Judgment — ECLI:EU:T:2016:49
Date: 2016-01-28
Language of the case: German
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - successful;Action for annulment - inadmissible

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, ECR, EU:C:2015:248, paragraphs 41 and 45 and the case-law cited). 44 In the present case, the criterion laid down in Article 1(1) of Decision 2014/119 provides that restrictive measures are to be adopted against persons having been identified as responsible for the misappropriation of public funds. Furthermore, it is clear from the second recital of that decision that the Council adopted those measures ‘with a view to consolidating and supporting the rule of law ... in Ukraine’. 45 The name of the applicant was included on the list on the ground that he was a ‘person subject to investigation in Ukraine for involvement in crimes in connection with the embezzlement of Ukrainian State funds and their illegal transfer outside Ukraine’. It thus appears that the Council considered that the applicant was the subject of a preliminary investigation or an inquiry which had not (or not yet) culminated in the bringing of a formal charge, in relation to his alleged involvement in the misappropriation of public funds. 46 In support of the reason for including the applicant’s name on the list, the Council relies on the letter of 3 March 2014 and on other evidence post-dating Decision 2014/119 and Regulation No 208/2014. 47 The first part of the letter of 3 March 2014 states that the ‘law-enforcement agencies of Ukraine’ have launched a certain number of criminal proceedings to investigate criminal acts committed by former senior officials, whose names are listed immediately afterwards, with regard to whom the investigation into the above mentioned offences has made it possible to establish embezzlement of State funds in sizeable amounts and the further illegal transfer of those funds out of Ukrainian territory. 48 The second part of the letter of 3 March 2014 adds that ‘the investigation verifies the involvement of other senior officials representing former authorities in the same sort of crimes’ and that it is ‘planned to inform them shortly of the opening of that investigation’. The names of those other senior officials, including the applicant, are also listed immediately afterwards. 49 With regard to the case-file, the letter of 3 March 2014 is the only piece of evidence submitted by the Council during the course of these proceedings which pre-dates Decision 2014/119 and Regulation No 208/2014. Accordingly, the lawfulness of those acts must be assessed in the light of that piece of evidence alone. 50 It must therefore be established whether the letter of 3 March 2014 constitutes sufficient proof to support the conclusion that the applicant was identified ‘as responsible for the misappropriation of Ukrainian State funds’ within the meaning of Article 1(1) of Decision 2014/119. 51 Although, as the Council states, the letter of 3 March 2014 was sent by a high judicial body in a non-member country, namely, the Office of the Public Prosecutor of Ukraine, it contains only a general and generic statement linking the applicant’s name, among those of other former senior officials, to an inquiry which, essentially, established acts of misappropriation of public funds. 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 verifying and, still less, as to the applicant’s individual liability, even if only presumed, in respect of those acts. 52 It is true that, as the Council submits, in the context of the application of restrictive measures, the EU judicature has held that identifying a person as responsible for an offence does not necessarily imply that that person has been convicted of that offence (see, to that effect, judgments of 5 March 2015 in Ezz and Others v Council, C‑220/14 P, ECR, EU:C:2015:147, paragraph 72, and of 27 February 2014 in Ezz and Others v Council, T‑256/11, ECR, EU:T:2014:93, paragraphs 57 to 61). 53 However, in the context of the cases which gave rise to the case-law cited in paragraph 52 above, the applicants had at least been the subject of an order of the prosecutor general of the non-member country concerned seeking to seize their assets, which had been endorsed by a criminal court (judgment in Ezz and Others v Council, EU:T:2014:93, cited in paragraph 52 above, paragraph 132). Consequently, the imposition of restrictive measures on the applicants in those cases was based on specific facts of which the Council was apprised. 54 In this case, it must be found, first, that the Council did not have any information regarding the acts or conduct specifically imputed to the applicant by the Ukrainian authorities and, secondly, that, even if it is examined in its context, the letter of 3 March 2014 on which it relies cannot constitute a sufficiently solid factual basis within the meaning of the case-law cited in paragraph 43 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. 55 Irrespective of the stage of 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 against him. It is only by being aware of such acts that the Council would have been in a position to establish that they were capable, first, of being categorised as misappropriation of public funds and, secondly, of undermining the rule of law in Ukraine, the consolidation and support of which, as was recalled in paragraph 44 above, constitute the objective pursued by the adoption of the restrictive measures in question. 56 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 in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, ECR, EU:C:2013:518, paragraphs 120 and 121, and of 28 November 2013 in Council v Fulmen and Mahmoudian, C‑280/12 P, ECR, EU:C:2013:775, paragraphs 65 and 66). 57 In view of all the foregoing, the inclusion of the applicant’s name on the list does not comply with the criteria set by Decision 2014/119 for the designation of persons covered by the restrictive measures at issue. 58 The action must therefore be upheld in that it seeks annulment of Decision 2014/119 in so far as it concerns the applicant, without it being necessary to rule on the other pleas which he relied on, or on his application to adopt measures of organisation of procedure. 59 For the same reasons, Regulation No 208/2014 must be annulled in so far as it concerns the applicant. Claim for annulment of Decision 2015/143 and Regulation 2015/138 in so far as they relate to the applicant 60 In the statement modifying the form of order sought, the applicant also seeks annulment of Decision 2015/143 and Regulation 2015/138, essentially in so far as they amend Article 1(1) of Decision 2014/119 and Article 3 of Regulation No 208/2014, respectively. 