CELEX: 62014TJ0340
Common foreign and security policy
Restrictive measures taken in view of the situation in Ukraine
Freezing of funds
List of persons, entities and bodies subject to the freezing of funds and economic resources
Inclusion of the applicant’s name
Rights of the defence
Obligation to state reasons
Legal basis
Right to effective judicial protection
Failure to comply with the listing criteria
Manifest error of assessment
Right to property
Right to reputation)

Background to the proceedings
The applicant, Mr Andriy Klyuyev, is the former Head of Administration of the President of Ukraine.
The present case has been brought against the background of the restrictive measures adopted in view of the situation in Ukraine following the suppression of demonstrations in Independence Square in Kiev (Ukraine) in February 2014.
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
).
Recital (2) in the preamble of Decision 2014/119 states:
‘On 3 March 2014, the Council agreed to focus restrictive measures on the freezing and recovery of assets of persons identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations, with a view to consolidating and supporting the rule of law and respect for human rights in Ukraine.’
Article 1(1) and (2) of Decision 2014/119 provide:
‘1.   All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations in Ukraine, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.
2.   No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of, natural or legal persons, entities or bodies listed in the Annex.’
The detailed rules for that freezing of funds are set out in the subsequent paragraphs of Article 1.
In accordance with Decision 2014/119, Regulation No 208/2014 requires the adoption of measures for the freezing of funds and lays down the detailed rules governing that freezing in terms essentially identical to those of that decision.
The persons affected by Decision 2014/119 and Regulation No 208/2014 (together: ‘the March 2014 acts’) are named in the Annex to Decision 2014/119 and in Annex I to Regulation No 208/2014, each of which contains an identical list (‘the list’), together with, inter alia, a statement of reasons for their inclusion in the list.
The applicant was listed with the identifying information ‘former Head of Administration of President of Ukraine’, and the following reasons were stated:
‘Person subject to criminal proceedings in Ukraine to investigate crimes in connection with the embezzlement of Ukrainian State funds and their illegal transfer outside Ukraine.’
On 6 March 2014 the Council published in the
Official Journal of the European Union
a notice for the attention of the persons subject to the restrictive measures provided for in the March 2014 acts (
OJ 2014 C 66, p. 1
). According to that notice, ‘[t]he persons concerned may submit a request to the Council, together with supporting documentation, that the decision to include them on the ... list should be reconsidered’.
In correspondence in the course of 2014, the applicant contended that his listing was not well founded and requested that the Council should reconsider. He also requested access to the information and evidence supporting that listing.
The Council replied to the applicant’s request that it reconsider. The Council maintained that, in its view, the restrictive measures relating to the applicant were still justified for the reasons given in the statement of reasons in the March 2014 acts. As regards the request for access to the applicant’s file, the Council sent to him a number of documents from its file, including documents from the Ukrainian authorities of 3 March 2014 (‘the letter of 3 March 2014’), 8 July 2014 (‘the letter of 8 July 2014’) and 10 October 2014 (‘the letter of 10 October 2014’).
On 29 January 2015 the Council adopted Decision (CFSP) 2015/143, amending Decision 2014/119 (
OJ 2015 L 24, p. 16
) and Regulation (EU) 2015/138, amending Regulation No 208/2014 (
OJ 2015 L 24, p. 1
) (together: ‘the January 2015 acts’).
Decision 2015/143 clarified, with effect from 31 January 2015, the criteria for the designation of the persons subject to the freezing of funds. In particular, Article 1(1) of Decision 2014/119 was replaced by the following:
‘1.   All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations in Ukraine, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.
For the purpose of this Decision, persons identified as responsible for the misappropriation of Ukrainian State funds include persons subject to investigation by the Ukrainian authorities:
(a)
for the misappropriation of Ukrainian public funds or assets, or being an accomplice thereto; or
(b)
for the abuse of office as a public office-holder in order to procure an unjustified advantage for him- or herself or for a third party, and thereby causing a loss to Ukrainian public funds or assets, or being an accomplice thereto.’
Regulation 2015/138 amended Regulation No 208/2014 to conform to Decision 2015/143.
By letter of 2 February 2015, the Council informed the applicant that it intended to maintain the imposition on him of restrictive measures and sent to him a document from the Ukrainian authorities of 30 December 2014 (‘the letter of 30 December 2014’), and informed him that it was open to him to submit observations. By letter of 17 February 2015, the applicant asked the Council to review its position and to provide to him any other material that might justify the Council’s position.
On 5 March 2015 the Council adopted Decision (CFSP) 2015/364, amending Decision 2014/119 (
OJ 2015 L 62, p. 25
), and Implementing Regulation (EU) 2015/357, implementing Regulation No 208/2014 (
OJ 2015 L 62, p. 1
) (together: ‘the March 2015 acts’).
Decision 2015/364 amended Article 5 of Decision 2014/119, by extending the application of the restrictive measures in respect of the applicant until 6 March 2016. Consequently, Decision 2015/364 and Implementing Regulation 2015/357 replaced the list.
Following those amendments, the applicant’s name was maintained on the list with the identifying information ‘former Head of Administration of President of Ukraine’ and the following new statement of reasons:
‘Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets and in connection with the misuse of office by a public office-holder to procure an unjustified advantage for himself or a third party thereby causing a loss to the Ukrainian public budget or assets.’
Decision 2014/119 and Regulation No 208/2014 were subsequently amended, respectively, by Council Decision (CFSP) 2016/318 of 4 March 2016 amending Decision 2014/119 (
OJ 2016 L 60, p. 76
) and Council Implementing Regulation (EU) 2016/311 of 4 March 2016 implementing Regulation No 208/2014 (
OJ 2016 L 60, p. 1
).
Decision 2016/318 amended Article 5 of Decision 2014/119 by extending the application of the restrictive measures in respect of the applicant until 6 March 2017.
Procedure and forms of order sought by the parties
By application lodged at the Registry of the General Court on 15 May 2014, the applicant brought the present action.
On 12 August 2014 the Council lodged its defence. On the same date, the Council submitted an application for confidential treatment requesting that the content of an annex not be disclosed in the documents relating to the case to which the public has access.
By a document lodged at the Court Registry on 18 September 2014, the European Commission applied for leave to intervene in the present proceedings in support of the form of order sought by the Council. By order of 6 November 2014, the President of the Ninth Chamber of the Court granted that leave to intervene. By document lodged on 17 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 applied for leave to intervene in the present proceedings in support of the form of order sought by the Council. By letter lodged at the Court Registry on 24 December 2014, Ukraine informed the Court that it was withdrawing its application to intervene. By order of 11 March 2015, the President of the Ninth Chamber of the General Court ordered that Ukraine be removed from the register as an applicant to intervene.
The reply and the rejoinder were lodged, respectively, by the applicant on 31 October 2014 and by the Council on 18 December 2014. On 18 December 2014 the Council also submitted an application for confidential treatment requesting that the content of a particular annex should not be disclosed in the documents relating to the case to which the public has access.
By document lodged at the Court Registry on 15 May 2015 the applicant modified his form of order, so that his action should also be directed to the annulment of Decision 2015/364 and Implementing Regulation 2015/357, in so far as those acts concern him. The Council submitted its observations within the period prescribed. On 14 September 2015 the Council also lodged an application for confidential treatment, requesting that the content of certain annexes to the statement of modification not be disclosed in the documents relating to the case to which the public has access.
