Opinion of the Advocate General — ECLI:EU:C:2025:274
Date: 2025-04-10
Language of the case: French
Procedure: Action for annulment;Appeal - unfounded;Action for damages

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, to that effect, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 118 and 119; of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraphs 72 and 73 and the case-law cited; and of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 22 and the case-law cited). 37 As is apparent from paragraph 47 of the judgment under appeal, which is not disputed in the appeal, restrictive measures were imposed on the appellant on the basis of the association criterion, on the ground that, through her activities within the Timchenko Foundation, she participated in the public affairs of her husband, Mr Timchenko and benefited from him. 38 In paragraphs 77 and 78 of the judgment under appeal, the General Court stated that the appellant and her husband set up the Timchenko Foundation and are directly linked to its operational activities. It also found that their active role within that foundation is confirmed, inter alia, by the functions and powers they have in it. The General Court therefore cannot be criticised for failing to determine whether those elements of fact met the criteria attaching to the concept of association, which are established in paragraphs 74 to 76 of the judgment under appeal. 39 Consequently, contrary to the appellant’s submissions, it must be found, as the Advocate General stated in point 62 of her Opinion, that in order to hold, in paragraph 79 of the judgment under appeal, that the appellant was associated with her husband within the meaning of the association criterion, the General Court could validly conclude that the spouses were linked by common interests going beyond the mere commonality of interests inherent in any family relationship, even a marital relationship. 40 In the light of the foregoing, the first ground of appeal must be rejected as unfounded. Second ground of appeal Arguments of the parties 41 Under her second ground of appeal, the appellant alleges that the General Court erred in law when interpreting the word ‘unduly’ in recital 7 of Decision 2022/582. By providing that the association criterion can be applied to family members unduly benefitting from a person who is in turn subject to restrictive measures, the EU legislature intended, in order to prevent family members from being subject to restrictive measures solely as a result of their family relationship, to require proof of an undue benefit, that is to say, an individual benefit of a certain magnitude going beyond a normal family relationship. 42 In paragraph 76 of the judgment under appeal, the General Court interpreted the word ‘unduly’ as requiring proof of a mental element on the part of the family member concerned, that is to say, the fact that the family member in question had to be aware that the benefit obtained derived from a person satisfying one of the criteria laid down for the adoption of restrictive measures. In addition to the fact that it would be impossible to prove the absence of such awareness, the appellant submits that the interpretation adopted by the General Court is ‘not reasonable’, inasmuch as the General Court does not indicate in what respect that awareness can objectively turn the benefits obtained from a family relationship into undue benefits. Furthermore, that interpretation effectively obliges the family member concerned to determine in advance whether the person with whom he or she has a family relationship satisfies the criteria for inclusion laid down in an act such as Decision 2014/145, which would contravene the principle of foreseeability. 43 The Council and the Commission dispute the appellant’s arguments although they concur, in the alternative, that the General Court did not in fact use a correct interpretation of the word ‘unduly’. Findings of the Court 44 By her second ground of appeal, the appellant criticises the General Court, in essence, for misinterpreting, in paragraph 76 of the judgment under appeal, the word ‘unduly’ contained in recital 7 of Decision 2022/582, that is to say, one of the two initial acts at issue. 45 Recital 7 of Decision 2022/582, in common moreover with recital 7 of Implementing Regulation 2022/581, which is the second of the initial acts at issue, states that restrictive measures may be imposed on natural persons associated with leading businesspersons involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, and that those associated natural persons may encompass, as follows from the word ‘including’, family members ‘unduly’ benefitting from those businesspersons. 46 In paragraph 76 of the judgment under appeal, the General Court stated, inter alia, that by using the adverb ‘unduly’, the EU legislature had intended to make clear that the family member concerned had to be aware that the benefit obtained derived from a person satisfying one of the criteria justifying the adoption of restrictive measures. 47 In that regard, as the parties unanimously acknowledge, it must be held that the General Court misinterpreted the adverb ‘unduly’ contained in recital 7 of the initial acts at issue. 48 First, it is not apparent from the wording of recital 7 that whether or not a benefit is undue must necessarily be contingent on a mental element, that is to say, on the family member concerned being aware that it was undue. 49 Second, the concept of association cannot correspond or be confined solely to situations in which a family member benefits from a person subject to restrictive measures by reason of the fact that that family member is aware that the benefit in question derives from a person satisfying one or more criteria for inclusion. Given that, as is clear from paragraph 32 of the present judgment, the purpose of imposing restrictive measures under the association criterion is to prevent the risks of circumvention, that objective could not be fully and effectively achieved if it were necessary as a matter of course to establish such awareness on the part of the family member concerned. The interpretation of the word ‘unduly’ adopted by the General Court is therefore contrary to the objective pursued by the association criterion. 50 Under those circumstances, it must be found that recital 7 of the initial acts at issue is intended to elucidate – purely by way of example since it uses the word ‘including’, and therefore without prejudice to other forms of association – the concept of association in the case of two associated persons who have a family relationship. Recital 7 reflects the notion that, as set out in paragraphs 30 and 31 of the present judgment, a natural person cannot be subject to restrictive measures unless he or she is linked to persons who are themselves subject to restrictive measures by common interests that objectively go beyond their family relationship. 51 However, the misinterpretation by the General Court in the last sentence of paragraph 76 of the judgment under appeal has no effect on the operative part of the judgment under appeal, which remains well founded on other legal grounds, and in consequence that judgment cannot be set aside (judgment of 6 October 2021, Prosegur Compañía de Seguridad v Commission, C‑55/19 P, EU:C:2021:797, paragraph 106 and the case-law cited). 