ORDER OF THE VICE-PRESIDENT OF THE COURT
22 November 2023 (*)
(Appeal – Interim relief – Restrictive measures taken having regard to the situation in Ukraine – Freezing of funds and economic resources – Maintenance of the name of a natural person on the list of persons, entities and bodies subject to those measures – Suspension of the process of ‘re-listing’ that person – Publication of a note in the Official Journal of the European Union – Obligation to take measures on visas granted by Member States – Measures which may be adopted by the judge hearing the application for interim measures)
In Case C‑585/23 P(R),
APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 22 September 2023,
Council of the European Union, represented by P. Mahnič, R. Meyer and J. Rurarz, acting as Agents,
appellant,
supported by:
High Representative of the Union for Foreign Affairs and Security Policy, represented by M. Almeida Veiga, L. Havas and F. Hoffmeister, acting as Agents,
intervener in the appeal,
the other parties to the proceedings being:
Nikita Dmitrievich Mazepin, residing in Moscow (Russia), represented by A. Bass, T. Marembert and D. Rovetta, avocats, and by M. Campa, M. Moretto and V. Villante, avvocati,
applicant at first instance,
Republic of Latvia,
intervener at first instance,
THE VICE-PRESIDENT OF THE COURT,
after hearing the Advocate General, M. Szpunar,
makes the following
Order
1        By its appeal, the Council of the European Union seeks to have set aside the order of the President of the General Court of the European Union of 19 September 2023, Mazepin v Council (T‑743/22 R III, ‘the order under appeal’), by which the latter, first, ordered a number of interim measures and, second, cancelled the order of the President of the General Court of 7 September 2023, Mazepin v Council (T‑743/22 R III).
Background to the dispute
2        On 9 March 2022, the Council adopted
Decision (CFSP) 2022/397, amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 80, p. 31), by which the name of Mr Nikita Dmitrievich Mazepin was added to the list of persons, entities and bodies subject to restrictive measures set out 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).
3        On 9 March 2022, the Council adopted Implementing Regulation (EU) 2022/396, 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 2022 L 80, p. 1), by which Mr Mazepin’s name was added to the list of natural and legal persons, entities and bodies 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).
4        On 14 September 2022, the Council adopted Decision (CFSP) 2022/1530 amending Decision 2014/145 (OJ 2022 L 239, p. 149), by which it decided to maintain Mr Mazepin’s name on the list of persons, entities and bodies subject to restrictive measures set out in the annex to Decision 2014/145, amending the reasons for his inclusion on that list.
5        On the same date, the Council adopted Implementing Regulation (EU) 2022/1529, implementing Regulation No 269/2014 (OJ 2022 L 239, p. 1), by which Mr Mazepin’s name was maintained, with the same amendment to the reasons referred to in the preceding paragraph, on the list of natural and legal persons, entities and bodies in Annex I to Regulation No 269/2014.
6        On 13 March 2023, the Council adopted Decision (CFSP) 2023/572, amending Decision 2014/145 (OJ 2023 L 75 I, p. 134), by which it decided to maintain Mr Mazepin’s name on the list of persons, entities and bodies subject to restrictive measures set out in the annex to Decision 2014/145, amending the reasons for his inclusion on that list and his identifying information.
7        On the same date, the Council adopted Implementing Regulation (EU) 2023/571, implementing Regulation No 269/2014 (OJ 2023 L 75 I,
p. 1), by which Mr Mazepin’s name was maintained, with the same amendments to the reasons and to identifying information as those referred to in the preceding paragraph, on the list of natural and legal persons, entities and bodies in Annex I to Regulation No 269/2014.
The proceedings before the General Court and the order under appeal
8        By an application lodged at the Registry of the General Court on 25 November 2022, Mr Mazepin brought an action for annulment of Decision 2022/1530 and Implementing Regulation 2022/1529, in so far as those measures concern him (together, ‘the first measures at issue’).