On the proposal of the Ninth Chamber, the Court decided, pursuant to Article 28 of the Court’s Rules of Procedure, to refer the case to a formation sitting with a greater number of Judges.
On hearing the report of the Judge-Rapporteur, the Court (Ninth Chamber, extended composition) decided to open the oral stage of the procedure.
The parties presented oral argument and replied to questions put by the Court at the hearing on 27 April 2016.
The applicant claims that the Court should:
—
annul (i) Decision 2014/119 and Regulation No 208/2014, and (ii) Decision 2015/364 and Implementing Regulation 2015/357, in so far as they concern him;
—
in the alternative, declare 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 are not applicable to him;
—
order the Council to pay the costs.
The Council, supported by the Commission, contends that the Court should:
—
dismiss the action;
—
in the alternative, should the March 2014 acts be partly annulled, order that the effects of Decision 2014/119 be maintained as regards the applicant until the partial annulment of Regulation No 208/2014 takes effect and, should the March 2015 acts be partly annulled, order that the effects of Decision 2014/119, as amended, be maintained as regards the applicant until the partial annulment of Regulation No 208/2014, as amended by Implementing Regulation 2015/357, takes effect;
—
order the applicant to pay the costs.
Law
The claims for annulment of the March 2014 acts, as initially worded, in so far as they concern the applicant
In support of his action seeking the annulment of the March 2014 acts as initially worded, the applicant relies on six pleas in law. The first claims lack of a legal basis. The second claims breach of the rights of the defence and of the right to effective judicial protection. The third claims a failure to state sufficient reasons. The fourth claims a breach of the rights to property and reputation. The fifth claims factual inaccuracy and a manifest error of assessment. The sixth claims the absence of evidence.
By the fifth and sixth pleas in law, which the Court will examine first, the applicant claims, in essence, that the decision to impose restrictive measures was not adopted on a sufficiently solid factual basis and that the Council therefore committed a manifest error of assessment.
The Council contends that the letter of 3 March 2014 indicated that an investigation into the applicant’s involvement in the embezzlement of State funds in sizeable amounts and their subsequent illegal transfer outside the territory of Ukraine was ongoing, which corresponded to the statement of reasons set out in the March 2014 acts. In addition, the document of 8 July 2014 (see paragraph 12 above) confirms that a pre-trial investigation had been opened in Ukraine in respect of the applicant, who was suspected, inter alia, of embezzlement of sizeable amounts of State funds.
It should be noted that, although the Council has a broad discretion as regards the general criteria to be taken into consideration for the purpose of adopting restrictive measures, the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires that, as part of the review of the lawfulness of the grounds which form the basis of the decision to include or to maintain a person’s name on the list of persons subject to restrictive measures, the Courts of the European Union must ensure that that decision, which affects that person individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, are substantiated by sufficiently specific and concrete evidence (see judgment of 21 April 2015 in Anbouba v Council,
C‑605/13 P
,
EU:C:2015:248
, paragraphs
and
and the case-law cited).
In the present case, the criterion laid down in Article 1(1) of Decision 2014/119 provides that restrictive measures are to be imposed on persons who have been identified as responsible for the misappropriation of public funds. Furthermore, it is clear from Recital (2) of that decision that the Council adopted those measures ‘with a view to consolidating and supporting the rule of law ... in Ukraine’.
The reason stated for the listing of the applicant was that he was a person ‘subject to criminal proceedings in Ukraine to investigate crimes in connection with the embezzlement of Ukrainian State funds and their illegal transfer outside Ukraine’.
In support of the reason stated for the applicant’s listing, the Council relies on the letter of 3 March 2014. The first part of that letter states that the ‘law-enforcement agencies of Ukraine’ had launched a number of criminal proceedings to investigate criminal acts committed by former senior officials, one of those named being the applicant. The letter thereafter states, in general terms, that the investigation concerned had ‘made it possible to establish the misappropriation of State funds in sizeable amounts and their further illegal transfer outside the territory of Ukraine’.
It is not disputed that the applicant was identified on that basis alone ‘as responsible for the misappropriation of Ukrainian State funds’ within the meaning of Article 1(1) of Decision 2014/119. The letter of 3 March 2014 is, within the body of evidence lodged by the Council in these proceedings, the only evidence that precedes the March 2014 acts and, therefore, the lawfulness of those acts must be assessed solely with regard to that evidence.
The Court must hold that, while that letter emanates from a high judicial authority of a third country, the letter contains no more than a vague and general statement linking the name of the applicant, among other former senior officials, to an investigation which, in essence, had established the fact that State funds had been embezzled. The letter does not provide any details as to the establishment of the acts which the investigation conducted by the Ukrainian authorities was in the process of determining and, still less, as to the applicant’s individual liability, even presumed, in respect of those acts (see, to that effect, judgment of 28 January 2016, Azarov v Council,
T‑332/14
, not published,
EU:T:2016:48
, paragraph
; see also, by analogy, judgment of 26 October 2015, Portnov v Council,
T‑290/14
,
EU:T:2015:806
, paragraphs
and
).
It should further be noted that, in contrast to the case that gave rise to the judgment of 27 February 2014, Ezz and Others v Council (
T‑256/11
,
EU:T:2014:93
, paragraphs
to
), upheld on appeal by the judgment of 5 March 2015, Ezz and Others v Council (
C‑220/14 P
,
EU:C:2015:147
), relied on by the Council, in the present case the Council did not have any information regarding the acts or conduct specifically imputed to the applicant by the Ukrainian authorities and, moreover, the letter of 3 March 2014, even if it is examined in its context, cannot constitute a sufficiently solid factual basis, within the meaning of the case-law cited in paragraph 36 above, for including the applicant’s name on the list on the ground that he was identified ‘as responsible’ for the misappropriation of State funds (see, to that effect, judgment of 26 October 2015, Portnov v Council (
T‑290/14
,
EU:T:2015:806
, paragraphs
to
).
Irrespective of the stage reached in the proceedings to which the applicant was deemed to be subject, the Council could not adopt restrictive measures against him without knowing the acts of misappropriation of public funds which the Ukrainian authorities specifically alleged that he had committed. Only with knowledge of such acts would the Council have been in a position to determine that they were capable, first, of being classified as misappropriation of State funds and, secondly, of undermining the rule of law in Ukraine, the consolidation and support of which, as recalled in paragraph 37 above, constitutes the objective pursued by the adoption of the restrictive measures at issue (judgments of 28 January 2016, Klyuyev v Council,
T‑341/14
,
EU:T:2016:47
, paragraph
, and of 28 January 2016, Azarov v Council,
T‑331/14
,
EU:T:2016:49
, paragraph
).
Moreover, it is for the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded (judgments of 18 July 2013, Commission and Others v Kadi,
C‑584/10 P, C‑593/10 P and C‑595/10 P
,
EU:C:2013:518
, paragraphs
and
, and of 28 November 2013, Council v Fulmen and Mahmoudian,
C‑280/12 P
,
EU:C:2013:775
, paragraphs
and
).
In the light of all the foregoing, the Court must conclude that the inclusion of the applicant’s name on the list does not rest on a factual basis that is sufficient to guarantee compliance with the criteria for the designation of persons to be subject to the restrictive measures at issue laid down by Decision 2014/119.
