32. The appellant notes that the Council, in its response in the present appeal proceedings, accepted that the appellant has international legal personality and is a legal person in accordance with the relevant rules of public international law and domestic law. The obligation to ensure compliance with the rule of law requires the EU to ensure that any natural or legal person is “entitled to effective judicial protection of the rights they derive from the EU legal order”. In addition, any such person must be allowed to challenge before the EU Courts the measures adopted by the EU institutions that are prejudicial to them, in so far as the conditions established in Article 263 TFEU are met. This is an expression of the ubi ius ibi remedium principle, which is a general principle of EU law, and is reflected in Article 47(1) of the Charter of Fundamental Rights of the European Union (“the Charter”) as well as in Article 19(1) TEU.

[Page 227] 33. The appellant considers that the wording of the fourth paragraph of Article 263 TFEU does not provide any indication—be it even indirect—that would allow to it to be excluded from the concept of “legal person” set out therein. Moreover, in its order of 10 September 2020, Cambodia and CRF v. Commission (T‑246/19, EU:T:2020:415), the General Court held inter alia that the expression “any natural or legal person” in the fourth paragraph of Article 263 TFEU must be understood as also covering States which are not members of the European Union, such as the Kingdom of Cambodia. According to the appellant, that reasoning applies mutatis mutandis in the present appeal. In addition, the use of the determiner “any”, not only in English, but also other language versions,Footnote ²² with reference to “natural or legal person” in the fourth paragraph of Article 263 TFEU indicates that it includes “all” individuals and entities that are natural and/or legal persons, without distinctions. Any interpretation of the terms “any natural or legal person” laid down in the fourth paragraph of Article 263 TFEU, to the effect that they would not encompass entities with international legal personality, such as the appellant, would violate the wording of that provision and be contra legem. Moreover, such a contra legem interpretation would also violate the case-law according to which “provisions of the Treaty concerning the right of interested persons to bring an action must not be interpreted restrictively, and hence, where the Treaty makes no provision, a limitation in that respect cannot be presumed to exist”.Footnote ²³

34. The appellant claims that the above literal interpretation is confirmed—ad abundantiam—by a reading of the fourth paragraph of Article 263 TFEU in light of its objective and regulatory context. According to well-established case-law, the objective of the fourth paragraph of Article 263 TFEU “is to provide appropriate judicial protection for all persons, natural or legal, who are directly and individually concerned by acts of the [EU] institutions”.Footnote ²⁴ Moreover, the right to bring an action for annulment is essential to ensure compliance with the requirements stemming from the rule of law principles. [Page 228] Accordingly, the EU Courts have already accepted as a legal person within the meaning of that provision, for example, regions and other territorial entities in a Member State,Footnote ²⁵ sub-regional entities in third States,Footnote ²⁶ companies established in third States,Footnote ²⁷ third States,Footnote ²⁸ new Member States before they acceded to the European UnionFootnote ²⁹ and even organisations without any legal personality under national law, EU law or international law.Footnote ³⁰ To exclude the appellant from the judicial protection granted under the fourth paragraph of Article 263 TFEU would run counter to that provision and would deprive it of any legal remedy in respect of measures which have a direct and significant impact on its legal situation. Moreover, EU primary legislation does not contain any indications supporting the view that an entity with international legal personality, such as the appellant, would not be included in the notion of “legal person” for the purpose of that provision. Indeed, the case-law on the right to intervene pursuant to Article 40 of the Statute of the Court of Justice supports the conclusion that the appellant is a legal person within the meaning of the fourth paragraph of Article 263 TFEU.

35. The Council considers that a third State is not a legal person within the meaning of the fourth paragraph of Article 263 TFEU, except where specific rights have been conferred on it within the EU legal order pursuant to an agreement concluded with the EU. This exception does not apply to the case at hand. The aim of the provision is to strengthen the protection of individuals, not States.Footnote ³¹ Pursuant to Article 47 of the Charter, effective legal protection must exist for every right derived from EU law. Sovereign States, which are not subject to such a system and have no rights conferred on them (nor are they subject to obligations) by EU law, cannot—in principle—claim to have access to EU Courts. To grant a sovereign third State access to EU Courts beyond the limits outlined above would not only be inconsistent with the literal and teleological interpretation of the Treaty [Page 229] provision in question, but would in the view of the Council also run against the very system of remedies under EU law (and its underlying spirit), which was designed for the protection of rights granted under EU law.Footnote ³² Given that “the Union possesses a constitutional framework that is unique to it”,Footnote ³³ the remedies provided for under the Treaties cannot be extended to third States. A third State, although a legal person of international law, is nonetheless not subject to that constitutional framework which is limited to the Member States. The Union develops its relations with sovereign third States on the international scene and those relations are governed by international law which, in turn, is based on consent. In the international legal order, subjects of international law do not enjoy an automatic right to a judicial remedy; rather, they have the right not to submit to the jurisdiction of another State or an international tribunal unless they have consented to it. Sovereign third States have no specific rights under the EU Treaties, including any alleged right to be subject to equal treatment or to trade freely and unconditionally with economic operators in the EU. This is consistent with the sovereign immunity doctrine according to which the subjects of international law cannot, via their internal rules, regulate the conduct of other subjects of international law.

36. The Council claims that case-law on the principle of equality between old and new Member States, in which the Court of Justice endorsed the position, advocated by the Republic of Poland, that the latter State enjoyed a right of action in its capacity as a future Member State,Footnote ³⁴ cannot serve as a justification for according standing before the EU Courts to a third State such as Venezuela which is not and cannot become a Member State. Moreover, the Council stresses that, while it is true that the Court implicitly recognised that the Swiss Confederation had legal standing in its order of 14 July 2005, Switzerland v. Commission (C‑70/04, not published, EU:C:2005:468), this was done in an entirely different context, as the agreement between the European Community and the Swiss Confederation on Air Transport provided for the Swiss Confederation to be treated as a Member State for the purposes of applying specific provisions of the EU internal legislation. In addition, Article 20 of that agreement conferred exclusive jurisdiction on the Court regarding certain matters.

[Page 230] 37. The Council also considers that allowing a third State that is targeted by general restrictive measures (embargoes) to challenge such measures on the basis of conditions allowing access to the EU Courts to persons subject to individual measures would run contrary to the distinction established by the Treaties between general and individual restrictive measures and have as an additional effect an undue extension of the scope of the jurisdiction conferred on the EU Courts with respect to the provisions relating to the Common Foreign and Security Policy or with respect to acts adopted on the basis of those provisions. The necessary coherence of the system of judicial protection under the Treaties therefore requires that access to the EU Courts not be exceptionally granted to a third State which, as in the present case, challenges an embargo—that is, restrictive measures of a general nature, which have their legal basis in the first paragraph of Article 215 TFEU and which, in accordance with Articles 24(1) TEU and 275 TFEU, fall outside the jurisdiction of the EU Courts. This conclusion is moreover consistent with the established case-law of the Court, which gives access to EU Courts to different entities considered emanations of a State, when inscribed on the list of persons subject to individual restrictive measures.Footnote ³⁵

38. Moreover, in the view of the Council, recognising that a third State has legal standing to bring actions to challenge acts of the institutions of the Union in the circumstances of the present case would create a legal avenue that could put the EU at a disadvantage vis-à-vis its international partners, whose sovereign decisions pertaining to their international relations, trade or economic policies cannot be challenged before their courts, and in this way would unduly restrict the EU in the conduct of its policies and international relations. This is particularly relevant in the context of the present proceedings, where a third State is contesting provisions of an internal EU act implementing a political decision of the Council to reduce economic relations with it.

