Judgment — ECLI:EU:T:2018:166
Date: 2018-03-22
Language of the case: English
Court formation: Sixth Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - unfounded
Origin: Belgium

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 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 36 and the case-law cited). 83 According to the case-law, the Council is not required to carry out, systematically and on its own initiative, its own investigations or checks for the purpose of obtaining additional information when it already has information provided by the authorities of a third country in taking restrictive measures against nationals of that country who are the subject of judicial proceedings in that country (judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 57). 84 In that regard, as was observed in paragraph 59 above, the PGO is one of the highest Ukrainian judicial authorities. 85 It may, admittedly, be inferred by analogy from the case-law on restrictive measures adopted with a view to combating terrorism that it fell, in the present case, to the Council to examine carefully and impartially the evidence provided to it by the Ukrainian authorities, in particular the letters from the PGO of 8 September and of 30 November 2015, in the light, in particular, of the observations and any exculpatory evidence that may have been submitted by the applicant. Moreover, in the context of the adoption of restrictive measures, the Council is under an obligation to observe the principle of good administration enshrined in Article 41 of the Charter, which, according to settled case-law, entails the obligation for the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 58 and the case-law cited). 86 However, it is also apparent from the case-law that, in order to assess the nature, form and degree of the proof that the Council may be asked to provide, the nature, specific scope and the objective of the restrictive measures must be taken into account (see judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 59 and the case-law cited). 87 In that regard, as is apparent from recitals 1 and 2 of Decision 2014/119 (see paragraph 3 above), that decision forms part of a more general EU policy of support for the Ukrainian authorities which is intended to promote the political stability of Ukraine. It thus satisfies the objectives of the CFSP, which are defined, in particular, in Article 21(2)(b) TEU, pursuant to which the European Union is to engage in international cooperation with a view to consolidating and supporting democracy, the rule of law, human rights and the principles of international law (see, to that effect and by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 60 and the case-law cited). 88 It is within that context that the restrictive measures at issue provide for the funds and economic resources of, in particular, persons who have been identified as responsible for the misappropriation of Ukrainian State funds to be frozen. Facilitating the recovery of those funds consolidates and supports the rule of law in Ukraine (see paragraphs 69 to 73 above). 89 It follows that the restrictive measures at issue are not intended to penalise any misconduct in which the persons concerned may have engaged, or to deter them, by coercion, from engaging in such conduct. The sole purpose of those measures is to facilitate the Ukrainian authorities’ identification of any misappropriation of public funds that has taken place and to protect the possibility of the authorities recovering misappropriated public funds. They are therefore purely precautionary (see, to that effect and by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 62 and the case-law cited). 90 Thus, the restrictive measures at issue, which were imposed by the Council on the basis of the powers conferred on it by Articles 21 and 29 TEU, have no criminal-law aspect. They cannot, therefore, be treated in the same way as a decision to freeze assets that has been taken by a national judicial authority of a Member State in the relevant criminal proceedings, respecting the safeguards provided by those proceedings. Consequently, the requirements the Council must fulfil with regard to the evidence underpinning a person’s entry on the list of persons whose assets are to be frozen cannot be exactly the same as those which apply to the national judicial authority in the abovementioned case (see, to that effect and by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 64 and the case-law cited). 91 In the present case, what the Council must ascertain is, first, to what extent the letters from the PGO on which it relied prove that, as indicated by the grounds for including the applicant’s name on the list at issue, the applicant is the subject of criminal proceedings brought by the Ukrainian authorities in respect of acts that may be characterised as the misappropriation of State funds, and, secondly, whether those proceedings are such that the applicant’s actions can be characterised as satisfying the relevant criterion. Only if those investigations were not successful would it, in the light of the case-law referred to in paragraph 85 above, be incumbent on the Council to investigate further (see, to that effect and by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 65 and the case-law cited). 