61 In its observations on the statement modifying the form of order sought, the Council contends, first, that the Court does not have jurisdiction under Article 275 TFEU to rule on an action brought against Decision 2015/143, which was adopted, inter alia, on the basis of Article 29 TEU, and secondly, that the extension of the form of order sought to that decision and to Regulation 2015/138 is inadmissible due to the applicant’s lack of locus standi. Furthermore, the Council, supported by the Commission, contends that the applicant’s claim does not contain any statement of the pleas relied on for the purposes of Article 21 of the Statute of the Court of Justice and Article 44(1) of the Rules of Procedure of 2 May 1991. 62 As regards, at the outset, the issue of the jurisdiction of the EU judicature, it must be recalled that the second paragraph of Article 275 TFEU expressly provides that, by way of derogation from the first paragraph of that article, the EU judicature has jurisdiction ‘to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 of this Treaty, reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted on the basis of Chapter 2 of Title V of the [EU] Treaty’. Thus, contrary to what the Council maintains, that provision is directed at all Council decisions relating to restrictive measures against natural or legal persons, falling within Chapter 2 of Title V of the EU Treaty, without making any distinction on the basis of decisions of general application or individual decisions. In particular, it does not preclude the possibility of challenging, in a statement modifying the form of order sought, the legality of a general provision, in support of an action for annulment brought against an individual restrictive measure (see, to that effect, judgment of 4 September 2015 in NIOC and Others v Council, T‑577/12, under appeal, EU:T:2015:596, paragraphs 93 and 94). 63 Therefore, contrary to what the Council submits, the Court has jurisdiction to examine the legality of Decision 2015/143 in so far as it amends Article 1(1) of Decision 2014/119. 64 Next, as regards the plea of inadmissibility concerning the applicant’s lack of locus standi, it must be observed that Decision 2014/119 and Regulation No 208/2014 were amended by Decision 2015/143 and by Regulation 2015/138 only in so far as the criteria for the freezing of funds targeting persons responsible for the misappropriation of Ukrainian State funds were clarified. 65 Decision 2015/143 and Regulation 2015/138 do not name the applicant, nor were they adopted further to a complete review of the lists of persons subject to the restrictive measures. Those measures cover only the general listing criteria applicable to objectively determined situations and having legal effects in relation to categories of persons and entities envisaged in a general and abstract manner, and not the inclusion of the applicant’s name on the list. Consequently, they are not of either direct or individual concern to the applicant, and he is not entitled, as the Council submitted, to amend his claims to seek their annulment (see, to that effect, judgment of 6 September 2013 in Bank Refah Kargaran v Council, T‑24/11, ECR, EU:T:2013:403, paragraph 50). 66 Moreover, the amendments made to the general listing criterion by Decision 2015/143 and by Regulation 2015/138 are not relevant for the assessment of the legality of the listing of the applicant’s name, which was conducted by the Council on the basis of the single criterion set out in Article 1(1) of Decision 2014/119 (see paragraph 44 above). 67 In the light of the foregoing, the action must be dismissed as inadmissible in so far as it is directed against Decision 2015/143 and Regulation 2015/138, without it being necessary to rule on the other plea of inadmissibility raised by the Council and the Commission. The temporal effects of the annulment in part of Decision 2014/119 68 The Council submits that, if the Court annuls Decision 2014/119 in so far as it concerns the applicant, it will be necessary for the effects of that decision as regards the applicant to be maintained pursuant to the second paragraph of Article 264 TFEU until the partial annulment of Regulation No 208/2014 takes effect, in order to ensure legal certainty and preserve the coherence and consistency of the legal order. 69 The applicant disputes that line of argument. 70 It must be recalled that Decision 2014/119 was amended by Decision 2015/364 which replaced the list from 7 March 2015 and extended the application of the restrictive measures, in so far as they concern the applicant, until 6 March 2016. Following those amendments the applicant’s name was retained on the list with new reasons for his listing (see paragraphs 12 and 13 above). 71 Therefore, as at today’s date, the applicant is subject to a new restrictive measure. It follows that the annulment of Decision 2014/119, in so far as it relates to the applicant, does not lead to the removal of his name from the list. 72 Consequently, it is not necessary to maintain the effects of Decision 2014/119, in so far as it relates to the applicant. Costs 73 Under Article 134(2) of the Rules of Procedure, where there is more than one unsuccessful party the Court will decide how the costs are to be shared. 74 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. 75 In addition, under Article 138(1) of the Rules of Procedure, Member States and institutions which have intervened are to bear their own costs. The Republic of Poland and the Commission will thus bear their own costs. On those grounds, THE GENERAL COURT (Ninth Chamber) hereby: 1. Annuls 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 so far as they concern Mykola Yanovych Azarov; 2. Dismisses the action as to the remainder; 3. Orders the Council of the European Union to bear its own costs and to pay those incurred by Mr Azarov in relation to the claim for annulment made in the application; 4. Orders Mr Azarov to bear his own costs and to pay those incurred by the Council in relation to the claim for annulment made in the statement modifying the form of order sought; 5. Orders the Republic of Poland and the European Commission to bear their own costs. Berardis Czúcz Popescu Delivered in open court in Luxembourg on 28 January 2016. [Signatures] * Language of the case: German.