39. The Republic of Poland considers that legal persons within the meaning of the fourth paragraph of Article 263 TFEU are, essentially, entities which have legal personality under the law of a Member State or of a third country, but not those countries themselves. It claims that, “according to reports on the work of the European Convention on the current wording of the fourth paragraph of Article 263 TFEU”, the intention of the authors of the Treaties was to protect the rights of individuals. The concept of a legal person within the meaning of the [Page 231] fourth paragraph of Article 263 TFEU can also be defined by reference to the context in which it is used in the case-law of the Court of Justice. Pursuant to that case-law, the term “natural and legal person” is used interchangeably with the term “individual”, or even “private person”, which is in certain contrast to States (and thus excludes States from the scope of the term). The status of States, in contrast to that of individuals, is, however, determined by international law. One of the basic principles of international law is reciprocity. Allowing third countries to bring direct actions against acts of EU law before the Courts of the European Union would result in a lack of reciprocity, both substantive and procedural, in the European Union’s relations with those countries, because, although third countries would be able to challenge acts of EU law before the internal Court of the European Union (the Court of Justice), the European Union would not be able to challenge the national acts of those countries and the acts which they adopt within the framework of the various associations of States (international organisations) of which they are members (before their national courts or before the courts of those international organisations). Third countries are not parties to the Treaties on which the European Union is founded (the EU and FEU Treaties) and do not derive their rights and obligations from those Treaties. At the same time, acts of EU law adopted pursuant to the Treaties are not addressed to third countries. Those acts do not have legal effects vis-à-vis third countries and are not binding in their territory, nor do they confer any rights or obligations on third countries. This also includes restrictive measures which, pursuant to Article 215(2) TFEU, may be imposed on natural or legal persons and groups or non-State entities. Internal laws enacted by the European Union, which is a subject of international law, cannot regulate the situation of other subjects of international law such as sovereign States.

40. The Republic of Slovenia considers that an interpretation of the concept of “legal person” referred to in the fourth paragraph of Article 263 TFEU under which locus standi before the Court should also be granted to third countries without their having concluded with the European Union any agreement defining the legal relations between the parties thereto would lead to the risk of the Court becoming the forum for contesting EU policies. Nor would reciprocity be ensured in international relations. The third countries in question should not be permitted to influence EU policies by bringing actions before the Court.

41. The Kingdom of Belgium considers that as international law currently stands, it is indisputable that a third State is a legal person by [Page 232] virtue of the fact that, inter alia, it has legal personality and is able to be a party to legal proceedings. The European Union has never sought to call into question that state of affairs in international law, and moreover cannot do so. To deny that a third State may be concerned by an EU act would be tantamount to calling into question the European Union’s ability to carry out the task conferred on it by Article 3(5) TEU. Moreover, to deny a third State concerned by an EU act the right to effective judicial protection would be tantamount to adopting a restrictive view of the rule of law, a value on which, pursuant to Article 2 TEU, the European Union is founded.

42. The Republic of Bulgaria and the Republic of Lithuania consider that sovereign States have legal personality under international law and that a third State can in principle be regarded as a legal person within the meaning of the fourth paragraph of Article 263 TFEU. However, in order for a third State to bring an action against an EU act, the additional conditions laid down in the fourth paragraph of Article 263 TFEU need to be met. According to both the Republic of Bulgaria and the Republic of Lithuania, the appellant is not directly concerned by the contested provisions.

43. The Hellenic Republic considers that a third State may not be regarded as a legal person within the meaning of the fourth paragraph of Article 263 TFEU. It considers that recognising a right of recourse of third countries against acts of the European Union imposing sanctions may undermine the integrity and autonomy of the sanctions introduced in the Treaties. In addition, it may place the European Union at a disadvantage to third countries which do not recognise a similar right of recourse for the benefit of the European Union in their domestic legal system in connection with the application of international conventions.Footnote ³⁶

44. The Republic of Estonia considers that since neither the fourth paragraph of Article 263 TFEU nor the case-law relating to that provision states exactly who falls within the notion of legal person, it cannot be ruled out that a third State may also be regarded as a legal person within the meaning of that provision. The natural and legal persons referred to in Article 263 TFEU are not privileged applicants, such as the Member States and the institutions of the European Union, and must therefore satisfy additional requirements in order to bring proceedings. The Republic of Estonia considers that the provisions of the fourth paragraph of Article 263 TFEU may not be broadened in [Page 233] such a way that a third State would be in a more favourable position than individuals who seise the General Court on the basis of that provision. If a third State could not be treated as a legal person within the meaning of the fourth paragraph of Article 263 TFEU, it would therefore be unable to protect its interests even where it is certain that its rights have been infringed and that it can prove to the requisite legal standard that all the conditions necessary for it to institute proceedings are satisfied.Footnote ³⁷

45. The Slovak Republic considers that there is no legal basis in the Treaties for the Court to hear actions for annulment brought by sovereign third States, in respect of which the European Union does not even have regulatory competence. No analogy can be drawn between Case C‑70/04, which does not address the question whether the Swiss Confederation is a legal person for the purposes of the fourth paragraph of Article 263 TFEU, and the case-law on regions which have legal personality under national law and whose territory falls within the regulatory competence of the European Union or the case-law on interveners in actions before the Court. In accordance with Article 129(1) of the Rules of Procedure of the Court of Justice, “the intervention shall be limited to supporting, in whole or in part, the form of order sought by one of the parties. It shall not confer the same procedural rights as those conferred on the parties …” Moreover, under Article 129(2) of those rules, “the intervention shall be ancillary to the main proceedings”. In addition, the purpose of the fourth paragraph of Article 263 TFEU is to confer legal standing on individuals to bring an action for annulment.

46. The differing wording of Article 215(1) TFEU, which refers to “the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries”, and Article 215(2) TFEU, which provides that “where a decision adopted in accordance with Chapter 2 of Title V of the Treaty on European Union so provides, the Council may adopt restrictive measures under the procedure referred to in paragraph 1 against natural or legal persons and groups or non-State entities”, shows that the concept of “legal person” referred to in Article 215(2) TFEU covers not States but standard examples of legal persons, such as commercial companies, associations, unions or various other entities. Thus, according to the Slovak [Page 234] Republic, Article 215(2) TFEU permits the adoption of restrictive measures only against natural persons, legal persons, groups or non-State entities, but not directly against third States.

47. Moreover, Article 275 TFEU limits the jurisdiction of the Court of Justice of the European Union (in addition to monitoring compliance with Article 40 TEU) to ruling on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 TFEU, reviewing the legality of decisions providing for restrictive measures against natural or legal persons. There are no grounds for interpreting the concept of “legal person” appearing in the context of restrictive measures in Article 215(2) TFEU differently from its interpretation in the second paragraph of Article 275 TFEU.