Further, it is clear that that illegality persisted until the entry into force of the March 2015 acts, whereby the list was replaced and the reasons stated for the applicant’s listing were amended.
In the light of that conclusion, there is no need to give a ruling on the applicant’s claim that the listing of his name by the March 2014 acts should be declared to be illegal for the period from 31 January to 6 March 2015, that is to say from the entry into force of the January 2015 acts and until the entry into force of the March 2015 acts. Given the annulment of the March 2014 acts, in so far as they concern the applicant, he is deemed not to have been subject to the restrictive measures in that period.
Consequently, the fifth and sixth pleas in law must be upheld and Decision 2014/119 as initially worded must be annulled, in so far as it concerns the applicant, and there is no need to give a ruling on the other pleas in law.
As a consequence of the annulment of Decision 2014/119, the Court must also annul, in so far as it concerns the applicant, Regulation No 208/2014, as initially worded, given that, under Article 215(2) TFEU, that regulation presupposes the adoption of a decision in accordance with Chapter 2 of Title V of the EU Treaty.
The claims for annulment of the March 2014 acts, as amended by the January 2015 acts and the March 2015 acts, in so far as they concern the applicant
By his statement of modification of his form of order, the applicant sought to extend the scope of his action so that it should be directed to the annulment of the March 2015 acts, in so far as they concern him.
In support of his application for annulment of the March 2014 acts, as amended by the January 2015 acts and the March 2015 acts, the applicant relies on seven pleas in law. The first claims the lack of a legal basis. The second claims an infringement of the listing criteria. The third claims infringement of the rights of the defence and of the right to effective judicial protection. The fourth claims that the reasons stated were insufficient. The fifth claims breach of his rights to property and reputation. The sixth claims a manifest error of assessment and the seventh claims that the listing criteria are unlawful.
The Court will examine, in the first place, the third plea in law, in the second place, the fourth plea in law, in the third place, the first and seventh pleas in law, taken together, in the fourth place, the second and sixth pleas in law, taken together, and, last, the fifth plea in law.
The third plea in law: infringement of the rights of the defence and of the right to effective judicial protection
By the third plea in his statement of modification, the applicant claims that his rights of defence and his right to effective judicial protection were infringed, in that the Council did not provide evidence and information in support of his designation and did not carry out a careful and impartial examination of the alleged reasons for his designation in the light of the representations made by the applicant in his letter of 17 February 2015.
The Council, supported by the Commission, disputes the applicant’s arguments.
First, it must be recalled that respect for the rights of the defence, which is affirmed in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, to which the EU Treaty attaches the same legal value as the treaties, includes the right to be heard and the right to have access to the file, whereas the right to effective judicial protection, which is affirmed in Article 47 of the Charter, requires that the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi,
C‑584/10 P, C‑593/10 P and C‑595/10 P
,
EU:C:2013:518
, paragraphs
to
).
It follows that, in the context of the adoption of a decision maintaining a person, entity or body in a list of persons, entities or bodies subject to restrictive measures, the Council must respect the right of that person, entity or body to a prior hearing where new evidence, namely evidence which was not included in the initial listing decision, is admitted against him or it, in the decision maintaining his or its listing (judgment of 4 June 2014, Sina Bank v Council,
T‑67/12
, not published,
EU:T:2014:348
, paragraph
and the case-law cited; see, to that effect, judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran,
C‑27/09 P
,
EU:C:2011:853
, paragraph
).
In this case, it must be observed that the maintenance of the applicant’s name on the list following the March 2015 acts is based on the letter of 30 December 2014.
In that regard, it must also be recalled that, before adopting the decision to maintain the applicant’s listing, the Council sent to the applicant the letter of 30 December 2014 (see paragraph 16 above). Further, by letter of 2 February 2015, the Council informed the applicant of its intention to maintain the restrictive measures against him, and informed him that it was open to him to submit observations (see paragraph 16 above).
It follows that the applicant had access to the information and evidence that led the Council to maintain the restrictive measures against him and that he was in a position to formulate, in good time, observations (see paragraph 16 above).
Moreover, the applicant has failed to demonstrate that the alleged difficulties concerning the information received and the time available to respond to the Council’s claims prevented him from modifying his form of order in good time or from developing arguments in support of his defence.
It follows from the foregoing that the disclosure of evidence in the course of the procedure was sufficient to ensure that the applicant could exercise his rights of defence and his right to effective judicial protection.
The third plea in law must therefore be rejected.
The fourth plea in law: breach of the duty to state reasons
By his fourth plea in law, the applicant argues that (i) the reasons stated for maintaining his listing fail to specify the nature or subject matter of the criminal proceedings, or how those proceedings relate to the misappropriation of public funds or assets or to an abuse of office by a holder of public office; (ii) in stating those reasons the Council has simply replicated the language of the designation criteria set out in the decision and the regulation; (iii) neither the Council’s letter of 2 February 2015, nor the letter of 30 December 2014, nor the Council’s letter of 6 March 2015, can cure that defect, and (iv) the failure to state adequate reasons is particularly striking given the complaints made by the applicant in the course of the procedure, the significant period of time available to the Council since the applicant was initially listed to formulate reasons and the complete absence of any urgency and/or risk of dissipation of assets, since the applicant’s assets were already frozen.
The Council, supported by the Commission, disputes the applicant’s arguments.
First, it must be recalled that the statement of reasons required by Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights must be appropriate to the nature of the contested act and to the context in which it was adopted. It must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the person concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case (see judgment of 14 April 2016, Ben Ali v Council,
T‑200/14
, not published,
EU:T:2016:216
, paragraph
and the case-law cited).
It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. Accordingly, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him to understand the scope of the measure concerning him. Moreover, the degree of precision of the statement of the reasons for a measure must be weighed against practical realities and the time and technical facilities available for taking the measure (see judgment of 14 April 2016, Ben Ali v Council,
T‑200/14
, not published,
EU:T:2016:216
, paragraph
and the case-law cited).
In particular, the statement of reasons for an asset-freezing measure cannot, in principle, consist merely of a general, stereotypical formulation. Subject to the qualifications stated in paragraph 66 above, such a measure must, on the contrary, indicate the actual and specific reasons why the Council considers that the relevant legislation is applicable to the person concerned (see judgment of 14 April 2016, Ben Ali v Council,
T‑200/14
, not published,
EU:T:2016:216
, paragraph
and the case-law cited).
In this case, first, it must be observed that, following the model of the initial statement of reasons for listing, the statement of reasons as amended by the March 2015 acts (see paragraph 19 above) sets out the factors on which the applicant’s listing is based, namely, in essence, the fact that he is subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets
