Information;Judgment — ECLI:EU:T:2023:303
Date: 2023-06-07
Language of the case: English
Court formation: First Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - 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, is substantiated (judgment 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, paragraph 119). 108 It is for the Courts of the European Union, in order to carry out that examination, to request that the competent European Union authority, when necessary, produce information or evidence, confidential or not, relevant to such an examination (see judgment 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, paragraph 120 and the case-law cited). 109 That is because it is the task of the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person or entity concerned are well founded, and not the task of that person or that entity to adduce evidence of the negative, that those reasons are not well founded (judgment 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, paragraph 121). 110 If the competent European Union authority provides relevant information or evidence, the Courts of the European Union must then determine whether the facts alleged are made out in the light of that information or evidence and assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person or entity concerned (judgment 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, paragraph 124). 111 Such an assessment must be carried out by examining the evidence and information not in isolation but in its context. The Council discharges the burden of proof borne by it if it presents to the EU judicature/Courts of the European Union a sufficiently concrete, precise and consistent body of evidence to establish that there is a sufficient link between the entity subject to a measure freezing its funds and the regime or, in general, the situations, being combated (see judgment of 12 February 2020, Kanyama v Council, T‑617/18, EU:T:2020:49, paragraph 93 and the case-law cited). 112 Second, having regard to the preventive nature of the restrictive measures at issue, if, in the course of its review of the lawfulness of the contested decision, the Courts of the European Union consider that, at the very least, one of the reasons mentioned in the summary at issue is sufficiently detailed and specific, that it is substantiated and that it constitutes in itself a sufficient basis to support that decision, the fact that the same cannot be said of other such reasons cannot justify the annulment of that decision (see, to that effect, judgment 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, paragraph 130). 113 The merits of, first, the initial acts, next, the first set of maintaining acts and, lastly, the second set of maintaining acts must be examined in the light of those principles. The initial acts 114 The Court considers it appropriate to begin its examination with the grounds of the initial acts, set out in the first three paragraphs cited in paragraph 12 above, according to which (i) the applicant is one of the leading businesspeople operating in Belarus, with business interests in construction, machine building, agriculture and other sectors; (ii) the applicant is one of the persons who most benefited from privatisation made during Lukashenko’s tenure as President; and (iii) he is a member of the presidium of the pro-Lukashenko public association Belaya Rus (‘the association Belaya Rus’) and of the Council for the Development of Entrepreneurship of the Republic of Belarus (‘the CDE’), and that, as such, he benefits from and supports the Lukashenko regime. 115 The grounds at issue are based on the criteria laid down in Article 4(1)(b) of Decision 2012/642, a provision to which Article 2(5) of Regulation No 765/2006 refers. 116 It is therefore necessary to examine whether the factual evidence on which the grounds at issue are based have been established, and whether the Council erred in finding, on the basis of that evidence, that, at the time when the initial acts were adopted, the applicant benefited from and supported the Lukashenko regime within the meaning of Article 4(1)(b) of Decision 2012/642 and Article 2(5) of Regulation No 765/2006. That examination will be carried out in the light of documents WK 13841/2020 INIT and WK 14796/2020 EXT 3 on which the Council states that it relied when the initial acts were adopted. – The assessment that the applicant is one of the leading businessmen operating in Belarus, with business interests in construction, machine building, agriculture and other sectors 117 In so far as concerns the applicant’s position in economic life in Belarus and the extent of his business interests, it should be noted, first, that, on the date on which the application was lodged, the applicant acknowledged that he has had a shareholding, being 62% of the capital in the holding company Amkodor since 2018 – of which he was, moreover, chairman of the board of directors – and a shareholding in the holding company SALEO which he stated he controlled. 118 Second, the applicant acknowledges that the holding companies Amkodor and SALEO are active in the machine-building sector. 119 Accordingly, the Council did not err in considering that, at the time of the adoption of the initial acts, the applicant had ‘business interests in construction, machine building, agriculture and other sectors’, it being understood that the term ‘other sectors’ should be taken as meaning that the Council listed, non exhaustively, the economic sectors in which it regarded the applicant as having business interests. 