Order — ECLI:EU:T:2018:849
Date: 2018-11-28
Language of the case: English
Court formation: President of the Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment;Application for interim measures - unfounded

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 (see judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 22 and the case-law cited). 60 The adoption and the maintenance of restrictive measures, such as those laid down in Decision 2014/119 and Regulation No 208/2014, as amended, taken against a person who has been identified as responsible for the misappropriation of funds of a third State are based, in essence, on the decision of an authority of that state, which was competent to make it, to initiate and conduct criminal investigation proceedings concerning that person and relating to an offence of misappropriation of public funds (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 25). 61 In addition, whereas, under the listing criterion, as referred to in paragraph 12 above, the Council can base restrictive measures on the decision of a third State, the obligation, on that institution, to respect the rights of the defence and the right to effective judicial protection means that it must satisfy itself that those rights were complied with by the authorities of the third State which adopted that decision (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraphs 26, 27 and 35). 62 In that regard, the Court of Justice states that the requirement for the Council to verify that the decisions of third States, on which it intends to rely, have been taken in accordance with those rights is designed to ensure that the adoption or the maintenance of the measures for the freezing of funds occurs only on a sufficiently solid factual basis and, accordingly, to protect the persons or entities concerned. Thus, the Council cannot conclude that the adoption or the maintenance of such measures is taken on a sufficiently solid factual basis before having itself verified that the rights of the defence and the right to effective judicial protection were complied with at the time of the adoption of the decision by the third State in question on which it intends to rely (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraphs 28 and 34 and the case-law cited). 63 Moreover, although it is true that the fact that a third State is among the States which acceded to the ECHR entails review, by the ECtHR, of the fundamental rights guaranteed by the ECHR, which, in accordance with Article 6(3) TEU, form part of EU law as general principles, that fact cannot render superfluous the verification requirement referred to in paragraph 62 above (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 36). 64 The Court of Justice also held that the Council must refer, if only briefly, in the statement of reasons relating to the adoption or the maintenance of the restrictive measures against a person or entity, to the reasons why it considers the decision of the third State on which it intends to rely to have been adopted in accordance with the rights of the defence and the right to effective judicial protection. Thus, it is for the Council, in order to fulfil its obligation to state reasons, to show, in the decision imposing the restrictive measures, that it has verified that the decision of the third State on which those measures are based was taken in accordance with those rights (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraphs 29 and 30 and the case-law cited). 65 Ultimately, when it bases the adoption or the maintenance of restrictive measures, such as those in the present case, on the decision of a third State to initiate and conduct criminal proceedings for misappropriation of public funds or assets by the person concerned, the Council must, first, ensure that, at the time of the adoption of that decision, the authorities of that third State have complied with the rights of the defence and the right to effective judicial protection of the person against whom the criminal proceedings at issue have been brought and, second, refer to, in the decision imposing restrictive measures, the reasons for which it considers that that decision of the third State has been adopted in accordance with those rights. 66 It is in the light of those case-law principles that it is necessary to determine whether the Council complied with those obligations. 67 At the outset, it must be noted that the applicant is subject to new restrictive measures adopted by means of the contested acts on the basis of the listing criterion set out in Article 1(1) of Decision 2014/119, as clarified in Decision 2015/143, and in Article 3 of Regulation No 208/2014, as clarified in Regulation 2015/138 (see paragraphs 12 and 13 above). That criterion provides for the freezing of funds of persons who have been identified as responsible for the misappropriation of public funds, including persons subject to investigation by the Ukrainian authorities. 