9        By a separate document lodged at the Registry of the General Court on 9 December 2022, Mr Mazepin brought a first application for interim measures seeking, in essence, suspension of the operation of the first measures at issue. By order of 1 March 2023, Mazepin v Council (T‑743/22 R, EU:T:2023:102), the President of the General Court granted that application and ordered, in part, suspension of the operation of those measures, in so far as they concern Mr Mazepin.
10      By a separate document lodged at the Registry of the General Court on 4 April 2023, Mr Mazepin, on the basis of Article 86 of the Rules of Procedure of the General Court, modified the application referred to in paragraph 8 of the present order, so that it also seeks annulment of Decision 2023/572 and of Implementing Regulation 2023/571 (together, ‘the second measures at issue’).
11      By a separate document lodged at the Registry of the General Court on the same date, Mr Mazepin brought a second application for interim measures seeking, in essence, suspension of the operation of the second measures at issue. By order of the President of the General Court of 19 July 2023, Mazepin v Council (T‑743/22 R II, EU:T:2023:406), the President of the General Court granted that application and ordered, in part, suspension of the operation of those measures, in so far as they concern Mr Mazepin.
12      By a separate document lodged at the Registry of the General Court on 7 September 2023, Mr Mazepin brought a third application for interim measures.
13      By order of 7 September 2023, Mazepin v Council (T‑743/22 R III), adopted under Article 157(2) of the Rules of Procedure of the General Court, the President of the General Court granted that third application for interim measures and issued a number of directions to the Council.
14      On 14 September 2023, Mr Mazepin applied, pursuant to Article 164 of the Rules of Procedure of the General Court, for rectification of that order.
15      By the order under appeal, the President of the General Court, pursuant to
Article 157(2) of the Rules of Procedure of the General Court, in essence, ordered:
–        in point 1 of the operative part of that order, the suspension of the operation of Mr Mazepin’s announced ‘re-listing’ by making that suspension subject to certain conditions;
–        in point 2 of that operative part, the publication in the Official Journal of the European Union of a note clearly indicating the suspension of that announced ‘re-listing’;
–        in point 3 of that operative part, the Council to take the necessary measures to ensure that the order of the President of the General Court of 19 July 2023, Mazepin v Council (T‑743/22 R II, EU:T:2023:406), is fully and effectively complied with by the Member States and, in particular, to ensure that the visa issued to Mr Mazepin on 7 August 2023 or any other visa which might become necessary covers at least the territory of the Member States of the Schengen area and remains valid for the time necessary to enable Mr Mazepin to exercise effectively the rights granted by that order; and
–        in point 4 of that operative part, the Council to inform the President of the General Court of the measures adopted.
16      In addition, in point 5 of the operative part of the order under appeal, the President of the General Court cancelled his order of 7 September 2023, Mazepin v Council (T‑743/22 R III).
17      By a separate document lodged at the Registry of the General Court on 2 October 2023, Mr Mazepin brought a fourth application for interim measures.
18      By order of 3 October 2023, Mazepin v Council (T‑743/22 R III and T‑743/22 R IV), the President of the General Court granted that application for interim measures and cancelled the order under appeal.
Forms of order sought
19      The Council claims that the Court of Justice should:
–        set aside the order under appeal;
–        dismiss in its entirety the application for interim measures referred to in paragraph 12 of the present order; and
–        reserve the costs.
20      Mr Mazepin contends that the Court should:
–        assign the present appeal to the Grand Chamber or to another chamber of the Court of Justice, in accordance with Article 60(1) and Article 161(1) of the Rules of Procedure of the Court of Justice;
–        dismiss the appeal; and
–        order the Council to pay the costs.
Procedure before the Court of Justice
21      By order of 29 September 2023, Council v Mazepin (C‑585/23 P(R)-R, EU:C:2023:729), adopted under
Article 160(7) of the Rules of Procedure of the Court of Justice, the Vice-President of the Court of Justice
ordered the suspension of operation of points 1 to 3 of the operative part of the order under appeal until the adoption of the order terminating the interlocutory proceedings in Case C‑585/23 P(R)-R, or ruling on the present appeal, whichever is the earlier.
