Opinion of the Advocate General — ECLI:EU:C:2025:732
Date: 2025-09-25
Language of the case: Dutch

Summary C-465/24 – 1 
Case C-465/24 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
2 July 2024 
Referring court:  
Hoge Raad der Nederlanden (Netherlands) 
Date of the decision to refer:  
21 June 2024 
Appellant:  
SBK Art Limited Liability Company 
Respondents:  
Fortenova Group STAK Stichting 
Open Pass Limited 
  
Subject matter of the main proceedings 
The main proceedings concern the appeal in cassation (in proceedings for interim 
measures) that the appellant, a Russian company, has lodged with the Hoge Raad 
(Supreme Court of the Netherlands) against the judgment of the Gerechtshof 
Amsterdam (Amsterdam Court of Appeal, Netherlands), which essentially ruled 
that the sanctions regime under Regulation 269/2014 precludes the appellant, 
which has been placed on the list in Annex I to said Regulation and consequently 
has had all of its funds frozen, from exercising the rights to attend meetings and 
the voting rights attached to the depository receipts it holds in a Dutch company. 
Subject matter and legal basis of the request 
The request for a preliminary ruling submitted on the basis of Article 267 TFEU 
concerns the question as to what the scope is of a ‘freezing of funds’, as referred 
to in Article 1(f) of Regulation 269/2014, in the case of depository receipts held 
by a sanctioned legal person, and, more specifically, whether and to what extent 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-465/24 
 
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this legal person may exercise the rights to attend meetings and the voting rights 
attached to these depository receipts. In view of the specific circumstances of the 
case, the question has also arisen as to whether such freezing is absolute or 
whether the possibility of exercising these rights is dependent on certain 
circumstances, such as the nature and content of the resolution placed on the 
agenda and the sanctioned depository receipt holder’s standpoint in respect 
thereof. 
Questions referred for a preliminary ruling 
1. In the case of depository receipts belonging to, owned, held or controlled by 
natural persons included in Annex I to Regulation 269/2014, or natural or legal 
persons, entities or bodies associated with them, should the freezing of funds 
within the meaning of Article 1(f) of Regulation 269/2014 be interpreted as 
meaning that the rights to attend meetings and voting rights attached to 
depository receipts cannot be exercised, at least in so far as this does not result 
in disproportionate prejudice to the depository receipt holder concerned? 
2. In a specific case, also taking into account the nature and content of the 
resolution placed on the agenda and the standpoint of the depository receipt 
holder concerned in respect thereof, does it make any difference to the answer 
to question 1 if the exercising of the rights to attend meetings and voting rights 
could lead to any move, transfer, alteration, use of, access to, or dealing with 
funds in any way that would result in any change in their volume, amount, 
location, ownership, possession, character, destination or any other change that 
would enable the funds to be used, including portfolio management, within the 
meaning of Article 1(f) of Regulation 269/2014? 
Provisions of European Union law relied on  
Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive 
measures in respect of actions undermining or threatening the territorial integrity, 
sovereignty and independence of Ukraine: Article 1(f) and (g), Article 2(1), 
Article 3(1) and Annex I.  
Council Implementing Regulation (EU) 2022/1270 of 21 July 2022 implementing 
Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive 
measures in respect of actions undermining or threatening the territorial integrity, 
sovereignty and independence of Ukraine.  
Council Implementing Regulation (EU) 2022/2476 of 16 December 2022 
implementing Regulation (EU) No 269/2014 concerning restrictive measures in 
respect of actions undermining or threatening the territorial integrity, sovereignty 
and independence of Ukraine. 
SBK ART 
 
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EU best practices for the effective implementation of restrictive measures, 
Brussels, 27 June 2022, 10572/22, paragraph 28.  
Consolidated FAQs on the implementation of Council Regulation No 822/2014 
and Council Regulation No 269/2014, published on 22 June 2022 and most 
recently updated on 12 April 2024, section B (Individual financial measures), 
point 1 (Asset freeze and prohibition to make funds and economic resources 
available), questions 14 and 15.  
