Judgment — ECLI:EU:T:2015:806
Date: 2015-10-26
Language of the case: French
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, Anbouba v Council, C‑605/13 P, ECR, EU:C:2015:248, paragraphs 41 and 45 and the case-law cited). 39 In the present case, the criterion laid down in Article 1(1) of the contested decision provides that restrictive measures are to be adopted against ‘persons having been identified as responsible for the misappropriation of Ukrainian State funds’. 40 The name of the applicant was included on the list on the ground that he was a ‘[p]erson subject to criminal proceedings in Ukraine to investigate crimes in connection with the embezzlement of Ukrainian State funds and their illegal transfer outside Ukraine’. It thus appears that the Council considered that, at the very least, the applicant was the subject of a preliminary investigation or inquiry which had not (or not yet) culminated in the bringing of a formal charge. 41 In support of the ground for the applicant’s listing, the Council relies on the letter of 3 March 2014, which states that ‘[t]he Ukrainian law enforcement authorities have initiated a number of criminal proceedings to investigate criminal acts committed by former senior officials’, including the applicant. The letter subsequently states, in very general terms, that the inquiry in question ‘made it possible to establish misappropriation of sizeable amounts of State funds and the subsequent illegal transfer of those funds outside Ukraine’. 42 Having 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 the contested decision and the contested regulation. Accordingly, the lawfulness of those acts must be assessed in the light of that piece of evidence alone. 43 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 the contested decision. 44 Although, as the Council points out, the letter of 3 March 2014 was sent by a high court in a non-member country, namely, the Public Prosecutor’s Office of Ukraine, it contains only a general statement to the effect that the applicant, among other former senior officials, was the subject of an inquiry into acts, not further specified, involving the misappropriation of funds, and concerning the illegal transfer abroad of those funds. It does not give any details of that conduct or of the applicant’s responsibility for it. 45 Furthermore, as regards the Council’s assertions before the Court to the effect that the opening of an inquiry concerning the applicant was necessarily based on information acquired as a result of unspecified investigations conducted before that inquiry was opened, it must be pointed out that these are merely assumptions. In that regard, it should be noted that a decision on the adoption of restrictive measures as provided for in Article 29 TEU is not adopted in response to a request from the authorities of the non-member country concerned, but constitutes an autonomous measure adopted in pursuit of the Common Foreign and Security Policy objectives of the European Union. 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, Council v Fulmen and Mahmoudian, C‑280/12 P, ECR, EU:C:2013:775, paragraphs 65 and 66). 46 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, Ezz and Others v Council, C‑220/14 P, ECR, EU:C:2015:147, paragraph 72, and of 27 February 2014, Ezz and Others v Council, T‑256/11, ECR, EU:T:2014:93, paragraphs 57 to 61). 47 However, in the context of the cases which gave rise to the case-law cited in paragraph 46 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, paragraph 46 above, EU:T:2014:93, 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. 48 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 rather than in isolation, 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 38 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. 49 Moreover, the additional evidence submitted by the Council, which post-dates the contested acts, proves that the applicant was the subject of a preliminary inquiry which was registered after those acts were adopted and on the same day that they were published. Therefore, it is not even established that, at the time when the contested acts were adopted, the applicant was the subject of genuine ‘criminal proceedings’, or even a mere preliminary inquiry. It follows that the inclusion of the applicant’s name on the list as a ‘person subject to criminal proceedings’ is incorrect. Furthermore, when questioned, at the hearing, about the withdrawal of the restrictive measures against the applicant, the Council did not provide any explanation justifying that withdrawal. 50 In view of all the foregoing, 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. 51 Consequently, the third plea must be upheld and the contested decision must therefore be annulled in so far as it concerns the applicant. 52 For the same reasons, the contested regulation must be annulled in so far as it concerns the applicant. 53 Since the third plea is well-founded, the action must be upheld, without there being any need to rule on the other pleas. 54 Moreover, since, as a result of Decision 2015/364 and of Implementing Regulation 2015/357, the applicant’s name was removed from the list of persons covered by the restrictive measures, there is no need to rule on the question whether the effects of the contested decision should be maintained in so far as it concerns the applicant. Costs 55 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. 56 Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with form of order sought by the applicant. 57 Under the first subparagraph of 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: 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 Andriy Portnov; 2. Orders the Council of the European Union to bear its own costs and to pay those of Mr Portnov; 3. Orders the European Commission to bear its own costs. Berardis Czúcz Popescu Delivered in open court in Luxembourg on 26 October 2015. [Signatures] ** Language of the case: French.