Further, the decision to maintain the measures against the applicant was made in a context that was known to him, in that he had been acquainted, in the course of the correspondence relating to this case, with the letter of 30 December 2014, on which the Council relied as justification for maintaining the imposition on him of restrictive measures, the Council providing by means of that letter details concerning his listing (see, to that effect, judgments of 15 November 2012, Council v Bamba,
C‑417/11 P
,
EU:C:2012:718
, paragraphs
and
and the case-law cited, and of 6 September 2013, Bank Melli Iran v Council,
T‑35/10 and T‑7/11
,
EU:T:2013:397
, paragraph
), and in particular a detailed description of what he was alleged to have done.
Second, as regards the claim that the statement of reasons for listing is stereotypical, it must be observed that, while the considerations within that statement of reasons are the same as those on the basis of which restrictive measures were imposed on the other natural persons who are listed, they are designed nonetheless to describe the particular situation of the applicant, who, no less than other individuals, has been, according to the Council, subject to judicial proceedings linked to investigations concerning the misappropriation of Ukrainian State funds (see, to that effect, judgment of 27 February 2014, Ezz and Others v Council,
T‑256/11
,
EU:T:2014:93
, paragraph
).
In the light of all the foregoing, it must be concluded that the March 2014 acts, as amended by the January 2015 and March 2015 acts, state to the requisite legal standard the matters of fact and law on which, according to the Council, those acts are based.
The fourth plea in law must therefore be rejected.
The first and seventh pleas in law: absence of legal basis and plea of illegality with regard to the listing criterion
By his first plea in law, the applicant argues that Article 29 TEU was not a proper legal basis for the adoption of the decision, because the Council failed to prove that he had undermined the rule of law or violated human rights in Ukraine. On the contrary, the applicant had worked to bring about a peaceful settlement between those on opposite sides in the events of February 2014 in Kiev and had assumed responsibility for the negotiations on the Association Agreement between Ukraine and the European Union.
In addition, he claims, recent developments in Ukraine, in relation to a failure to ensure that the applicant will have a fair trial and the lack of respect for fundamental rights more generally, confirm that the new regime in Ukraine is itself undermining democracy and the rule of law, and is flagrantly and systematically violating human rights.
The applicant’s final claim is that since Decision 2014/119 is illegal, there is no basis for enacting a regulation under Article 215 TFEU.
By his seventh plea in law, submitted, in essence, in support of his second head of claim, the applicant raises a plea of illegality and argues that, if the listing criterion is to be interpreted broadly, so as to take into account either any investigation by the Ukrainian authorities, irrespective of whether that investigation is underpinned, controlled or overseen by any judicial decision or proceedings, or any abuse of office by a holder of public office in order to procure an unjustified advantage, irrespective of whether there is an allegation of misappropriation of public funds, that listing criterion is arbitrary and lacks a proper legal basis or is disproportionate in relation to the objectives of the March 2014 acts.
The Council, supported by the Commission, disputes the applicant’s arguments.
The Court must therefore examine whether the listing criterion stated in Article 1(1) of Decision 2014/119, as amended by Decision 2015/143, is compatible with the objectives of the Common Foreign and Security Policy (CFSP) and, more specifically, whether that criterion is proportionate to the abovementioned objectives.
First, it must be recalled that the objectives of the EU Treaty concerning the CFSP are stated, in particular, in Article 21(2)(b) TEU, as follows:
‘The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations in order to: … consolidate and support democracy, the rule of law, human rights and the principles of international law’..
Next, it must be observed that recital (2) of Decision 2014/119 is worded as follows:
‘On 3 March 2014, the Council agreed to focus restrictive measures on the freezing and recovery of assets of persons identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations, with a view to consolidating and supporting the rule of law and respect for human rights in Ukraine.’
On that basis, the listing criterion stated in Article 1(1)(a) of Decision 2014/119, as amended by Decision 2015/143, is as follows:
‘All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations in Ukraine, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.
For the purpose of this Decision, persons identified as responsible for the misappropriation of Ukrainian State funds include persons subject to investigation by the Ukrainian authorities:
(a)
for the misappropriation of Ukrainian public funds or assets or being an accomplice thereto …’
Last, it must be observed that the reason stated for the applicant’s listing, following the March 2015 acts, is as follows:
‘Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets and in connection with the misuse of office by a public office-holder to procure an unjustified advantage for himself or a third party thereby causing a loss to the Ukrainian public budget or assets.’
As a preliminary point, it is evident, as acknowledged by the Council in its written pleadings, that the restrictive measures against the applicant were adopted solely with the objective of consolidating and supporting the rule of law in Ukraine. Accordingly, the applicant’s arguments that the listing criterion stated by Decision 2014/119 does not achieve other CFSP objectives are ineffective.
The Court must therefore determine whether the listing criterion laid down in Decision 2014/119 and amended by Decision 2015/143, referring to persons identified as responsible for the misappropriation of Ukrainian State funds, corresponds to the objective, stated in that decision, of consolidating and supporting the rule of law in Ukraine.
In that regard, it must be recalled that the case-law developed with respect to restrictive measures in view of the situations in Tunisia and in Egypt has established that objectives such as those mentioned in Article 21(2)(b) and (d) TEU were intended to be achieved by an asset-freeze the scope of which was, as in this case, restricted to the persons identified as being responsible for misappropriation of public funds and to persons, entities or bodies associated with them, that is to say, to the persons whose actions are liable to have jeopardised the proper functioning of public institutions and bodies linked to them (see, to that effect, judgments of 28 May 2013, Trabelsi and Others v Council,
T‑187/11
,
EU:T:2013:273
, paragraph
; 27 February 2014, Ezz and Others v Council,
T‑256/11
,
EU:T:2014:93
, paragraph
, and 14 April 2016, Ben Ali v Council,
T‑200/14
, not published,
EU:T:2016:216
, paragraph
).
In this case, it is evident, first, that the listing criterion relies, as far as the applicant is concerned, on offences consisting of ‘misappropriation of public funds’ and, second, that that criterion exists within a legal framework that is clearly circumscribed by Decision 2014/119 and the pursuit of the relevant objective of the EU Treaty to which it refers, stated in recital (2) of that decision, namely that of consolidating and supporting the rule of law in Ukraine.
In that regard, it must be recalled that respect for the rule of law is one of the primary values on which the European Union is founded, as is stated in Article 2 TEU, and in the preambles of the EU Treaty and of the Charter of Fundamental Rights. Respect for the rule of law constitutes, moreover, a prerequisite of accession to the European Union, pursuant to Article 49 TEU. The concept of the rule of law is also enshrined in the preamble of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.
