Judgment — ECLI:EU:C:2015:407
Date: 2015-06-18
Language of the case: French
Court formation: Fifth Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible

summary of the first plea in law, and that no reference had been made to the letter in the context of the other two pleas in law. The General Court also emphasised that, while the three pleas in law very explicitly concerned the decisions and implementing regulations mentioned above, the same could not be said of the letter of 14 November 2011. 18 In the light of those findings, the General Court did not err in law in stating in paragraph 58 of the judgment under appeal that it could not be concluded that Mr Ipatau had referred in his application for legal aid to the letter of 14 November 2011 as an act that ought to be the subject of the proposed action. 19 Regarding the argument that the application for legal aid of 11 December 2011 should have been interpreted as necessarily seeking the annulment of the letter of 14 November 2011, it should be borne in mind that, by that letter, the Council refused Mr Ipatau’s request for review of his inclusion, through Decision 2011/69 and Implementing Regulation No 84/2011, in the lists of persons subject to restrictive measures. That letter also contained Decision 2011/666 and Implementing Regulation No 1000/2011. 20 The application for legal aid had been submitted by Mr Ipatau for the purposes of bringing an action for annulment of Decision 2011/69, Implementing Regulation No 84/2011, Decision 2011/666 and Implementing Regulation No 1000/2011. In view of the clear, precise and legally well-argued wording of that application for legal aid, there was nothing to permit a finding by the General Court that that application was necessarily seeking, in addition, the annulment of the letter of 14 November 2011. 21 Regarding Mr Ipatau’s claim not to have been assisted by an advisor when drafting his application for legal aid, it must be pointed out that the application for legal aid drafted by Mr Ipatau was clear, precise, and legally well argued, bearing witness to his legal skills. 22 It follows from all of the foregoing that the first ground of appeal is unfounded and must be dismissed. Second ground of appeal: infringement of the rights of the defence concerning Decision 2012/642 and Implementing Regulation No 1017/2012 Arguments of the parties 23 By his second ground of appeal, Mr Ipatau argues that, in ruling that the Council was entitled to adopt Decision 2012/642 and Implementing Regulation No 1017/2012 without hearing him beforehand, the General Court infringed the rights of the defence. He therefore contests paragraphs 80 and 81 of the judgment under appeal, which are worded as follows: ‘80 It should be noted that there was no substantial change to the reasoning concerning the applicant in 2012, in so far as his responsibility for the violations of electoral standards in the context of the Presidential election of 19 December 2010 is still attributed to his role as Deputy Chairperson and Member of the CEC. 81 It must therefore be concluded, without it being necessary to examine their admissibility, that the objections raised by the applicant in that regard are, in any event, unfounded, as the Council was not obliged to inform the applicant of the incriminating evidence involved or to give him the opportunity to be heard prior to the adoption of Decision 2012/642 and Implementing Regulation No 1017/2012.’ 24 He argues that the fact that the reasons for certain acts have not changed cannot exempt the Council from its obligation to consult the person concerned, thereby giving him the opportunity to provide an update on his situation and the information concerning him. He notes that recital 8 in the preamble to Decision 2012/642 refers to the Parliamentary elections of 23 September 2012, indicating that they ‘have also been found to be inconsistent with international standards’, whereas the reasons for his inclusion in the list of persons subject to restrictive measures relate to ‘violations of electoral standards in the context of the Presidential election of 19 December 2010’. 25 The Council disputes the merits of that ground of appeal. Findings of the Court 26 In paragraphs 75 and 76 of the judgment under appeal, the General Court — without erring in law — recalled the case-law pursuant to which, in the context of the adoption of a decision to maintain the name of a person or an entity in a list of persons or entities subject to restrictive measures, the Council must respect the right of that person or entity to be heard beforehand where that institution is including in that decision new evidence against that person or entity, namely evidence which was not included in the initial listing decision (see, to that effect, in particular, judgment in France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraphs 62 and 63). 27 As the General Court rightly noted in paragraph 80 of the judgment under appeal, there was no substantial change in 2012 to the grounds for continuing to include Mr Ipatau in the list of persons subject to the restrictive measures in question. Indeed, it is clear from all the acts in respect of which Mr Ipatau sought annulment before the General Court that his responsibility for the violations of electoral standards in the context of the Presidential election of 19 December 2010 was still attributed to his role as Deputy Chairperson and Member of the CEC. 28 In any event, as the Council contends, Mr Ipatau had already submitted observations to the Council and was therefore aware that that right was always available to him, a fortiori during regular reviews of the restrictive measures adopted against the Republic of Belarus with a view to the possible extension of those measures. 