22      In addition, by order of the Vice-President of the Court of Justice of 18 October 2023, Council v Mazepin (C‑585/23 P(R)), the High Representative of the Union for Foreign Affairs and Security Policy (‘the High Representative’) was granted leave to intervene in the present case in support of the form of order sought by the Council.
The request for the appeal to be assigned to the Grand Chamber or another chamber of the Court
Arguments
23      Mr Mazepin submits that, in the light of the importance of adopting a correct interpretation of the principle of judicial protection, the present appeal must be examined by the Grand Chamber or another chamber of the Court.
Assessment
24      In that regard, it should be borne in mind that, pursuant to Article 161(1) of the Rules of Procedure of the Court of Justice, read in conjunction with the first paragraph of Article 1 of Decision 2012/671/EU of the Court of Justice of 23 October 2012 concerning the judicial functions of the Vice-President of the Court (OJ 2012 L 300, p. 47), the Vice-President of the Court is either to decide on the applications for suspension of operation or for interim measures himself or herself or refer those applications immediately to the Court.
25      Thus, pursuant to those provisions, competence has been conferred on the Vice-President of the Court to rule on any application for interim measures or, where he or she takes the view that the particular circumstances require the referral of the case to a formation of the Court, to refer such an application to the Court (order of the Vice-President of the Court of 19 May 2022, Czech Republic v Poland (Turów mine), C‑121/21 R, EU:C:2022:408, paragraph 15 and the case-law cited).
26      It follows that it is for the Vice-President of the Court alone to assess, on a case-by-case basis, whether the applications for interim measures before him or her require referral to the Court for the purpose of their assignment to a formation of the Court (order of the Vice-President of the Court of 19 May 2022, Czech Republic v Poland (Turów mine), C‑121/21 R, EU:C:2022:408, paragraph 16 and the case-law cited).
27      Those considerations also apply, mutatis mutandis, to the examination of an appeal brought under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union.
28      In the present case, there is nothing in Mr Mazepin’s appeal such as to require that it be assigned to the Grand Chamber or another chamber of the Court.
29      Indeed, it is not apparent that the legal problem raised by Mr Mazepin in support of his request that the present case be assigned to the Grand Chamber or another chamber of the Court – which is of the same nature as the legal problem assessed by the Vice-President of the Court in his order of 28 September 2023, Council v Mazepin (C‑564/23 P(R), EU:C:2023:727) – is of such difficulty or importance as to justify its being examined by the Grand Chamber or another chamber of the Court.
Whether the case should proceed to judgment
30      It is apparent from the very wording of the operative part of the order of the President of the General Court of 3 October 2023, Mazepin v Council (T‑743/22 R III and T‑743/22 R IV), that the order under appeal is cancelled.
31      In that regard, Article 159 of the Rules of Procedure of the General Court states that, on application by a party, an order ruling on an application for interim measures may at any time be varied or cancelled on account of a change in circumstances.
32      Given that a decision of the judge hearing an application for interim measures cancelling an order granting an interim measure entails only the amendment or revocation of that order, without calling into question the past effects of the order (see, to that effect, order of the Vice-President of the Court of Justice of 28 September 2023, Council v Mazepin,
C‑564/23 P(R), EU:C:2023:727, paragraphs 24 and 25), the order of the President of the General Court of 3 October 2023, Mazepin v Council (T‑743/22 R III and T‑743/22 R IV), may, at most as from the date of service of that order on the parties, deprive the order under appeal of any effect, while allowing the effects produced by the order under appeal to continue to exist between the date of service of the order under appeal and the date of service of the order which cancelled it.
33      It must, therefore, be held that the present appeal is not devoid of purpose in its entirety.
34      That said, it is clear from the case-law of the Court that an interest in bringing proceedings – a condition of admissibility – must continue up until the Court’s ruling on the substance. Both the existence and the continuation of an interest in bringing proceedings presuppose that the appeal may, if successful, procure an advantage for the party bringing it (order of the Vice-President of the Court of 20 March 2023, Xpand Consortium and Others v Commission, C‑739/22 P(R), EU:C:2023:228, paragraph 22 and the case-law cited).