The case-law of the Court and of the European Court of Human Rights, and the work of the Council of Europe, by means of the European Commission for Democracy through Law, provide a non-exhaustive list of principles and standards which may fall within the concept of the rule of law. That list includes: the principles of legality and legal certainty and the prohibition of arbitrary exercise of power by the executive; independent and impartial courts; effective judicial review, extending to respect for fundamental rights and equality before the law (see, in that regard, the rule of law checklist adopted by the European Commission for Democracy through Law at its 106th Plenary Session (Venice, 11-12 March 2016)). Further, in the context of European Union external action, a number of legal instruments include reference to the fight against corruption as a principle within the scope of the concept of the rule of law (see, for example, Regulation (EC) No 1638/2006 of the European Parliament and of the Council of 24 October 2006 laying down general provisions establishing a European Neighbourhood and Partnership Instrument (
OJ 2006 L 310, p. 1
)).
However, while it is conceivable that certain conduct pertaining to acts classifiable as misappropriation of public funds may be capable of undermining the rule of law, it cannot be accepted that any act classifiable as misappropriation of public funds, committed in a third country, justifies European Union action with the objective of consolidating and supporting the rule of law in that country, using the powers of the Union under the CFSP. Before it can be established that a misappropriation of public funds is capable of justifying European Union action under the CFSP, based on the objective of consolidating and supporting the rule of law, it is, at the very least, necessary that the disputed acts should be such as to undermine the legal and institutional foundations of the country concerned.
In that context, the listing criterion can be considered to be compatible with the European Union legal order only to the extent that it is possible to attribute to it a meaning that is compatible with the requirements of the higher rules with which it must comply, and more specifically with the objective of consolidating and supporting the rule of law in Ukraine. Further, a consequence of that interpretation is that the broad discretion enjoyed by the Council in relation to the definition of the general listing criteria can be respected, while review, in principle full review, of the lawfulness of European Union acts in the light of fundamental rights is ensured (see, to that effect, judgment of 16 July 2014, National Iranian Oil Company v Council,
T‑578/12
, not published,
EU:T:2014:678
, paragraph
and the case-law cited, confirmed on appeal by judgment of 1 March 2016, National Iranian Oil Company v Council,
C‑440/14 P
,
EU:C:2016:128
).
Consequently, that criterion must be interpreted as meaning that it does not concern, in abstract terms, any act classifiable as misappropriation of State funds, but rather that it concerns acts classifiable as misappropriation of State funds or public assets which, having regard to the amount or the type of funds or assets misappropriated or to the context in which the offence took place, are, at the very least, such as to undermine the legal and institutional foundations of Ukraine, and in particular the principles of legality, prohibition of arbitrary exercise of power by the executive, effective judicial review and equality before the law and, ultimately, to undermine respect for the rule of law in that country (see paragraph 89 above). As thus interpreted, the listing criterion is compatible with and proportionate to the relevant objectives of the EU Treaty.
That conclusion is not called into question by the applicant’s argument with respect to recent developments in Ukraine, in relation to a failure to ensure that the applicant will have a fair trial and the lack of respect for his fundamental rights.
In that regard, it must be borne in mind that Ukraine has been a Member State of the Council of Europe since 1995 and has ratified the Convention for the Protection of Human Rights and Fundamental Freedoms, and that the new Ukrainian regime has been recognised as legitimate by both the European Union and the international community. The Council therefore did not err in relying on evidence provided to it by a high judicial authority of that country as to the existence of criminal proceedings relating to allegations that the applicant had embezzled public funds or assets, and in not challenging the legality and legitimacy of the regime and the Ukrainian judicial system.
Admittedly, it cannot be ruled out that, where an applicant produces evidence capable of demonstrating that allegations of what he has done are manifestly false or distorted, it will be the duty of the Council to verify the information that has been submitted to it.
However, in this case, the applicant suggests that there is no genuine judicial procedure and, more generally, he questions the legitimacy of the new Ukrainian regime and the impartiality of the Ukrainian judicial system.
Those factors were not however either capable of calling into question the cogency of the charges made against the applicant, a matter which is examined in relation to the second and sixth pleas in law below, or sufficient to demonstrate that the applicant’s particular situation was affected by the problems he identifies in the Ukrainian judicial system, in the course of the proceedings concerning him that were the basis of the imposition on him of restrictive measures. Accordingly, in the circumstances of this case, the Council was not obliged to undertake an additional verification of the evidence submitted to it by the Ukrainian authorities.
Moreover, in so far as an examination of the applicant’s arguments would require the Court to give a ruling on the lawfulness of the interim regime in Ukraine and to examine the merits of the assessments made by various international bodies in that regard, including the Council’s political assessments, it is clear that such an examination is not within the scope of the review to be carried out by the Court of the acts which are the subject matter of this case (see, to that effect, judgment of 25 April 2013, Gbagbo v Council,
T‑119/11
,
EU:T:2013:216
, paragraph
).
Nor can the conclusion stated in paragraph 91 above be called into question by the argument, raised in the form of a plea of illegality, that the listing criterion cannot be interpreted in such a way as to take account of investigations that are not overseen by judicial proceedings.
In that regard, it must be recalled that, while the Courts of the European Union have determined that the identification of a person as being responsible for an offence does not necessarily require that person to be convicted of the offence (see, to that effect, judgment of 5 March 2015, Ezz and Others v Council,
C‑220/14 P
,
EU:C:2015:147
, paragraphs
and
), the fact remains that it is for the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded (judgments of 18 July 2013, Commission and Others v Kadi,
C‑584/10 P, C‑593/10 P and C‑595/10 P
, ECR,
EU:C:2013:518
, paragraphs
and
, and of 28 November 2013, Council v Fulmen and Mahmoudian,
C‑280/12 P
, ECR,
EU:C:2013:775
, paragraphs
and
).
In this case, the listing criterion stated in the March 2014 acts, as amended by the January 2015 acts, simply enables the Council, in accordance with the judgment of 27 February 2014, Ezz and Others v Council (
T‑256/11
,
EU:T:2014:93
), to take into account an investigation with respect to acts classifiable as misappropriation of public funds as a factor which may justify, in some cases, the adoption of restrictive measures, without prejudice to the fact that, in the light of the case-law cited in paragraph 99 above and the interpretation of the listing criterion in paragraphs 78 to 91 above, the mere fact of being the subject of an investigation relating to offences consisting of embezzlement of funds cannot, in itself, justify action by the Council under Articles 21 and 29 TEU.
In the light of all the foregoing, it must be concluded that the listing criterion stated in Article 1(1) of Decision 2014/119 is compatible with the objectives of the CFSP, as stated in Article 21 TEU, to the extent that it covers persons identified as responsible for a misappropriation of Ukrainian State funds that is capable of undermining the rule of law in Ukraine.
The same conclusion must be reached with respect to the form of order seeking the annulment of Regulation No 208/2014. That regulation imposes a fund-freezing measure provided for by a decision adopted in accordance with Chapter 2 of Title V of the EU Treaty and therefore complies with Article 215 TFEU, since there exists a valid decision for the purposes of that article.
The first and seventh pleas in law must therefore be rejected.
The second and sixth pleas in law, taken together: failure to comply with the listing criterion and manifest error of assessment, respectively
By his second and sixth pleas in law, the applicant raises, in essence, two arguments.