29 It follows from all of the foregoing that the second ground of appeal is unfounded and must be dismissed. Third ground of appeal: error of law regarding the adequacy of the grounds provided in the acts in respect of which annulment was sought Arguments of the parties 30 By his third ground of appeal, Mr Ipatau submits that the General Court erred in law in ruling that the Council had not made an error of assessment in deciding that the reasons for his inclusion in the list of persons subject to restrictive measures were well founded. He therefore contests paragraphs 143 and 144 of the judgment under appeal. Paragraphs 138 to 140 and 142 to 144 of the judgment under appeal are worded as follows: ‘138 The applicant does not deny that he is the Deputy Chairperson of the CEC but, in essence, disputes his role and influence and, more generally, the role and influence of the CEC in presidential elections. 139 The applicant contests the inclusion of his name in the list of persons subject to restrictive measures on the ground that the Council drew erroneous conclusions from the [Organisation for Security and Cooperation in Europe (OSCE)] report in question. 140 However, first of all, it is apparent that, while the Council seems to have based its decision on the OSCE report in question, the findings of that report are, as the Council emphasises, not contradicted by institutions such as those belonging to the Council of Europe. In that regard, it is clear from Resolution 1790(2011) of 27 January 2011 of the Parliamentary Assembly of the Council of Europe and from Resolution 17/24 of 15 June 2011 of the United Nations Human Rights Council that the Presidential elections of December 2010 in Belarus were not conducted in an orderly manner, since candidates were arrested and there was a crackdown in the months following those elections. The fact that the Commonwealth of Independent States (CIS) validated the 2010 Presidential elections in Belarus is not sufficient grounds for contesting the contents of that report in that regard. ... 142 Next, although the CEC is not the only entity responsible for applying electoral law, that does not mean that it bears no responsibility for the way in which the Presidential elections of December 2010 were conducted. It can be seen from the OSCE report in question, and it is not disputed by the parties, that the CEC is the highest-ranking body of the electoral administration. In particular, it plays an important role in drawing up the list of candidates for presidential elections, in supervising lower-ranking bodies of the electoral administration, in monitoring the way in which electoral campaigns are conducted, in dealing with complaints and actions against decisions made by various lower-level electoral commissions and local administrative authorities and in actions brought more generally by various electoral candidates. 143 The OSCE report in question highlights “a lack of independence and impartiality of the election administration, an uneven playing field and a restrictive media environment, as well as a persistent lack of transparency at key stages of the electoral process”. It is also clear from that report that there was insufficient supervision and monitoring of the elections. The CEC lacked independence, impartiality and collegiality, and announced the official results declaring President Lukashenko’s election without publishing any kind of detailed version of those results. 144 Lastly, it is common ground that the applicant, in his capacity as Deputy Chairperson of the CEC, was personally involved in that body’s activities. There is no indication that he dissociated himself at any time from the work of the CEC, or that he expressed the slightest protest, reservation or hint regarding the work carried out by that commission concerning the Presidential elections of December 2010, even though the CEC fully endorsed the way in which those elections were conducted.’ 31 Mr Ipatau makes reference to the judgment in Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 119 and 121), pursuant to which it is for the Council to adduce evidence that the grounds which are the basis of the decision to include or to continue to include a person in a list of persons subject to sanctions are well founded, and the judgment in Tay Za v Council (C‑376/10 P, EU:C:2012:138, paragraph 71), by which the Court condemned the making of any assumptions about a person, or the inclusion of that person in such a list purely on the basis of their links with other persons. He submits that the General Court erred in law in ruling that the grounds of the disputed acts were sufficient to establish his responsibility for the violations of international electoral standards which occurred during the Presidential elections of 19 December 2010. In that regard, Mr Ipatau argues, first, that there was no reason for him to dissociate himself from the work of the CEC. 32 Second, he submits that it cannot be held that the CEC contributed to falsifying the results of the election of 19 December 2010 when only one action seeking to call in question the validity of the elections (which, moreover, it is for the Supreme Court and not the CEC to take cognisance of at last instance) was brought before that commission. Furthermore, the CEC cannot be blamed for validating the results of an election which were accepted by 90% of the candidates. 33 Third, he disputes the criticisms raised by the OSCE in its report and set out in paragraph 143 of the judgment under appeal, whereas the General Court was unable to examine the CEC’s decisions. 34 The Council refers to the case-law relating to statements of reasons for acts of the institutions and contends that the General Court did not err in law in its examination, in paragraphs 97 to 103 of the judgment under appeal, of the plea for annulment alleging a breach of the duty to provide a statement of reasons. 35 The Council also examines the issue as to whether the measures adopted against Mr Ipatau were well founded and as to the evidence of the facts on which those measures were based. It contends that it listed, in the pleadings which it lodged at first instance, a certain number of actions taken by the CEC which violated international electoral standards and the role played by Mr Ipatau in that regard. In addition, it observes that although only one candidate disputed the election results, seven others were held by Belarussian security forces immediately after the elections and were not therefore in a position to dispute the results thereof. 