ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
30 August 2024 (*)
( Intervention – Interest in the result of the case – Request for confidentiality )
In Case T‑1113/23,
Aleksandra Melnichenko, residing in Saint-Moritz (Switzerland), represented by A. Miron, D. Müller, H. Bajer Pellet, R. Piéri, A. Beauchemin, lawyers, and C. Zatschler, Senior Counsel,
applicant,
v
Council of the European Union, represented by B. Driessen, acting as Agent, and by S. Remy and B. Maingain, lawyers,
defendant,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
makes the following
Order
1        By her action under Article 263 TFEU, the applicant, Mrs Aleksandra Melnichenko, seeks the annulment of Council Decision (CFSP) 2023/1767 of 13 September 2023 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2023 L 226, p. 104), and of Council Implementing Regulation (EU) 2023/1765 of 13 September 2023 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2023 L 226, p. 3) (together, ‘the contested measures’) in so far as those measures affect her.
Facts and procedure
2        On 13 September 2023, the Council of the European Union adopted the contested measures, by which it decided to maintain the applicant’s name on the lists of persons and entities included, first, in the annex to Council Decision 2014/145/CFSP of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 16) and, secondly, in Annex I to Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 6) (‘the lists at issue’). The consequence of maintaining the applicant’s name on the lists at issue is, in particular, the freezing of funds and economic resources belonging to her or owned, held or controlled by her.
3        By application lodged at the General Court Registry on 24 November 2023, the applicant brought an action for annulment of the contested measures.
4        By a document lodged at the Court Registry on 14 March 2024, Siberian Coal Energy Company JSC (‘SUEK’) applied for leave to intervene in support of the form of order sought by the applicant.
5        The application for leave to intervene was served on the main parties in accordance with Article 144(1) of the Rules of Procedure of the General Court.
6        By document lodged at the Court Registry on 12 April 2024, the Council rejected SUEK’s application for leave to intervene and requested that SUEK be ordered to pay the costs relating to that application for leave to intervene.
7        By a document lodged at the Court Registry on 24 April 2024, the applicant raised no objection to the application for leave to intervene. In addition, the applicant requested that, in accordance with Article 144(5) and (7) of the Rules of Procedure, certain confidential elements of the file be excluded from the communication to SUEK in the event that the latter was granted leave to intervene and, for the purposes of that communication, produced a non-confidential version of the application and of certain documents annexed thereto.
Law
8        In accordance with the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that statute, any person establishing an interest in the result of a case submitted to the General Court, save in cases between Member States, between EU institutions or between Member States and EU institutions, has the right to intervene in that case.
9        It follows from settled case-law that the concept of an ‘interest in the result of the case’, within the meaning of the second paragraph of Article 40 of the Statute, must be defined in the light of the precise subject matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law or arguments put forward. The words ‘result of a case’ refer to the final decision sought, as set out in the operative part of the future judgment (see order of the Vice-President of the Court of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑362/15 P(I), EU:C:2015:682, paragraph 6, and the case-law cited).
10      In that regard, it must be ascertained, in particular, that the applicant for leave to intervene is directly affected by the contested measure and that its interest in the result of the case is certain (see, to that effect, order of the President of the Court of 25 January 2008, Provincia di Ascoli Piceno and Comune di Monte Urano v Sun Sang Kong Yuen Shoes Factory, C‑461/07 P(I), not published, EU:C:2008:46, paragraph 5). In principle, an interest in the result of the case can be considered to be sufficiently direct only in so far as that result is capable of altering the legal position of the applicant for leave to intervene (order of the Vice-President of the Court of 22 February 2022, Fastweb v Commission, C‑649/21 P(I), EU:C:2022:171, paragraph 36 and the case-law cited).
