Order — ECLI:EU:T:2016:360
Date: 2016-06-10
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, EU:C:2015:248, paragraphs 41 and 45 and the case-law cited). 62 As in the case that gave rise to the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraph 39), in the present case, in accordance with the criterion laid down in Article 1(1) of Decision 2014/119, restrictive measures are to be adopted against persons having been identified as responsible for the misappropriation of State funds. Furthermore, it is evident 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’. 63 The applicant’s name 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 follows from this that the Council regarded the applicant as being the subject of a preliminary investigation or inquiry, which had not (or had not yet) culminated in the bringing of a formal charge, because of his alleged involvement in the misappropriation of public funds. 64 As in the case that gave rise to the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraph 41), the Council relied in support of the ground for the applicant’s listing on a letter from the Office of the Prosecutor General of Ukraine to the High Representative of the Union for Foreign Affairs and Security Policy, in this instance the letter of 7 March 2014 (see paragraph 58 above), as well as on other evidence that post-dated Implementing Decision 2014/216 and Implementing Regulation No 381/2014. 65 The letter of 7 March 2014 indicates 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’. The applicant’s name is then listed, with an indication of the criminal offence which he is suspected of having committed under the Ukrainian Criminal Code (in this case, abuse of authority or office, which ‘caused grave consequences’). The 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’. 66 It is not disputed that the applicant was identified on that basis alone ‘as responsible for the misappropriation of Ukrainian State funds’ within the meaning of Article 1(1) of Decision 2014/119. 67 As in the case that gave rise to the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraph 42), the letter from the Office of the Prosecutor General of Ukraine, in this instance the letter of 7 March 2014, is the only piece of evidence lodged by the Council during the course of these proceedings which pre-dates Implementing Decision 2014/216 and Implementing Regulation No 381/2014. 68 By analogy with the Court’s ruling in its judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraphs 43 and 44), it must be held that, although that letter was sent by a high judicial body of a non-Member country, it contains only a general, generic statement linking the applicant’s name, along with those of other former senior officials, to an investigation which, in essence, sought to verify whether misappropriation of public funds had in fact occurred. Even though the letter of 7 March 2014 identifies the crime which the applicant is suspected of having committed under the Ukrainian Criminal Code, that is to say, the abuse of authority or office under Article 364(2) of the Code, it does not provide any details as to the establishment 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 (see also, to that effect, judgments of 28 January 2016 in Arbuzov v Council, T‑434/14, not published, EU:T:2016:46, paragraph 39, and Stavytskyi v Council, T‑486/14, not published, EU:T:2016:45, paragraph 44). 69 It should further be noted that, in contrast to the judgment of 27 February 2014 in Ezz and Others v Council (T‑256/11, EU:T:2014:93, paragraphs 57 to 61), upheld on appeal by the judgment of 5 March 2015 in Ezz and Others v Council (C‑220/14 P, EU:C:2015:147), invoked by the Council, in the present case the Council did not have any information regarding the acts or conduct specifically imputed to the applicant by the Ukrainian authorities and, moreover, even if it is examined in its context, the letter of 7 March 2014 cannot constitute a sufficiently solid factual basis, within the meaning of the case-law cited in paragraph 61 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 (see, to that effect, judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraphs 46 to 48). 70 Irrespective of the stage of the proceedings to which the applicant was said to be subject, the Council could not adopt restrictive measures against him without knowing the acts of misappropriation of State funds which the Ukrainian authorities were specifically alleging 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 State funds and, secondly, of undermining the rule of law in Ukraine, the consolidation and support of which, as recalled in paragraph 62 above, constitute the objective of the adoption of the restrictive measures at issue (see, to that effect, judgments of 28 January 2016 in Arbuzov v Council, T‑434/14, not published, EU:T:2016:46, paragraph 55, and Stavytskyi v Council, T‑486/14, not published, EU:T:2016:45, paragraph 48). 71 Furthermore, it is for the competent EU 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 (see judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraph 45 and the case-law cited). 72 It must therefore be concluded that, as in the Court’s ruling in the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraph 50), the inclusion of the applicant’s name on the list does not comply with the criteria set by Implementing Decision 2014/216 for the designation of persons covered by the restrictive measures at issue. 73 It follows from this that the present action must be declared manifestly well founded, in accordance with Article 132 of the Rules of Procedure. 74 That conclusion cannot be called into question by the Council’s arguments in reply to a question from the Court (see paragraph 24 above), which seek to challenge the application of that article to the present case. 75 First, the Council submits that, in the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806), the Court ruled on the question whether the letter from the Office of the Prosecutor General of Ukraine constituted a sufficiently solid factual basis for including Mr Portnov’s name on the list on the ground that he was identified as responsible for the misappropriation of State funds, whereas, in the present case, the Council also relied on [confidential]. According to the Council, the facts and the question of law examined in the case giving rise to the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806) and in the present case are therefore different. Secondly, the Council observes that it raised a plea of inadmissibility and that the General Court reserved its decision on that for the final judgment. 