ORDER OF THE GENERAL COURT (First Chamber)
21 October 2024 (*)
( Action for annulment – Common foreign and security policy – Restrictive measures taken in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine – Freezing of funds – List of persons, entities and bodies subject to the freezing of funds and economic resources – Reference to the applicant’s name in the grounds for including another person’s name on the list – No act adversely affecting the applicant – Inadmissibility )
In Case T‑1111/23,
EuroChem Group AG, established in Zug (Switzerland), represented by G. Forwood and J. Killick, lawyers,
applicant,
v
Council of the European Union, represented by A. Antoniadis and A. Boggio‑Tomasaz, acting as Agents, and by E. Raoult, lawyer,
defendant,
THE GENERAL COURT (First Chamber),
composed of M. Brkan, acting as President, I. Gâlea (Rapporteur) and S.L. Kalėda, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
makes the following
Order
1        By its action under Article 263 TFEU, the applicant, EuroChem Group AG, seeks 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 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) (‘the September 2023 acts’), and, further to the modification of the application, of Council Decision (CFSP) 2024/847 of 12 March 2024 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ L 2024/847) and Council Implementing Regulation (EU) 2024/849 of 12 March 2024 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 L 2024/849) (‘the March 2024 acts’), in so far as those acts (together, ‘the contested acts’) mention the applicant’s name in the grounds thereof.
Background to the dispute
2        The applicant is a company established in Switzerland, and is active in the market for mineral fertilisers.
3        The present case arises in the context of the restrictive measures taken in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine.
4        On 17 March 2014, the Council of the European Union adopted, pursuant to Article 29 TEU, Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 16). That same day, it adopted, pursuant to Article 215 TFEU, Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 6).
5        On 24 February 2022, the President of the Russian Federation announced a military operation in Ukraine and, on the same day, Russian armed forces attacked Ukraine at several locations in the country.
6        On 25 February 2022, in view of the gravity of the situation, the Council adopted Decision (CFSP) 2022/329 amending Decision 2014/145 (OJ 2022 L 50, p. 1) and Regulation (EU) 2022/330 amending Regulation No 269/2014 (OJ 2022 L 51, p. 1) in order, inter alia, to amend the criteria according to which natural or legal persons, entities or bodies could be subject to restrictive measures.
7        Article 2(1) and (2) of Decision 2014/145, as amended, provides as follows:
‘1.      All funds and economic resources belonging to, or owned, held or controlled by:
(a)      natural persons responsible for, supporting or implementing actions or policies which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine, or stability or security in Ukraine, or which obstruct the work of international organisations in Ukraine;
…
(d)      natural or legal persons, entities or bodies supporting, materially or financially, or benefitting from Russian decision-makers responsible for the annexation of Crimea or the destabilisation of Ukraine;
…
(f)      natural or legal persons, entities or bodies supporting, materially or financially, or benefitting from the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine; or
(g)      leading businesspersons or legal persons, entities or bodies involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine,
and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be
frozen.
2.      No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in the Annex.’
8        The detailed rules governing that freezing of funds are laid down in the subsequent paragraphs of Article 2 of Decision 2014/145.
9        Regulation No 269/2014, as amended, provides for the adoption of measures for the freezing of funds in terms essentially identical to those of Decision 2014/145, as amended. Article 3(1)(a) to (g) of that regulation essentially reproduces Article 2(1)(a) to (g) of that decision.
10      Article 2(1) and (2) of Regulation No 269/2014, as amended, provides as follows:
‘1.      All funds and economic resources belonging to, owned, held or controlled by any natural or legal persons, entities or bodies, or natural or legal persons, entities or bodies associated with them, as listed in Annex I, shall be frozen.
2.      No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies, or natural or legal persons, entities or bodies associated with them, as listed in Annex I.’