92 Furthermore, in the context of the cooperation governed by the contested measures (see paragraph 87 above), it is not, in principle, for the Council itself to examine and assess the accuracy and relevance of the information relied on by the Ukrainian authorities in conducting criminal proceedings in respect of the applicant for conduct that could be characterised as misappropriation of public funds. As explained in paragraph 89 above, in adopting the contested measures, the Council does not seek itself to punish the misappropriation of public funds being investigated by the Ukrainian authorities, but to protect the possibility of the authorities identifying such misappropriation and recovering the funds thus misappropriated. It is therefore for those authorities, in the context of those proceedings, to verify the information on which they are relying and, where appropriate, to draw the appropriate conclusions as regards the outcome of those proceedings. Furthermore, as is apparent from paragraph 90 above, the Council’s obligations under the contested measures cannot be treated in the same way as those of a national judicial authority of a Member State in the context of asset-freezing criminal proceedings initiated, in particular, in the context of international cooperation in criminal matters (see, to that effect and by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 66). 93 That interpretation is confirmed by paragraph 77 of the judgment of 5 March 2015, Ezz and Others v Council (C‑220/14 P, EU:C:2015:147), in which the Court of Justice held, in circumstances similar to those of the present case, that it was not for the Council or the General Court to verify whether the investigations to which the appellants were subject were well founded, but only to verify whether that was the case as regards the decision to freeze funds in the light of the Egyptian authorities’ request for assistance. 94 It is true that the Council cannot adopt, in all circumstances, the findings made by the Ukrainian judicial authorities in the documents provided by those authorities. Such conduct would not be consistent with the principle of good administration nor, generally, with the obligation on the part of the EU institutions to respect fundamental rights in the application of EU law, under the combined provisions of the first subparagraph of Article 6(1) TEU and Article 51(1) of the Charter (see, to that effect and by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 67). 95 However, it is for the Council to assess, on the basis of the circumstances of the case, whether it is necessary to investigate further, in particular to seek the disclosure of additional evidence from the Ukrainian authorities if it transpires that the evidence already supplied is insufficient. Information communicated to the Council, either by the Ukrainian authorities themselves or in some other way, might conceivably lead that institution to doubt the adequacy of the evidence already supplied by those authorities. Furthermore, when availing themselves of the opportunity which the persons concerned must be given to submit their comments on the reasons which the Council intends to use to maintain their names on the list at issue, those persons may submit such information, or even exculpatory evidence, which would require the Council to investigate further. In particular, while it is not for the Council to take the place of the Ukrainian judicial authorities in assessing whether the criminal proceedings mentioned in the letters from the PGO are well founded, it is not inconceivable that, in the light, in particular, of the applicant’s observations, the Council might be obliged to seek clarification from those Ukrainian authorities with regard to the material on which those proceedings are based (see, to that effect and by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 68). 96 It is in the light of those considerations that the applicant’s specific arguments must be assessed (see paragraph 79 above). Whether the information which the Council possessed regarding the acts of misappropriation of Ukrainian public funds or assets alleged against the applicant is sufficient 97 The applicant claims that, as in the case that gave rise to the judgment of 28 January 2016, Stavytskyi v Council (T‑486/14, not published, EU:T:2016:45), the letters from the PGO on which the Council relied, in particular the letter of 30 November 2015, do not provide enough detail concerning the misappropriation of funds alleged against him and do not explain how he could have obtained the sum of UAH [confidential] which is referred to therein. Moreover, the applicant observes that that alleged misappropriation relates to real property which, by its very nature, remains in Ukraine and cannot be moved abroad. Accordingly, only the Ukrainian authorities could take measures to recover the property in question, whereas the freezing of the applicant’s funds decided upon by the Council has no impact on the alleged misappropriation. The applicant further submits that the goods referred to in the OPG’s letter of 30 November 2015 are assumed to have been transferred [confidential] in 2006 and 2007 and that, during the period following that transfer, various Ukrainian authorities having had to assess the legality of that commercial transaction found that the complaints in that regard were unfounded. That letter does not make clear whether it is in fact the same transaction, or on what grounds it is currently claimed that the applicant is alleged to have misappropriated the real estate concerned. 98 The Council, supported by the Commission, disputes the applicant’s arguments. 