48. Lastly, the Slovak Republic states that if sovereign third States were able to challenge the acts of the EU institutions by means of an action for annulment, that would place the European Union at a disadvantage vis-à-vis its international partners and, therefore, would limit the European Union inappropriately in the implementation of its policies and international relations.

49. The Kingdom of the Netherlands considers that the appellant can be regarded as a legal person within the meaning of the fourth paragraph of Article 263 TFEU. Third States, which under international law pre-eminently enjoy legal personality, may be regarded as legal persons for the purposes of the fourth paragraph of Article 263 TFEU. However, the position of a third State such as the appellant can never be equated with that of the EU institutions or of the Member States. The right to institute proceedings of a third State should therefore be assessed under the fourth paragraph of Article 263 TFEU and the conditions of admissibility laid down therein. The Kingdom of the Netherlands considers, however, that the appellant does not meet those conditions as the restrictive measures in question, first, are not addressed to the appellant, but to specific, identified natural and legal persons from Venezuela and the European Union, and, secondly, are not of direct concern to the appellant.

50. The Kingdom of Sweden considers that a third State is not a legal person pursuant to the fourth paragraph of Article 263 TFEU. Pursuant to Article 275 TFEU, the Court does not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions. However, the Court has jurisdiction to monitor compliance with Article 40 TEU and to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 TFEU, reviewing the legality of decisions providing for restrictive [Page 235] measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V TEU. That is also reflected in Article 24(1) TEU. The fact that there is a link between the individual nature of restrictive measures and access to the Courts of the European Union, as follows from Article 275 TFEU and the fourth paragraph of Article 263 TFEU, also follows from the Court’s case-law.Footnote ³⁸ Article 215(2) TFEU provides that the Council may adopt restrictive measures against natural or legal persons and groups or non-State entities, where a decision adopted in accordance with Chapter 2 of Title V TEU so provides. It therefore follows from the wording of that provision that restrictive measures under Article 215(2) TFEU, which may be subject to review by the Court, cannot be taken against States.

51. The Federal Republic of Germany considers that a third State is a “legal person” within the meaning of the fourth paragraph of Article 263 TFEU and may bring proceedings thereunder provided that it is directly and individually concerned by the measure in question. In the case of third States, that status can be inferred from general international law, which confers on every State recognised by the community of States the status of legal subject. However, a third State has a right of action only if the other conditions laid down in the fourth paragraph of Article 263 TFEU are present.Footnote ³⁹

52. The Federal Republic of Germany considers that the principle of effective legal protection, in the light of which the conditions of admissibility laid down in Article 263 TFEU must be interpreted, requires that effective recourse to judicial review as to the lawfulness of the acts of the EU institutions referred to in the first paragraph of Article 263 TFEU must be made available to third States also. It is true that third States are not in principle legal subjects bound by EU law. However, restrictive measures such as those at issue in the main proceedings are particularly liable to have specific de facto effects on third States. A refusal to classify third States as legal persons pursuant to the fourth paragraph of Article 263 TFEU would amount to an outright denial of effective legal protection and would to some extent constitute an [Page 236] inconsistency of approach in relation to the capacity of third State natural and legal persons governed by private law to bring proceedings under the fourth paragraph of Article 263 TFEU, which the Court of Justice recognises even in groups of persons who enjoy no or only limited legal recognition in the third State concerned. It would thus seem unacceptable not least on grounds of equality of arms in procedural matters for third-State-based “organisations without legal recognition”, such as the Western Sahara Liberation Front “POLISARIO” or the Sri Lankan “Liberation Tigers of Tamil Eelam”, to have capacity to bring proceedings under the fourth paragraph of Article 263 TFEU, while their respective State counterparts do not.

53. The Commission considers that no definitive conclusion can be drawn in respect of the terms “legal person” on the basis of a literal interpretation or a contextual analysis of the fourth paragraph of Article 263 TFEU.

54. If a teleological interpretation of the fourth paragraph of Article 263 TFEU based on the principle of equality of States is adopted, actions by third States are not covered by the EU jurisdiction when they deal with relations with the EU that are governed by international law (acta jure imperii). Consequently, third States can be considered as legal persons under the fourth paragraph of Article 263 TFEU only when they act jure gestionis or have access to the EU Courts pursuant to an international agreement with the EU. Looking at the objective of the fourth paragraph of Article 263 TFEU, this approach is in line with the principle of effective judicial protection. It does not deny a remedy to the third State but implies that the remedy is granted under the appropriate jurisdiction. Thus, when the third State acts as a sovereign, the remedy is to be accorded in line with international lawFootnote ⁴⁰ rather than EU law. This approach is also compatible with Article 47 of the Charter, as the third State would be accorded the rights under the Charter only when it falls in the category of those “whose rights and freedoms guaranteed by the law of the Union are violated”, that is, when it acts as a private party. According to the Commission, if this approach were applied to the case at hand, the appellant cannot be considered to be a legal person, since the restrictive measures regime, the reasons which the appellant invokes for seeking its invalidation and the relationship between the Union and the appellant as regards the measure all fall in the area of jure imperii and are to be regulated as matters of international law.

[Page 237] 55. The Commission considers that if a teleological interpretation of the fourth paragraph of Article 263 TFEU guided by the openness of the EU legal order is adopted, nothing prevents the fourth paragraph of Article 263 TFEU from being interpreted to include third States within the notion of “legal person”, if a third State decides to submit itself to the jurisdiction of the EU Courts.Footnote ⁴¹

56. According to the Commission, where the Union adopts a unilateral act potentially affecting interests of a third country and that third country chooses to seek judicial review before the EU Courts instead of opening international dispute settlement mechanisms, there is no reason why the EU Courts should refuse to hear such a case as a matter of principle, without examining whether all the relevant conditions of admissibility are fulfilled. The constitutional traditions of the Member States also do not appear to stand in the way of such an open interpretation: at least in certain Member States, third countries can bring actions before national courts, which can in turn submit, in that context, requests for preliminary ruling to the Court of Justice, including regarding the validity of Union acts.

57. The Commission, however, stresses that the conditions of direct and individual concern must be met by the third State.

58. It is clear from the observations submitted to the Court, which I have taken the liberty of briefly summarising, that, in the context of the present appeal proceedings, the issue of locus standi of the appellant raises not only the general question of whether the concept of “legal person” pursuant to the fourth paragraph of Article 263 TFEU includes third States, but it also concerns the more narrow question—which is specific to proceedings concerning restrictive measures—of whether the Court has jurisdiction pursuant, inter alia, to Article 275 TFEU to rule in an action for annulment of restrictive measures brought by a third State. In my view, it is convenient to look in the first place at the question of the jurisdiction of the Court.

91. In support of the appeal, the appellant relies on a single ground of appeal in which it claims that the General Court wrongly interpreted the criterion of direct concern provided for in the fourth paragraph of Article 263 TFEU in light of the Almaz-Antey judgment.