120 Since the existence of such interests in the machine-building sector has been established, there is no need to examine whether there is any factual evidence to establish that the applicant had business interests in the other economic sectors listed by the Council. Consequently, the arguments by which the applicant denies having business interests in the agricultural and construction sectors cannot succeed. 121 Third, as the Council observes, in the letter of 23 December 2020, in support of the request for review, the applicant himself states that he is ‘the head of the largest privately held industrial holding in Belarus’. Such a spontaneous statement has significant probative force which cannot be diminished by the fact, relied on in the reply, that that letter is not signed by a legal representative of the applicant. Moreover, at the hearing, the applicant confirmed that he was the ‘biggest private entrepreneur in the machine-building sector’. 122 In the light of those factors, it is to no avail that the applicant claims that he is not amongst the ‘leading businessmen of Belarus’. 123 Admittedly, he claims that he is not in the public rankings of the richest men of Belarus and that the holding company SALEO is the subject of insolvency proceedings which have serious consequences for his personal assets. Similarly, in his view, the total value of the companies in Belarus in which he holds shares represents only a de minimis share of the country’s gross domestic product, and the tax contributions of the holding company Amkodor represent only a very small proportion of the revenue of the Republic of Belarus. Lastly, in the reply, he also refers to the number of employees of the holding company Amkodor, in order to claim that he represents only a tiny proportion of the country’s ‘wage bill’, and to the fact that other Belarusian undertakings employ more staff. 124 However, those claims do not call into question the grounds relied on by the Council, which considered that the applicant was, at the time when the initial acts were adopted, one of the leading businessmen operating in Belarus, without referring either to the applicant’s personal wealth, the number of employees of the undertakings which he controls, or the size of the tax contribution of those undertakings, particularly since the applicant himself stated that he was the head of the largest privately held industrial holding in Belarus. Furthermore, as regards the total value of Amkodor and SALEO, the applicant merely compares it to Belarus’s gross domestic product, which is not in itself a relevant factor for assessing whether the applicant is one of those leading businessmen. 125 It follows from the foregoing that the Council did not err in considering that, at the time when the initial acts were adopted, the applicant was one of the leading businessmen operating in Belarus, with business interests in construction, machine building, agriculture and other sectors. – The assessment that the applicant is one of the persons who benefited most from privatisation during Lukashenko’s tenure as President 126 As regards the privatisation carried out during Lukashenko’s tenure as President, it should be observed at the outset that the applicant does not dispute that the holding company Amkodor acquired certain State-owned undertakings when such privatisation was carried out. 127 The applicant thus refers to the acquisition of control of ‘N. Gastello Experimental Plant JSC’ in 2008, ‘Minsk Instrument [Plant]’, ‘RUE Zavod EPOS’ and ‘Dzerzhinsk plant Agromash’ in 2011 as well as ‘[Kochanowski] Excavator Plant’ and ‘Dzerzhinsk Experimental Mechanical Plant’ in 2014. That information is drawn from the document annexed to the application by the applicant in relation to the commitments associated with the privatisation, which document also refers to the takeover, by the holding company SALEO, of ‘[Kobrin] Hydromash’ and ‘[Gomel] Gidroprivod’ in 2014. 128 Furthermore, the Council relies on an article published on the website ‘belmarket.by’ on 28 October 2020, from which it is apparent that the applicant is part of the small group of businessmen which benefited most from the privatisation of State-owned undertakings, and that he was present at President Lukashenko’s inauguration ceremony. 129 Several factors demonstrate that the content of that article is sound and reliable. First of all, the applicant confirms, in the application, that he was present at President Lukashenko’s inauguration ceremony in 2020. 130 Next, it is apparent from the article in question that the applicant invested in the holding company Amkodor and acquired State undertakings particularly in the machine-building sector, which cannot be disputed in the light of the applicant’s own statements in the application. That article also contains a list of privatised undertakings which matches that drawn up by the applicant (see paragraph 127 above), namely ‘N. Gastello Experimental Plant JSC’, ‘Minsk Instrument [Plant]’, ‘Dzerzhinsk Experimental Mechanical Plant’ and ‘Dzerzhinsk plant Agromash’, in so far as concerns assets acquired by the holding company Amkodor, and ‘[Kobrin] Hydromash’ and ‘Gomel Gidroprivod’ as regards the undertakings held by the holding company SALEO. 131 Finally, first, the applicant himself refers in his written pleadings to the article in question in order to claim that he has no current financial interests in the agricultural sector, which suggests that he regards that article as containing reliable information. Second, when questioned at the hearing on the information contained in that article, the applicant did not dispute that information. 