36 The Council emphasises that the Belarussian electoral system is able to function only as a result of sincere cooperation between high-level national officials such as Mr Ipatau. It is of the view that, as a high-level government official, Mr Ipatau was associated, within the meaning accepted by the Court in its judgment in Tay Za v Council (C‑376/10 P, EU:C:2012:138), with the Belarussian government. It follows that the Council was entitled to confine itself to mentioning that link between Mr Ipatau and the government in its statement of reasons for the decisions which it adopted. Findings of the Court 37 It should be borne in mind that the duty to state reasons established by Article 296 TFEU is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue (see, to that effect, judgment in Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 67). The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect (see judgment in Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 181). It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a ground of appeal alleging an inadequate statement of reasons or a lack of such a statement. 38 Although the appellant has described his ground of appeal as alleging an ‘error of law regarding the adequacy of the grounds provided in the acts at issue’, it must be pointed out that he is criticising the merits of paragraphs 143 and 144 of the judgment under appeal, in which the General Court responded to his plea alleging an error of assessment. Nevertheless, since the appellant has identified precisely the points in the grounds of that judgment which he is contesting, that ground of appeal must be examined, in accordance with Article 178(3) of the Rules of Procedure. 39 In the context of ascertaining whether Mr Ipatau’s inclusion in the lists of persons subject to restrictive measures was well founded, it is necessary to examine, first, the general criteria for inclusion in those lists, second, the grounds stated for including Mr Ipatau in such a list and, third, the evidence that his listing was well founded (judgments in Anbouba v Council, C‑605/13 P, EU:C:2015:247, paragraph 40, and Anbouba v Council, C‑630/13 P, EU:C:2015:248, paragraph 41). 40 It should be borne in mind that the Council has a broad discretion when defining the general criteria to be adopted for the purpose of applying restrictive measures (see, to that effect, judgments in Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 120 and the case-law cited; Anbouba v Council, C‑605/13 P, EU:C:2015:247, paragraph 41; and Anbouba v Council, C‑630/13 P, EU:C:2015:248, paragraph 42). 41 Mr Ipatau does not allege any error of law in that regard. 42 Regarding the evidence that Mr Ipatau’s listing was well founded, it should be borne in mind that 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 are the basis of the decision to include a person’s name in the list of persons subject to restrictive measures, the Courts of the European Union are to ensure that that decision, which affects that person individually, is taken on a sufficiently solid factual basis. That entails, in this instance, 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, is substantiated (see, to that effect, judgments in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119; Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 73; Anbouba v Council, C‑605/13 P, EU:C:2015:247, paragraph 45; and Anbouba v Council, C‑630/13 P, EU:C:2015:248, paragraph 46). 43 First, Mr Ipatau challenges the assertion that the CEC could have helped to falsify the results of the election of 19 December 2010, when only one action was brought before it. However, that argument cannot undermine the General Court’s factual findings in paragraphs 142 and 143 of the judgment under appeal. 44 In those paragraphs, the General Court found, first, that in its position as the highest-ranking body of the electoral administration, the CEC has powers besides that of processing complaints, such as ‘an important role in drawing up the list of candidates for presidential elections, in supervising lower-ranking bodies of the electoral administration, in monitoring the way in which electoral campaigns are conducted [and] in dealing with complaints and actions against decisions made by various lower-level electoral commissions and local administrative authorities’. Second, it held that ‘there was insufficient supervision and monitoring of the elections’ and that ‘[t]he CEC lacked independence, impartiality and collegiality, and announced the official results declaring President Lukashenko’s election without publishing any kind of detailed version of those results’. 45 Secondly, Mr Ipatau claims not to have had any reason to dissociate himself from the work of the CEC. However, in view of the fact that Mr Ipatau does not identify any error of law on the part of the General Court as regards the CEC’s responsibility for the violations of international electoral standards in the context of the Presidential elections of 19 December 2010, the General Court cannot be blamed for having inferred his personal responsibility for those violations from his role as Deputy Chairperson of the CEC and from the fact that he did not dissociate himself from the work of that commission. 46 Those are the factual findings — which it is not for the Court to review on appeal — which enabled the General Court to conclude, in essence, that the CEC was responsible for violations of international electoral standards in the context of the Presidential elections of 19 December 2010 and that those violations could also be imputed to Mr Ipatau personally as the Deputy Chairperson of that institution. Contrary to Mr Ipatau’s assertions, the General Court did not make any assumptions in his regard and, consequently, did not act contrary to the judgment in Tay Za v Council (C‑376/10 P, EU:C:2012:138) in including his name in the list of persons subject to restrictive measures solely by referring to his links to other persons. 47 Thirdly, Mr Ipatau accuses the General Court of having reproduced the criticisms addressed to the CEC by the OSCE relating to the quality of the CEC’s decisions without having examined those decisions. By that argument, Mr Ipatau is in fact challenging the assessment of the evidence carried out by the General Court and the value which it ascribed to that evidence. 