92. The appellant contends that, in assessing whether it is directly concerned by the contested provisions, the General Court wrongly relied on the Almaz-Antey judgment, whose relevance to the present case is difficult to perceive. It maintains that the present case, which is the first of its kind in EU case-law, concerns instead an action brought by the government of a third country which is expressly targeted by the restrictive measures. This important feature of the present case, which distinguishes this case from the EU Courts’ existing case-law, was completely neglected by the General Court. In that regard, the appellant recalls that, in assessing novel questions relating to the admissibility of an action for annulment, this Court emphasised the importance of “avoiding excessive formalism which would amount to the denial of any possibility of applying for annulment even though the entity in question has been the object of restrictive Community measures”.Footnote ⁷¹ [Page 249] The appellant submits that the question of whether it acted as an economic operator active on the markets in question cannot be seen as the guiding criterion to decide whether it is directly concerned by the contested provisions, as this is not what the fourth paragraph of Article 263 TFEU requires. According to the appellant, the contested provisions are aimed at preventing it from purchasing goods and services. As a result, by their own nature and content, the contested provisions directly affect the appellant both from a legal and factual viewpoint.

93. The appellant also claims that the fact that it is not listed as such in a relevant annex to Regulation 2017/2063 in a similar manner to the applicant in the Almaz-Antey judgment is irrelevant as the appellant is specifically referred to in the contested provisions. By prohibiting exports of certain items and services to Venezuela, the contested provisions by their very content have significant direct factual and legal effects towards the appellant. The appellant considers that the fact that the activity of the government of a third country is not a purely commercial activity is undeniable. However, this fact does not exclude that the appellant can also act as an economic operator in a specific market. Therefore, the circumstance referred to in paragraph 37 of the judgment under appeal is insufficient to conclude that such an entity is not directly concerned by the contested provisions. The appellant claims that while purchasing the goods and equipment covered by the contested provisions it engaged in a purely commercial activity, as it acted in the manner of a private player within the relevant market. It follows that, contrary to what the judgment under appeal states, the appellant acted as an economic operator.

94. The appellant considers that the contested provisions prevent it from (i) purchasing arms, military equipment or any other equipment which might be used for internal repression, as well as surveillance equipment, technology or software and (ii) obtaining financial, technical or other services related to the above equipment and technology. It is therefore clear that, by affecting the existing economic relationship of the appellant with all the relevant operators in the European Union, the contested provisions have a significant factual effect on it. That effect is, moreover, more than merely indirect. The appellant submits that the General Court erroneously interpreted the case-law referred to in paragraph 46 of the judgment under appeal and, therefore, neglected to consider the crystal-clear circumstance that the contested provisions have direct factual effects on the appellant’s situation.

95. The Council claims that the appellant’s pleadings in respect of the three limbs of its single plea overlap to some extent. The Council considers that, in essence, the three limbs revolve around the same [Page 250] question, namely whether the General Court erred in law by concluding that the contested provisions of Regulation 2017/2063 do not directly concern the appellant within the meaning of the fourth paragraph of Article 263 TFEU. No other specific provisions or principles of EU law are claimed to have been violated. The Council considers that to the extent that the appellant merely seeks the re-examination of evidence that was before the General Court, the appeal must be dismissed as going beyond the object of an appeal which, in accordance with Article 58 of the Statute of the Court of Justice, must be limited to points of law.

96. The Council considers that the present appeal is inadmissible in part, and also unfounded, and must therefore be dismissed.

97. The Council considers that the appellant does not invoke any specific provision or principle of EU law on the basis of which the General Court would have been required to extend the notion of direct concern beyond the one currently established in the case-law of the EU Courts. It notes that the judgment of 18 January 2007, PKK and KNK v. Council Footnote ⁷² is entirely irrelevant to the present case. In that judgment, the Court decided to adapt the procedural rules governing the admissibility of an action for annulment by extending standing to organisations lacking legal personality. According to the Council, “there is no issue regarding legal personality in the present case, however: it is uncontested that the appellant is a legal person and therefore in principle has access to the EU courts, subject however to general admissibility conditions, which according to the Council, are not fulfilled in this case”.Footnote ⁷³

98. The question of whether the contested provisions directly affect the appellant’s position was determined by the General Court in accordance with the settled case-law, that is to say, “specifically in each individual case having regard to the regulatory content of the EU act in question”.Footnote ⁷⁴ Contrary to the appellant’s allegations, there was consequently no obligation under EU law for the General Court to assess the overall aim of the restrictive measures in question with a view to determining whether the appellant was directly concerned by the contested provisions. If the aim of the measure was used as a criterion [Page 251] to assess whether an EU law act directly affects the legal or factual position of a third State, this would be contrary to the settled case-law of the EU Courts, and such an approach would also expand the category of potential applicants to include any third State with respect to which the EU decides as a matter of foreign policy to interrupt or reduce, in part or completely, economic and financial relations. Moreover, whilst the persons, entities or bodies in such third countries, including those which could be considered as emanations of the State, may be hindered in purchasing equipment subject to export restrictions from the EU market, it is clear that such limitations for them produce no direct effect on the legal situation of a third country, as a State, in its capacity jure imperii, that is to say, in the capacity in which, according to the appellant, it should have been granted standing.

99. The Council considers that, contrary to the appellant’s contention, the General Court did not hold that the appellant was not directly concerned on the sole basis of being insufficiently referred to in the contested provisions. Rather, the General Court reached this conclusion on the basis of a number of relevant elements taken together, which were duly reasoned and supported by the relevant case-law in paragraphs 35 to 48 of the judgment under appeal. In addition, specifically as regards references to the appellant in the contested provisions, it is clear that the appellant is not addressed by those provisions directly. There is simply a prohibition against EU economic operators on having economic and financial relations with natural or legal persons, entities or bodies (established in or operating) in the territory of Venezuela. What are directly addressed are the specific uses of certain equipment by such persons or entities in the territory of Venezuela, “in view of the risk of further violence, excessive use of force, and violations or abuses of human rights”.

100. The Council considers that, contrary to the appellant’s claim (under the first plea), the General Court did fully take into account the specific situation of the State and made an analysis as to whether it can be compared to an economic operator active in a specific market within the meaning of the EU Courts’ case-law. It concluded that this is not possible, as a State acting in its jure imperii capacity is not comparable to a private or public entity whose existence is limited by its purpose (the commercial activity in question). The appellant does not explain why it considers this conclusion by the General Court to be wrong in law. Its submission that a State can act as an economic operator in a specific market is beside the point made in the analysis of the General Court. The underlying reason for establishing the condition of direct concern for entities other than States is the impact that the application [Page 252] of restrictive measures may have on their economic activity. Such an impact cannot be established in relation to a State given the “very wide range of competences” and diverse fields of action that are characteristic of a State.