35      Since the order of the President of the General Court of 7 September 2023, Mazepin v Council (T‑743/22 R III), was set aside by the order of the Vice-President of the Court of Justice of 28 September 2023, Council v Mazepin (C‑564/23 P(R), EU:C:2023:727) and was, consequently, removed retroactively from the EU legal order, the decision to cancel the first of those orders, which is set out in point 5 of the operative part of the order under appeal, is no longer capable of producing any legal effect.
36      It follows that any annulment of point 5 of the operative part of the order under appeal would, in any event, no longer be capable of procuring an advantage for the Council and that the Council therefore no longer has an interest in obtaining that annulment.
37      Accordingly, it must be held that the present appeal retains a purpose in so far as it seeks to have points 1 to 4 and 6 of the operative part of the order under appeal set aside, with the result that it is appropriate to rule on the present appeal to that extent.
The appeal
38      In support of its appeal, the Council relies on six grounds, alleging, first, infringement of the obligation to state reasons, second and fourth, manifest errors of law as regards the scope of the jurisdiction of the judge hearing the application for interim measures, third, manifest errors in the application of the conditions governing the grant of interim measures, fifth, manifest errors of law vitiating point 3 of the operative part of the order under appeal and, sixth, infringement of Article 164 of the Rules of Procedure of the General Court.
The fifth ground of appeal
Arguments
39      By its fifth ground of appeal, which it is appropriate to examine in the first place, the Council submits that point 3 of the operative part of the order under appeal is vitiated by several manifest errors of law.
40      First of all, according to the Council, the measure imposed on it in that point 3 fails to have regard to the division of competencies reflected in Article 266 TFEU. It is not for the EU Courts, but for the Council, to take the necessary measures to comply with the order of the President of the General Court of 19 July 2023, Mazepin v Council (T‑743/22 R II, EU:T:2023:406).
41      Next, that point 3 is vitiated by an error of law in so far as it orders the Council to adopt a measure which does not fall within its competence. Thus, the Council does not have the power to ensure the application of EU law by the Member States. In particular, neither EU primary law nor Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ 2009 L 243, p. 1) allows it to interfere in the issuing of visas by the Member States. In accordance with Article 13(2) TEU, the Council is to act only within the limits of its powers.
42      Lastly, according to the Council, in that point 3, the President of the General Court, in practice, imposed an injunction on the Member States and thus exceeded the limits of his jurisdiction.
43      The High Representative concurs with the Council’s arguments. He adds that the decision to impose on the Council the measures referred to in point 1 of the operative part of the order under appeal disregards the fact that the Council cannot act on its own initiative in the field at issue and that that decision therefore adversely affects the prerogatives conferred on the High Representative by Article 30(1) TEU and Article 215(1) TFEU.
Assessment
44      In accordance with Article 13(2) TEU, the EU institutions are to act only within the limits of the powers conferred on them by the Treaties (see, to that effect, judgment of 23 October 2007, Parliament v Commission, C‑403/05, EU:C:2007:624, paragraph 49).
45      That provision, which is binding on all the EU institutions, precludes the judge hearing the application for interim measures from ordering the Council to adopt one or more measures which are not within the competence of that institution.
46      In that regard, it must be borne in mind that, in point 3 of the operative part of the order under appeal, the President of the General Court ordered the Council to take the necessary measures to ensure that the order of the President of the General Court of 19 July 2023, Mazepin v Council (T‑743/22 R II, EU:T:2023:406) is fully and effectively complied with by the Member States and, in particular, to ensure that the visa issued to Mr Mazepin on 7 August 2023 or any other visa which might become necessary covers at least the territory of the Member States of the Schengen area and remains valid for the time necessary to enable Mr Mazepin to exercise effectively the rights granted by that order.
47      However, it is apparent from paragraphs 38 to 43 of the order of the Vice-President of the Court of Justice of 28 September 2023, Council v Mazepin (C‑564/23 P(R), EU:C:2023:727), that the Council is not competent to adopt such measures and that the President of the General Court could not therefore, without infringing Article 13(2) TEU, order the Council to adopt such measures.