11      On 9 March 2022, the Council adopted Decision (CFSP) 2022/397 amending Decision 2014/145 (OJ 2022 L 80, p. 31) and Implementing Regulation (EU) 2022/396 implementing Regulation No 269/2014 (OJ 2022 L 80, p. 1), by which it added the names of several persons, including Mr Andrey Melnichenko, to the lists of natural or legal persons, entities and bodies subject to restrictive measures set out in the annex to Decision 2014/145 and in Annex I to Regulation No 269/2014 (‘the lists at issue’).
12      On 15 March 2022, the Council adopted Decision (CFSP) 2022/429 amending Decision 2014/145 (OJ 2022 L 87I, p. 44) and Implementing Regulation (EU) 2022/427 implementing Regulation No 269/2014 (OJ 2022 L 87I, p. 1), by which it added the names of several persons to the lists at issue, including Mr Vladimir Rashevsky.
13      On 3 June 2022, the Council adopted Decision (CFSP) 2022/883 amending Decision 2014/145 (OJ 2022 L 153, p. 92) and Implementing Regulation (EU) 2022/878 implementing Regulation No 269/2014 (OJ 2022 L 153, p. 15), by which it added the names of several persons to the lists at issue, including Mrs Alexandra Melnichenko.
14      On 14 September 2022, the Council adopted Decision (CFSP) 2022/1530 amending Decision 2014/145 (OJ 2022 L 239, p. 149) and Implementing Regulation (EU) 2022/1529 implementing Regulation No 269/2014 (OJ 2022 L 239, p. 1), by which it extended the restrictive measures taken against Mr Rashevsky and against Mr
and Mrs Melnichenko until 15 March 2023. On 13 March 2023, the Council adopted Decision (CFSP) 2023/572 amending Decision 2014/145 (OJ 2023 L 75I, p. 134) and Implementing Regulation (EU) 2023/571 implementing Regulation No 269/2014 (OJ 2023 L 75I, p. 1) (‘the March 2023 acts’), by which it extended those measures until 15 September 2023.
15      On 25 May 2023, the applicant brought an action, registered under case number T‑293/23, seeking, in particular, annulment of the March 2023 acts in so far as they mentioned its name in the grounds for including Mr Rashevsky and Mr
and Mrs Melnichenko on the lists at issue.
16      On 5 June 2023, the Council adopted Decision (CFSP) 2023/1094 amending Decision 2014/145 (OJ 2023 L 146, p. 20) and Regulation (EU) 2023/1089 implementing Regulation No 269/2014 (OJ 2023 L 146, p. 1). By way of those acts, the Council amended the listing criterion laid down in Article 2(1)(g) of Decision 2014/145, as amended, and in Article 3(1)(g) of Regulation No 269/2014, as amended, in order that that criterion might allow the freezing of funds and economic resources belonging to ‘leading businesspersons operating in Russia and their immediate family members, or other natural persons, benefitting from them, or businesspersons, legal persons, entities or bodies involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine’.
17      On 13 September 2023, the Council adopted the September 2023 acts, by way of which it again extended the restrictive measures taken against Mr Rashevsky and against Mr and Mrs Melnichenko until 15 March 2024.
18      By the September 2023 acts, first, the name of Mr Rashevsky was maintained on the lists at issue on the following grounds:
‘Vladimir Rashevsky is the former CEO and Director of EuroChem Group AG, having formally resigned from that position when listed under restrictive measures by the Union, whilst he continues to exert influence through shell companies. EuroChem is one of the world’s largest producers of mineral fertilisers. Previously (between 2004 and
2020) he was the CEO of a coal company JSC SUEK. These are major Russian companies – co-owned by Aleksandra Melnichenko, the wife of Russian billionaire Andrei Melnichenko – which generate and provide substantial revenue to the Russian government. They also cooperate with Russian authorities, including Vladimir Putin. EuroChem Group companies supplied ammonia nitrate to the occupied areas of Donbas. SUEK signed contracts with Crimean sanatoriums for employee’s health programs.