By his first argument, that his listing did not comply with the listing criteria, the applicant claims that, in accordance with the judgment of 27 February 2014, Ezz and Others v Council (
T‑256/11
,
EU:T:2014:93
), he could not be ‘identified as responsible’ for the offences he was alleged to have committed, since he was not the subject of any judicial proceedings or an investigation linked to any such judicial proceedings.
By his second argument, that his listing was not on a sufficiently solid factual basis, the applicant claims that the only evidence relied on by the Council in support of the March 2014 acts, as amended, namely the letter of 30 December 2014, does not constitute a sufficiently solid factual basis in the light of the relevant case-law.
The Council, supported by the Commission, disputes the applicant’s arguments.
First, it must be observed that, as from 7 March 2015, the applicant was subject to further restrictive measures introduced by the March 2015 acts on the basis of the listing criterion stated in Article 1(1) of Decision 2014/119 and as ‘clarified’ by the January 2015 acts. Decision 2015/364 is not merely a confirmatory act, but is an autonomous decision, adopted by the Council following the regular review provided for in the third subparagraph of Article 5 of Decision 2014/119.
The Court must therefore examine the lawfulness of the inclusion of the applicant’s name on the list, by means of the March 2015 acts, taking into consideration, first, the listing criterion, as clarified by the January 2015 acts, second, the reasons stated for the listing and, last, the evidence on which that listing is based.
As regards, first, the listing criterion, it must be recalled that that criterion, as amended by the January 2015 acts, provides that the restrictive measures in question are to be imposed on, among others, persons ‘identified as responsible’ for the misappropriation of Ukrainian State funds, that category including persons ‘subject to investigation by the Ukrainian authorities’ for the misappropriation of Ukrainian public funds or assets (see paragraph 14 above). Further, as was explained in relation to the first plea in law, that criterion must be interpreted as meaning that it does not cover, in general, any act of misappropriation of public funds, but rather acts classifiable as misappropriation of public funds or assets that are such as to undermine respect for the rule of law in Ukraine (see paragraph 91 above).
As regards, second, the reasons stated for the applicant’s listing, it must be recalled that, as from 7 March 2015, the applicant was listed for the reason that he was subject to ‘criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets and for the abuse of office as a public office-holder in order to procure an unjustified advantage for himself or for a third party and thereby causing a loss to Ukrainian public funds or assets’ (see paragraph 19 above).
As regards, last, the evidence on which the listing of the applicant was based, it must be observed, as recognised by the Council, that the lawfulness of the reasons stated for the applicant’s listing, as amended, must be assessed primarily in the light of the letter of 30 December 2014 (see paragraph 16 above), which gives an account of progress in the various investigations concerning the applicant.
That letter records, inter alia, that a pre-trial investigation was taking place as part of criminal proceedings opened with respect to the applicant in relation to acts classifiable as misappropriation of public funds. That investigation related, more specifically, to the misappropriation of company shares and the misappropriation of public funds.
That being the case, in the first place, it must be stated that that letter, which is the evidence on the basis of which the Council adopted the March 2015 acts, provides sufficient proof of the fact that, on the date of adoption of the March 2015 acts, the applicant was subject to criminal proceedings for misappropriation of public funds or assets.
In the second place, the Court must therefore determine whether maintaining the applicant’s listing following the March 2015 acts by reason of the fact that he was subject to criminal proceedings for such offences satisfies the listing criterion, as clarified by the January 2015 acts and as interpreted in relation to the first plea in law (see paragraph 110 above).
Taking into consideration the offences the applicant is alleged to have committed, as described in the letter of 30 December 2014, it must be observed that the prosecution of economic crimes, such as misappropriation of public funds, is an important means of combating corruption, and that the fight against corruption constitutes, in the context of the external action of the European Union, a principle within the scope of the rule of law (see paragraph 88 above).
It must further be observed that the offences that the applicant is alleged to have committed have a wider context, in that a significant part of the former Ukrainian leadership is suspected of having committed serious crimes in the management of public resources, thereby seriously threatening the legal and institutional foundations of the country and undermining, inter alia, the principles of legality, prohibition on arbitrary exercise of power by the executive, effective judicial review and equality before the law (see paragraphs 89 to 91 above). That is all the more evident in this case, since the acts at issue were allegedly carried out by the former Head of Administration of the President of Ukraine.
It follows that, taken as a whole and taking into consideration the role occupied by the applicant within the former Ukrainian leadership, the restrictive measures in question contribute, in an effective manner, to facilitating the prosecution of crimes of misappropriation of public funds that were to the detriment of the Ukrainian institutions and ensure that the Ukrainian authorities can more easily secure restitution of the profits of such misappropriation. That facilitates, in the event that the prosecutions are successful, the punishment, through the courts of law, of alleged acts of corruption committed by members of the former regime, and thereby contributes to the support of the rule of law in that country (see, to that effect, the case-law referred to in paragraph 85 above).
Further, it was the task of the Council to verify that the reasons adopted with respect to the person concerned were well founded, relying on a sufficient factual basis, within the meaning of the case-law cited in paragraph 36 above, irrespective of the stage reached in the proceedings, under the Ukrainian Code of Criminal Procedure, and the possible adoption by the Ukrainian authorities of interim measures.
Admittedly, the opening of judicial proceedings under the Ukrainian Code of Criminal Procedure and the possible adoption of interim measures at national level may constitute significant evidence to establish the existence of facts that justify the adoption of restrictive measures at Union level and to allow an assessment of the need to adopt such measures in order to ensure that action taken by the national authorities is effective. The fact remains that it is the Council that is responsible for the adoption of restrictive measures, and that the Council must decide independently whether it is necessary and appropriate to adopt such measures, in the light of the CFSP objectives, irrespective of whether a request for such measures is made by the authorities of the third country concerned and irrespective of other measures taken by those authorities at national level, provided that the Council relies on a solid factual basis, within the meaning of the relevant case-law (see paragraph 36 above).
Moreover, the arguments raised by the applicant do not challenge the existence of the investigation undertaken by the Ukrainian authorities, or the reality of the acts that are the subject matter of that investigation and that led the Council to adopt the restrictive measures at issue. Those arguments seek rather to challenge procedural aspects, namely the fact that that investigation was not part of genuine ‘judicial proceedings’, or to rebut charges brought by those authorities with respect to the applicant under Ukrainian criminal law, claiming, inter alia, that the conduct that was the subject of those charges was neither fraudulent nor improper, matters which pertain to the question of whether the allegations were well founded.
In that regard, it was the task of the Council not to verify whether the investigations to which the applicant was subject were well founded, but only to verify whether the decision to freeze funds was well founded in the light of the evidence submitted to it (see, to that effect, judgment of 5 March 2015, Ezz and Others v Council,