48      It follows that the fifth ground of appeal must be upheld.
49      In so far as that ground of appeal relates only to point 3 of the operative part of the order under appeal, it is also necessary to examine the second ground of appeal.
The second ground of appeal
Arguments
50      By its second ground of appeal, which it is appropriate to examine in the second place, the Council submits that, in ordering the measures set out in points 1 to 3 of the operative part of the order under appeal, the President of the General Court committed a manifest error of law as regards the scope of his jurisdiction as the judge hearing the application for interim measures.
51      According to the Council, the judge hearing an application for interim measures of the General Court is authorised, pursuant to Article 157(2) of the Rules of Procedure of the General Court, to adopt interim measures in order to protect the effectiveness of the future decision on an application for interim measures, the purpose of which is to preserve the effectiveness of the decision to be given in a main action to which that application is ancillary.
52      In the Council’s view, in the present case, the main action brought by Mr Mazepin relates to four EU measures. Consequently, in the present proceedings, the President of the General Court may adopt interim measures only in order to preserve the effectiveness of any decision annulling those four measures.
Therefore, the measures adopted under Article 157(2) of the Rules of Procedure of the General Court should seek only to preserve the effectiveness of such interim measures.
53      According to the Council, the President of the General Court, by the order under appeal, adopted measures relating to acts which are not covered by the main action brought by Mr Mazepin and which have not even been adopted. In so doing, he exceeded the limits of his jurisdiction.
54      In the Council’s view, that analysis is supported by the wording of Article 278 TFEU and Article 156(1) of the Rules of Procedure of the General Court, from which it is apparent that the President of the General Court may only suspend the operation of a measure challenged in a main action before the General Court.
55      Although it is true that Article 279 TFEU and Article 156(2) of the Rules of Procedure of the General Court allow that court to adopt other types of interim measures, those provisions nevertheless require those measures to be linked to a main action brought before that court by the applicant concerned, which is not the case here.
56      The High Representative submits that Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) does not imply that the judge hearing an application for interim measures may order protective measures against acts which have not yet been adopted by the EU institutions, except where an application for interim measures is made ancillary to an action for failure to act under Article 265 TFEU.
The constitutional traditions common to the Member States, to which Article 6(3) TEU refers, are varied. However, in the Member States where preventive protection could be granted, such protection would presuppose that conditions which have not been met in the present case have been fulfilled.
57      Mr Mazepin contends that the conception of the powers of the judge hearing the application for interim measures, adopted in the order of the Vice-President of the Court of 28 September 2023, Council v Mazepin (C‑564/23 P(R), EU:C:2023:727), means that he is deprived of effective judicial protection. Indeed, the time needed to obtain suspension of the operation of Council acts ordering his retention on the lists of persons subject to restrictive measures would mean that Mr Mazepin will inevitably be exposed to the application of such measures, which would have irreparable consequences for his career.
58      Article 279 TFEU authorises the judge hearing an application for interim measures to prescribe any necessary interim measures in any cases before an EU Court, without requiring a specific link to an act challenged before the EU Courts. The judge hearing the application for interim measures could, therefore, take interim measures in respect of acts whose forthcoming adoption the Council has announced. Such an interpretation also holds true for Article 156(2) of the Rules of Procedure of the General Court. An interpretation to the contrary would create an unacceptable lacuna in the protection afforded to a person in Mr Mazepin’s situation.
59      Moreover, the fact that the Council stated its intention to ‘maintain’ Mr Mazepin on the lists of persons subject to restrictive measures makes it possible to establish a link between, on the one hand, the first and second measures at issue and, on the other, the interim measures sought by Mr Mazepin before the President of the General Court.
60      In the alternative, if Article 156(2) and Article 157(2) of the Rules of Procedure of the General Court were to be interpreted as precluding the adoption of those interim measures, Mr Mazepin raises a plea of illegality in respect of
those provisions of the rules of procedure and contends that they should not be applied in that they are incompatible with Article 279 TFEU and Article 47 of the Charter.