He is therefore supporting, materially or financially, or benefitting from the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine.
On 24 February 2022, Rashevsky attended a meeting of oligarchs at the Kremlin with Vladimir Putin to discuss the impact of the course of action in the wake of Western sanctions. The fact that he was invited to attend that meeting shows that he is a member of the inner circle of oligarchs close to Vladimir Putin and that he is supporting or implementing actions or policies which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine, as well as stability and security in Ukraine.’
19      Second, the name of Mr Melnichenko was maintained on the lists at issue on the following grounds:
‘Andrey Melnichenko is a Russian industrialist who continues to control major fertiliser producer EuroChem Group and coal company SUEK. Since 9 March 2022, Melnichenko transferred his interests in SUEK and Eurochem Group to his spouse, Aleksandra Melnichenko. He continues to benefit from the wealth he transferred to his wife.
Andrey Melnichenko belongs to the most influential circle of Russian businesspersons with close connections to the Russian Government. On 24 February 2022, in the aftermath of the initial stages of Russia’s war of aggression against Ukraine, Andrey Melnichenko, along with 36 other businesspersons, met with the President of the Russian Federation Vladimir Putin and other members of the Russian government to discuss the impact of the course of action in the wake of Western sanctions, thus exemplifying his importance as a leading businessperson in Russia. Moreover, he was among the leading Russian businesspersons who participated in the congress of the Russian Union of Industrialists and Entrepreneurs in March
2023, where the President of the Russian Federation Vladimir Putin gave a speech and urged billionaires to put “patriotism before profit”.
Those elements show that he is a leading businessperson involved in economic sectors providing a substantial source of revenue to the Government of Russia, which is responsible for the annexation of Crimea and the destabilisation of Ukraine.’
20      Third, the name of Mrs Melnichenko was maintained on the lists at issue on the following grounds:
‘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.
Aleksandra Melnichenko takes advantage of the fortune and benefits from the wealth of her husband. In March 2022, Aleksandra Melnichenko replaced her husband as the beneficial owner of Firstline Trust, managed by Linetrust PTC Ltd, a company which represents the ultimate owner of EuroChem Group.
Therefore, she is an immediate family member benefitting from her husband Andrey Melnichenko and linked to him by common financial interests.’
21      It is in that context that the applicant brought the present action on 24 November 2023.
Events subsequent to the bringing of the action
22      On 12 March 2024, the Council adopted the March 2024 acts, by way of which it again extended the restrictive measures taken against Mr Rashevsky and against Mr and Mrs Melnichenko until 15 September 2024.
23      By way of the March 2024 acts, first, the Council essentially maintained the name Mr Rashevsky on the lists at issue on grounds identical to those relied upon in the September 2023 acts, adding to those grounds the mention that he is ‘a member of the supervisory board of Association Market Council’.
24      Second, the Council relied on the following grounds in order to maintain the name of Mr Melnichenko on the lists at issue:
‘Andrey Melnichenko is a Russian industrialist who continues to control major fertiliser producer EuroChem Group and coal company SUEK. Since 9 March 2022, Melnichenko transferred his interests in SUEK and Eurochem Group to his spouse, Aleksandra Melnichenko. He continues to benefit from the wealth he transferred to his wife. During 2022, his wealth more than doubled, which made him the richest person in Russia in
2023.
Andrey Melnichenko belongs to the most influential circle of Russian businesspersons with close connections to the Russian government, as is evident from his involvement with the Russian Union of Industrialists and Entrepreneurs, where he holds the position of member of the Bureau of the Board. On 24 February 2022, in the aftermath of the initial stages of Russia’s war of aggression against Ukraine, Andrey Melnichenko, along with 36 other businesspersons, met with the President of the Russian Federation, Vladimir Putin, and other members of the Russian government to discuss the impact of the course of action in the wake of Western sanctions, thus exemplifying his importance as a leading businessperson in Russia. Moreover, he was among the leading Russian businesspersons who participated in the congress of the Russian Union of Industrialists and Entrepreneurs in March
2023, where the President of the Russian Federation, Vladimir Putin, gave a speech and urged billionaires to put “patriotism before profit”.
