Order — ECLI:EU:T:2016:363
Date: 2016-06-10
Language of the case: English
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - successful

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, EU:C:2015:248, paragraphs 41 and 45 and the case-law cited). 63 As in the case that gave rise to the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraph 39), in the present case, in accordance with the criterion laid down in Article 1(1) of the contested decision, restrictive measures are to be adopted against persons having been identified as responsible for the misappropriation of State funds. Furthermore, it is evident from recital 2 of that decision that the Council adopted those measures ‘with a view to consolidating and supporting the rule of law ... in Ukraine’. 64 The applicant’s name 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 follows from this that the Council regarded the applicant as being the subject of a preliminary investigation or inquiry, which had not (or had not yet) culminated in the bringing of a formal charge, because of his alleged involvement in the misappropriation of public funds. 65 As in the case that gave rise to the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraph 41), the Council relied in support of the ground for the applicant’s listing on the letter of 3 March 2014 as well as on other evidence that post-dated the contested decision and regulation. 66 The letter of 3 March 2014 can be divided into two parts. The first part states that the ‘law-enforcement agencies of Ukraine’ have launched a number of criminal proceedings to investigate crimes committed by former senior officials, whose names (of which there are eight, all redacted) are then listed, and with regard to whom the investigation into the abovementioned offences has made it possible to establish the embezzlement of State funds in sizeable amounts and the further illegal transfer of those funds outside the territory of Ukraine. The second part 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 notify them shortly of the launch of that investigation. The names of those (ten) other senior officials, which include the applicant’s (the only one whose name has not been redacted), are also then listed. 67 It is not disputed that the applicant was identified on that basis alone ‘as responsible for the misappropriation of Ukrainian State funds’ within the meaning of Article 1(1) of the contested decision. 68 As in the case that gave rise to the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraph 42), the letter of 3 March 2014 is the only piece of evidence lodged by the Council during the course of these proceedings which pre-dates the contested decision and regulation. 69 By analogy with the Court’s ruling in its judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraphs 43 and 44), it must be held that, although that letter was sent by a high judicial body of a non-Member country, it contains only a general, generic statement linking the applicant’s name, along with those of other former senior officials, to an investigation which, in essence, sought to verify whether misappropriation of public funds had in fact occurred. 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 presumed, in respect of those acts (see also, to that effect, judgment of 28 January 2016 in Azarov v Council, T‑332/14, not published, EU:T:2016:48, paragraph 46). 70 It should further be noted that, in contrast to the judgment of 27 February 2014 in Ezz and Others v Council (T‑256/11, EU:T:2014:93, paragraphs 57 to 61), upheld on appeal by the judgment of 5 March 2015 in Ezz and Others v Council (C‑220/14 P, EU:C:2015:147), invoked by the Council, in the present case the Council did not have any information regarding the acts or conduct specifically imputed to the applicant by the Ukrainian authorities and, moreover, even if it is examined in its context, the letter of 3 March 2014 cannot constitute a sufficiently solid factual basis, within the meaning of the case-law cited in paragraph 62 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 (see, to that effect, judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraphs 46 to 48). 71 Irrespective of the stage of the proceedings to which the applicant was said to be subject, the Council could not adopt restrictive measures against him without knowing the acts of misappropriation of State funds which the Ukrainian authorities were specifically alleging 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 State funds and, secondly, of undermining the rule of law in Ukraine, the consolidation and support of which, as recalled in paragraph 63 above, constitute the objective of the adoption of the restrictive measures at issue (see, to that effect, judgment of 28 January 2016 in Azarov v Council, T‑331/14, EU:T:2016:49, paragraph 50). 72 Furthermore, it is for the competent EU 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 (see judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraph 45 and the case-law cited). 73 It must therefore be concluded that, as in the Court’s ruling in the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraph 50), the inclusion of the applicant’s name on the list does not comply with the criteria set by the contested decision for the designation of persons covered by the restrictive measures at issue. 74 It follows from this that the present action must be declared manifestly well founded, in accordance with Article 132 of the Rules of Procedure. 75 The Council’s arguments in reply to a question from the Court (see paragraph 26 above), which seek to challenge the application of that article to the present case, cannot succeed. 