3 July 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 and economic resources – 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‑292/23,

United Company Rusal MKPAO (UC Rusal),

established in Kaliningrad (Russia), represented by N. Tuominen and L. Engelen, lawyers,

applicant,

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 D. Spielmann, President, M. Brkan (Rapporteur) and S.L. Kalėda, Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

makes the following

By its action under Article 263 TFEU, the applicant, United Company Rusal MKPAO (UC Rusal), seeks annulment of (i) Council Decision (CFSP) 2023/572 of 13 March 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 75I, p. 134) and Council Implementing Regulation (EU) 2023/571 of 13 March 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 75I, p. 1); (ii) 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); and (iii) 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), in so far as those acts (together, ‘the contested acts’) state that Mr Oleg Deripaska is the applicant’s owner.

Background to the dispute

The applicant is a company established in Russia, and is active in the aluminium market.

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.

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).

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.

On 25 February 2022, in view of the gravity of the situation in Ukraine, 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 the restrictive measures at issue.

Article 2(1) and (2) of Decision 2014/145, as amended by Decision 2022/329, 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;

…

(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.

The detailed rules governing that freezing of funds are laid down in the subsequent paragraphs of Article 2 of Decision 2014/145.

Regulation No 269/2014, as amended by Regulation 2022/330, requires the adoption of measures for the freezing of funds and lays down the detailed rules governing that freezing in terms essentially identical to those of Decision 2014/145, as amended. Article 3(1)(a) to (g) of that regulation essentially reproduces the wording of Article 2(1)(a) to (g) of that decision.

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.

It was against that backdrop that, on 8 April 2022, by Decision (CFSP) 2022/582 amending Decision 2014/145 (OJ 2022 L 110, p. 55) and Implementing Regulation (EU) 2022/581 implementing Regulation No 269/2014 (OJ 2022 L 110, p. 3), the Council added Mr Deripaska’s name 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’).

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), which extended the measures taken against Mr Deripaska until 15 March 2023, without amending the grounds for including his name on the lists at issue.

On 13 March 2023, the Council adopted Decision 2023/572 and Implementing Regulation 2023/571, by which it extended the restrictive measures laid down by Decision 2014/145 and Regulation No 269/2014 until 15 September 2023. By those acts, the Council decided to maintain Mr Deripaska’s name on the lists at issue, amending the grounds for his listing as follows:

‘Oleg Deripaska is a leading businessperson, owner of Rusal, one of the world’s largest companies in the global aluminium industry. In March 2022, he attended the Krasnoyarsk Economic Forum, one of the key Russian economic conferences focusing on regional development. He is also the beneficial owner of GAZ Group, a Russian automotive conglomerate which includes the Military Industrial Company LLC, a major arms and military equipment provider to the Russian armed forces. The Arzamas Machine-Building Plant, part of the Military-Industrial Company LLC, manufactures the BTR-80 amphibious armoured personnel carriers which were used by Russia in the war of aggression against Ukraine.

Oleg Deripaska is [a] leading businessperson involved in an economic sector 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. Furthermore, he is 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.’

On 14 September 2023, the Council adopted Decision 2023/1767 and Implementing Regulation 2023/1765, by which the measures taken against Mr Deripaska were extended until 15 March 2024. The grounds for listing Mr Deripaska’s name were amended and read as follows:

‘Oleg Deripaska is a leading businessperson, owner of Rusal, one of the world’s largest companies in the global aluminium industry. In March 2022, he attended the Krasnoyarsk Economic Forum, one of the key Russian economic conferences focusing on regional development. He is also the beneficial owner of GAZ Group, a Russian automotive conglomerate which includes the Military Industrial Company LLC, a major arms and military equipment provider to the Russian armed forces. The Arzamas Machine-Building Plant, part of the Military-Industrial Company LLC, manufactures the BTR-80 amphibious armoured personnel carriers which were used by Russia in the war of aggression against Ukraine.

Oleg Deripaska is a leading businessperson operating in Russia and a businessperson involved in an economic sector 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. Furthermore, he is 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.’

Forms of order sought

The applicant claims that the Court should:

–annul the contested acts in so far as they state that the applicant is owned by Mr Deripaska;

–in the alternative, find that (i) the reference to the applicant’s name in the statement of reasons for Mr Deripaska’s listing to the effect that it is owned by Mr Deripaska does not impose any obligation on EU operators or the authorities of the Member States requiring them to consider the applicant to be owned by Mr Deripaska, and (ii) when examining whether a planned transaction entails dealing with funds and economic resources belonging to, owned, held or controlled by Mr Deripaska, or the making available of certain funds or economic resources, directly or indirectly, to or for the benefit of Mr Deripaska, for the purposes of Article 2 of Regulation No 269/2014, as amended, EU operators and the authorities of the Member States remain free to make their own determination as to whether the applicant is owned or controlled by Mr Deripaska;

–order the Council to pay the costs.

In its plea of inadmissibility raised under Article 130 of the Rules of Procedure of the General Court, the Council contends that the Court should:

–dismiss the action as inadmissible;

–order the applicant to pay the costs.

Law

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.

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

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, the applicant requests that the Court find that (i) the reference to its name in the grounds for including Mr Deripaska on the lists at issue does not impose any obligation on EU operators or the authorities of the Member States requiring them to consider the applicant to be owned by Mr Deripaska, and (ii) when examining whether a planned transaction entails dealing with funds and economic resources belonging to, owned, held or controlled by Mr Deripaska, or the making available of funds or economic resources, directly or indirectly, to or for the benefit of Mr Deripaska, for the purposes of Article 2 of Regulation No 269/2014, as amended, EU operators and the authorities of the Member States remain free to make their own determination as to whether the applicant is owned or controlled by Mr Deripaska, without regard to the reference to its name in the grounds for including Mr Deripaska on the lists at issue.