48 In that regard, it should be borne in mind that, in some situations, the Courts of the European Union may take into account reports from international non-governmental organisations (see, to that effect, judgment in N.S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 90 and 91). A fortiori, it may take into account a report from an international organisation like the OSCE. 49 In paragraph 140 of the judgment under appeal, the General Court verified the reliability of the OSCE report by comparing its findings with the findings of institutions such as the Council of Europe. 50 Having regard to all of the General Court’s factual findings — which it is not for the Court to review on appeal — the General Court did not err in law in rejecting as unfounded, in paragraph 145 of the judgment under appeal, the plea alleging that the Council had made an error of assessment. 51 In so doing, the General Court complied with the principles deriving from the case-law referred to in paragraph 42 of this judgment relating to the verification of the lawfulness of the grounds on which acts such as the acts at issue are based. 52 The third ground of appeal must therefore be dismissed as unfounded. Fourth ground of appeal: failure to comply with the principle of proportionality Arguments of the parties 53 By his fourth ground of appeal, Mr Ipatau submits that, by validating the measures taken against him in 2011 and 2012 even though the OSCE report did not recommend adopting any restrictive measures against Members of the CEC, the General Court disregarded the principle of proportionality. He emphasises that the general recommendations of the OSCE regarding the CEC relate only to the composition of that commission and the quality of the instructions which it provides to local commissions. The collective punishment of all Members of the CEC is clearly disproportionate and inefficient, as it prevents Members of the CEC from gaining awareness of European experience and best practice. 54 He also argues that, in order to encourage improvement of the Belarussian electoral system (which does not have any long-standing traditions), it is essential for persons involved in that electoral system, including Members of the CEC, to be made more aware of international electoral standards. To that end, they could be offered training by the Member States of the European Union and observation visits could be organised during elections in those States. However, the ban on travelling within the European Union is clearly contrary to those objectives of the OSCE report. 55 The Council first of all emphasises that the OSCE report is not the sole basis for the restrictive measures against the appellant. Next, it contends that there is no contradiction between the OSCE report and the policies of the Council and the European Union. On the contrary, those policies, including those involving restrictive measures, are designed to exert pressure on the Belarussian government and those associated therewith, in order to put an end to serious human rights violations and the repression of civil society and democratic opposition, and to ensure observance of democracy and the rule of law, including international electoral standards, in Belarus. Moreover, the Council’s restrictive measures do not impede persons responsible for the administration of elections from undergoing training in Belarus on the subject of international electoral standards. Furthermore, Article 3(6) of Decision 2012/642 lists potential exemptions from the ban on travelling within the European Union. Findings of the Court 56 Pursuant to Article 169(2) of the Rules of Procedure of the Court of Justice, the pleas in law and legal arguments relied on in the context of an appeal must identify precisely those points in the grounds of the decision of the General Court which are contested (see order in Thesing and Bloomberg Finance v ECB, C‑28/13 P, EU:C:2014:230, paragraph 25, and judgment in Klein v Commission, C‑120/14 P, EU:C:2015:252, paragraph 85). 57 Accordingly, that requirement is not satisfied by an appeal which, without even specifically identifying the error of law vitiating the judgment which is the subject of that appeal, confines itself to reproducing the pleas in law and arguments previously submitted to the General Court. Such an appeal amounts in reality to nothing more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (see judgment in Klein v Commission, C‑120/14 P, EU:C:2015:252, paragraph 86). 58 By confining himself to asserting that the General Court wrongly held that the Council’s measures were not disproportionate without identifying precisely the points in the grounds of the fifth plea of the judgment under appeal which he wishes to challenge, Mr Ipatau has failed to satisfy the requirements of Article 169(2) of the Rules of Procedure. Moreover, the arguments put forward in the fourth ground of appeal are not directed against the judgment under appeal but against the Council’s measures and essentially reproduce the arguments previously submitted to the General Court. 59 Since the fourth ground of appeal thus amounts in reality to nothing more than a request for re-examination of the application submitted by Mr Ipatau at first instance, it must be dismissed as inadmissible. 60 As all four of Mr Ipatau’s grounds of appeal have been dismissed, the appeal must also be dismissed. Costs 61 Pursuant to Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs. 62 Under Article 138(1) of the Rules of Procedure, applicable to appeal proceedings pursuant to Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 63 Since the Council has applied for costs and Mr Ipatau has been unsuccessful, he must be ordered to bear his own costs and to pay those incurred by the Council. On those grounds, the Court (Fifth Chamber) hereby: 1. Dismisses the appeal; 2. Orders Mr Vadzim Ipatau to bear his own costs and to pay those incurred by the Council of the European Union. [Signatures] * Language of the case: French.