99 It should be recalled that, in the judgment of 28 January 2016, Stavytskyi v Council (T‑486/14, not published, EU:T:2016:45), the applicant was successful, in particular on the ground that the Council had adopted restrictive measures against him without knowing the acts of misappropriation of public funds which the Ukrainian authorities specifically alleged against him. Indeed, the letter from the PGO on which the Council had relied contained 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 identified the nature of the offence which the applicant was 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 did 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. Thus, that letter could not constitute a sufficiently solid factual basis to enable the Council to conclude that the acts alleged against the applicant were capable, first, of being categorised as misappropriation of public funds and, secondly, of undermining the rule of law in Ukraine (see, to that effect, judgment of 28 January 2016, Stavytskyi v Council, T‑486/14, not published, EU:T:2016:45, paragraphs 41, 44, 47 and 48). 100 It must be held that the letters from the PGO which constitute the basis of the contested measures in the present case, in particular the letter of 30 November 2015, provide more information than that in the letter which was at issue in the case that give rise to the judgment of 28 January 2016, Stavytskyi v Council (T‑486/14, not published, EU:T:2016:45). 101 That letter contains the information set out in paragraph 46 above. 102 It is also stated that those acts correspond to the criminal offence defined in Article 191(5) of the Ukrainian Criminal Code, which concerns the misappropriation of somebody else’s property when committed by a group of persons by prior conspiracy, in relation to a particularly large amount. 103 Similarly, it is specified that a notification of suspicion of the applicant was issued [confidential] and that the applicant was put on the international wanted list [confidential]. 104 Moreover, it is stated that, during the investigation, property belonging to the applicant and his family was seized at the investigator’s request, by the decision of the District Court of 3 October 2014. 105 Accordingly, it must be held that the Council possessed sufficiently precise information when it adopted the contested measures. 106 As regards the applicant’s argument relating to the fact that, in the present case, misappropriation of real property is alleged, which cannot, by its very nature, be moved outside of Ukraine, it should be observed that the relevant criterion does not provide that, for a person to be listed, there must be a risk that the public funds that that person is suspected of having misappropriated are moved abroad. Thus, the reference to the misappropriation of public funds, if it is well founded, is sufficient, in itself, to justify the restrictive measures against the applicant (see, to that effect, judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 129). 107 In that regard, it follows from the case-law that the concept of misappropriation of public funds covers any act consisting in the unlawful use of resources belonging to public authorities, or which are placed under their control, for purposes which run counter to those planned for the resources, in particular for private purposes. To fall within the scope of that concept, that use must have been prejudicial to the financial interests of these authorities, and therefore have caused damage which can be assessed in financial terms (see, to that effect and by analogy, judgment of 30 June 2016, CW v Council, T‑224/14, not published, EU:T:2016:375, paragraph 89). 108 Moreover, it should be pointed out that this interpretation of the concept in question leads to a definition analogous to that of the concept of misappropriation of European Union funds referred to in Article 4(3) of Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law (OJ 2017 L 198, p. 29). In accordance with that article, ‘“misappropriation” means the action of a public official who is directly or indirectly entrusted with the management of funds or assets to commit or disburse funds or appropriate or use assets contrary to the purpose for which they were intended in any way which damages the Union’s financial interests’ (see, to that effect and by analogy, judgment of 30 June 2016, CW v Council, T‑224/14, not published, EU:T:2016:375, paragraph 90). 109 That broad interpretation of the concept at issue is necessary in order to ensure the full effectiveness of Decision 2014/119 with a view to achieving its objectives of consolidating the rule of law in Ukraine. Taking into account, moreover, the purely precautionary nature of the measure at issue, the general principle of European Union law of the legality of offences and penalties, enshrined in the first sentence of Article 49(1) of the Charter, and that of the presumption of innocence, enshrined in Article 48(1) of the Charter, are not applicable in the present case and cannot, therefore, preclude such a broad interpretation (see, to that effect and by analogy, judgment of 30 June 2016, CW v Council, T‑224/14, not published, EU:T:2016:375, paragraph 91 and the case-law cited). 110 In the present case, as the Council correctly observes, the misappropriation of public funds or assets described in the letter of 30 November 2015, as long as it lasts and has not been undone, for example pursuant to a court decision which has become final, causes a loss to the Ukrainian State which is deprived of the ownership of the misappropriated funds or assets and of the use and enjoyment thereof, including possible revenue generated thereby. 