101. The Council considers that the General Court correctly concluded that the appellant, which is not specifically named in the measures and has not demonstrated that it was active on the market affected by export restrictions, failed to meet the requirements of the case-law, for the reasons developed in paragraphs 37 to 40 of the judgment under appeal, and on this basis had to refuse standing to the appellant. In so far as the appellant claims that the General Court should have recognised the factual effects of the measures irrespective of the circumstances in which such effects have been recognised as sufficient for establishing locus standi in the settled case-law, the appellant actually requests the Court to establish a new rule according to which standing should be granted automatically to third States seeking to contest economic measures taken by the EU in the context of its foreign policy. In other words, the appellant seems to insist on the creation of a new rule which would automatically give standing to third States by allowing them to challenge measures that implement decisions adopted with a view to pursuing legitimate objectives of the Union’s external action as laid down in Article 21 TEU, including through the interruption or reduction, in part or completely, of economic or financial relations with one or more third countries (Article 215(1) TFEU).

102. The Council submits that this would be contrary to the system of judicial protection under the Treaties, designed with a view to ensuring the protection of rights granted under EU law. Sovereign third countries have no specific rights under the EU Treaties to be subject to equal treatment or to trade freely and unconditionally with economic operators in the EU. Therefore, by definition they cannot successfully claim to be affected in their legal position as a result of an EU measure which potentially puts them in differentiated treatment (typically only within limited sectors of their activity), and possibly also vis-à-vis other third States with which the EU does not decide to reduce or interrupt its economic relations. Moreover, creating ab novo such a legal avenue would put the EU at a disadvantage vis-à-vis its international partners whose sovereign decisions pertaining to their economic policies cannot be challenged before their courts, and in this way would unduly restrict the EU in the conduct of its policies and international relations. This is particularly relevant in the context of the present proceedings where a third State is contesting provisions of [Page 253] an internal EU act implementing a political decision of the Council to reduce economic relations with that State.

103. The condition according to which a natural or legal person must be directly affected by the decision forming the subject matter of the action, as provided for in the fourth paragraph of Article 263 TFEU, requires two cumulative criteria to be met, namely that the measure at issue, first, must directly affect the legal situation of the individual and, secondly, it must leave no discretion to the addressees entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules without the application of other intermediate rules.Footnote ⁷⁵

104. It is thus necessary to examine whether the General Court has correctly applied the criteria in question in the present case.

105. It is clear from the judgment under appeal that the General Court only examined the first of the two cumulative criteria and found, in effect, that the contested provisions did not directly affect the legal situation of the appellant. The General Court stated, correctly in my view, in paragraph 30 of the judgment under appeal that in order to determine whether a measure produces legal effects, it is necessary to look in particular to its subject matter, its content and substance, as well as to the factual and legal context of which it forms part.Footnote ⁷⁶ This position, which advocates a holistic and pragmatic approach when assessing the effects of a measure and favours substance over form, should be used when examining the effects of a measure on the legal situation of a natural or legal person. Given the novel nature of the present case where, for the first time, a third State has sought the annulment of restrictive measures, such an approach is particularly warranted and complies with the spirit of paragraph 114 of PKK and KNK v. Council (C‑229/05 P, EU:C:2007:32), in which the Court [Page 254] advocated “avoiding excessive formalism which would amount to the denial of any possibility of applying for annulment even though the entity in question has been the object of restrictive … measures”.Footnote ⁷⁷

106. The main reasoning of the General Court of direct concern in the judgment under appeal may be found in paragraphs 31 to 33 thereof.Footnote ⁷⁸

107. In paragraph 31 of the judgment under appeal, the General Court found that the contested provisions prohibit first, the sale or supply to any natural or legal person, entity or body in Venezuela of arms, military equipment or any other equipment which might be used for internal repression, as well as surveillance equipment, technology or software and, secondly, the provision of financial, technical or other services related to such equipment and technology to any natural or legal person, entity or body in Venezuela.

108. The General Court then stated that Article 20 of Regulation 2017/2063 limits the application of the prohibitions contained in the contested provisions to the territory of the Union, to natural persons who are nationals of a Member State and to legal persons constituted under the law of one of them, as well as to legal persons, entities and bodies in respect of any business done in whole or in part within the Union, and that the contested provisions do not impose prohibitions on the appellant. Thus, according to the General Court, the contested provisions at most are likely to have indirect effects on the appellant as the prohibitions imposed on natural persons who are nationals of a Member State and on legal persons constituted under the law of one of them could have the effect of limiting the sources from which the appellant can obtain the goods and services subject to those prohibitions.Footnote ⁷⁹

109. For my part, I cannot help thinking that the General Court’s assessment of the effects of the contested provisions on the appellant’s legal situation is one which, with respect, is highly artificial and unduly [Page 255] formalistic. I feel equally bound to observe that the General Court’s analysis is simply at odds with the reality of the restrictive measures in question. Those measures were especially aimed at and were designed to affect the appellant. I say that for the following reasons.

110. First, it is clear, in particular from Articles 6 and 7 of Regulation 2017/2063, that the reference “to any natural or legal person, entity or body in, or for use in, Venezuela” in the contested provisions includes Venezuela’s government, public bodies, corporations or agencies, or any person or entity acting on their behalf or at their direction. The specific identification and targeting of the appellant by the contested provisions is evident from the fact that, otherwise, it would not have been necessary expressly to exclude or refer to “Venezuela’s government, public bodies, corporations or agencies, or any person or entity acting on their behalf or at their direction” in Article 6(2) and Article 7(1)(c) of Regulation 2017/2063.Footnote ⁸⁰ The prohibitions contained in the contested provisions therefore specifically identify and target the appellant and various emanations of that State.Footnote ⁸¹ They seek further to ensure inter alia that the appellant itself (and the various emanations of that State)Footnote ⁸² does not obtain certain specified goods and services from any person identified in Article 20 of Regulation 2017/2063.Footnote ⁸³

111. Given that the prohibitions contained in the contested provisions prevent the appellant from obtaining the listed goods and services from any person identified in Article 20 of Regulation 2017/2063, it is, with respect, simply artificial and formalistic to suggest that a ban on the sale and supply of goods and services to the specifically identified [Page 256] and targeted appellant does not directly, and indeed individually, affect the legal situation of the appellant.Footnote ⁸⁴ From this one might also observe that those measures plainly impact on the reputation of Venezuela as a member of the community of nations: they suggest and are intended to suggest—perhaps with very good reason—that Venezuela’s commitment to democratic values and traditions is a hollow one and that that State needs to do much more before it can enjoy the full confidence of the European Union and its Member States so far as the maintenance of these values is concerned.

112. Secondly, while the General Court has correctly outlined the scope ratione loci and ratione personae of the prohibitions contained in the contested provisions in accordance with Article 20 of Regulation 2017/2063, the fact that those prohibitions are limited to the territory of the Union and that the contested provisions do not impose prohibitions on the appellant per se does not mean that the contested provisions do not directly affect the appellant’s legal situation.

