# C_2016270EN.01004802.xml

| 25.7.2016 | EN | Official Journal of the European Union | C 270/48 |
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25.7.2016

EN

Official Journal of the European Union

C 270/48

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Action brought on 14 May 2016 — Klyuyev v Council

(Case T-240/16)

(2016/C 270/56)

Language of the case: English

Parties

Parties

Applicant: Andriy Klyuyev (Donetsk, Ukraine) (represented by: B. Kennelly and J. Pobjoy, Barristers, R. Gherson and T. Garner, Solicitors)

Applicant:

Defendant: Council of the European Union

Defendant:

Form of order sought

Form of order sought

The applicant claims that the Court should:

| — | annul the Council Decision (CFSP) 2016/318 of 4 March 2016 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine as well as Council Implementing Regulation (EU) 2016/311 of 4 March 2016 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, insofar as they apply to the applicant; |
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annul the Council Decision (CFSP) 2016/318 of 4 March 2016 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine as well as Council Implementing Regulation (EU) 2016/311 of 4 March 2016 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, insofar as they apply to the applicant;

| — | alternatively, declare that (i) Article 1 (1) of Council decision 2014/119/CFSP of 5 March 2014 (as amended) and (2) Article 3(1) of Council Regulation (EU) No 208/2014 of 5 March 2014 (as amended), are inapplicable as far as they apply to the applicant by reason of illegality; |
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alternatively, declare that (i) Article 1 (1) of Council decision 2014/119/CFSP of 5 March 2014 (as amended) and (2) Article 3(1) of Council Regulation (EU) No 208/2014 of 5 March 2014 (as amended), are inapplicable as far as they apply to the applicant by reason of illegality;

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

Pleas in law and main arguments

Pleas in law and main arguments

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

| 1. | First plea in law, alleging, in support of the application for annulment, that he Council has failed to identify a proper legal base for the contested measures.






  — | The applicant puts forward that Article 29 TEU is not a proper legal base for the Council decision 2014/119/CFSP of 5 March 2014 because the complaint made against the applicant did not identify him as an individual having undermined democracy in Ukraine or deprived the Ukrainian people of the benefits of the sustainable development of their country (within the meaning of Article 23 TEU and the general provisions in Article 21(2) TEU). As the third amending decision was invalid, so the applicant claims, the Council could not rely on Article 215(2) TFUE to enact the Council Regulation (EU) No 208/2014 of 5 March 2014. |
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1.

First plea in law, alleging, in support of the application for annulment, that he Council has failed to identify a proper legal base for the contested measures.

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The applicant puts forward that Article 29 TEU is not a proper legal base for the Council decision 2014/119/CFSP of 5 March 2014 because the complaint made against the applicant did not identify him as an individual having undermined democracy in Ukraine or deprived the Ukrainian people of the benefits of the sustainable development of their country (within the meaning of Article 23 TEU and the general provisions in Article 21(2) TEU). As the third amending decision was invalid, so the applicant claims, the Council could not rely on Article 215(2) TFUE to enact the Council Regulation (EU) No 208/2014 of 5 March 2014.

| 2. | Second plea in law, alleging, in support of the application for annulment, the violation of the applicant’s rights under Article 6, read with Articles 2 and 3, TEU, and Articles 47 and 48 of the EU Charter of Fundamental Rights by the Council’s assumption that the judicial proceedings in Ukraine complied with fundamental human rights. |
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2.

Second plea in law, alleging, in support of the application for annulment, the violation of the applicant’s rights under Article 6, read with Articles 2 and 3, TEU, and Articles 47 and 48 of the EU Charter of Fundamental Rights by the Council’s assumption that the judicial proceedings in Ukraine complied with fundamental human rights.

| 3. | Third plea in law, alleging, in support of the application for annulment, that the Council has made manifest errors of assessment in considering that the criterion for listing the applicant in 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) was satisfied. |
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3.

Third plea in law, alleging, in support of the application for annulment, that the Council has made manifest errors of assessment in considering that the criterion for listing the applicant in 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) was satisfied.

| 4. | Fourth plea in law, alleging, in support of the application for annulment, that the council violated the applicant’s right of defence and the right to good administration and effective judicial review. In particular, according to the applicant, the Council failed to carefully and impartially examine whether the alleged reasons said to justify re-designation were well founded in light of the representations made by the applicant prior to re-designation. |
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4.

Fourth plea in law, alleging, in support of the application for annulment, that the council violated the applicant’s right of defence and the right to good administration and effective judicial review. In particular, according to the applicant, the Council failed to carefully and impartially examine whether the alleged reasons said to justify re-designation were well founded in light of the representations made by the applicant prior to re-designation.

| 5. | Fifth plea in law, alleging, in support of the application for annulment, that the Council has infringed, without justification or proportion, the applicant’s fundamental rights, including his right to protection of his property and reputation. According to the applicant, the impact of the contested measures is far-reaching, both as regards to his property, and to his reputation worldwide. The Council has failed to demonstrate that the freezing of the applicant’s assets and economic resources is related to, or justified by, any legitimate aim still less that it is proportionate to such an aim. |
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5.

Fifth plea in law, alleging, in support of the application for annulment, that the Council has infringed, without justification or proportion, the applicant’s fundamental rights, including his right to protection of his property and reputation. According to the applicant, the impact of the contested measures is far-reaching, both as regards to his property, and to his reputation worldwide. The Council has failed to demonstrate that the freezing of the applicant’s assets and economic resources is related to, or justified by, any legitimate aim still less that it is proportionate to such an aim.

| 6. | Sixth plea in law, alleging, in support of the application for illegality, that, if, contrary to the arguments advanced in the third plea, 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 to be interpreted 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 Article 1(1) of Council decision 2014/119/CFSP of 5 March 2014 and Article 3(1) of Council Regulation (EU) No 208/2014 of 5 March 2014. The provisions would therefore be unlawful. |
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6.

Sixth plea in law, alleging, in support of the application for illegality, that, if, contrary to the arguments advanced in the third plea, 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 to be interpreted 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 Article 1(1) of Council decision 2014/119/CFSP of 5 March 2014 and Article 3(1) of Council Regulation (EU) No 208/2014 of 5 March 2014. The provisions would therefore be unlawful.

‘abuse of office as a public-office holder in order to procure an unjustified advantage’

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