111 The fact that, as a result of the restrictive measures provided for in the contested measures, the applicant’s funds in the EU are provisionally frozen helps to facilitate the Ukrainian authorities’ task of recovering misappropriated public funds and assets, in the event that the applicant is found guilty, and supplements the measures adopted at the national level, such as the seizure of the property ordered by the District Court (see paragraph 104 above). 112 Indeed, in the event that the accusations against the applicant are recognised as well founded by the Ukrainian courts and that those courts order the recovery of the misappropriated funds, such recovery could be effected, in particular, by using the funds that the applicant might have placed in the EU. In that regard, it is irrelevant whether those possible funds originate in the transaction which is the subject of the investigation relating to the applicant, given that what matters is to facilitate the Ukrainian State’s recovery of funds from which it should never have been separated. 113 As regards the applicant’s argument by which he claims, in essence, that the Council failed to carry out further investigations on the facts alleged against him in the letter of 30 November 2015, which allegedly date back to 2006-2007 and on which, subsequently, several Ukrainian authorities allegedly adjudicated, dismissing as unfounded the complaints which had been made in that regard (‘the argument at issue’), it should be noted that the applicant has been unable to show that he put forward the argument at issue before the Council, prior to the adoption of the contested measures. 114 First, in his written reply to the Court’s question requesting that he specify when and in what terms he had raised the argument at issue before the Council, the applicant did not submit any document capable of establishing that he had put forward such an argument before the adoption of the contested measures. Thus, in the letter of 27 August 2014 that he mentions in his reply and which was submitted following the hearing (see paragraph 29 above), only vague references are to be found to the fact that the applicant was included in ‘the [confidential] investigation’ and that he ‘was however shortly thereafter removed from the investigation and since then has no longer been part of the [confidential] investigation’. The applicant has not provided any details on the subject matter of that investigation and the reasons for his removal from that investigation. 115 Second, the Council, in its written reply to the Court’s question referred to in paragraph 114 above, confirmed that it became aware of the argument at issue only when the Court Registry notified to it the application in the present case. Moreover, the Council specified that, after learning of the existence of that argument, it carried out further investigations, asking for explanations from the Ukrainian authorities, which replied to it in identical terms in the Council Working Party document of 18 November 2016 submitted before the Court. However, that action taken by the Council and the reply of the Ukrainian authorities are not relevant for the purposes of the present case, since the legality of the contested measures must be assessed in the context which existed at the time of their adoption (see, to that effect, judgment of 4 September 2015, NIOC and Others v Council, T‑577/12, not published, EU:T:2015:596, paragraph 112 and the case-law cited). 116 Third, during the hearing, in reply to a question put by the Court, the applicant conceded that he raised the argument at issue for the first time in the application by which the present case was brought, whilst underlining the obligation that lies on the Council to verify in a proactive way that the facts on which it relies are correct. That reply was noted in the minutes of the hearing. 117 Fourth, in reply to other questions put by the Court at the hearing, the applicant also conceded that, in his letter of 5 January 2016 (see paragraph 20 above), containing his observations on the letter from the PGO of 30 November 2015, he had not put forward the argument at issue, since his lawyers had not yet been informed by him that the facts mentioned in the letter of 30 November 2015 dated back to 2006-2007 and had already been examined by several Ukrainian authorities. 118 Accordingly, it must be concluded that the applicant had not provided the Council with material capable of triggering the obligation for the latter to carry out further investigations, in accordance with the case-law recalled in paragraph 95 above. The Council was therefore properly entitled to confine itself to relying on the material that the Ukrainian authorities had already provided to it. 119 In the light of the foregoing considerations, the applicant’s present arguments must be rejected, as must his second argument set out in paragraph 53 above. The undermining of the legal and institutional foundations of the Ukrainian State 120 The applicant maintains that the Council has never explained how the facts alleged against him could undermine the legal and institutional foundations of Ukraine. 