15 September 2016 (*1)

‛Common foreign and security policy — Restrictive measures taken in view of the situation in Ukraine — Freezing of funds — Applicant not represented by a lawyer — Applicant having ceased to reply to the Court’s requests — No need to adjudicate’

In Case T‑339/14,

Serhiy Vitaliyovych Kurchenko, residing in Chuhuiv (Ukraine), represented by B. Kennelly, QC, J. Pobjoy, Barrister, M. Drury, A. Swan, and J. Binns, Solicitors,

applicant,

Council of the European Union, represented by Á. de Elera-San Miguel Hurtado and J.-P. Hix, acting as Agents,

defendant,

supported by

European Commission, represented by S. Bartelt and D. Gauci, acting as Agents,

intervener,

APPLICATION under Article 263 TFEU for annulment, first, of Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26) and Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 1), and, secondly, Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119 (OJ 2015 L 62, p. 25) and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation No 208/2014 (OJ 2015 L 62, p. 1), in so far as those measures apply to the applicant, and, in the alternative, an application under Article 277 TFEU for a declaration of the inapplicability to the applicant of Article 1(1) of Decision 2014/119, as amended by Council Decision (CFSP) 2015/143 of 29 January 2015 amending Decision 2014/119 (OJ 2015 L 24, p. 16) and of Article 3(1) of Regulation No 208/2014, as amended by Council Regulation (EU) 2015/138 of 29 January 2015 amending Regulation No 208/2014 (OJ 2015 L 24, p. 1),

THE GENERAL COURT (Ninth Chamber, Extended Composition),

composed of G. Berardis (Rapporteur), President, O. Czúcz, I. Pelikánová, A. Popescu and E. Buttigieg, Judges,

Registrar: E. Coulon,

makes the following

Background to the dispute

The present case has been brought in connection with the restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine.

The applicant, Mr Serhiy Vitaliyovych Kurchenko, is a Ukrainian businessman.

On 5 March 2014, the Council of the European Union adopted, on the basis of Article 29 TEU, Decision 2014/119/CFSP, concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26). On the same date, the Council adopted, on the basis of Article 215(2) TFEU, Regulation (EU) No 208/2014, concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 1).

By Decision 2014/119 and Regulation No 208/2014, the applicant’s name was added to the list of persons, entities and bodies to which those restrictive measures apply, with the identifying information ‘businessman’ and the following statement of reasons:

‘Person subject to investigation in Ukraine for involvement in crimes in connection with the embezzlement of Ukrainian State funds and their illegal transfer outside Ukraine.’

Decision 2014/119 and Regulation No 208/2014 were, in particular, amended by Council Decision (CFSP) 2015/143 of 29 January 2015 amending Decision 2014/119 (OJ 2015 L 24, p. 16) and Council Regulation (EU) 2015/138 of 29 January 2015 amending Regulation No 208/2014 (OJ 2015 L 24, p. 1), respectively. By those measures, the Council clarified, with effect from 1 February 2015, the criteria for the designation of the persons subject to the freezing of funds.

Decision 2014/119 and Regulation No 208/2014 were also amended by Council Decision (CFSP) 2015/364 of 5 March 2015, amending Decision 2014/119 (OJ 2015 L 62, p. 25), and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation No 208/2014 (OJ 2015 L 62, p. 1), respectively. Those measures maintained the applicant on the list of persons, entities and bodies to which the restrictive measures apply, extending those measures in respect of him until 6 March 2016, with the following statement of reasons:

‘Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets.’

Procedure and forms of order sought

7.7

By application lodged at the Court Registry on 15 May 2014, the applicant brought the present action. On 12 August 2014, the Council lodged its defence.

8.8

By document lodged at the Court Registry on 16 September 2014, the European Commission sought leave to intervene in the present proceedings in support of the form of order sought by the Council. By order of 17 November 2014, the President of the Ninth Chamber of the Court granted it leave to intervene. By document lodged at the Court Registry on 18 December 2014, the Commission waived its right to submit a statement in intervention.

By document lodged at the Court Registry on 30 September 2014, Ukraine sought leave to intervene in the present proceedings in support of the form of order sought by the Council. By order of 17 November 2014, the President of the Ninth Chamber of the Court granted Ukraine leave to intervene. However, by letter lodged at the Court Registry on 24 December 2014, Ukraine informed the Court that it was withdrawing its intervention. Consequently, by order of 11 March 2015, the President of the Ninth Chamber of the Court ordered that Ukraine be removed from the register as an intervener.

