all the foregoing considerations, it seems manifest, prima facie, that the contested act does not constitute an act against which an action for annulment may be brought under Article 263 TFEU.
31      It follows that, since the action in the main proceedings is, prima facie, manifestly inadmissible, the application for interim measures
must be dismissed as inadmissible on that basis.
The application to intervene
32      Since the present order dismisses the application for interim measures brought by the applicant, there is no longer any need, in the interests of procedural efficiency, to adjudicate on the Federal Republic of Germany’s application to intervene in support of the form of order sought by the Commission.
Costs
33      In the circumstances of the present case, pursuant to Article 144(10) of the Rules of Procedure, each party is to bear its own costs relating to the application to intervene.
34      Under Article 158(5) of the Rules of Procedure of the General Court, the remainder of the costs must be reserved.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1.      The application for interim measures is dismissed.
2.      There is no longer any need to adjudicate on the Federal Republic of Germany’s application to intervene.
3.      Each party shall bear its own costs relating to the Federal Republic of Germany’s application to intervene.
4.      The costs are reserved as to the remainder.
Luxembourg, 6 August 2024.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.