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).

In the present case, it follows from the wording of the request described in paragraph 19 above that, by that request, the applicant is asking the Court to give a ruling in the abstract.

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 of the contested acts in so far as they state that Mr Deripaska is the applicant’s owner

In its plea of inadmissibility raised by separate document, the Council contends that the principal form of order submitted by the applicant, seeking annulment in part of the contested acts, is inadmissible.

In that regard, the Council submits that the applicant is not a person included on the lists at issue and that its action seeks annulment of the contested acts only in so far as its name is mentioned in the grounds for including Mr Deripaska on the lists at issue. Thus, the action is directed at certain grounds of the contested acts and does not call into question the operative part of those acts. According to the Council, the reference to the applicant’s name in the grounds for Mr Deripaska’s listing does not produce legal effects and does not constitute the essential basis for the operative part of those acts.

The Council also argues that, in the absence of any legal effect on the applicant’s position, the applicant has no interest in bringing proceedings and is not directly and individually concerned by the contested acts.

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 as they contain, in the grounds for including Mr Deripaska on the lists at issue, incorrect factual statements to the effect that the applicant is owned by Mr Deripaska (‘the disputed statements’). It submits that Mr Deripaska owns only 44.95% of the company EN+, which holds a 56.88% stake in the applicant.

First, the applicant asserts that it is individually concerned by the contested acts because it is specifically mentioned in the grounds for including Mr Deripaska on the lists at issue.

Secondly, the applicant claims that its legal position is affected by the contested acts. It argues that, since it is mentioned in the grounds for including Mr Deripaska on the lists at issue as being owned by him, EU economic operators and the competent national authorities of the Member States may consider and treat the applicant as being subject to restrictive measures itself. It submits that the consequences of this are enhanced diligence obligations, the imposition of national measures for the freezing of funds and the severing of contractual relations by some economic operators.

In that regard, in its observations on the plea of inadmissibility, the applicant adds that the disputed statements produce legal effects, as reflected inter alia by the fact that several economic operators terminated their contracts with it on the basis of those statements. Consequently, the disputed statements are not merely descriptive, but produce legal effects vis-à-vis the applicant.

Furthermore, according to the applicant, its situation is different from that of the applicant in 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.

Thirdly, the applicant submits that it has an interest in having the factual errors contained in the disputed statements corrected.

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).

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).

In the present case, the contested acts seek, inter alia, to maintain the listing of the persons subject to restrictive measures whose names are included on the lists at issue. In that regard, it should be noted at the outset that Mr Deripaska’s name is 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 disputed statements in connection with the maintenance of Mr Deripaska’s name on the lists at issue.

In addition, it should be noted that the applicant does not seek annulment of the contested acts in so far as they maintain Mr Deripaska’s name on the lists at issue, but only annulment thereof in part in so far as they affect the applicant by mentioning its name in the disputed statements.

Thus, what the applicant in fact seeks is the deletion of the disputed statements in the grounds for Mr Deripaska’s listing, 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 Mr Deripaska.

In the first place, however, it should be pointed out that the disputed statements are intended solely to support the individual restrictive measures taken against Mr Deripaska, namely the freezing of his funds and the ban on his 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.

Thus, the disputed 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 34 above).

In the second place, concerning the applicant’s argument that the disputed 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) 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.

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, secondly, 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.

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 40 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.

In those circumstances, contrary to what the applicant claims, the disputed 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.

Consequently, it is also necessary to reject the applicant’s argument that its situation is different from that which gave rise to 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 a person subject to restrictive measures. In common with the part of the grounds challenged in the case which gave rise to that order, the disputed statements in the present case do not produce legal effects vis-à-vis the applicant (see paragraph 42 above).

In the third place, the Court cannot endorse the applicant’s reliance on the fact that a national authority considered it to be subject to restrictive measures, based on a presumption, arising from the disputed statements, that it is owned by a person whose name is included on the lists at issue.

It is true that, according to the documents submitted by the applicant in support of that argument, the competent Italian authorities took the view that Mr Deripaska held a 56.89% stake in the applicant and froze the funds of one of its subsidiaries in Italy. However, that does not demonstrate that that freezing of funds is a legal consequence of the disputed statements. First, the freezing of funds alleged by the applicant was implemented following the initial inclusion of Mr Deripaska’s name on the lists at issue by Implementing Regulation 2022/581, which did not contain the disputed statements and did not mention the applicant’s name, with the result that the freezing of the funds of the applicant’s subsidiary is in no way the result of the disputed statements but is instead the result of an autonomous decision of the competent Italian authorities. Secondly, in any event, as is clear from paragraph 42 above, the disputed statements do not affect the applicant’s legal position.

In the fourth place, concerning the decision by some operators to break off contractual relations with the applicant, it is true that the applicant made clear in its observations on the plea of inadmissibility that several companies had terminated their contractual relations with it on the basis of the disputed statements in the contested acts.

However, as has been stated in paragraph 42 above, the disputed statements do not in themselves impose any obligation on EU economic operators as regards their conduct towards the applicant.

In any event, the fact that some economic operators may have been swayed by the disputed statements in deciding to sever their business ties with the applicant 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 32 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).

It follows from the foregoing that the disputed 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.

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.

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.

Costs

52Under 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.

53Since the applicant has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the Council.

On those grounds,

hereby orders:

1.The action is dismissed.

2.United Company Rusal MKPAO (UC Rusal) shall pay the costs.

Luxembourg, 3 July 2024.

Registrar

President

—

Language of the case: English.