76 As a preliminary point, the Council submits that the application of Article 132 of the Rules of Procedure, which provides for a derogation from provisions of EU primary law and limits the parties’ procedural rights, should be limited to exceptional cases, namely those where it is beyond any doubt that the action is well founded. In essence, the Council raises three objections in that regard. The first is that paragraphs 38 to 50 of the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806) do not relate to a question of law but only to matters of fact. The second is that the facts, within the meaning of that article, are not established. The third, also invoked by the Commission, relates to the fact that a decision on the Council’s plea of inadmissibility was reserved for the final judgment. The Council argues that, logically, the action brought by the applicant can be declared manifestly well founded only if the plea of inadmissibility raised by the Council is declared manifestly unfounded, which has not been the case in this instance. 77 As regards the first objection, it must be observed that paragraphs 38 to 50 of the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806) constitute the whole of the Court’s assessment. To claim, as the Council does, that those paragraphs relate only to matters of fact would be tantamount to saying that that judgment is a purely factual judgment. While it is true that the key part of that judgment consists of an examination of the only factual element capable of being examined, that is to say, the letter of 3 March 2014, the fact remains that that examination proceeded in the context of a reminder of the case-law and legal principles and is at the heart of the Court’s legal assessment of the way in which the Council discharged the burden of proof in relying on that letter. Furthermore, as is apparent from paragraph 41 of the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806), the Council used the letter in question to include not only Mr Portnov’s name on the list but also those of other former senior officials, including the applicant, and the Court considered that that letter did not constitute a sufficiently solid factual basis within the meaning of the case-law cited in paragraph 62 above. It follows from this that the question of law on which the Court ruled — that is whether the reasons for the listing, which were essentially the same for all the persons concerned, were substantiated by sufficiently specific and concrete evidence — is identical, taking into account the specific features of proceedings relating to restrictive measures, to that raised by the second plea in the present case. 78 As regards the second objection, the Council submits, in essence, that Article 132 of the Rules of Procedure could be applied in cases relating to restrictive measures only where the Court finds that the Council has shown that the facts on which it relied have been established, and not in cases where the Court finds that it has not. 79 It should be borne in mind that, according to Article 132 of the Rules of Procedure, it is for the Court to find that the facts have been established. In that regard, it must be observed that, contrary to what the Council appears to be claiming, the facts established do not have to be the same as those held to be relevant in the case that gave rise to the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806). In the present case, the correctness of the factual element on which the Council relied in listing the applicant — that is the fact that, according to the letter of 3 March 2014, there was a preliminary investigation or inquiry by the Ukrainian authorities concerning the applicant for misappropriation of public funds — is not disputed by the parties and may therefore be regarded as established. 80 The fact that a letter such as the letter of 3 March 2014 referring to those inquiries or investigations cannot be regarded as sufficient, by itself, to substantiate the reasons for the applicant’s listing is, on the other hand, the key element of the legal assessment of the way in which the Council discharged its burden of proof (see paragraph 77 above), which does not amount to calling into question the facts described in that letter. 81 As regards the third objection, it should be noted that, in accordance with the case-law, the possibility of dismissing an action as inadmissible by reasoned order, and therefore without holding a hearing, is not precluded by the fact that the Court may have previously made an order reserving for the final judgment a plea put forward on the basis of Article 114 of the Rules of Procedure of 2 May 1991 (see, to that effect, order of 19 February 2008 in Tokai Europe v Commission, C‑262/07 P, not published, EU:C:2008:95, paragraphs 26 to 28). That conclusion applies equally to the possibility of rejecting the plea of inadmissibility where the Court intends, as in the present case, to declare that the action is manifestly well founded as provided in Article 132 of the Rules of Procedure, which expressly provides that the Court may rule at the end of a written procedure alone. 82 In the light of all the foregoing considerations, the Court must therefore uphold the action, which is manifestly well founded within the meaning of Article 132 of the Rules of Procedure, inasmuch as it seeks annulment of the contested decision in so far as it concerns the applicant. 83 For the same reasons, the contested regulation must be annulled in so far as it relates to the applicant. Costs 84 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant. 85 Furthermore, under Article 138(1) of the Rules of Procedure, the institutions which have intervened in proceedings are to bear their own costs. The Commission must therefore bear its own costs. On those grounds, THE GENERAL COURT (Ninth Chamber) hereby orders: 1. 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 are annulled in so far as they relate to Mr Artem Viktorovych Pshonka. 2. The Council of the European Union shall bear its own costs and pay those incurred by Mr Pshonka. 3. The European Commission shall bear its own costs. Luxembourg, 10 June 2016 . E. Coulon G. Berardis Registrar President * Language of the case: English.