Assessment
61      At the outset, it should be noted that, although the second ground of appeal concerns points 1 to 3 of the operative part of the order under appeal, the irregularity of point 3 of that operative part is already apparent from paragraph 47
above. Accordingly, it is necessary to examine that ground of appeal only in so far as it relates to points 1 and 2 of that operative part.
62      In that regard, it should be noted that the first paragraph of Article 39 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 of that statute, provides that, for the purposes of examining applications to prescribe measures pursuant to Articles 278 and 279 TFEU, the President may adjudicate ‘by way of summary procedure, which may, in so far as necessary, differ from some of the rules contained in [that] Statute and which shall be laid down in the Rules of Procedure’.
63      In that context, Article 157(1) of the Rules of Procedure of the General Court authorises the President of the General Court to prescribe a short time limit within which the opposite party is to submit written or oral observations. Article 157(2) of those rules of procedure provides, however, that the President of the General Court may grant an application for interim measures made by a party even before the observations of the opposite party have been submitted.
64      It follows from those provisions that the President of the General Court, acting as the judge hearing an application for interim measures, is empowered to rule on the application without first hearing the parties in their observations (order of the Vice-President of the Court of Justice of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 58).
65      That derogation procedure constitutes, nonetheless, only a specific means of implementing Articles 278 and 279 TFEU and the first paragraph of Article 39 of the Statute of the Court of Justice of the European Union. Therefore, it must be held that, as the Council maintains, that procedure does not allow the judge hearing the application for interim measures to take measures which he or she would not be authorised to adopt pursuant to Articles 278 and 279 TFEU.
66      In so far as the order under appeal does not specify whether the measures ordered in points 1 and 2 of its operative part are based on Article 278 TFEU or on Article 279 TFEU, it is necessary to examine whether those measures fall within the jurisdiction conferred on the judge hearing the application for interim measures by the one or the other of those articles.
67      As regards, in the first place, Article 278 TFEU, that article provides that actions brought before the Court are not to have suspensory effect, but that the Court may, if it considers that circumstances so require, order that application of the contested measure be suspended.
68      That article is implemented by Article 156(1) of the Rules of Procedure of the General Court, which states that an application under Article 278 TFEU to suspend the operation of any measure adopted by an institution is to be admissible only if the applicant has challenged that measure in an action before the General Court.
69      In the present case, on the date on which the order under appeal was signed, the form of order sought before the General Court, in the context of the action for annulment brought before that court by Mr Mazepin, covered Decisions 2022/1530 and 2023/572 and Implementing Regulations 2022/1529 and 2023/571 (together, ‘the measures at issue’).
70      In that context, it must be stated that points 1 and 2 of the operative part of the order under appeal are not formally presented as declaring the suspension of the operation of one or more of the measures contested by Mr Mazepin before the General Court.
71      Nor can those points be regarded as ordering, in essence, the suspension of some of the effects of those measures (see, by analogy, order of the Vice-President of the Court of Justice of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraphs 67 to 70).
72      It follows that points 1 and 2 of that operative part could not validly be based on Article 278 TFEU.
73      As regards, in the second place, Article 279 TFEU, that article states that, in any cases before it, the Court may prescribe any necessary interim measures.
74      Although that article confers on the judge hearing an application for interim measures a wide discretion to decide on the measures to be ordered, interim measures adopted under Article 279 TFEU must not go beyond the scope of the dispute as determined by the main action, in so far as they may have no purpose other than to safeguard the interests of one of the parties to an action before the General Court in order not to render the final judgment in the main proceedings illusory by depriving it of practical effect (see, to that effect, order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraphs 73 to 75 and the case-law cited).
75      In particular, the judge hearing an application for interim measures that is ancillary to an action for annulment may, inter alia, on the basis of Article 279 TFEU, order an EU institution not to adopt a measure which would constitute a form of implementation of the annulled measure or which would have the consequence of rendering certain effects of that measure definitive (see, to that effect, order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 76).
76      In contrast, the judge hearing an application for interim measures cannot, without exceeding the scope of a dispute relating to an action for annulment, order an EU institution to suspend a procedure which does not depend on the contested measure, in order to prevent the measure adopted at the end of that procedure from containing the same illegality as that complained of in that action (order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 77).