Those elements show that he is a leading businessperson involved in economic sectors providing a substantial source of revenue to the Government of Russia, which is responsible for the annexation of Crimea and the destabilisation of Ukraine.’
25      Third, the Council maintained the name of Mrs Melnichenko on the lists at issue, without altering the grounds relating to her by comparison to those relied upon in the September 2023 acts.
26      On 22 May 2024, the applicant lodged a statement of modification of the application.
27      By order of 3 July 2024, EuroChem Group v Council (T‑293/23, not published, EU:T:2024:444), the General Court inter alia dismissed as inadmissible the action seeking annulment in part of the March 2023 acts in so far as they mentioned the name of the applicant in the grounds for listing Mr Rashevsky and Mr and Mrs Melnichenko.
28      By judgment of 10 July 2024, Rashevsky v Council (T‑309/22 and T‑739/22, not published, EU:T:2024:455), the General Court annulled, in particular, the September 2023 acts in so far as they maintained the name of Mr Rashevsky on the lists at issue.
Forms of order sought
29      The applicant claims that the Court should:
–        annul the contested acts, in so far as they mention the applicant’s name in the grounds thereof;
–        in the alternative, in the event that the plea of inadmissibility is upheld, declare that competent national authorities and EU operators are required to act in good faith, within the meaning of Article 10(1) of Regulation No 269/2014, in determining wholly autonomously whether the applicant is owned or controlled by persons whose names are included on the lists at issue, irrespective of the reference to its name in the grounds for such listings, on the basis of such evidence as may be available to them;
–        order the Council to pay the costs.
30      In a plea of inadmissibility raised under Article 130 of the Rules of Procedure of the General Court, and in its observations on the statement of modification, the Council contends that the Court should:
–        dismiss the action as inadmissible;
–        order the applicant to pay the costs.
Law
31      Under
Article 126 of the Rules of Procedure, where it is clear that the Court has no jurisdiction to hear and determine an action, it may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings. Furthermore, under Article 130(1) and (7) of the Rules of Procedure, on application by the defendant, the Court may decide on inadmissibility or lack of competence without going to the substance of the case.
32      In the present case, the Court, taking the view that it has sufficient information from the material in the case file, has decided to give a decision without taking further steps in the proceedings.
The form of order sought in the alternative, submitted for the first time in the observations on the plea of inadmissibility
33      In its observations on the plea of inadmissibility, the applicant submits for the first time a form of order sought in the alternative. By that form of order, it asks that the Court declare that competent national authorities and EU operators are required to act in good faith, within the meaning of Article 10(1) of Regulation No 269/2014, in determining wholly autonomously, on the basis of such evidence as may be available to them, whether the applicant is owned or controlled by persons whose names are included on the lists at issue, irrespective of the mention of its name in the grounds for such listings.
34      In that regard, it should be recalled that in proceedings before the Courts of the European Union, there is no remedy whereby the Courts can adopt a position by means of a general declaration or statement of principle
(see judgment of 21 March 2012, Fulmen and Mahmoudian v Council, T‑439/10 and T‑440/10, EU:T:2012:142, paragraph 41 and the case-law cited).
35      In the present case, it follows from the wording of the request described in paragraph 33 above that, by that request, the applicant is asking the Court to give a ruling in the abstract.
36      Consequently, the form of order sought in the alternative, submitted for the first time in the observations on the plea of inadmissibility, must be rejected on the ground that the Court clearly lacks jurisdiction to hear and rule on that form of order.