52 The General Court’s misinterpretation of the word ‘unduly’ does not call into question the interpretation of the concept of association in the case of members of the same family that it adopted in paragraph 74 and in the first sentence of paragraph 76 of the judgment under appeal, and that interpretation is not vitiated by errors of law, as is apparent from paragraphs 29 to 32 of the present judgment. 53 Furthermore, the General Court’s error of interpretation has no bearing on its appraisal of the merits of the reason on the basis of which restrictive measures were imposed on the appellant. The General Court did not at any point in the judgment under appeal examine whether the appellant was aware that the benefit which she could gain from her participation in the public affairs of her husband via the Timchenko Foundation derived from a person satisfying one of the criteria for inclusion laid down by Decision 2014/145 and by Regulation No 269/2014. 54 In those circumstances, the second ground of appeal must be rejected as unfounded. Third ground of appeal Arguments of the parties 55 By her third ground of appeal, the appellant claims that, in paragraph 82 of the judgment under appeal, the General Court erred in law and infringed its obligation to state reasons by simply rejecting her argument that her activities within the Timchenko Foundation had no connection with the invasion of Ukraine on the ground that the (a) criterion which justified the adoption of restrictive measures against her husband did not provide that such a link must be established. Taking the view that the restrictive measures adopted against her under the association criterion must be necessary in order to achieve the objectives pursued by the restrictive measures regime introduced against the Russian Federation, that is to say, to put pressure on the Government of the Russian Federation and to increase the costs of the actions by that State to undermine the territorial integrity, sovereignty and independence of Ukraine, the appellant submits that the General Court should have set out, at that point of the judgment under appeal, in what respect the imposition of restrictive measures on her served to achieve those objectives. 56 The Council and the Commission dispute the appellant’s arguments, and the Council moreover claims that, to the extent that it relates to the proportionality of the association criterion and of the restrictive measures taken thereunder, the third ground of appeal is inadmissible because, before the General Court, the appellant had stated that she was withdrawing her plea in law alleging breach of the principle of proportionality. Findings of the Court 57 By her third ground of appeal, the appellant alleges, in essence, that the General Court erred in law and infringed its obligation to state reasons by failing to ascertain and to make clear, in paragraph 82 of the judgment under appeal, whether and in what respect the restrictive measures imposed on her serve to achieve the objectives pursued by the restrictive measures regime introduced against the Russian Federation. 58 As a preliminary point, it should be noted that the appellant confirms in her reply that, by that ground of appeal, she is not claiming a breach of the principle of proportionality, but is asserting that the General Court should have determined whether, by reason of the common interests she shares with her spouse and that go beyond their family relationship, she was sufficiently linked to the situation targeted by the restrictive measures regime introduced against the Russian Federation. In those circumstances, it is not necessary to rule on the ground of inadmissibility raised by the Council. 59 As regards the substance, it should be recalled that, in paragraph 82 of the judgment under appeal, the General Court rejected the appellant’s argument that her activities within the Timchenko Foundation have no connection with the invasion of Ukraine. In that regard, that court stated that the (a) criterion, established, inter alia, by Decision 2014/145, did not provide that such a link had to be established. 60 The General Court did not thereby err in law or infringe its obligation to state reasons. 61 First, as the General Court correctly held, in essence, in paragraph 82 of the judgment under appeal, neither the (a) criterion, on the basis of which restrictive measures were imposed on the appellant’s husband, nor moreover the association criterion, under which the appellant was made the subject of restrictive measures, provides that the Council was required to establish that the appellant’s activities are linked to the destabilisation actions or policies pursued by the Russian Federation against Ukraine. Specifically, the association criterion is contingent only on there being a link between the person concerned and the person with whom he or she is associated and who is in turn subject to restrictive measures under a different criterion for inclusion. 62 The General Court’s reasoning is also in line with the case-law of the Court of Justice according to which the importance of the aims pursued by an EU act establishing a restrictive measures regime is such as to justify negative consequences, even substantial negative consequences, for some persons, including where, as is the case with persons associated with a person or entity subject to restrictive measures, they are in no way responsible for the situation which led to the adoption of the measures in question (see, to that effect, judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraphs 361 and 362). 63 Second, in those circumstances, the General Court was not in any way required, in order to respond to the appellant’s argument that her activities within the Timchenko Foundation had no link with the invasion of Ukraine, to examine the – separate – question of whether the restrictive measures imposed on her under the association criterion served to achieve the objectives pursued by the restrictive measures regime adopted by the European Union against the Russian Federation. Moreover, it is sufficient to recall that, as is apparent from paragraph 32 of the present judgment, the purpose of restrictive measures imposed on associated persons such as the appellant is to prevent the risk of circumvention of the restrictive measures imposed in the first instance on the person with whom they are associated, and it would therefore in any event be irrelevant to examine whether the restrictive measures adopted in respect of the appellant also serve to achieve the other objectives which, according to her claims summarised in paragraph 55 of the present judgment, are pursued by that regime. 64 The third ground of appeal must therefore also be rejected as unfounded and, accordingly, the appeal must be dismissed in its entirety. Costs 65 Pursuant to Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 66 Since the Council and the Commission have applied for costs and the appellant has been unsuccessful, the appellant must be ordered to pay the costs. On those grounds, the Court (Fifth Chamber) hereby: 1. Dismisses the appeal; 2. Orders Ms Elena Petrovna Timchenko to pay the costs. [Signatures] * Language of the case: French.