77      It is true that the Court has held that, in the event of annulment of a regulation whose effect is limited to a clearly defined period, the institution which adopted that regulation is under an obligation to exclude from new legislation which was to be adopted after the judgment annulling that regulation, in order to govern periods subsequent to that judgment, any provision having the same content as the provision held to be unlawful (order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 78 and the case-law cited).
78      However, first, although the authority erga omes exerted by an annulling judgment attaches to both the operative part and the ratio decidendi of the judgment, it cannot entail annulment of an act not challenged before the EU judicature but alleged to be vitiated by the same illegality. Second, it is not for those courts to indicate, in a judgment annulling a measure, the measures to be adopted by the institution concerned in order to comply with that judgment (order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 79 and the case-law cited).
79      It follows that a judgment annulling a measure cannot directly call into question the validity of a measure subsequent to the annulled measure on the ground that that subsequent measure is vitiated by the same illegality as that vitiating the annulled measure (order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 80).
80      In those circumstances, an order of the judge hearing an application for interim measures ordering an EU institution to suspend a procedure which may lead to the adoption of such a subsequent measure would be tantamount to providing the applicant concerned not with protection against the effects of measures adopted by an institution, as provided for by primary EU law, but with preventive protection of an entirely different order (order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 81).
81      In order to guarantee such protection, the judge hearing an application for interim measures would thus be obliged to assess questions on which the institution concerned has not yet had the opportunity to state its position, which would have the consequence of anticipating the arguments on the substance of the case, confusing different procedural stages both administrative and judicial, whereas it is not for that judge to take the place of that institution (order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 82 and the case-law cited).
82      In addition, the fact that the judge hearing an application for interim measures does not have jurisdiction to order an EU institution to suspend a procedure which does not depend on a contested measure, in order to prevent the measure adopted at the end of that procedure from containing the same illegality as that complained of in an action for annulment, is not – contrary to Mr Mazepin’s submissions – such as to deprive him of the judicial protection granted to him by primary EU law, in so far as the latter measure may be the subject of an action for annulment accompanied by an application for interim measures, which may, where appropriate, seek interim measures pursuant to Article 156(2) of the Rules of Procedure of the General Court (order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 83).
83      It must also be stated that, in the present case, following the completion of the ‘re-listing’ process concerning Mr Mazepin, that is, after the date of signature of the order under appeal, Mr Mazepin modified his application for annulment and made a new application for interim relief seeking interim measures relating to new acts adopted by the Council.
84      Admittedly, such an application for interim measures is not capable of avoiding all forms of implementation of those new acts, since those acts may produce effects during the period inevitably separating the date on which they are adopted and the date on which that application for interim measures is examined. That is, however, an inherent consequence of the structure of the actions provided for by the Treaties and the powers conferred on the judge hearing an application for interim measures by Articles 278 and 279 TFEU, since the authors of the Treaties did not allow the potential addressees of an act whose adoption is contemplated by an EU institution to challenge that act in advance or to obtain preventive protection against it.
85      In so far as Mr Mazepin submits that such an interpretation of those articles is incompatible with Article 47 of the Charter, it is apparent from settled case-law that that article is not intended to change the system of judicial review laid down by the Treaties, as is apparent also from the Explanation on Article 47 of the Charter, which must, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, be taken into consideration for the interpretation of the Charter (see, to that effect, judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 43).
86      Accordingly, while the powers of the judge hearing the application for interim relief provided for in Articles 278 and 279 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, that interpretation cannot have the effect of setting aside the limits of those powers which flow from the FEU Treaty (see, by analogy, judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 44).
87      Since those articles preclude an interim measure from being adopted without any link to a case before the EU Court concerned, the opposite view of the powers of the judge hearing the application for interim measures, defended by Mr Mazepin, cannot be accepted and the plea of illegality raised by him in respect of Article 156(2) and Article 157(2) of the Rules of Procedure of the General Court must, therefore, be rejected.