68 It is common ground that the Council, in order to decide to maintain the applicant’s name on the list, relied on the fact that he was subject to criminal proceedings brought by the Ukrainian authorities for offences amounting to misappropriation of public funds or assets and in connection with the misuse of office, which was evidenced by the PGO’s letters, a copy of which the applicant had received (see paragraphs 26, 29 and 31 above). 69 The maintenance of the restrictive measures taken against the applicant was therefore based, as in the case giving rise to the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), on the PGO’s decision to initiate and conduct criminal investigation proceedings concerning an offence of misappropriation of Ukrainian State funds. 70 In the first place, the fact remains that, as the Council accepted in its response to the question referred to in paragraph 46 above, the statement of reasons for the contested acts relating to the applicant (see paragraphs 15 and 35 above) does not include a single reference to the fact that the Council verified compliance, by the Ukrainian judicial authorities, with the applicant’s rights of defence and his right to effective judicial protection and that, therefore, such a failure to refer to those reasons amounts to an early indication that the Council did not carry out such a verification. 71 In the second place, it must be noted that none of the information contained in the letter of 8 March 2018, by which the Council notified the applicant of the contested acts, makes it possible to consider that the Council had information relating to compliance with the rights at issue by the Ukrainian authorities so far as concerned the criminal proceedings against the applicant and, even less so, that the Council had assessed such information, in order to verify that those rights had been sufficiently complied with by the Ukrainian judicial authorities at the time of the adoption of the decision to initiate and conduct criminal investigation proceedings concerning an offence of misappropriation of public funds or assets committed by the applicant. In the letter of 8 March 2018, as in the case giving rise to the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031; paragraph 24), the Council merely stated that the PGO’s letters, supplied to the applicant beforehand (see paragraphs 28, 29 and 31 above) showed that the applicant continued to be subject to criminal proceedings for misappropriation of public funds or assets. 72 In the third place, it must be observed that, contrary to its claims, the Council was under an obligation to verify compliance with the rights of the defence and the right to effective judicial protection irrespective of any evidence adduced by the applicant to show that, in the present case, his personal situation had been affected by the problems which he pointed out relating to the functioning of the judicial system in Ukraine. In its pleadings, the Council indicated, in essence, that any alleged infringement of the applicant’s right to effective judicial protection and his rights of defence by the Ukrainian authorities could only be invoked before the courts of that country. In any event, although the applicant had claimed on numerous occasions, by adducing specific evidence, that the Ukrainian judicial authorities had infringed his rights of defence and his right to effective judicial protection and that the situation in Ukraine was generally incompatible with the existence of sufficient guarantees in that regard, the Council did not show that it had verified compliance with such rights. 73 In the fourth place, in the reply to the question relating to the impact of the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), on the present case, the Council put forward only the arguments summarised in paragraph 57 above. 74 In that regard, first, it must be noted that the Council admits that the statement of reasons for the contested acts does not cover the issue of compliance with the rights of the defence and the right to effective judicial protection in the light of the decision to initiate and conduct the criminal proceedings justifying the inclusion and the maintenance of the applicant’s name on the list. 75 Second, it must be noted that the Council claims that it is clear from the file before the Court in the present case that the conduct of the criminal investigations had been subject to judicial oversight in Ukraine. More specifically, according to the Council, the existence of several judicial decisions adopted in the context of the criminal proceedings against the applicant shows that, when it relied on the decision of the Ukrainian authorities referred in the PGO’s letters, (i) it was able to verify that that decision had been taken in accordance with the rights of the defence and the right to effective judicial protection and (ii) it checked that a certain number of judicial decisions in the context of those criminal proceedings had been taken in accordance with those rights. 