# C_2016068EN.01003401.xml

| 22.2.2016 | EN | Official Journal of the European Union | C 68/34 |
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22.2.2016

EN

Official Journal of the European Union

C 68/34

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Action brought on 12 December 2015 — Klyuyev v Council

(Case T-731/15)

(2016/C 068/44)

Language of the case: English

Parties

Parties

Applicant: Sergiy Klyuyev (Donetsk, Ukraine) (represented by: R. Gherson, Solicitor, B. Kennelly, Barrister, and T. Garner, Solicitor)

Applicant:

Defendant: Council of the European Union

Defendant:

Form of order sought

Form of order sought

The applicant claims that the Court should:

| — | annul Council Decision 2015/1781/CFSP of 5 October 2015 amending Council Decision 2014/119 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine and Council Implementing Regulation (EU) No 2015/1777 implementing 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 insofar as they apply to the applicant; and |
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annul Council Decision 2015/1781/CFSP of 5 October 2015 amending Council Decision 2014/119 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine and Council Implementing Regulation (EU) No 2015/1777 implementing 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 insofar as they apply to the applicant; and

| — | order the defendant to pay the applicant’s costs. |
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order the defendant to pay the applicant’s costs.

Pleas in law and main arguments

Pleas in law and main arguments

In support of the action, the applicant relies on six pleas in law.

| 1. | First plea in law, alleging that the Council failed to identify a proper legal base. Article 29 TEU was not a proper legal base for the contested decision because the complaint made against the applicant did not identify him as an individual having undermined the rule of law or human rights in Ukraine (within the meaning of Articles 21(2) and 23 TEU). As the decision was invalid, the Council could not rely on Article 215(2) TFEU to enact the contested regulation. At the time that the restrictive measures were imposed, there was no charge against the applicant in the context of judicial proceedings that his activities threatened to undermine the rule of law, or violated any human rights in Ukraine. The restrictive measures in fact endorse a violation of the rule of law by the Ukrainian authorities in their treatment of the applicant. |
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1.

First plea in law, alleging that the Council failed to identify a proper legal base. Article 29 TEU was not a proper legal base for the contested decision because the complaint made against the applicant did not identify him as an individual having undermined the rule of law or human rights in Ukraine (within the meaning of Articles 21(2) and 23 TEU). As the decision was invalid, the Council could not rely on Article 215(2) TFEU to enact the contested regulation. At the time that the restrictive measures were imposed, there was no charge against the applicant in the context of judicial proceedings that his activities threatened to undermine the rule of law, or violated any human rights in Ukraine. The restrictive measures in fact endorse a violation of the rule of law by the Ukrainian authorities in their treatment of the applicant.

| 2. | Second plea in law, alleging that the Council made a manifest error of appreciation in finding that the applicant satisfied the criterion for listing. The allegations presented to the Council by the prosecutor general's office were excessively generic and unsupported by any (still less ‘concrete’) evidence of any judicial proceedings against the applicant. The applicant pointed out the errors in the allegations in advance of the restrictive measures and the Council failed to obtain answers and the necessary evidence from the Ukrainian authorities. The Council erred in accepting the allegations at face value, not least because of the lack of a judicial process in Ukraine which meets European standards. |
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2.

Second plea in law, alleging that the Council made a manifest error of appreciation in finding that the applicant satisfied the criterion for listing. The allegations presented to the Council by the prosecutor general's office were excessively generic and unsupported by any (still less ‘concrete’) evidence of any judicial proceedings against the applicant. The applicant pointed out the errors in the allegations in advance of the restrictive measures and the Council failed to obtain answers and the necessary evidence from the Ukrainian authorities. The Council erred in accepting the allegations at face value, not least because of the lack of a judicial process in Ukraine which meets European standards.

| 3. | Third plea in law, alleging that the Council violated the applicant’s rights of defence and the right to effective judicial protection. In a re-designation case, the Council has a heightened duty to make full inquiries of the requesting authorities and to provide that information to the designated person. That duty was breached in this instance. |
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3.

Third plea in law, alleging that the Council violated the applicant’s rights of defence and the right to effective judicial protection. In a re-designation case, the Council has a heightened duty to make full inquiries of the requesting authorities and to provide that information to the designated person. That duty was breached in this instance.

| 4. | Fourth plea in law, alleging that the Council failed to give the applicant sufficient reasons for his inclusion. These reasons given were insufficiently detailed and precise. |
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4.

Fourth plea in law, alleging that the Council failed to give the applicant sufficient reasons for his inclusion. These reasons given were insufficiently detailed and precise.

| 5. | Fifth plea in law, alleging that the Council severely infringed the applicant’s fundamental rights to property and reputation. The restrictive measures were imposed without proper safeguards enabling the applicant to put his case effectively to the Council. The restrictive measures are not restricted to any specific property which is said to represent misappropriated state funds or even limited to the amount of funds alleged to have been misappropriated. |
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5.

Fifth plea in law, alleging that the Council severely infringed the applicant’s fundamental rights to property and reputation. The restrictive measures were imposed without proper safeguards enabling the applicant to put his case effectively to the Council. The restrictive measures are not restricted to any specific property which is said to represent misappropriated state funds or even limited to the amount of funds alleged to have been misappropriated.

| 6. | Sixth plea in law, alleging that to the extent that the Council is correct that the criteria for designation can extend to any investigation unconnected to judicial proceedings, the criteria are disproportionate and illegal. |
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6.

Sixth plea in law, alleging that to the extent that the Council is correct that the criteria for designation can extend to any investigation unconnected to judicial proceedings, the criteria are disproportionate and illegal.

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