113. Indeed, Article 20 of Regulation 2017/2063 merely indicates the scope of the EU legislature’s competence or jurisdiction—both geographical and personal—in relation to the restrictive measures adopted pursuant to that regulation. Thus, the fact that Regulation 2017/2063 does not “apply”Footnote ⁸⁵ to the appellant as the EU legislature clearly does not have direct jurisdiction over it does not necessarily entail that restrictive measures which apply, for example, only within the territory of the Union and are binding on nationals of a Member State, do not directly affect the appellant’s legal situation.Footnote ⁸⁶ Any other conclusion would mean that no natural or legal person outside the territory of the Union and who is not a national of a Member State or incorporated or constituted under the law of a Member State who is listed, for example, in Annex IV and Annex V to Regulation 2017/2063 and [Page 257] whose funds or economic resources have been frozen in accordance with Article 8 of that regulation or equivalent restrictive measures would have standing to seek annulment of those measures.Footnote ⁸⁷

114. The Court, however, has repeatedly stated that, given its significant negative impact on the freedoms and fundamental rights of the person or of the entity concerned, any inclusion in a list of persons or entities subject to restrictive measures, whether based on Article 215 TFEU or on Article 291(2) TFEU, allows that person or entity access to the Courts of the European Union, in that it is similar, in that respect, to an individual decision, in accordance with the fourth paragraph of Article 263 TFEU.Footnote ⁸⁸

115. I would stress in that regard that the inclusion of persons or entities subject to restrictive measures in a list results in the persons or entities being both directly and individually concerned by the measures.Footnote ⁸⁹ Moreover, while the freezing of a person’s funds or economic resources may perhaps (quod non) have a greater impact on that person’s legal situation than a ban on the sale of certain goods or the provision of certain services to him,Footnote ⁹⁰ it is nonetheless striking that in the Almaz-Antey judgment, the General Court held that such a ban directly affectedFootnote ⁹¹ the legal situation of the applicant in that case.Footnote ⁹² The General Court therefore held in the Almaz-Antey judgment that given that the restrictive measure in question in that case prohibited, first, the direct or indirect sale, supply, transfer or export of dual use goods and technology to any person, entity or body in Russia as listed in Annex IV to that decision by nationals of Member States or from the territories of [Page 258] Member States, and, secondly, the provision of technical assistance, brokering services, financing or financial assistance related to the goods and technology referred to, to any person, entity or body in Russia, as listed in Annex IV, the relevant provisions of that decision directly affected the legal situation of the applicant, which was designated by name in Annex IV to the decision in question.Footnote ⁹³

116. The General Court, in the Almaz-Antey judgment, thus rejected the Council’s contention that the legal situation of the applicant in that case was not affected, as the provision in question did not prohibit the entities referred to from carrying out certain activities, but rather prohibited the sale of dual use goods and technology to those entities by natural and legal persons who come under EU jurisdiction.Footnote ⁹⁴

117. For my part, I agree that the decision and reasoning in the Almaz-Antey judgment is correct and I consider that it should be applied, by analogy, in the present case. In my view, the contested provisions prevent the appellant from purchasing certain specified goods and services from certain defined EU operators and thus directly affect the appellant’s legal rights and interests. I will, however, for the sake of completeness and in the light of the novel nature of this case, address certain other arguments of the parties and the reasoning of the General Court.

118. The General Court, in paragraphs 34 to 37 of the judgment under appeal, distinguished the facts in the present case from those that gave rise to the Almaz-Antey judgment. In that regard, the General Court noted that in that case the applicant’s name appeared in the annex to the contested decision as an undertaking to which it was prohibited to sell or supply the goods and services in question. Moreover, the General Court considered that the appellant cannot be assimilated to an operator such as the applicant in the Almaz-Antey [Page 259] judgment as its modes of action could not be reduced to a purely commercial activity.

119. For my part, I consider that it is wholly irrelevant whether the appellant is named or identified in the body of Regulation 2017/2063 rather than in an annex thereto. If it were otherwise, it would mean that an applicant’s entitlement to commence Article 263 TFEU proceedings could be set at naught through the simple expedient of naming or identifying that party in the main body of the regulation itself rather than in an annex.

120. What is important is the effect or impact of the contested provisions and the prohibitions contained therein on the legal situation of the appellant rather than the precise form in which those prohibitions are presented. I therefore consider that the General Court erred in law in stating in paragraph 36 of the judgment under appeal that the appellant is not explicitly and specifically referred to in the contested provisions in a manner comparable to the applicant in the case which gave rise to the Almaz-Antey judgment.

121. In addition, I consider that it is irrelevant for the purpose of the question of direct concern in the present case that the legal status or activity of the appellant is not limited to that of an economic operator active in certain markets. The fact that the appellant as a State enjoys a diverse range of competences which are not solely commercial in nature by no means per se eliminates, reduces or renders indirect the effects of the contested provisions on the appellant’s legal situation.Footnote ⁹⁵ I would note in that regard that aside from the requirement that proceedings must be instituted by a natural or legal person, the fourth paragraph of Article 263 TFEU does not impose any further requirements concerning the status or capacity of that person.Footnote ⁹⁶

122. I would also add that, contrary to the submissions of the Council, the approach to direct concern which I advocate in this Opinion in respect of the appellant does not create any new rule or “legal avenue”Footnote ⁹⁷ which automatically grants standing to third States in actions for annulment under Article 263 TFEU in respect of restrictive measures. Rather, what I propose is that the Court follow its existing case-law and merely adapt it to this novel action. [Page 260] Furthermore, and again contrary to the submissions of the Council, the rules on standing laid down in Article 263 TFEU, and in particular the fourth paragraph thereof, are based on the objective criteria which have been laid down in that Treaty and interpreted by the EU Courts, rather than on the existence or absence of any reciprocal arrangements on standing between the EU and third States.

54. In support of its appeal, the Bolivarian Republic of Venezuela relies on a single ground alleging that the General Court wrongly interpreted the condition, laid down in the fourth paragraph of Article 263 TFEU, that the applicant must be directly concerned by the measure which forms the subject matter of its action.

[Page 273] 55. In its view, the fact, noted by the General Court in paragraphs 35 and 36 of the judgment under appeal, that the Bolivarian Republic of Venezuela was not listed as such in Annex IV or Annex V to Regulation 2017/2063 in a similar manner to the applicant in the case which gave rise to the judgment of 13 September 2018, Almaz-Antey v. Council (T‑515/15, not published, EU:T:2018:545), is irrelevant since it is specifically mentioned in Articles 2, 3, 6 and 7 of Regulation 2017/2063. It is also irrelevant, contrary to what the General Court held in paragraph 40 of the judgment under appeal, whether or not it acted as an economic operator active on the markets in question, since those articles are of direct concern to it both from a legal and factual perspective.

56. The Council contends that the question whether Articles 2, 3, 6 and 7 of Regulation 2017/2063 directly affect the position of the Bolivarian Republic of Venezuela was decided by the General Court in the judgment under appeal in accordance with settled case-law, of which the judgment of 13 September 2018, Almaz-Antey v. Council (T‑515/15, not published, EU:T:2018:545), is an integral part. In that context, the General Court was not required to take into consideration the aim of the restrictive measures at issue, consisting in bringing about a change in the Venezuelan Government’s behaviour. Such an approach would not only be contrary to the settled case-law of the EU Courts, it would also expand the category of potential applicants to include any third State in respect of which the European Union decides as a matter of foreign policy to interrupt or reduce, in part or completely, economic and financial relations.

