Judgment — ECLI:EU:T:2016:45
Date: 2016-01-28
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, ECR, EU:C:2015:248, paragraphs 41 and 45 and the case-law cited). 38 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 who have been identified as responsible for the misappropriation of public funds. Furthermore, it is clear 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’. 39 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 took the view that the applicant was the subject of a preliminary investigation or inquiry, which had not (or had not yet) culminated in the bringing of a formal charge, in relation to his alleged involvement in the misappropriation of public funds. 40 In support of the reason for including the applicant’s name on the list, the Council invokes the letter of 7 March 2014 and other evidence postdating Implementing Decision 2014/216 and Implementing Regulation No 381/2014. 41 The letter of 7 March 2014 states that ‘the law-enforcement bodies of Ukraine have launched a number of criminal proceedings based on the facts of crimes committed by former high officials’. Those former high officials, who include the applicant, are listed immediately afterwards, together with a reference to the offence which they are suspected of having committed under the Ukrainian Criminal Code (in the present case, appropriation of Ukrainian State funds). That letter also states that ‘the investigation of the above unlawful acts checks the facts related to the appropriation of large amounts of the State assets and their further unlawful transfer outside Ukraine’. 42 With regard to the case file, the letter of 7 March 2014 is the only item of evidence submitted by the Council in the present proceedings which predates Implementing Decision 2014/216 and Implementing Regulation No 381/2014. The lawfulness of those acts must therefore be assessed in the light of that item of evidence alone. 43 It is therefore necessary to establish whether the letter of 7 March 2014 constitutes sufficient proof to support the conclusion that the applicant had been ‘identified as responsible for the misappropriation of Ukrainian State funds’ within the meaning of Article 1(1) of Decision 2014/119. 44 Although, as the Council submits, the letter of 7 March 2014 was sent by a high judicial body in a third country, that is to say, the Prosecutor General of Ukraine, it contains only a general and generic statement linking the applicant’s name, among those of other former senior officials, to an investigation which essentially sought to establish that misappropriation of public funds had in fact occurred. Even though the letter identifies the offence which the applicant is suspected of having committed under the Ukrainian Criminal Code, that is to say, the appropriation of Ukrainian State funds, penalised under Article 191 of that code, it does not provide any details as to confirmation 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. 45 It is true, as the Council submits, that, in the context of the application of restrictive measures, the EU Courts have held that identification of a person as responsible for an offence did not necessarily imply that that person had 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 27 February 2014 Ezz and Others v Council, T‑256/11, ECR, EU:T:2014:93, paragraphs 57 to 61). 46 However, in the context of the cases which gave rise to the case-law cited in paragraph 45 above, the applicants had at least been the subject of an order of the Prosecutor General of the third country concerned seeking to seize their assets, which had been endorsed by a criminal court (judgment in Ezz and Others v Council, cited in paragraph 45 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 aware. 47 In the present case, the Court finds, first, that the Council did not have any information regarding the acts or conduct specifically attributed to the applicant by the Ukrainian authorities and, secondly, that, even if it is examined in its context, the letter of 7 March 2014 on which it relies cannot constitute a sufficiently solid factual basis within the meaning of the case-law cited in paragraph 37 above for inclusion of the applicant’s name on the list on the ground that he had been ‘identified as responsible’ for the misappropriation of State funds. 48 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 38 above, constitute the objective pursued by the adoption of the restrictive measures in question. 49 Furthermore, 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 28 November 2013 Council v Fulmen and Mahmoudian, C‑280/12 P, ECR, EU:C:2013:775, paragraphs 65 and 66). 50 In view of all of the foregoing, the inclusion of the applicant’s name on the list does not comply with the criteria for the designation of persons covered by the restrictive measures at issue which are laid down in Decision 2014/119, as amended by Implementing Decision 2014/216. 51 Since the sixth plea in law is well founded, the action must be upheld in that it seeks annulment of Implementing Decision 2014/216 in so far as it concerns the applicant, without there being any need to rule on the applicant’s other pleas. 52 For the same reasons, Implementing Regulation No 381/2014 must be annulled in so far as it concerns the applicant. Costs 53 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 54 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. On those grounds, THE GENERAL COURT (Ninth Chamber) hereby: 1. Annuls Council Implementing Decision 2014/216/CFSP of 14 April 2014 implementing Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, and Council Implementing Regulation (EU) No 381/2014 of 14 April 2014 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, in so far as they concern Mr Edward Stavytskyi; 2. Orders the Council of the European Union to bear its own costs and to pay those incurred by Mr Stavytskyi. Berardis Czúcz Popescu Delivered in open court in Luxembourg on 28 January 2016. [Signatures] * Language of the case: English.