The principal form of order, seeking annulment in part of the contested acts in so far as they mention the name of the applicant in the grounds thereof
37      The Council contends that the claim for annulment in part of the contested acts is inadmissible.
38      In that connection, the Council submits that although it relied on grounds relating to the applicant in the contested acts, those grounds are merely observations intended to support the individual inclusion of the names of Mr Rashevsky and of Mr
and Mrs Melnichenko on the lists at issue. Accordingly, the applicant does not challenge the operative part of those acts, but only part of the grounds thereof which do not produce binding legal effects in relation to it. That means, moreover, that the applicant has no interest in bringing proceedings or standing to bring proceedings against those acts.
39      The applicant challenges the plea of inadmissibility raised by the Council and maintains that it is entitled to seek annulment in part of the contested acts.
40      It takes the view that, by mentioning its name in the grounds for including the names of Mr Rashevsky and of Mr
and Mrs Melnichenko on the lists at issue, the contested acts suggest the existence of a decision which produces binding legal effects that affect the applicant’s interests. Thus, the applicant also has legal standing and an interest in bringing an action against that decision.
41      First of all, the applicant states that, in the grounds for including Mr Rashevsky and Mr and Mrs Melnichenko on the lists at issue, the Council portrayed the applicant as being owned, held or controlled by Mr
and Mrs Melnichenko and under the influence of Mr Rashevsky, which also implies control on the latter’s part (‘the contested statements’). Thus, pursuant to Article 2 of Regulation No 269/2014, as amended, (i) the authorities of certain Member States froze the applicant’s funds and economic resources on the basis of those statements, and (ii) certain EU economic operators decided to sever their contractual relations with it.
42      The applicant thus claims that, by way of the contested statements, the Council established a presumption under which the applicant was regarded as being owned or controlled by persons whose names are included on the lists at issue, with it having to rebut that presumption by proving the absence of such ownership or control. That interpretation is supported, it is argued, by a document published on the website of the European Commission intended to answer frequently asked questions (‘the Commission’s FAQs’).
43      The applicant further states that the contested statements allow its contractual partners, pursuant to Article 10(1) of Regulation No 269/2014, to escape liability for refusing to perform their contracts with the applicant.
44      Next, the applicant states that its situation is different from the situation which gave rise to the order of 7 September 2022, Prigozhin v Council (T‑75/22, not published, EU:T:2022:534), since the applicant in that case was said to finance an entity subject to restrictive measures, which could not result in him being regarded as being subject to restrictive measures himself. In the present case, the applicant argues that its situation more closely resembles that which gave rise to the judgment of 22 June 2021, Venezuela v Council (Whether a third State is affected) (C‑872/19 P, EU:C:2021:507), since the applicant is, like the applicant State in that case, legally prevented from receiving the supply of goods and services from EU operators on account of the contested statements.
45      Furthermore, the applicant claims that the references to its name in the statements of reasons at issue are incorrect and damage its reputation in the exercise of its activity.
46      Finally, according to the applicant, the fact that it is impossible for it to challenge, on the basis of Article 263 TFEU, an act the consequence of which is to make the applicant subject to restrictive measures deprives it of any legal remedy in that connection, and thus disregards the principle of effective judicial protection guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
47      According to settled case-law, measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his or her legal position may be the subject of an action for annulment under Article 263 TFEU
(see judgment of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 54 and the case-law cited).
48      Moreover, only the operative part of an act is capable of producing binding legal effects (see judgment of 24 March 2011, Freistaat Sachsen and Land Sachsen-Anhalt v Commission, T‑443/08 and T‑455/08, EU:T:2011:117, paragraph 223 and the case-law cited).