57. According to the Council, the General Court did not hold that the Bolivarian Republic of Venezuela was not directly concerned on the sole basis that it was insufficiently referred to in Articles 2, 3, 6 and 7 of Regulation 2017/2063. Rather, the General Court reached that conclusion on the basis of a number of relevant elements taken together, which were duly reasoned and supported by the relevant case-law in paragraphs 35 to 48 of the judgment under appeal. In addition, specifically as regards references to the Bolivarian Republic of Venezuela in those articles, it is clear that it is not addressed by those articles directly. There is simply a prohibition against EU economic operators on having economic and financial relations with natural or legal persons, entities or bodies established in or operating in the territory of Venezuela.

58. In addition, as regards whether the General Court should have assimilated the Bolivarian Republic of Venezuela to an economic operator, as it did with regard to the applicant in the case which gave [Page 274] rise to the judgment of 13 September 2018, Almaz Antey v. Council (T‑515/15, not published, EU:T:2018:545), the Council submits that the General Court took full account of the specific situation of the Bolivarian Republic of Venezuela and that it analysed whether that State could be compared to an economic operator active in a specific market within the meaning of the case-law. The General Court, without erring in law, concluded that this was not possible, since a State acting in its jure imperii capacity is not comparable to a private or public entity whose existence is limited by its purpose.

59. Lastly, the Council argues that the Bolivarian Republic of Venezuela is in fact asking the Court to establish a new rule according to which standing to bring proceedings should be automatically granted to third States seeking to challenge economic measures taken by the European Union in the context of its foreign policy, by allowing them to challenge measures that implement decisions adopted with a view to pursuing legitimate objectives of the European Union’s external action as laid down in Article 21 TEU, including through the interruption or reduction, in part or completely, of economic or financial relations with one or more third countries pursuant to Article 215(1) TFEU.

60. That would be contrary to the system of judicial protection established by the Treaties, designed with a view to ensuring the protection of rights granted under EU law. Sovereign third States have no specific rights under the Treaties to be subject to equal treatment or to trade freely and unconditionally with economic operators in the European Union. Consequently, third States cannot legitimately claim to be directly affected in their legal position by an EU measure which potentially subjects them to differentiated treatment.

61. According to settled case-law, the condition that the measure forming the subject matter of the proceedings must be of direct concern to a natural or legal person, as laid down in the fourth paragraph of Article 263 TFEU, requires the fulfilment of two cumulative criteria, namely the contested measure should, first, directly affect the legal situation of the individual and, secondly, should leave no discretion to the addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules alone without the application of other intermediate rules (judgments of 5 November 2019, ECB and Others v. Trasta Komercbanka and Others, C‑663/17 P, C‑665/17 P and C‑669/17 P, [Page 275] EU:C:2019:923, paragraph 103, and of 3 December 2020, Changmao Biochemical Engineering v. Distillerie Bonollo and Others, C‑461/18 P, EU:C:2020:979, paragraph 58).

62. In the judgment under appeal, the General Court held that Articles 2, 3, 6 and 7 of Regulation 2017/2063 did not directly concern the Bolivarian Republic of Venezuela, for, in essence, three reasons relating to the first criterion set out in paragraph 61 of the present judgment.

63. In the first place, in paragraph 32 of the judgment under appeal, the General Court noted that Article 20 of Regulation 2017/2063 limits the application of the prohibitions set out in Articles 2, 3, 6 and 7 of that regulation to the territory of the Union, to natural persons who are nationals of a Member State and to legal persons constituted under the law of one of them, as well as to legal persons, entities and bodies in respect of any business done in whole or in part within the Union.

64. In the second place, in paragraph 33 of the judgment under appeal, the General Court considered that Articles 2, 3, 6 and 7 of Regulation 2017/2063 do not impose prohibitions on the Bolivarian Republic of Venezuela. At most, those articles were likely to have indirect effects on the Bolivarian Republic of Venezuela, in so far as the prohibitions imposed on natural persons who are nationals of a Member State and on legal persons constituted under the law of one of them could have the effect of limiting the sources from which the Bolivarian Republic of Venezuela can obtain the goods and services in question.

65. In the third place, in paragraphs 34 to 41 of the judgment under appeal, the General Court distinguished the present case from the case which gave rise to the judgment of 13 September 2018, Almaz-Antey v. Council (T‑515/15, not published, EU:T:2018:545). The General Court observed that, in that case, the applicant was expressly referred to in the contested measure since its name appeared in the annex to the contested decision as an undertaking to which it was prohibited to sell or supply the goods and services in question. Conversely, in the present case, as a State, the Bolivarian Republic of Venezuela is not explicitly and specifically referred to in Articles 2, 3, 6 and 7 of Regulation 2017/2063 in a manner comparable to the applicant in the case which gave rise to that judgment.

66. In that regard, it must be noted that the General Court correctly recalled, in paragraph 30 of the judgment under appeal, its own case-law according to which, in order to determine whether a measure produces legal effects, it is necessary to look in particular to its purpose, [Page 276] its content, its scope, its substance and the legal and factual context in which it was adopted.

67. In the present case, the title of Regulation 2017/2063, recital 1 thereof and the wording of Articles 2, 3, 6 and 7 thereof show that the restrictive measures at issue were taken against the Bolivarian Republic of Venezuela.

68. The General Court rightly pointed out in that regard, in paragraph 34 of the judgment under appeal, that prohibiting EU operators from carrying out certain transactions, which is the purpose of Articles 2, 3, 6 and 7 of Regulation 2017/2063, amounted to prohibiting the Bolivarian Republic of Venezuela from carrying out those transactions with those operators.

69. The entry into force of Regulation 2017/2063 had the effect of immediately and automatically applying the prohibitions laid down in Articles 2, 3, 6 and 7 thereof. Since those prohibitions prevent the Bolivarian Republic of Venezuela from obtaining numerous goods and services, those provisions directly affect the legal situation of that State. In addition, as the Advocate General pointed out in point 110 of his Opinion, it is clear, in particular from Articles 6 and 7 of Regulation 2017/2063, that the reference “to any natural or legal person, entity or body in, or for use in, Venezuela” in those prohibitions includes Venezuela’s government, public bodies, corporations or agencies, or any person or entity acting on their behalf or at their direction.

70. In that regard, it should be noted that, in order to find that the Bolivarian Republic of Venezuela is directly concerned by Articles 2, 3, 6 and 7 of Regulation 2017/2063, it is not necessary to draw a distinction according to whether such commercial transactions are carried out jure gestionis or jure imperii, since such a distinction cannot be inferred either from the fourth paragraph of Article 263 TFEU or from any other provision of EU law.

71. Moreover, the fact that the restrictive measures at issue do not constitute an absolute obstacle preventing the Bolivarian Republic of Venezuela from procuring the goods and services covered by those articles, since that State remains in a position to procure them outside the territory of the European Union through persons not subject to those measures, does not call into question the conclusion that the prohibitions laid down in those articles directly concern the Bolivarian Republic of Venezuela. The condition that prohibitions such as those laid down in Articles 2, 3, 6 and 7 of Regulation 2017/2063 must be of direct concern to a legal person does not mean that it must be entirely impossible for that person to obtain the goods and services in question.