76 Thus, all the judicial decisions mentioned by the Council fall within the scope of the criminal proceedings which justified the inclusion and the maintenance of the applicant’s name on the list and are merely incidental in the light of those proceedings, since they are either restrictive or procedural in nature. It is true that those decisions are capable of supporting the Council’s argument concerning the existence of a sufficiently solid factual basis, namely the fact that, in accordance with the listing criterion, the applicant was subject to criminal proceedings concerning, inter alia, an offence of misappropriation of Ukrainian State funds or assets. However, such decisions are not ontologically capable, alone, of demonstrating, as the Council maintains, that the decision of the Ukrainian judicial authorities to initiate and conduct those criminal proceedings, on which the maintenance of the restrictive measures directed against the applicant is, in essence, based, was taken in accordance with his rights of defence and his right to effective judicial protection. 77 In any event, the Council is not in a position to refer to any document in the file of the procedure which resulted in the adoption of the contested acts showing that it examined the decisions of the Ukrainian courts on which it relies now and from which it was able to conclude that the essence of the applicant’s rights of defence and his right to effective judicial protection had been complied with. 78 Indeed, the Council does not even seek to explain how the existence of those decisions makes it possible to consider that the protection of the rights at issue had been guaranteed, when, as the applicant had claimed on numerous occasions in the letters sent to the Council, the criminal proceedings against him, which were opened in May 2014 and referred to facts which allegedly occurred in 2010, were still at the pre-trial investigation stage and had been brought before a Ukrainian court for the consideration not of the substance but of, at most, mere procedural questions. 79 In that regard, it should be noted that Article 6(1) ECHR provides that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. That right relates to the principle of effective judicial protection which has, moreover, been reaffirmed in Article 47 of the Charter (see, to that effect, judgment of 16 July 2009, Der Grüne Punkt — Duales System Deutschland v Commission, C‑385/07 P, EU:C:2009:456, paragraphs 177 and 179). 80 In addition, the ECtHR noted, first, that the purpose of the reasonable time principle was, inter alia, to protect a person charged with a criminal offence against excessive procedural delays, to avoid leaving that person in a state of uncertainty about his or her fate too long and to prevent delays which might jeopardise the effectiveness and credibility of the administration of justice (see ECtHR, 7 July 2015, Rutkowski and Others v. Poland, CE:ECHR:2015:0707JUD007228710, § 126 and the case-law cited) and, second, that infringement of that principle could be established, inter alia, when the investigation stage of criminal proceedings was characterised by a certain number of periods of inactivity attributable to the authorities with competence to conduct that investigation (see, to that effect, ECtHR, 6 January 2004, Rouille v. France, CE:ECHR:2004:0106JUD005026899, §§ 29 to 31; 27 September 2007, Reiner and Others v. Romania, CE:ECHR:2007:0927JUD000150502, §§ 57 to 59; and 12 January 2012, Borisenko v. Ukraine, CE:ECHR:2012:0112JUD002572502, §§ 58 to 62). 81 Furthermore, it follows from the case-law that, where a person has been subject to restrictive measures for several years, on account, in essence, of the same preliminary investigation conducted by the PGO, the Council is required to explore in greater detail the question of a possible infringement of the fundamental rights of that person by the Ukrainian authorities (see, to that effect, judgment of 30 January 2019, Stavytskyi v Council, T‑290/17, EU:T:2019:37, paragraph 132). 82 In the present case, as was noted by the applicant in his letters and his pleadings, the proceedings on which the Council relied in relation to him were proceedings No 42015000000000748, which had been separated, on 21 April 2015, from proceedings No 42014000000000368 (‘proceedings No 368’), opened in May 2014. Proceedings No 42015000000000748, which had been suspended, during the whole period — with the exception of 2 days — from 21 April 2015 to 9 October 2017, were joined again to proceedings No 368 on 9 October 2017, following the PGO’s decision to change the suspicion originally notified to the applicant and to notify him of a new one. Proceedings No 368 were then suspended on 17 November 2017, reopened on 30 November 2017, and suspended again on 1 December 2017, before being reopened on 9 December 2017, and finally suspended one last time on 11 January 2018 up to the adoption of the contested acts. 83 Although the Council carried out additional verifications with the Ukrainian authorities in order to be informed of the reasons that justified the suspensions referred to in paragraph 82 above, the fact remains that it merely accepted the explanations given by the PGO, namely that the reasons for those suspensions were linked to the search for the applicant and to the execution of requests for legal assistance, even though he had informed it, first, that