Succinct presentation of the facts and procedure in the main proceedings 
1 The first respondent (Fortenova Group STAK Stichting) is a Dutch (holding) 
company that holds the shares in Fortenova GroupTopCo BV and, in this capacity, 
has issued depository receipts in Fortenova TopCo BV. The appellant, an indirect 
subsidiary of Sberbank of Russia, holds 41.82% of the depository receipts in 
Fortenova TopCo BV issued by the first respondent. The second respondent 
(Open Pass Limited) holds 27.52% of the depository receipts in Fortenova TopCo 
BV issued by the first respondent.  
2 Council Implementing Regulation (EU) 2022/1270 of 21 July 2022 added 
Sberbank to the list of natural and legal persons, entities and bodies subject to 
restrictive measures as set out in Annex I to Regulation 269/2014. As an (indirect) 
subsidiary of Sberbank, the appellant is associated with Sberbank within the 
meaning of Article 2(1) of Regulation 269/2014, as a result of which all funds 
belonging to, owned, held or controlled by the appellant have also been frozen. 
Council Implementing Regulation (EU) 2022/2476 of 16 December 2022 added 
the appellant itself to the aforementioned list. 
3 On 9 August 2022 the first respondent invited depository receipt holders to the 
meeting of depository receipt holders to be held on 18 August 2022. In the 
invitation it announced that sanctioned depository receipt holders were excluded 
from exercising the rights attached to these depository receipts, including the right 
to vote at the meeting of depository receipt holders, and that the voting rights of 
sanctioned parties would be disregarded. The agenda for this meeting included a 
proposal to change the corporate governance, namely the decision-making rules as 
set out in the trust conditions and articles of association of the first respondent. 
4 On 16 August 2022 the appellant informed the first respondent that it contested 
the view that the latter had taken. On 18 August 2022 the appellant attempted to 
exercise its voting rights both in person (via its proxy) and electronically. It had 
wished to vote, in particular, against the proposed change to the corporate 
governance. However, the appellant’s proxy was denied access to the meeting 
and, after the meeting, access to the electronic voting environment was blocked 
for the appellant. The first respondent subsequently informed the appellant that it 
was obliged to comply with the European and American sanctions, as a result of 
which the appellant was not permitted to vote and any vote it cast could not be 
taken into account.  
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5 As the required majority was not achieved at the meeting on 18 August 2022, on 
19 August 2022 the first respondent invited depository receipt holders to a second 
meeting of depository receipt holders to be held on 30 August 2022. In the 
invitation the first respondent again announced that the voting rights of sanctioned 
parties would be disregarded and, in view of this, informed the appellant’s lawyer 
that the appellant would once again be denied access to the meeting on 30 August 
2022. 
6 Against this background, the appellant instituted proceedings for interim measures 
before the court in interlocutory proceedings, namely the Rechtbank Amsterdam 
(Amsterdam District Court), claiming (principally) that the first respondent be 
ordered to admit the appellant to any meeting of depository receipt holders held 
over the period up to 31 December 2022 and to accept the voting rights attached 
to its depository receipts and take them into account in the vote on the proposal in 
question and any other proposal to amend the trust conditions or articles of 
association of the first respondent or similar agenda items affecting the first 
respondent’s corporate governance. 
7 In a judgment of 6 September 2022 the court in interlocutory proceedings allowed 
this claim, essentially ruling as follows:  
– A vote on a change to the corporate governance, as in this case, does 
not detract from the purpose of the sanctions. After all, voting for or 
against the proposed changes cannot result in any funds or resources 
flowing to Russia. 
– Sanctions law is being applied improperly by preventing the appellant 
from exercising its rights to attend meetings and voting rights. 
– A balancing of interests cannot, in this case, lead to the appellant being 
prevented from exercising its rights to attend meetings and voting 
rights. 
8 In a judgment of 29 December 2022 the Gerechtshof Amsterdam (Amsterdam 
Court of Appeal) subsequently overturned this judgment of the court in 
interlocutory proceedings on appeal and rejected the appellant’s claims.  