11      That being so, it should be made clear that the question of the existence of an interest in the result of the case, on which the admissibility of an application for leave to intervene under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union depends, is different from the question whether a person has standing as an applicant for the purpose of the fourth paragraph of Article 263 TFEU (see, to that effect, order of 10 November 2020, Nevinnomysskiy Azot and NAK ‘Azot’ v Commission, T‑865/19, not published, EU:T:2020:570, paragraph 19 and the case-law cited).
12      It is for the applicant for leave to intervene to adduce the necessary evidence to prove that it satisfies the conditions set out in paragraphs 9 to 11 above (see order of 27 April 2018, E-Control v ACER, T‑332/17, not published, EU:T:2018:294, paragraph 16 and the case-law cited).
13      It is in the light of the case-law set out in paragraphs 9 to 12 above that it is necessary to consider whether the applicant has an interest in the result of the case.
14      SUEK is mentioned in the statement of reasons given by the Council, on the lists at issue, in support of the inclusion of the applicant’s name on those lists (‘the relevant reasons for the contested measures’). Those reasons read as follows:
‘Aleksandra Melnichenko is the wife of Andrey Melnichenko, a Russian industrialist who transferred his effective ownership and benefit of the major fertiliser producer EuroChem Group and the coal company SUEK to her on 9 March 2022.
…’
15      In support of its application for leave to intervene, SUEK maintains that it has a direct and present interest in the result of the case. It submits that the statement in the relevant reasons for the contested measures that the applicant has, in particular, the effective benefit of SUEK, alters the latter’s legal position. The indication that SUEK is owned or controlled by the applicant had the consequence, first, that economic operators in the Union felt obliged to sever their relations with SUEK or refrained from establishing them and, secondly, that various service providers froze SUEK’s bank accounts and refused to make payments to it.
16      SUEK takes the view that annulment of the contested measures, in so far as they concern and affect the applicant, would lead to the removal of the relevant grounds for the contested measures, leading in particular the Member States and economic operators in the European Union to lift the measures taken against it.
17      The Council maintains that SUEK has no direct and present interest in the result of the case.
18      In the Council’s view, first, SUEK has not demonstrated any economic interest in the result of the case, since a large proportion of the breaches of contract which it alleges are due, on the one hand, to measures taken by the United Kingdom or Swiss authorities and, on the other hand, are the consequence not of the inclusion of the applicant’s name on the lists at issue, but of the prohibition on the purchase, import or transport within the European Union of coal originating in Russia, imposed by Council Regulation (EU) No 2022/576 of 8 April 2022 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2022 L 111, p. 1). Moreover, the majority of the contract terminations invoked by SUEK took place before the applicant’s name was included on the lists at issue.
19      Secondly, SUEK has no legal interest in the result of the case. The applicant remains the economic owner of SUEK, in that she is able to control it together with her spouse. In that regard, the Council contends that the question whether SUEK is legally part of the applicant’s frozen assets does not form part of the subject matter of the dispute, in so far as the contested measures are based, to the requisite legal standard, on actual control of SUEK. Accordingly, consideration of that question would, in the Council’s view, run counter to the prohibition on extending the scope of the dispute, laid down in Article 142(3) of the Rules of Procedure.
20      It should be noted that, under Article 2(1), in fine, of Decision 2014/145, as amended, and Article 2(1) of Regulation No 269/2014, as amended, the funds and economic resources which the persons whose names appear on the lists at issue own, hold or control must be frozen. Furthermore, in accordance with Article 2(2) of Decision 2014/145, as amended, and Article 2(2) of Regulation No 269/2014, as amended, no funds or economic resources are to be made available, directly or indirectly, to or for the benefit of the persons whose names appear on the lists at issue.
21      Those provisions imply, first, that the funds and economic resources of legal persons and entities owned or controlled by the persons whose names appear on the lists at issue must be frozen by the competent authorities of the Member States and, secondly, that EU economic operators are prohibited from making funds available to or for the benefit of such legal persons and entities.
