Case T‑233/22

Ekaterina Islentyeva

v

Council of the European Union

Judgment of the General Court (First Chamber, Extended Composition) of 20 December 2023

(Action for annulment – Common foreign and security policy – Restrictive measures adopted in view of Russia’s actions destabilising the situation in Ukraine – Prohibition on any non-Russian-registered aircraft owned, chartered or otherwise controlled by any Russian natural or legal person, entity or body, from landing in, taking off from, or overflying the territory of the European Union – Article 4e of Decision 2014/512/CFSP – Lack of jurisdiction of the General Court – Article 3d of Regulation (EU) No 833/2014 – Lack of locus standi – Inadmissibility)

1. Common foreign and security policy – Restrictive measures taken regarding the situation in Ukraine – Decision entailing the closure of the EU air space to certain categories of aircraft – Judicial review of legality – Scope – Article 4e of Decision 2014/512/CFSP – Measures of general application – Precluded

   (Art. 275, second para., TFEU; Council Decision 2014/512/CFSP, Art. 4e)

   (see paragraphs 20-24, 26-28, 30)

2. Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Regulatory acts that do not entail implementing measures and are of direct concern to them – Direct concern – Criteria – Restrictive measures taken regarding the situation in Ukraine – Act prohibiting any non-Russian-registered aircraft owned, chartered or otherwise controlled by any Russian natural or legal person, entity or body, from landing in, taking off from, or overflying the territory of the European Union – Action brought by a Russian citizen holding a private pilot license who does not have any economic or financial control over a non-Russian-registered aircraft – Inadmissibility

   (Art. 263, fourth para., TFEU; Council Regulation No 833/2014, Art. 3d(1))

   (see paragraphs 39, 42-48, 50-54)

Résumé

The applicant, who has dual Luxembourg and Russian citizenship, holds a private pilot license issued by the Directorate for Civil Aviation of the Grand Duchy of Luxembourg (‘the DAC’). To carry out flights over the territory of the European Union, she used aircraft belonging to a Luxembourg company established at Luxembourg Airport (Luxembourg).

Following the Russian Federation’s aggression against Ukraine at the beginning of 2022, the European Union imposed a series of restrictive measures in view of that situation, including Decision 2022/335 ( 1 ) (‘the contested decision’) and Regulation 2022/334 ( 2 ) (‘the contested regulation’).

Those acts are intended, inter alia, to deny any aircraft operated by Russian air carriers, any Russian-registered aircraft, and any non-Russian-registered aircraft which is owned or chartered, or otherwise controlled by any Russian natural or legal person, entity or body permission to land in, take off from, or overfly the territory of the European Union. ( 3 )

The European Commission and the European Aviation Safety Agency subsequently stated that the prohibition introduced by those acts applied to persons with Russian nationality who fly privately, since these persons control the aeroplane as pilots. The DAC also stated that the term ‘control’ used in those acts should be interpreted broadly, which included the effective and material control of an aircraft and was not limited solely to economic and financial control.

Considering that she had been adversely affected by those acts, the applicant brought an action seeking, first, annulment of the contested regulation, in so far as it inserts Article 3d of Regulation No 833/2014, and annulment of the contested decision, in so far as it inserts Article 4e of Decision 2014/512, and, secondly, the recognition of her right to use her private pilot license to land in, take off from or overfly the territory of the European Union.

By its judgment, the General Court considers that the prohibition in question does not apply to the ‘control’ of an aeroplane, as its pilot, by a person with Russian nationality, as contended by the applicant. However, the result of that interpretation is that the applicant lacks standing to bring an action against the contested regulation and, accordingly, the head of claim seeking annulment of that regulation must be dismissed as inadmissible. As for the other heads of claim submitted by the applicant, they are dismissed due to the lack of jurisdiction of the Court to hear them.

Findings of the Court

In the first place, the Court declares that it has no jurisdiction to hear the head of claim requesting it to recognise the applicant’s right to use her private pilot licence and to land in, take off from or overfly the territory of the European Union, since, when exercising judicial review under Article 263 TFEU, the Court does not have the jurisdiction to deliver declaratory or confirmatory judgments.