In that regard, it essentially held as follows:  
– In the update of 9 November 2022 to the Consolidated FAQs on the 
implementation of Council Regulation No 833/2014 and Council 
Regulation No 269/2014 (‘FAQs’) the European Commission 
indicated, among other things, that ‘[voting rights] should be frozen, 
i.e. prevented from being used to obtain funds, goods or services in 
any way. Therefore under no circumstance nor for any purpose may 
listed shareholders exercise directly or indirectly their voting rights in 
a company or fund. Voting rights must be fully frozen’. This guidance 
is an authoritative source for interpreting the sanction rules and is 
SBK ART 
 
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consistent with, among other things, the principle that sanction 
measures should have maximum impact and be clear and predictable. 
A system whereby it is necessary to determine on a case-by-case basis 
for each agenda item whether voting rights may be exercised is at odds 
with the intended effectiveness of the sanctions regime. It follows from 
the answer to question 14 of the FAQs, however, that disproportionate 
prejudice to sanctioned persons should be avoided. It is unlikely that 
any such prejudice has been caused in this case. 
– It is sufficiently plausible that the sanction rules preclude the appellant 
from participating in a meeting of depository receipt holders and 
exercising the voting rights attached to its depository receipts. The first 
respondent’s refusal to admit the appellant to the meetings in question 
and allow the appellant to exercise its voting rights is therefore 
consistent with the first respondent’s obligation to comply with the 
sanction rules. Consequently, the first respondent is acting with due 
reasonableness and fairness vis-à-vis its depository receipt holders. 
9 The appellant has lodged an appeal in cassation against that judgment with the 
referring court.  
The essential arguments of the parties in the main proceedings 
10 In its sole plea, which is divided into two parts, the appellant criticises the view 
taken by the Amsterdam Court of Appeal in several respects. 
11 In the first part the appellant essentially argues that the Court of Appeal wrongly 
departs from a literal interpretation of the text of Regulation 269/2014 and fails to 
consider the general intention and purpose of that Regulation. More specifically, 
the Court of Appeal fails to recognise Article 1(f) in conjunction with Article 2 of 
Regulation 269/2014, on the basis of which the freezing of voting rights attached 
to depository receipts is only possible to prevent the funds in question being 
altered or a sanctioned party receiving a financial benefit.  
Against this background, the Court of Appeal should therefore have assessed how 
plausible it is that, in this case, funds are being converted into resources that could 
be used to support activities targeted by the sanctions. The court in interlocutory 
proceedings had held that the vote on a change to the corporate governance did 
not constitute a change in relation to or in respect of the frozen depository 
receipts, that the appellant wished to vote against the agenda items and did not 
wish to change anything, that the proposed change to the corporate governance 
was to the appellant’s detriment and it was not clear how this could be regarded as 
a use of funds or acquisition of funds, goods or services by the appellant, and that 
Regulation 269/2014 is intended to increase pressure on the Russian government 
and economy and restrict its means of aggression, and it was therefore also 
unclear how a change to the corporate governance could be detrimental to this. 
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These findings were not contested on appeal. In the light of the above, the Court 
of Appeal therefore failed to provide sufficient reasoning to support its judgment. 
12 In the second part the appellant essentially argues as follows: 
– The Court of Appeal wrongly bases its judgment on the cited answer 
of the Commission in the FAQs, as the wordings, context and purpose 
of Regulation 269/2014 take precedence over this answer, which is 
also inherently contradictory in so far as it also suggests that voting 
rights may not be exercised by a sanctioned party in any situation. The 
Court of Appeal’s interpretation of the term ‘frozen’ is also not 
consistent with the Commission’s interpretation of this term. 