22      It follows that the measure including or maintaining the name of a person on the lists at issue produces, through Article 2 of Decision 2014/145, as amended, and Article 2 of Regulation No 269/2014, as amended, legal effects on the legal persons and entities owned or controlled by such a person.
23      In the present case, it is common ground that the competent authorities of certain Member States froze the funds and economic resources of SUEK, following the inclusion of the applicant’s name on the lists at issue, pursuant to Article 2 of Decision 2014/145, as amended, and Article 2 of Regulation No 269/2014, as amended. Also, the Council does not dispute that, pursuant to those provisions, subsequent to the inclusion of the applicant’s name on the lists at issue, certain economic operators in the European Union terminated the contracts binding them to SUEK.
24      In those circumstances, if they were to be annulled, the contested measures could no longer serve as a basis either for the competent authorities of the Member States to decide to freeze SUEK’s funds and economic resources, or for economic operators in the European Union to sever their contractual relations with it, pursuant to Article 2 of Decision 2014/145, as amended, and Article 2 of Regulation No 269/2014, as amended. Thus, annulment of the contested measures is likely to alter SUEK’s legal position, within the meaning of the case-law referred to in paragraph 10 above, and that company therefore has a direct and present interest in the applicant’s claims that such annulment be upheld.
25      Such a conclusion applies irrespective of whether, as the Council submits, the breaches of contract relied on by the applicant for leave to intervene are largely the result of the measures taken by the Swiss or United Kingdom authorities. The application of Article 2 of Decision 2014/145, as amended, and Article 2 of Regulation No 269/2014, as amended, is not conditional on those measures, and produces autonomous legal effects. Furthermore, with regard to the Council’s argument based on the prohibitions arising from its Regulation 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), as amended, in particular that of importing coal originating in Russia, it must be noted that those prohibitions do not affect the freezing of SUEK’s funds and economic resources, decided at national level as a consequence of the inclusion of the applicant’s name on the lists at issue, in accordance with Article 2(1) of Decision 2014/145, as amended, and Article 2(1) of Regulation No 269/2014, as amended.
26      Nor can that conclusion be called into question by the Council’s arguments based on the scope of the dispute. The question whether SUEK is owned or controlled by the applicant within the meaning of Article 2 of Decision 2014/145, as amended, and Article 2 of Regulation No 269/2014, as amended, does not form part of the subject matter of the case, since the examination of that question falls, in particular, to the competent authorities of the Member States when they are called upon to rule on whether or not to order the freezing of that company’s funds and economic resources. The annulment of the contested measures is, in itself, capable of conferring a benefit on SUEK, by depriving the measures taken by those authorities under Article 2 of Decision 2014/145, as amended, and Article 2 of Regulation No 269/2014, as amended, of their basis (see paragraph 24 above).
27      Accordingly, SUEK should be granted leave to intervene in the dispute.
28      With regard to the applicant’s application for confidential treatment of certain information, communication to SUEK of the procedural documents served and, where applicable, to be served on the main parties must, at this stage, be limited to a non-confidential version. A decision on the merits of the request for confidentiality will, if necessary, be taken at a later date in the light of any objections that may be raised in that regard.
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
hereby orders:
1.      Siberian Coal Energy Company JSC is granted leave to intervene in Case T‑1113/23 in support of the form of order sought by Mrs Aleksandra Melnichenko.
2.      The Registrar shall send a non-confidential version of all the procedural documents served on the main parties to Siberian Coal Energy Company.
3.      A period shall be prescribed within which Siberian Coal Energy Company may submit any objections that it may have regarding the application for confidential treatment. The decision on the merits of that application is reserved.
4.      A period shall be prescribed within which Siberian Coal Energy Company may submit a statement in intervention, without prejudice to the possibility of supplementing it later, if necessary, further to a decision on the merits of the application for confidential treatment.
5.      The costs are reserved.
Luxembourg, 30 August 2024.
V. Di Bucci
I. Gâlea
Registrar
Acting President of the Chamber
*      Language of the case: English.