49      In the present case, the contested acts seek, inter alia, to maintain the listing of the names of the persons subject to restrictive measures included on the lists at issue. In that regard, it should be noted at the outset that the names of Mr Rashevsky and of Mr and Mrs Melnichenko are included on the lists at issue but the applicant’s name is not, since it is not ‘listed’, within the meaning of Article 2(1), in fine, of Decision 2014/145, as amended, in the annex to that decision, or ‘listed’, within the meaning of Article 2(2) of Regulation No 269/2014, as amended, in Annex I to that regulation. The applicant’s name is mentioned only in the contested statements in connection with the maintenance on the lists at issue of the names of Mr Rashevsky and of Mr and Mrs Melnichenko.
50      In addition, it should be noted that, as the applicant clearly stated in its written pleadings, it does not seek annulment of the contested acts in so far as they maintain the names of Mr Rashevsky and of Mr and Mrs Melnichenko on the lists at issue, but only annulment thereof in so far as they affect the applicant by mentioning its name in the contested statements.
51      Thus, what the applicant seeks is the deletion of the contested statements in the grounds for listing relied on in respect of those three natural persons in the contested acts, which mention the applicant’s name, given that, according to the applicant, those statements automatically entail the taking of restrictive measures against it by portraying it as being owned by, being a source of benefit to, or being controlled by the persons whose names are included on the lists at issue.
52      In the first place, however, it should be pointed out that the contested statements are intended solely to support the individual restrictive measures taken against Mr Rashevsky and against Mr and Mrs Melnichenko, namely the freezing of their funds and the ban on their entering or transiting through the territory of the Member States. In that regard, under Article 4(1) of Decision 2014/145, as amended, and Article 3(2) of Regulation No 269/2014, as amended, the lists at issue must include the grounds justifying the listing of the persons covered by the restrictive measures.
53      Thus, the contested statements cannot in themselves constitute the definition of a legally binding position in relation to the applicant, whose name the Council did not include on the lists at issue with a view to the imposition of restrictive measures on it (see paragraph 49 above).
54      In the second place, concerning the applicant’s argument that the contested statements produce legal effects vis-à-vis it, by means of Article 2 of Regulation No 269/2014, 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, funds and economic resources ‘owned, held or controlled’ by persons whose names are included on the lists at issue must be frozen. Moreover, 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 are included on the lists at issue.
55      Those provisions mean in principle, first, that funds and economic resources of legal persons and entities owned, held or controlled by persons whose names are included on the lists at issue must be frozen by the competent authorities of the Member States and, second, that EU economic operators are prohibited from making funds available to or for the benefit of such legal persons and entities. Thus, that freezing of funds and economic resources and that prohibition on making funds and economic resources available stem from the provisions of Article 2 of Decision 2014/145, as amended, and Article 2 of Regulation No 269/2014, as amended.
56      Accordingly, it is only the operative part concerning the inclusion or maintenance of a person’s name on the lists at issue which, by virtue of Article 2 of Decision 2014/145, as amended, and Article 2 of Regulation No 269/2014, as amended, produces legal effects on legal persons and entities owned, held or controlled by such a person, as described in paragraph 55 above. In that regard, the fact that a legal person or an entity is owned, held or controlled by a person whose name is included on the lists at issue must be established, in the case of the freezing of funds and economic resources, by the authorities of the Member States, and, where appropriate, in the case of the prohibition laid down in Article 2(2) of Decision 2014/145, as amended, and in Article 2(2) of Regulation No 269/2014, as amended, by the persons required to comply with those provisions.
57      In those circumstances, contrary to what the applicant claims, the contested
statements cannot be regarded as affecting its legal position by requiring the authorities of the Member States to freeze its funds and economic resources and by prohibiting EU economic operators from making funds and economic resources available to it or for its benefit.
58      Consequently, first, it is also necessary to reject the applicant’s argument that its situation is different from that at issue in the order of 7 September 2022, Prigozhin v Council (T‑75/22, not published, EU:T:2022:534), in which the applicant in that case had been described only as financing an entity subject to restrictive measures in the grounds relied on against that entity, not as being owned by or belonging to such an entity. In common with the part of the grounds challenged in the case which gave rise to that order, the contested
statements in the present case do not produce legal effects vis-à-vis the applicant (see paragraph 57 above).