[Page 277] 72. It is also irrelevant, for the purposes of ascertaining whether the Bolivarian Republic of Venezuela is directly concerned by Articles 2, 3, 6 and 7 of Regulation 2017/2063, that the activity of that third State is not limited to that of an economic operator active on certain markets.

73. It follows that the General Court erred in law in considering that the restrictive measures at issue did not directly affect the legal situation of the Bolivarian Republic of Venezuela and by upholding, on that basis, the second ground of inadmissibility raised by the Council.

74. In those circumstances, the single ground of appeal relied on by the Bolivarian Republic of Venezuela must be upheld and the judgment under appeal must be set aside in so far as it dismisses as inadmissible the action brought by the Bolivarian Republic of Venezuela for annulment of Regulation 2017/2063.

78. By the first ground of inadmissibility, the Council submits that the Bolivarian Republic of Venezuela has no interest in seeking the annulment of the restrictive measures at issue before the EU Courts. Those measures do not bring about a distinct change in the legal position of the Bolivarian Republic of Venezuela since they do not produce any binding legal effect for that State as such or in its territory.

79. As is clear from Article 20 of Regulation 2017/2063, the scope of that regulation is limited to the territory of the Member States and to persons subject to the jurisdiction of a Member State. In addition, the reasons which led the Court to hold, in the judgment of 21 December 2016, Council v. Front Polisario (C‑104/16 P, EU:C:2016:973, paragraphs 131 to 133), that the Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario) could not be regarded as having standing to seek the annulment of the contested decision in the case which gave rise to that judgment are applicable by analogy in the present case.

80. The Bolivarian Republic of Venezuela contends that that ground of inadmissibility must be rejected.

81. Since the Council submits that Regulation 2017/2063 does not produce any binding legal effects capable of affecting the interests of the Bolivarian Republic of Venezuela, it should be recalled that it is settled case-law that an action for annulment must be available in the case of all measures adopted by the EU institutions, irrespective of their nature or form, provided that they are intended to have legal effects (judgment of 16 July 2015, Commission v. Council, C‑425/13, EU:C:2015:483, paragraph 26 and the case-law cited).

82. In that regard, it should be borne in mind that the existence of an interest in bringing proceedings presupposes that annulment of the contested act must be capable, by itself, of procuring an advantage for the natural or legal person who brought the action (judgment of 21 January 2021, Germany v. Esso Raffinage, C‑471/18 P, EU:C:2021:48, paragraph 103 and the case-law cited).

83. Since, for the reasons set out in paragraphs 63 to 73 above, the prohibitions laid down in Articles 2, 3, 6 and 7 of Regulation 2017/2063 are liable to harm the interests, in particular the economic [Page 279] interests, of the Bolivarian Republic of Venezuela, their annulment is, by itself, capable of procuring an advantage for it.

84. As regards the Council’s argument concerning the judgment of 21 December 2016, Council v. Front Polisario (C‑104/16 P, EU:C:2016:973), it is true that the Court held, in that judgment, that the Front Polisario could not be regarded as having standing to bring an action for annulment of the Council decision approving, on behalf of the European Union, the Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products, the replacement of Protocols 1, 2 and 3 and their Annexes and amendments to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, signed in Brussels on 13 December 2010 (OJ 2012 L 241, p. 4). The line of argument put forward by the Front Polisario in order to establish its standing to bring an action for annulment of that decision was based on the assertion that that agreement was applied in practice, in certain cases, to Western Sahara, even though the latter is not part of the territory of the Kingdom of Morocco, which was, however, rejected by the Court as unfounded. The Court interpreted that agreement as meaning that it did not apply to the territory of Western Sahara. By contrast, as noted in paragraphs 67 and 69 above, the restrictive measures provided for in Articles 2, 3, 6 and 7 of Regulation 2017/2063 were adopted against the Bolivarian Republic of Venezuela, since those provisions prevent it from carrying out certain transactions.

85. The first ground of inadmissibility raised by the Council must therefore be rejected.

88. According to the Council, the application of Articles 2, 3, 6 and 7 of Regulation 2017/2063 necessarily entails the adoption of intermediate rules, since those articles provide for a system of prior authorisation by the competent authorities of the Member States. Moreover, prior authorisation is in itself an implementing measure and the Member States have a broad discretion as regards the conditions under which such authorisations may be granted. It therefore concludes that it is not necessary to examine whether the restrictive measures at issue are of individual concern to the Bolivarian Republic of Venezuela or whether they constitute regulatory acts not entailing implementing measures, merely indicating that it does not concede that either of those criteria is satisfied.

89. The Bolivarian Republic of Venezuela contends that the second ground of inadmissibility, in so far as it relates to the criterion that the restrictive measures at issue must leave no discretion to the addressees responsible for implementing them, must also be rejected. In its application initiating proceedings, it claimed that it satisfied the conditions laid down in the second and third limbs of the fourth paragraph of Article 263 TFEU, since Regulation 2017/2063 was a regulatory act which was of direct concern to it and did not entail implementing measures and since, in the alternative, that act was of direct and individual concern to it.

90. It follows from the very wording of Articles 2, 3, 6 and 7 of Regulation 2017/2063 that the prohibitions laid down by those provisions—without prejudice to the derogation or authorisation measures for which they provide and which are not at issue in the present dispute—apply without leaving any discretion to the addressees responsible for implementing them. Those prohibitions are also applicable without requiring the adoption of implementing measures, either by [Page 281] the European Union or by the Member States. In that regard, it should be noted that Implementing Regulation 2018/1653 had no function other than the amendment of Annex IV to Regulation 2017/2063, which contains only the list of natural or legal persons, entities or bodies affected by the measures freezing funds and economic resources and which is not referred to in any of the above-mentioned provisions.

91. It follows that Articles 2, 3, 6 and 7 of Regulation 2017/2063 are of direct concern to the Bolivarian Republic of Venezuela and that the ground of inadmissibility raised by the Council, alleging that that condition is not satisfied in the present case, must be rejected.

92. Furthermore, that regulation, which has a general scope, in that it contains provisions such as Articles 2, 3, 6 and 7 thereof which prohibit general and abstract categories of addressees from carrying out certain transactions with entities which are also referred to in a general and abstract manner, and which—since it was adopted on the basis of Article 215 TFEU and, accordingly, under the non-legislative procedure laid down in that provision, cannot be regarded as a legislative act—constitutes a “regulatory act”, within the meaning of the third limb of the fourth paragraph of Article 263 TFEU (see, to that effect, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v. Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraphs 58 to 60). Since the provisions of that regulation challenged by the Bolivarian Republic of Venezuela do not entail implementing measures, as noted in paragraph 90 above, it must be held that that third State does indeed have standing to bring proceedings against those provisions without having to establish that those provisions are of individual concern to it.

93. It follows that the conditions laid down in the third limb of the fourth paragraph of Article 263 TFEU are fulfilled.

94. It follows from all the foregoing considerations that the action brought by the Bolivarian Republic of Venezuela before the General Court is admissible in so far as it seeks the annulment of Articles 2, 3, 6 and 7 of Regulation 2017/2063.

95. However, since the state of the proceedings is not such as to permit final judgment to be given on the merits, the case must be referred back to the General Court.