121 In the first place, the Council raises an objection of inadmissibility against the applicant’s present arguments, which were advanced only in the reply and do not meet the conditions for introducing new arguments. In the second place, the Council, supported by the Commission, contests the substance of those arguments. 122 With regard to the plea of inadmissibility raised by the Council, it should be borne in mind that, under Article 84 of the Rules of Procedure, no new plea in law may be introduced in the course of the proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. 123 However, the case-law has made clear that a plea in law which constitutes an amplification of a plea made previously, whether directly or by implication, in the original application, and which is closely connected therewith, must be declared to be admissible. Moreover, arguments which in substance have a close connection with a plea raised in the application initiating the proceedings cannot be considered new pleas and they may be raised at the stage of the reply or the hearing (see judgment of 12 September 2012, Italy v Commission, T‑394/06, not published, EU:T:2012:417, paragraph 48 and the case-law cited). 124 In the present case, the applicant, in the application, had quoted verbatim paragraph 48 of the judgment of 28 January 2016, Stavytskyi v Council (T‑486/14, not published, EU:T:2016:45), in which the question was raised whether the Council had sufficient evidence to enable it to establish that certain acts were capable of undermining the rule of law in Ukraine. 125 In the reply, the applicant developed that argument, in the light in particular of the principles laid down in subsequent case-law, which were recalled in paragraphs 71 to 73 above. In that regard, it must be observed that, admittedly, case-law which merely confirms law which ought to have been known to the applicant when it brought an action cannot be regarded as a new matter allowing a fresh plea to be raised (see, to that effect, judgments of 12 June 2014, Deltafina v Commission, C‑578/11 P, EU:C:2014:1742, paragraphs 75 and 76, and of 12 July 2001, Banatrading v Council, T‑3/99, EU:T:2001:187, paragraph 49 and the case-law cited). However, the position is otherwise with case-law which provides clarifications such as those referred to in those paragraphs. 126 It follows that the plea of inadmissibility raised by the Council must be rejected. 127 As regards the merits of the applicant’s present arguments, it should be pointed out that the acts for which the applicant is being prosecuted by the Ukrainian authorities relate to the misappropriation of considerable funds, amounting to UAH [confidential] ([confidential]). 128 Moreover, the offences that the applicant is alleged to have committed have a wider context, in which a significant part of the former Ukrainian leadership is suspected of having committed serious crimes in the management of public resources, thereby seriously threatening the legal and institutional foundations of the country and undermining, inter alia, the principles of legality, prohibition of arbitrary exercise of power by the executive, effective judicial review and equality before the law (see, to that effect and by analogy, judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 117). In that regard, it should be pointed out that, according to the letter of 30 November 2015, the applicant is suspected [confidential]. 129 Facilitating the recovery of the funds allegedly misappropriated by the applicant, together with the recovery of funds allegedly misappropriated by other persons designated by the restrictive measures at issue, falls within the objective of consolidating the rule of law. In that context, it should be noted that the restrictive measures at issue facilitate and complement the efforts made by the Ukrainian authorities to recover the misappropriated public funds, as evidenced, for example, by the decision of the District Court of 3 October 2014. Accordingly, the freezing of the funds decided upon by the Council strengthens the effectiveness of the initiative taken at the national level. 130 It follows that, in accordance with the case-law mentioned in paragraph 67 above, taken as a whole and taking into consideration the role occupied by the applicant within the former Ukrainian leadership, the restrictive measures in question contribute, in an effective manner, to facilitating the prosecution of crimes of misappropriation of public funds that were to the detriment of the Ukrainian institutions and ensure that the Ukrainian authorities can more easily secure restitution of the profits of such misappropriation. That facilitates, in the event that the prosecutions are successful, the punishment, through the courts of law, of alleged acts of corruption committed by members of the former regime, thereby helping to support the rule of law in that country (see, to that effect and by analogy, judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 118). 131 In the light of those considerations, the applicant’s present arguments must be rejected. Irregularities in the criminal proceedings relating to the applicant 132 The applicant claims that, although he brought the matter to its attention, the Council has not taken account of the fact that the criminal proceedings brought against him in Ukraine were irregular, in that the requirement, laid down by national law, for the preliminary investigation to be completed within two months of the statement of suspicion, was not complied with. Accordingly, he maintains that the investigation is time-barred. The applicant argues that there was a further irregularity in that, for a certain time, due to internal conflicts, there was no Prosecutor General of Ukraine, and that the criminal proceedings at issue were conducted by a deputy who, he claims, signed the letter of 30 November 2015. Against that background, the applicant also states that his name is no longer on the international wanted list maintained by the International Criminal Police Organisation (Interpol). 