10.10

The reply and the rejoinder were lodged at the Court Registry on 25 September and 11 November 2014 respectively.

11.11

By document lodged at the Court Registry on 15 May 2015, the applicant lodged a statement modifying the form of order sought so that he also seeks annulment of Decision 2015/364 and Regulation 2015/357 in so far as they concern him and, in the alternative, a declaration that Article 1(1) of Decision 2014/119, as amended by Decision 2015/143, and Article 3(1) of Regulation No 208/2014, as amended by Regulation 2015/138, do not apply to him.

12.12

By document lodged at the Court Registry on 5 October 2015, the Council submitted its comments on the statement of modification.

13.13

By application lodged at the Court Registry on 15 May 2015, the applicant also brought an action with the same heads of claim as those referred to in the statement modifying the form of order sought lodged in the present case, as set out in paragraph 11 above. That action, which was registered under reference T‑248/15, was declared inadmissible on the ground of lis pendens with regard to the present case, by order of 11 September 2015 of the Ninth Chamber of the Court.

On a proposal from the Ninth Chamber, the Court decided, pursuant to Article 28 of its Rules of Procedure, to assign the case to a Chamber sitting in extended composition.

On a proposal from the Judge-Rapporteur, the Court (Ninth Chamber, Extended Composition) decided to open the oral stage of the procedure.

By letter of 25 April 2016, the applicant’s representatives informed the Court that they were withdrawing from the case, because they were not in funds to enable them to continue their representation and they could not obtain instructions.

By letter of 10 May 2016, addressed to the applicant’s representatives, the Court informed them that they remained its point of contact until the applicant appointed a new representative. It also requested them to inform the applicant that he had to appoint a new representative by 27 May 2016, otherwise the Court intended to declare of its own motion that there was no longer any need to adjudicate on the action, in accordance with Article 131(2) of the Rules of Procedure.

By letter lodged at the Court Registry on 25 May 2016, the applicant’s representatives confirmed that they had informed the applicant of the need to appoint new representatives. They stated, however, that they had not received any reply from him. In addition, the applicant did not contact the Court by another means within the prescribed period.

In the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, the Court put a question to the parties for written response so that they might present their observations on the possibility for the Court to declare of its own motion, by reasoned order, that there is no longer any need to adjudicate, in accordance with Article 131(2) of those rules.

The parties complied with those measures within the prescribed period. By letters dated 9 and 22 June 2016 respectively, the Commission and the Council did not oppose a declaration by the Court of its own motion that there was no need to adjudicate. By letter lodged at the Court Registry on 23 June 2016, the applicant’s representatives reiterated that they were no longer instructed by him and that accordingly they were unable to present any observations on the matters raised in the Court’s question.

The need to adjudicate

Under Article 131(2) of the Rules of Procedure, if the applicant ceases to reply to the Court’s requests, the Court may, after hearing the parties, declare of its own motion, by reasoned order, that there is no longer any need to adjudicate.

In the present case, as is apparent from paragraphs 16 to 20 above, it must be found that the applicant no longer gives instructions to his representatives, who therefore decided to cease representing him, and that the applicant has also failed to comply with the request from the Court in the letter of 10 May 2016 to appoint a new lawyer. In addition, he has failed to reply to the question from the Court put in the context of a measure of organisation of procedure, as set out in paragraph 19 above.

Consequently, in the light of the applicant’s inaction, the Court must declare of its own motion, in accordance with Article 131(2) of the Rules of Procedure, that there is no longer any need to adjudicate.

Costs

Under Article 137 of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.

In this case, the applicant must, having regard to the circumstances of the case, be ordered to bear his own costs and to pay those incurred by the Council.

Lastly, under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. The Commission must, therefore, bear its own costs.

On those grounds,

hereby orders:

There is no need to adjudicate on this action.

Mr Serhiy Vitaliyovych Kurchenko shall bear his own costs and pay those of the Council of the European Union.

The European Commission shall bear its own costs.

Luxembourg, on 15 September 2016.

Registrar

President

*1 Language of the case: English.