59      Second, the applicant’s argument based on the judgment of 22 June 2021, Venezuela v Council (Whether a third State is affected) (C‑872/19 P, EU:C:2021:507), must also be rejected. That case in fact concerned an act the operative part of which expressly imposed a prohibition on supplying various goods and services to the Bolivarian Republic of Venezuela, and which therefore directly produced binding legal effects on the legal situation of the applicant third State, which is not the case here.
60      Third, the absence of any binding legal effects produced by the contested statements also cannot be called into question by the applicant’s arguments based on the Commission’s FAQs.
61      Having regard to the nature and content thereof, the Commission’s FAQs merely constitute information with no binding legal effect, which is borne out by the introduction thereto, worded as follows:
‘This document is a working document drafted by the Commission services to give guidance to national authorities, EU operators and citizens for the implementation and the interpretation of Council Regulation (EU) No 833/2014, Council Regulation (EU) No 269/2014, Council Regulation (EU) No 692/2014 and Council Regulation (EU) 2022/263. … Only the Court of Justice of the [European Union] is competent to interpret EU law.
National authorities and economic operators may make use of this guidance based on the text, context and purpose of the aforementioned regulations, to achieve the uniform application of sanctions across the [European Union].’
62      In any event, while it is true that, in that document, the Commission states, in response to frequently asked question No 2 under Section B.1, that restrictive measures ‘can affect transactions with … persons, entities or bodies associated with [persons whose names are included on the lists at issue], some of which happen to be mentioned in the “Identifying information” and/or “Reasons” columns [of the lists at issue]’, it also states, immediately thereafter, that ‘operators need to exert the highest caution when dealing with associated persons or entities’ since ‘if … entities [not included on the lists at issue] are deemed to be owned or controlled by … persons or entities [the names of which are included on such lists], their assets must be frozen as well, and no funds or economic resources can be made available to them’.
63      Accordingly, while the Commission observes that the grounds relied upon against a person whose name is included on the lists at issue may contain information on the persons or entities that that person may own, hold or control (‘some of which happen to be mentioned’), it also calls on EU operators to exercise caution when dealing with persons or entities that are ‘deemed’ to be owned or controlled by persons whose names are included on those lists, which suggests an assessment or, at the very least, checks conducted by those operators, which are therefore not bound solely by the grounds set out in those lists.
64      In the third place, the Court cannot endorse the applicant’s reliance on the fact that some national authorities considered it to be subject to restrictive measures, based on a presumption, arising from the contested statements, that it is owned or controlled by persons whose names are included on the lists at issue.
65      In that connection, it must be recalled that the Court of Justice has exclusive jurisdiction to give the definitive interpretation of EU law (see Opinion 1/17 (EU-Canada CET Agreement) of 30 April 2019, EU:C:2019:341, paragraph 111 and the case-law cited). Accordingly, even if the competent authorities of certain Member States did decide, solely on the basis of the contested statements, to make subsidiaries of the applicant subject to measures freezing their funds and economic resources, such an interpretation cannot be applied.
66      Moreover, the applicant also produces documents from the competent authorities of Member States which, despite the contested statements, took the view that some of its subsidiaries were not owned, held or controlled by one or more persons whose names were included on the lists at issue, so that those subsidiaries should not be subject to measures freezing their funds and economic resources.
67      In the fourth place, concerning the decision by some operators to break off contractual relations with the applicant, it is true that the applicant has made clear that several companies had terminated their contractual relations with it on the basis of the contested statements.
68      However, as has been stated in paragraph 57 above, the contested statements do not in themselves impose any obligation on EU economic operators as regards their conduct towards the applicant. The applicant seeks, furthermore, to confirm that certain effects on its relations with such operators are not the direct result of the contested statements themselves, when it states that those operators ‘interpreted’ those statements as requiring them to terminate their agreements with the applicant, or that they ‘treat [it]’ as subject to restrictive measures pursuant to Article 2 of Regulation No 269/2014.