C‑220/14 P
,
EU:C:2015:147
, paragraph
).
Last, as regards more specifically the applicant’s argument that there are discrepancies between the letter of 30 December 2014 and the ‘notification of suspicion’ sent by the Ukrainian authorities to the applicant on 23 December 2014, it is clear that the letter of 30 December 2014 scrupulously describes the acts that were the subject matter of the various investigations opened with respect to the applicant. It must be observed that the differences identified by the applicant between the two documents are mainly to do with the legal classification of the acts described, such as, in particular, the use of the misappropriated funds for personal purposes, which does not call into question the reality of the acts classifiable as misappropriation of public funds. Knowledge of those acts, the existence of which has not been seriously challenged, could provide the Council with sufficient grounds to maintain the applicant’s listing.
It must therefore be concluded that the inclusion of the applicant’s name on the lists, by means of the March 2015 acts, on the basis of the evidence provided in the letter of 30 December 2014, is compatible with the listing criterion, as amended by the January 2015 acts and interpreted in the light of the objective on which it is based, namely that of consolidating and supporting the rule of law in Ukraine.
The second and sixth pleas in law must therefore be rejected.
The fifth plea in law: breach of the right to property and reputation
By his fifth plea in law, the applicant argues, first, that the inclusion of his name on the list was without due regard to there being adequate safeguards to enable him to state a defence before the Council and, second, that the restrictive measures were disproportionate. In that regard, he states that the statement of reasons for his listing no longer mentions the offence of illegal transfer of Ukrainian State funds outside Ukraine and that the Council failed to demonstrate that the complete freeze of his assets, as distinct from a partial freeze, was proportionate in this case, since the freezing of funds is only justified up to the value of the assets allegedly misappropriated.
The Council, supported by the Commission, disputes the applicant’s arguments.
It is clear, first, that the applicant’s argument concerning his rights of defence has been rejected in the context of the third plea in law (see paragraphs 53 to 62 above).
The Court must also reject the applicant’s argument that the reasons stated for his listing no longer include the offence of illegal transfer of Ukrainian State funds outside Ukraine. Although the illegal transfer of State funds is no longer included in the reasons stated for the listing, as amended by the March 2015 acts, it remains the case that the reference to the misappropriation of public funds, if it is well founded, is sufficient, in itself, to justify the restrictive measures against the applicant.
As regards the argument that the restrictive measures are disproportionate, it must be recalled that the principle of proportionality, as one of the general principles of European Union law, requires that measures adopted by the EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued by the legislation in question. Consequently, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 27 February 2014, Ezz and Others v Council,
T‑256/11
,
EU:T:2014:93
, paragraph
and the case-law cited).
In this case, it is true that the applicant’s right to property is restricted, since he cannot, inter alia, make use of his funds situated within the European Union, unless he obtains specific authorisation, and that no funds or other economic resources can be made available, directly or indirectly, to him.
However, it must, first, be recalled, as has been established in relation to the first, second, sixth and seventh pleas in law, that, on the one hand, the listing criterion, stated in Article 1(1) of Decision 2014/119, as amended by Decision 2015/143, is compatible with the CFSP objectives and, on the other, that the applicant’s listing is compatible with the listing criterion (see paragraphs 79 to 103 and 109 to 124 above).
Further, it is also clear that, as regards the applicant’s argument that a freezing of funds is justified only up to the value of the assets allegedly misappropriated, as that value emerges from the information available to the Council, on the one hand, the figures mentioned in the letter of 30 December 2014 are merely indicative of the value of the assets alleged to have been misappropriated and, further, any attempt to circumscribe the amount of the funds frozen would be extremely difficult, if not impossible, to implement in practice.
Moreover, the disadvantages caused by the restrictive measures are not disproportionate to the objectives pursued, taking into consideration, first, the fact that those measures are inherently temporary and reversible and do not therefore infringe the ‘essential content’ of the right to property, and, second, that they may be derogated from in order to cover basic needs, legal costs or even the extraordinary expenses of the persons concerned (see, to that effect, judgment of 27 February 2014, Ezz and Others v Council,
T‑256/11
,
EU:T:2014:93
, paragraph
).
Last, as regards more specifically the arguments in relation to a breach of the right to reputation, it must be added that the imposition, by the Council, of restrictive measures on the applicant does not involve any view being taken of his culpability with respect to the acts of which he is accused. In any event, in so far as the adoption of those measures may cause the applicant to become the object of opprobrium and suspicion and, therefore, to affect his reputation, it must be stated that such effects are not clearly disproportionate in comparison with the objectives pursued, as is apparent from paragraph 118 above.
The Court must therefore reject the fifth plea in law and, consequently, dismiss the action in its entirety, in so far as it seeks the annulment of the decision to maintain the applicant’s listing by means of the March 2015 acts.
Maintaining the effects of Decision 2014/119
In the alternative, in the event of the annulment in part of the March 2014 acts, the Council asks the Court, for reasons of legal certainty, to declare that the effects of Decision 2014/119 be maintained until the annulment in part of Regulation No 208/2014 takes effect. The Council also requests that, in the event of the annulment in part of the March 2015 acts, the effects of Decision 2014/119, as amended, be maintained until the annulment in part of Regulation No 208/2014, as amended by Implementing Regulation 2015/357, takes effect.
The applicant contests the Council’s request.
It must be recalled that the Court has, on the one hand, annulled Decision 2014/119 and Regulation No 208/2014, in their initial versions, in so far as they concern the applicant, and, on the other, has dismissed the action in so far as it is directed against the March 2015 acts, in so far as they concern the applicant.
In that regard, it must be observed that, as was stated in paragraph 108 above, Decision 2015/364 is not a mere confirmatory act but constitutes an autonomous decision, adopted by the Council following a regular review, as provided for in the third paragraph of Article 5 of Decision 2014/119. That being the case, while the annulment of the March 2014 acts, in so far as they concern the applicant, entails the annulment of the applicant’s listing for the period prior to the entry into force of the March 2015 acts, it is not, on the other hand, capable of calling into question the lawfulness of that listing for the period subsequent to that entry into force.
Consequently, there is no need to give a ruling on the Council’s request that the effects of Decision 2014/119 be maintained.
Costs
Under Article 134(2) of the Rules of Procedure, where there is more than one unsuccessful party the Court is to decide how the costs are to be shared.
In the present case, since the Council has been unsuccessful in relation to the claim for annulment made in the application, it must be ordered to pay the costs relating to that claim, in accordance with the form of order sought by the applicant. Since the applicant has been unsuccessful in relation to the claim for annulment made in the statement modifying the form of order sought, he must be ordered to pay the costs relating to that claim, in accordance with the form of order sought by the Council.
In addition, under Article 138(1) of the Rules of Procedure, the Member States and institutions which intervene in the proceedings are to bear their own costs. The Commission must therefore bear its own costs.

