# C_2015228EN.01002302.xml

| 13.7.2015 | EN | Official Journal of the European Union | C 228/23 |
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13.7.2015

EN

Official Journal of the European Union

C 228/23

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Action brought on 15 May 2015 — Klyuyev/Council

(Case T-244/15)

(2015/C 228/29)

Language of the case: English

Parties

Parties

Applicant: Andriy Klyuyev (Donetsk, Ukraine) (represented by: R. Gherson, 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 (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2015 L 62, p. 25) and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 Implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2015 L 62, p. 1) insofar as they apply to the applicant; |
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annul Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2015 L 62, p. 25) and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 Implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2015 L 62, p. 1) insofar as they apply to the applicant;

| — | alternatively, declare that article 1(1) of Council Decision 2014/119/CFSP of 5 March 2014 (as amended) and article 3(1) of Council Regulation (EU) No 208/2014 of 5 March 2014 (as amended), are inapplicable insofar as they apply to the applicant by reason of illegality; |
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alternatively, declare that article 1(1) of Council Decision 2014/119/CFSP of 5 March 2014 (as amended) and article 3(1) of Council Regulation (EU) No 208/2014 of 5 March 2014 (as amended), are inapplicable insofar as they apply to the applicant by reason of illegality;

| — | order the Council to pay the costs of the proceedings. |
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order the Council to pay the costs of the proceedings.

Pleas in law and main arguments

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the Council Decision 2014/119/CFSP of 5 March 2014, as amended (the ‘Decision’), insofar as it imposes restrictive measures against the applicant, is inconsistent with the Decision’s expressly invoked objectives (e.g. democracy; rule of law; respect for human rights), and does not fall within the principles and objectives of the Common Foreign and Security Policy (‘CFSP’) set out in article 21 TEU. The conditions for relying on Article 29 TEU are therefore not satisfied by the Decision. As the Decision was invalid, the Council could not rely on article 215(2) TFEU to enact the Council Regulation (EU) No 208/2014 of 5 March 2014, as amended (the ‘Regulation’). Recent events have made clear that the applicant will not get fair, independent or unbiased treatment by Ukrainian investigating or judicial authorities. |
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1.

First plea in law, alleging that the Council Decision 2014/119/CFSP of 5 March 2014, as amended (the ‘Decision’), insofar as it imposes restrictive measures against the applicant, is inconsistent with the Decision’s expressly invoked objectives (e.g. democracy; rule of law; respect for human rights), and does not fall within the principles and objectives of the Common Foreign and Security Policy (‘CFSP’) set out in article 21 TEU. The conditions for relying on Article 29 TEU are therefore not satisfied by the Decision. As the Decision was invalid, the Council could not rely on article 215(2) TFEU to enact the Council Regulation (EU) No 208/2014 of 5 March 2014, as amended (the ‘Regulation’). Recent events have made clear that the applicant will not get fair, independent or unbiased treatment by Ukrainian investigating or judicial authorities.

| 2. | Second plea in law, alleging that the applicant failed to fulfil the criteria for inclusion in the annex to the Decision and the Regulation (together, the ‘Contested Measures’). The applicant was not at the date of listing subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets or abuse of office thereby causing a loss to Ukrainian public funds or assets. |
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2.

Second plea in law, alleging that the applicant failed to fulfil the criteria for inclusion in the annex to the Decision and the Regulation (together, the ‘Contested Measures’). The applicant was not at the date of listing subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets or abuse of office thereby causing a loss to Ukrainian public funds or assets.

| 3. | Third plea in law, alleging that the Council violated the applicant’s rights of defence and the right to effective judicial protection. The applicant has not been given serious or credible or concrete evidence in support of a case which would justify the imposition of restrictive measures on him. In particular, there is no evidence of any careful or impartial examination as to whether the alleged reasons said to justify redesignation are well founded in light of the representations made by the applicant. |
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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. The applicant has not been given serious or credible or concrete evidence in support of a case which would justify the imposition of restrictive measures on him. In particular, there is no evidence of any careful or impartial examination as to whether the alleged reasons said to justify redesignation are well founded in light of the representations made by the applicant.

| 4. | Fourth plea in law, the Council failed to give the applicant sufficient reasons for his inclusion. The reasons contain no detail and consist merely of a general stereotypical formulation. |
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4.

Fourth plea in law, the Council failed to give the applicant sufficient reasons for his inclusion. The reasons contain no detail and consist merely of a general stereotypical formulation.

| 5. | Fifth plea in law, the Council severely infringed the applicant’s fundamental rights to property and reputation. The restrictive measures were not ‘provided for by law’; they were imposed without proper safeguards enabling the Applicant to put his case effectively to the Council; they 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; they have been treated as an indication of guilt leading to adverse actions in other jurisdictions. |
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5.

Fifth plea in law, the Council severely infringed the applicant’s fundamental rights to property and reputation. The restrictive measures were not ‘provided for by law’; they were imposed without proper safeguards enabling the Applicant to put his case effectively to the Council; they 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; they have been treated as an indication of guilt leading to adverse actions in other jurisdictions.

| 6. | Sixth plea in law, the Council relied on materially inaccurate facts. The allegation that the applicant is subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets or abuse of office thereby causing a loss to Ukrainian public funds or assets or likely to be guilty of the same is demonstrably false. |
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6.

Sixth plea in law, the Council relied on materially inaccurate facts. The allegation that the applicant is subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets or abuse of office thereby causing a loss to Ukrainian public funds or assets or likely to be guilty of the same is demonstrably false.

| 7. | Seventh plea in law, raised in support of the declaration of illegality, alleging that if Article 1(1) the Decision and Article 3(1) of the Regulation are to be interpreted so as to capture (a) any investigation by a Ukrainian authority irrespective of whether there is any judicial decision or proceedings underpinning, controlling or overseeing it; and/or (b) any ‘abuse of office as a public-office holder in order to procure an unjustified advantage’ irrespective of whether there is an allegation of misappropriation of State funds, the designation criterion would, given the arbitrary width and scope that would result from such a broad interpretation, lack a proper legal base; and/or be disproportionate to the objectives of the Decision and Regulation. The designation criterion would therefore be unlawful. |
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7.

Seventh plea in law, raised in support of the declaration of illegality, alleging that if Article 1(1) the Decision and Article 3(1) of the Regulation are to be interpreted so as to capture (a) any investigation by a Ukrainian authority irrespective of whether there is any judicial decision or proceedings underpinning, controlling or overseeing it; and/or (b) any ‘abuse of office as a public-office holder in order to procure an unjustified advantage’ irrespective of whether there is an allegation of misappropriation of State funds, the designation criterion would, given the arbitrary width and scope that would result from such a broad interpretation, lack a proper legal base; and/or be disproportionate to the objectives of the Decision and Regulation. The designation criterion would therefore be unlawful.

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