76 As regards the first objection, it must be noted, first of all, that, in its judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806), the Court did not cast doubt on the reliability or validity of the letter from the Office of the Prosecutor General of Ukraine, but on the fact that that piece of evidence alone could constitute a sufficiently solid factual basis, within the meaning of the case-law cited in paragraph 61 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 (see paragraphs 66 to 70 above). 77 Furthermore, it is evident from [confidential], and made no further reference whatsoever to the nature or to the stage of the investigation concerning the applicant or to the facts incriminating him. [confidential]. 78 However, those two elements are not capable of differentiating the question of law on which the Court has already ruled in its judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806) and in the judgments referred to in paragraph 56 above from that raised by the second plea in law and the second part of the third plea in law in the present case, since they have no bearing on the legal assessment of the conditions for the existence of a sufficiently solid factual basis. They merely confirm that the letter of 7 March 2014 is valid and that the adoption of restrictive measures against the applicant is allegedly appropriate. That letter thus remains the only evidence to justify including the names of the persons concerned on the list on the ground that they were identified ‘as responsible’ for misappropriation of State funds, which the Court has held to be insufficient for a finding that the Council has discharged its burden of proof (see, to that effect, judgments of 26 October 2015 in Portnov v Council, T‑290/14, EU:T:2015:806, paragraphs 43 to 48, and of 28 January 2016 in Stavytskyi v Council, T‑486/14, EU:T:2016:45, paragraphs 43 to 47). 79 Furthermore, as regards the facts, it should be borne in mind that, according to Article 132 of the Rules of Procedure, it is for the Court to find that they have been established. In that regard, it must be observed that, contrary to what the Council appears to be claiming, the facts established do not have to be the same as those held to be relevant in the case that gave rise to the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806). In the present case, the correctness of the facts on which the Council relied in listing the applicant — that is, in particular, the fact that, according to the letter of 7 March 2014, there was a preliminary investigation or inquiry by the Ukrainian authorities concerning the applicant for misappropriation of public funds — is not disputed by the parties and may therefore be regarded as established. 80 The fact that a letter such as the letter of 7 March 2014 referring to those inquiries or investigations cannot be regarded as sufficient, by itself, to substantiate the reasons for the applicant’s listing is, on the other hand, the key element of the legal assessment of the way in which the Council discharged its burden of proof (see paragraph 78 above), which does not amount to calling into question the facts described in that letter. 81 As regards the second objection, it should be noted that, in accordance with the case-law, the possibility of dismissing an action as inadmissible by reasoned order, and therefore without holding a hearing, is not precluded by the fact that the Court may have previously made an order reserving for the final judgment a plea put forward on the basis of Article 114 of the Rules of Procedure of 2 May 1991 (see, to that effect, order of 19 February 2008 in Tokai Europe v Commission, C‑262/07 P, not published, EU:C:2008:95, paragraphs 26 to 28). That conclusion applies equally to the possibility of rejecting the plea of inadmissibility where the Court intends, as in the present case, to declare that the action is manifestly well founded as provided in Article 132 of the Rules of Procedure, which expressly provides that the Court may rule at the end of a written procedure alone. 82 In the light of all the foregoing considerations, the Court must therefore uphold the action, which is manifestly well founded within the meaning of Article 132 of the Rules of Procedure, inasmuch as it seeks annulment of Implementing Decision 2014/216 in so far as it concerns the applicant. 83 For the same reasons, Implementing Regulation No 381/2014 must be annulled in so far as it relates to the applicant. The temporal effects of the annulment in part of Decision 2014/119, as amended by Implementing Decision 2014/216 84 The Council submits that, if the Court annuls Decision 2014/119, as amended by Implementing Decision 2014/216, in so far as it concerns the applicant, it will be necessary for the effects of that decision as regards the applicant to be maintained pursuant to the second paragraph of Article 264 TFEU until the annulment in part of Regulation No 208/2014, as amended by Implementing Regulation No 381/2014, takes effect, in order to ensure legal certainty and preserve the coherence and consistency of the legal order. 85 The applicant disputes that line of argument. 86 It must be recalled that Decision 2014/119, as amended by Implementing Decision 2014/216, was amended by Decision 2015/364, which replaced the list as from 7 March 2015 and extended the application of the restrictive measures concerning the applicant until 6 March 2016. Following those amendments the applicant’s name was maintained on the list with new reasons for his listing (see paragraphs 16 and 17 above). 87 Therefore, as at today’s date, the applicant is subject to a new restrictive measure. It follows that annulment of Decision 2014/119, as amended by Implementing Decision 2014/216, in so far as it relates to the applicant, does not lead to the removal of his name from the list (see, to that effect, judgment of 28 January 2016 in Azarov v Council, T‑331/14, EU:T:2016:49, paragraph 71). 88 Consequently, it is not necessary to maintain the effects of Decision 2014/119, as amended by Implementing Decision 2014/216, in so far as it relates to the applicant. Costs 89 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, in accordance with the form of order sought by the applicant. On those grounds, THE GENERAL COURT (Ninth Chamber) hereby orders: 1. 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 are annulled in so far as they relate to Mr Oleksandr Klymenko. 2. The Council of the European Union shall bear its own costs and pay those incurred by Mr Klymenko. Luxembourg, 10 June 2016. E. Coulon G. Berardis Registrar President * Language of the case: English. 1 Confidential information redacted.