88      In that context, it should be pointed out that, in the present case, as is apparent from paragraph 69 above, on the date on which the order under appeal was signed, the form of order sought before the General Court, in the context of the action for annulment brought before that court by Mr Mazepin,
covered the measures at issue.
89      First, the measures that may be adopted by the Council in the context of the ‘re-listing’ process at issue in the present case must be regarded as resulting from a procedure which does not depend on the measures at issue and, in particular, as not implementing the latter measures (see, to that effect, order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 85).
90      Second, the measures that may be adopted by the Council in the context of that process are intended, in the light of that institution’s practice, to be applicable for a period subsequent to that governed by the measures at issue, with the result that they are not capable of rendering definitive the effects of those measures (order of the Vice-President of the Court of 28 September 2023, Council v Mazepin, C‑564/23 P(R), EU:C:2023:727, paragraph 86).
91      It follows that the measure ordered in point 1 of the operative part of the order under appeal has no direct link to the subject matter of the action for annulment brought by Mr Mazepin before the General Court.
92      The fact that the Council stated its intention to ‘maintain’ Mr Mazepin on the lists of persons subject to restrictive measures is, in that context, irrelevant, in so far as it is not such as to alter the objective relationships between the measures that may be adopted by the Council in the context of the process of ‘re-listing’ at issue in the present case and the measures at issue.
93      In the absence of a direct link between the measure ordered in point 1 of the operative part of the order under appeal and the subject matter of the action for annulment brought by Mr Mazepin before the General Court, that measure cannot be regarded as constituting an ancillary measure intended to ensure the effectiveness of the interim measures already ordered by the President of the General Court in the earlier orders which he made in the present case, referred to in paragraphs 9 and 11 of the present order, since, by those earlier orders, the President of the General Court ordered the partial suspension of operation of the measures targeted by that action for annulment. It follows that the measure ordered in point 1 of the operative part of the order under appeal could not validly be adopted under Article 279 TFEU.
94      The same is true of the measure ordered in point 2 of the operative part of the order under appeal, since it merely ensures publication of the measure ordered in point 1 of the operative part of that order.
95      The fact that, as noted in paragraph 83 above, Mr Mazepin submitted to the General Court, after the date of signature of the order under appeal, a statement modifying the form of order sought in his application is, in any event, irrelevant to the foregoing considerations, in so far as that statement seeks the annulment of new acts adopted by the Council, acts which are not directly targeted by the measures set out in the operative part of the order under appeal.
96      It follows that the second ground of appeal must be upheld and that it is appropriate, without the need to rule on the first, third, fourth and sixth grounds of appeal, to set aside points 1 to 4 and 6 of the operative part of the order under appeal, in so far as points 4 and 6 of that operative part are not severable from points 1 to 3 thereof.
The application for interim measures brought before the General Court
97      In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, where the Court of Justice sets aside a decision of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment. That provision also applies to appeals brought under the second paragraph of Article 57 of that statute (order of the Vice-President of the Court of 24 May 2022, Puigdemont i Casamajó and Others v Parliament and Spain, C‑629/21 P(R), EU:C:2022:413, paragraph 172 and the case-law cited).
98      In the present case, the President of the General Court gave his ruling before the other parties to the proceedings had been given an opportunity to submit their observations, in accordance with Article 157(1) of the Rules of Procedure of the General Court.
99      In those circumstances, it is apparent that the state of the proceedings does not permit final judgment to be given in the matter and that it is, therefore, appropriate to refer the case back to the General Court.
Costs
100    Since the case has been referred back to the General Court, the costs must be reserved.
On those grounds, the Vice-President of the Court of Justice hereby orders:
1.      Points 1 to 4 and 6 of the operative part of the order of the President of the General Court of the European Union of 19 September 2023, Mazepin v Council (T‑743/22 R III) are set aside.
2.      The case is referred back to the General Court of the European Union.
3.      The costs are reserved.
Luxembourg, 22 November 2023.
A. Calot Escobar
L. Bay Larsen
Registrar
Vice-President
*      Language of the case: English.