133 The Council, supported by the Commission, disputes the applicant’s arguments. 134 First, it should be pointed out that, by analogy with what was observed in paragraphs 91 to 95 above as regards the possibility that the Council is obliged to seek clarification from the Ukrainian authorities with respect to the material on which the criminal proceedings conducted by those authorities are based, the Council is not in principle required to assess whether those proceedings comply with the procedural rules applicable under Ukrainian law. 135 In the present case, in the letter of 11 December 2015 (see paragraph 18 above) the applicant had drawn the Council’s attention to the provisions of Ukrainian law setting the duration of pre-trial investigations and limitation periods for bringing actions. 136 The Council overlooked the applicant’s observations until the letter of 7 March 2016, in which the Council stated that any complaints on the manner in which the applicant’s case was handled in Ukraine should be referred to the Ukrainian authorities and dealt with by them. 137 However, it should be pointed out, as the Council observes, that the applicant never explained exactly what, according to Ukrainian law, the legal consequences of the failure to comply with the time limit normally provided for a pre-trial investigation are. 138 Moreover, in his letter of 11 December 2015, the applicant appears to concede that the fact that the person concerned by a pre-trial investigation has absconded may suspend the limitation period, even if he states that, in such a case, the investigation can relate only to ascertaining the whereabouts of the suspect. Such an investigation is a necessary precursor in order that the criminal proceedings on the misappropriation of public funds can be pursued. 139 As regards the evidence that he had absconded, the applicant submits that the Council, when adopting the contested measures, did not have in its possession the letter from the PGO of 25 July 2016, [confidential]. However, it should be noted that, as the Council observes, the fact that the applicant was hiding could be inferred from the information in the case that gave rise to the judgment of 28 January 2016, Stavytskyi v Council (T‑486/14, not published, EU:T:2016:45), the applicant having provided only the address of his lawyers, just as he has done in the present case, moreover. That information was known to the Council when the contested measures were adopted. 140 Accordingly, it must be concluded that the Council was properly entitled to take the view that the applicant’s observations did not call into question the existence of criminal proceedings against him for misappropriation of public funds. 141 Second, as regards the applicant’s argument relating to the fact that, during the period when the letters from the PGO of 8 September and 30 November 2015 were drafted, the position of Prosecutor General of Ukraine was vacant, it is sufficient to point out, in any event, as the Council observes, that those letters were signed by the Deputy Prosecutor General, who, as a high-ranking officer within the General Prosecutor’s Office, was empowered to provide information on the investigations on the applicant. 142 Third, as regards whether the applicant’s name was included on Interpol’s international wanted list, it must be observed that the relevant criterion refers only to the existence of criminal proceedings in Ukraine, without mentioning that the person concerned is or is not wanted internationally. Accordingly, as the Council recognised at the hearing, the presence of the applicant’s name on that list is merely one element of the context, which can have no decisive value. In any event, it is apparent from the evidence submitted by the Council that, at the time that the contested measures were adopted, the applicant’s name appeared on that list. 143 Accordingly, the applicant’s present arguments must be rejected. 144 In the light of all of the above considerations, this action must be dismissed in its entirety. It is not therefore necessary to adjudicate on the request (see paragraph 33 above), submitted in the alternative by the Council, to maintain the effects of Decision 2014/119, as last amended by Decision 2016/318. Costs 145 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 applicant has been unsuccessful, he must be ordered to pay the costs in accordance with the form of order sought by the Council. 146 In accordance with Article 138(1) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. The Commission must therefore bear its own costs. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby: 1. Dismisses the action; 2. Orders Mr Edward Stavytskyi to bear his own costs and to pay those incurred by the Council of the European Union; 3. Orders the European Commission to bear its own costs. Berardis Spielmann Csehi Delivered in open court in Luxembourg on 22 March 2018. E. Coulon S. Frimodt Nielsen Registrar President * Language of the case: English. 1 Confidential information omitted.