On those grounds,
THE GENERAL COURT (Ninth Chamber, extended composition)
hereby:

1.
Annuls — until the entry into force of Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119 and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation No 208/2014 — 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 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, in their initial versions, in so far as Mr Andriy Klyuyev was named in the list of persons, entities and bodies subject to those restrictive measures;

2.
Dismisses the action as to the remainder;

3.
Orders the Council of the European Union to bear its own costs and to pay the costs incurred by Mr Klyuyev, with respect to the claim for annulment stated in the application;

4.
Orders Mr Klyuyev to bear his own costs and to pay the costs incurred by the Council, with respect to the claim for annulment stated in the statement of modification of the form of order sought;

5.
Orders the European Commission to bear its own costs.

Berardis
Czúcz
Pelikánová
Popescu
Buttigieg
Delivered in open court in Luxembourg on 15 September 2016.
[Signatures]
Table of contents

Background to the proceedings

Procedure and forms of order sought by the parties

Law

The claims for annulment of the March 2014 acts, as initially worded, in so far as they concern the applicant

The claims for annulment of the March 2014 acts, as amended by the January 2015 acts and the March 2015 acts, in so far as they concern the applicant

The third plea in law: infringement of the rights of the defence and of the right to effective judicial protection

The fourth plea in law: breach of the duty to state reasons

The first and seventh pleas in law: absence of legal basis and plea of illegality with regard to the listing criterion

The second and sixth pleas in law, taken together: failure to comply with the listing criterion and manifest error of assessment, respectively

The fifth plea in law: breach of the right to property and reputation

Maintaining the effects of Decision 2014/119

Costs
(
*1
)	Language of the case: English.