In the second place, the Court declares that it has no jurisdiction to rule on the head of claim relating to the annulment of the contested decision, since, in accordance with the last sentence of the second subparagraph of Article 24(1) TEU read together with the second paragraph of Article 275 TFEU, and the case-law of the Court of Justice, ( 4 ) it is the individual nature of those acts adopted on the basis of provisions relating to the CFSP which permit access to the Courts of the European Union.

In this case, the prohibition measures provided by Article 4e of Decision 2014/512 concern any aircraft operated by Russian air carriers, any Russian-registered aircraft and any non-Russian-registered aircraft which is owned, chartered or otherwise controlled by a Russian natural or legal person, entity or body. Those measures thus apply to all aircraft that satisfy the objective criteria and do not constitute restrictive measures against natural or legal persons within the meaning of the second paragraph of Article 275 TFEU, but measures of general application. In those circumstances, the Court does not have jurisdiction to review their validity

In the third place, the Court declares the action inadmissible, in so far as it seeks the annulment of the contested regulation, because the applicant lacks standing to seek the annulment of that act.

In accordance with the fourth paragraph of Article 263 TFEU, to institute proceedings against a measure, a natural person must be directly concerned by those measures; that condition necessitates, inter alia, that the contested measure must directly affect the legal situation of that person.

In the present case, in order to determine whether the applicant is directly concerned by the restrictive measures at issue, the Court interpreted the concept of an aircraft being ‘otherwise controlled’ which determines, in part, the scope of Article 3d(1) of Regulation No 833/2014, following the method of interpretation laid down by the case-law. ( 5 )

In that regard, although a literal interpretation of that concept may lead to the conclusion that it includes ‘technical or operational’ control, with the result that the prohibition could concern an aircraft operated by a natural person of Russian nationality, it should be considered, in the light of a contextual and teleological interpretation of that concept, that it applies only to economic or financial control.

On the one hand, the concept of an aircraft being ‘otherwise controlled’ arises in the economic and financial context in which the restrictive measures in question were adopted. First, the contested regulation amends Regulation No 833/2014, which provides for sectoral restrictive measures of an economic nature. Secondly, the expression ‘otherwise controlled’ follows on from the terms ‘owned’ and ‘chartered’, which are terms designating concepts that are relevant from an economic or financial view. Thirdly, the concept of ‘control’ is used in an economic or financial sense in other provisions of Regulation No 833/2014.

On the other hand, the objective pursued by the contested regulation is, inter alia, to exert maximum pressure on Russian authorities, in order for them to put an end to their actions against Ukraine. The restrictions on non-Russian-registered aircraft that are owned, chartered or otherwise economically or financially controlled affect the Russian aviation sector economically, thus contributing to the achievement of that objective.

Furthermore, observance of the principle of proportionality leads to the conclusion that a prohibition on landing, taking off from or overflying the territory of the European Union applicable to any aircraft controlled on a ‘technical or operational’ basis by a Russian citizen, in so far as it includes Russian citizens holding a private pilot’s licence, would be manifestly inappropriate in the light of the objective of exerting pressure on the Russian authorities.

Therefore, the concept of a non-Russian-registered aircraft ‘otherwise controlled’ by a Russian natural or legal person is limited to any non-Russian-registered aircraft which is economically or financially controlled by such a person.

Since the applicant in the main action is not in that situation, she is not directly concerned by the prohibition provided in Article 3d of Regulation No 833/2014 as amended.

( 1 ) Council Decision (CFSP) 2022/335 of 28 February 2022 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2022 L 57, p. 4).

( 2 ) Council Regulation (EU) 2022/334 of 28 February 2022 amending Council Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2022 L 57, p. 1).

( 3 ) This includes in particular Article 1(2) of Decision (CFSP) 2022/335, inserting Article 4e of Council Decision 2014/512/CFSP of 31 July 2014 concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine (OJ 2014 L 229, p. 13), and Article 1(2) of Regulation (EU) 2022/334, inserting Article 3d of Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 229, p. 1).

( 4 ) Judgment of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236, paragraph 103).

( 5 ) According to the case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 10 July 2014, D. and G., C‑358/13 and C‑181/14, EU:C:2014:2060, paragraph 32 and the case-law cited).