in proceedings No 42014000000001025, which did not relate to misappropriation of public funds, the Petschersk District Court had dismissed, on 25 January 2017, an application for permission to initiate a special pre-trial investigation concerning him, by considering that the fact that he had been in hiding for a period of over 6 months in order to avoid criminal liability was not confirmed by the documents provided in support of that application. Second, the applicant also informed the Council, before the adoption of the contested acts, that that court had dismissed, on 12 February 2018, the PGO’s application for permission to initiate a special pre-trial investigation in absentia in criminal proceedings No 368. The periods of inactivity in the investigation were therefore attributable, according to the applicant, to the competent Ukrainian authorities. 84 Therefore, in the present case, the Council should have at the very least indicated the reasons for which, despite the applicant’s arguments set out in paragraphs 78 and 83 above, it could consider that the applicant’s right to effective judicial protection before the Ukrainian judicial authorities, which is clearly a fundamental right, had been complied with so far as concerns the question of establishing whether his case had been heard within a reasonable time. 85 It cannot therefore be found that the information available to the Council at the time of the adoption of the contested acts enabled it to verify that the decision of the Ukrainian judicial authorities had been taken in accordance with the applicant’s rights to effective judicial protection and to have his case heard within a reasonable time. 86 Furthermore, in that regard, it must also be noted, as the Court of Justice made clear in the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), that the case-law of the Court of Justice — according to which, in particular, in the event of the adoption of a decision to freeze funds such as that adopted in respect of the applicant, it is not for the Council or General Court to verify whether or not the investigations to which the person concerned by those measures was subject in Ukraine were well founded, but only to verify whether that was the case in relation to the decision to freeze funds in the light of the document or documents on which that decision was based (see, to that effect, judgments of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraph 77; of 19 October 2017, Yanukovych v Council, C‑599/16 P, not published, EU:C:2017:785, paragraph 69; and of 19 October 2017, Yanukovych v Council, C‑598/16 P, not published, EU:C:2017:786, paragraph 72) — cannot be interpreted as meaning that the Council is not required to verify that the decision of the third State on which it intends to base the adoption of restrictive measures was taken in accordance with the rights of the defence and the right to effective judicial protection (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 40 and the case-law cited). 87 In the light of the foregoing, it has not been established that the Council, prior to the adoption of the contested acts, verified that the Ukrainian judicial authorities complied with the applicant’s rights of defence and his right to effective judicial protection. 88 In those circumstances, the contested acts must be annulled, in so far as they concern the applicant, without it being necessary to examine the other pleas in law and arguments put forward by him. 89 With respect to theCouncil’s alternative claim (see paragraph 49, second indent, above), seeking, in essence, that the effects of Decision 2018/333 be maintained until the expiry of the period of time allowed for bringing an appeal and, in the event that an appeal is lodged, until the decision ruling on that appeal, it is sufficient to observe that Decision 2018/333 was effective only until 6 March 2019. Consequently, the annulment of that decision by the present judgment has no effect on the period after that date, so that it is not necessary to rule on the question of maintaining the effects of that decision (see, to that effect, judgment of 6 June 2018, Arbuzov v Council, T‑258/17, EU:T:2018:331, paragraph 107 and the case-law cited). Costs 90 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, including those incurred in relation to the proceedings for interim measures, in accordance with the form of order sought by the applicant. On those grounds, THE GENERAL COURT (Sixth Chamber), hereby: 1. Annuls Council Decision (CFSP) 2018/333 of 5 March 2018 amending 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) 2018/326 of 5 March 2018 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 Mr Andriy Klyuyev’s name was maintained on the list of persons, entities and bodies subject to those restrictive measures; 2. Orders the Council of the European Union to bear its own costs and to pay those incurred by Mr Klyuyev, including those relating to the proceedings for interim measures. Berardis Spielmann Csehi Delivered in open court in Luxembourg on 11 July 2019. E. Coulon G. Berardis Registrar President * Language of the case: English.