69      In any event, the fact that some economic operators may have been swayed by the contested statements in deciding to sever their business ties with companies in the group headed by the applicant, or to forgo such ties, does not mean that, for that reason alone, those statements affect the applicant’s legal position, within the meaning of the case-law cited in paragraph 47 above
(see, to that effect and by analogy, order of 21 September 2012, TI Media Broadcasting and TI Media v Commission, T‑501/10, not published, EU:T:2012:460, paragraph 62).
70      As regards the applicant’s argument based on Article 10(1) of Regulation No 269/2014, as amended, it should be borne in mind that, under that provision, ‘the freezing of funds and economic resources or the refusal to make funds or economic resources available, carried out in good faith on the basis that such action is in accordance with [that regulation], shall not give rise to liability of any kind on the part of the natural or legal person or entity or body implementing it, or its directors or employees, unless it is proved that the funds and economic resources were frozen or withheld as a result of negligence.’ On the one hand, it is not apparent from that provision that the termination of business relations with a company the name of which is mentioned in the grounds for including another person on the lists at issue ought necessarily to be regarded as a termination ‘in good faith’, since the existence of such good faith requires a case-by-case examination that may vary depending on the circumstances specific to each situation. On the other hand, it is not apparent from the items of evidence produced by the applicant that such a provision was relied upon by its contractual partners in order to justify breaking off business relations with it on account of the contested statements.
71      In the last place, while the applicant claims that the dismissal of the present action as inadmissible would deprive it of all legal remedies and infringe Article 47 of the Charter, it should be recalled that the protection granted by that provision is not intended to change the system of judicial review laid down by the Treaties, and in particular the rules relating to the admissibility of direct actions brought before the Courts of the European Union (see, to that effect, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 97 and the case-law cited). Thus, while the conditions of admissibility laid down in Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, such an interpretation cannot have the effect of setting aside the conditions expressly laid down in that Treaty (see order of 9 July 2019, VodafoneZiggo Group v Commission, T‑660/18, EU:T:2019:546, paragraph 114 and the case-law cited).
72      In the present case, as has been observed in the context of the examination of the present claim for annulment, Article 263 TFEU requires that an action for annulment be brought against an act that produces legal effects which are binding on and capable of affecting the interests of the applicant, which is not the case here. Consequently, it is to no avail that the applicant relies on Article 47 of the Charter in support of the admissibility of its action.
73      It follows from all of the foregoing that the contested statements, contained in the contested acts, do not produce legal effects which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in its legal position.
74      Thus, in so far as it seeks annulment in part of the contested acts, the action must be dismissed as inadmissible on the ground that there is no act against which an action for annulment may be brought, without it being necessary to examine the other pleas of inadmissibility raised by the Council.
75      Accordingly, the present action must be dismissed, in part, as having been brought before a court clearly lacking in jurisdiction to hear and rule on that action, and, in part, as inadmissible.
76      Consequently, there is no longer any need to adjudicate on the application submitted by EuroChem Agro SpA for leave to intervene in support of the form of order sought by the applicant, in accordance with Article 142(2) of the Rules of Procedure.
Costs
77      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
78      Since the applicant has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the Council.
79      Under Article 144(10) of the Rules of Procedure, EuroChem Agro is to bear its own costs.
On those grounds,
THE GENERAL COURT (First Chamber),
hereby orders:
1.      The action is dismissed.
2.      There is no longer any need to adjudicate on the application for leave to intervene made by EuroChem Agro SpA.
3.      EuroChem Group AG shall bear its own costs and pay those incurred by the Council of the European Union.
4.      EuroChem Agro shall bear its own costs.
Luxembourg, 21 October 2024.
V. Di Bucci
M. Brkan
Registrar
Acting President
*      Language of the case: English.