– The principle that sanction measures should have maximum impact, 
which would mean that Regulation 269/2014 can be interpreted more 
broadly than the text and purpose of that Regulation would imply, is 
incorrect and contrary to the proportionality requirement. The view 
that sanction measures must be clear and predictable does not mean 
that the appellant cannot exercise its voting rights in any situation. The 
view that a system whereby it is necessary to determine on a case-by-
case basis for each agenda item whether voting rights may be 
exercised is at odds with the intended effectiveness of the sanctions 
regime is incorrect, as this is not a rule of applicable law. At the very 
least, it has not been established whether the Court of Appeal assessed 
the extent to which such a system is compatible with Regulation 
269/2014 and the proportionality requirement.  
– Against this background, ruling that a situation in which 
disproportionate prejudice is caused to the sanctioned party is unlikely 
to arise in this case is therefore incomprehensible. After all, the 
appellant, which holds 41.82% of the depository receipts, is excluded 
from meetings at which resolutions are voted on to change the 
corporate governance (against its will and to its detriment). 
Succinct presentation of the reasoning in the request for a preliminary ruling 
13 In the view of the referring court, the text and context of Article 1(f) of Regulation 
269/2014 do not provide a decisive answer as regards the central question in this 
case, namely whether and to what extent the freezing of the appellant’s funds, 
including the depository receipts in question, precludes it from exercising the 
rights to attend meetings and voting rights attached to these depository receipts. 
Although the term ‘freezing of funds’ has been defined in very broad terms in this 
provision, preventing the exercising of rights to attend meetings and voting rights 
attached to depository receipts is not explicitly included therein, which gives rise 
to reasonable doubt.  
SBK ART 
 
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14 On the one hand, there are possible grounds for interpreting this provision 
broadly, in the sense that freezing depository receipts should always prevent the 
rights to attend meetings and voting rights attached to these depository receipts 
from being exercised.  
This interpretation, where the impact of the restrictive measure is clear in advance, 
is consistent with the broad definition of the term ‘freezing of funds’ and with the 
principle that sanctions should be imposed in a way that ensures they have 
maximum impact on the sanctioned (legal) person. As stated in the EU best 
practices for the effective implementation of restrictive measures (paragraph 28), 
this interpretation also has a general preventive effect with regard to the use of the 
frozen depository receipts. Such an interpretation is also consistent with the 
Commission’s – admittedly non-binding – FAQs, which state that ‘voting rights 
must be fully frozen’.  
15 On the other hand, there are possible grounds for interpreting this provision in a 
restrictive way, in the sense that such freezing does not prevent the exercising of 
the associated rights to attend meetings and voting rights, or does not prevent this 
in all cases.  
Such an interpretation is consistent with the proportionality principle. The purpose 
of the sanction could possibly be achieved by blocking, in full or in part, the 
implementation of resolutions passed with the votes of a sanctioned depository 
receipt holder or by removing all or part of the legal effect of such resolutions. It 
is also conceivable that the sanctions prevent the exercising of the associated 
rights to attend meetings and voting rights only if the exercising of these rights 
relates to a resolution that alters the funds in question, making it possible for these 
funds to be used. Where appropriate, the exercising of these rights may be 
dependent on the nature and content of the resolution placed on the agenda, the 
sanctioned depository receipt holder’s standpoint in respect thereof and the 
possible consequences of that resolution for the depository receipts in question.  
A possible reason for adopting such an interpretation can be found in the 
Commission’s FAQs (answer to question 15), which states that ‘it is prohibited for 
the listed person to exercise any voting rights which could lead to any change in 
relation to these shares (e.g. in their volume, amount, location, ownership, 
possession, character, destination etc.)’ and ‘This means they should be frozen, 
i.e. prevented from being used to obtain funds, goods or services in any way’. 
However, this approach is not consistent with the passage subsequently added to 
the same answer on 9 November 2022, according to which ‘Voting rights must be 
fully frozen’. The referring court notes, however, that an interpretation whereby it 
is necessary to determine in every specific case whether rights to attend meetings 
and voting rights may be exercised, depending on the possible consequences of 
exercising these rights, may detract from the intended clarity and effectiveness of 
the sanction as a restrictive measure.