132 Accordingly, the applicant has failed to demonstrate that the Council erred in finding that he was one of the persons who benefited most from privatisation during Lukashenko’s tenure as President. – The assessment that the applicant is a member of the CDE 133 As regards the CDE, the Council claims that this is a permanent body under the Belarusian public authorities, the advisory tasks of which are important and which has real influence on Belarusian legislation. 134 In that regard, first, in the application, the applicant acknowledges that he is a member of the CDE. 135 Admittedly, in the reply, he maintains that he is no longer a member of that body. However, since that fact manifestly shows a change in the applicant’s situation subsequent to the adoption of the initial acts, it cannot be relied on as being relevant, since the legality of an EU act must be assessed on the basis of the elements of fact and law existing at the date on which the act was adopted (see, to that effect, judgment of 14 April 2021, Al Tarazi v Council, T‑260/19, not published, EU:T:2021:187, paragraph 69 and the case-law cited). 136 Second, the applicant argues that the CDE is not a public body, but rather an organisation defending the interests of undertakings and employers which acts in an advisory capacity to the President of the Republic of Belarus, and the opinions of which are regularly rejected or not acted upon. 137 In that regard, it should be noted that it is apparent from a document entitled ‘General information’, published on the CDE website and placed on the file by the Council, that the CDE is a permanent advisory body under the Council of Ministers, chaired by the First Deputy Prime Minister of the Republic of Belarus, and the articles of association of which were approved by decree of the President of the Republic of Belarus. 138 It is apparent from the document in question that the CDE’s objective is to ensure effective interaction between business circles and government agencies and bodies, as well as the participation of its representatives in developing public, in particular regulatory, measures. This is reflected in the CDE’s right, in its sphere of competence, to communicate proposals relating to legislation and to submit draft legal acts to public authorities, interact with them and involve members of those authorities in its work. 139 As regards the CDE’s influence on Belarusian legislation, the Council has produced an interview with the Head of the Executive Directorate of the CDE, taken from that body’s website and dated 6 November 2019, from which it is apparent that the CDE was directly involved in a significant number of legal reforms in 2019 in the fields of taxation, criminal law and the regulation of economic activities. 140 Third, as the applicant himself states in his written pleadings, the CDE comprises only 20 members, including himself. That demonstrates that the applicant’s membership of the CDE is a status reserved in particular to a small group of businessmen. 141 The foregoing considerations are thus sufficient to establish that the Council did not err in finding that, at the time when the initial acts were adopted, the applicant was a member of the CDE. Moreover, it follows that membership of the CDE is a status reserved in particular to a small group of businessmen, and involves close and constant links with the authorities of the Lukashenko regime – in particular high-ranking members of the government – with the aim of helping to shape public policy and legislation. – The assessment that the applicant is a member of the presidium of the association Belaya Rus 142 In so far as concerns the association Belaya Rus, the Council states in the initial acts that the applicant ‘is a member of the presidium of the [association Belaya Rus]’. The use of the present tense suggests that this is a fact regarded by the Council as existing on the date on which those acts were adopted. 143 In that connection, the applicant submits that he has not been a member of the presidium or of other elected bodies of the association Belaya Rus since 2018. He has produced before the Court a letter from the Vice-President of that association dated 2 February 2021, according to which ‘as of 2018 [the applicant was no longer] a member of the presidium or of other elected bodies of the association’. 144 Admittedly, the Council relies, in order to counter that evidence, on the applicant’s biography published on the website of the holding company Amkodor, which the Council retrieved on 28 October 2020 and which refers to the applicant’s membership of the association Belaya Rus. It must, however, also be observed that, in its observations on the statement of modification, the Council states that it took into account information brought to its attention by the applicant during the judicial proceedings on the subject of his membership of that association and, as a consequence, amended the grounds of the second set of maintaining acts in order to indicate that he is a former member of that association. 145 The Council, which bears the burden of proof, cannot both dispute and accept the relevance of the evidence produced by the applicant before the Court. 146 Nor can the Council’s argument – which consists, in essence, in relying on the applicant’s past membership of the association Belaya Rus in order to justify the adoption of restrictive measures against the applicant in the initial acts – succeed. Since that membership was wrongly regarded as a fact existing at the time when those acts were adopted, the Council, by such an argument, invites the Court to replace the grounds on which those acts are based, which the Court cannot accept (see, to that effect, judgment of 9 June 2021, Borborudi v Council, T‑580/19, EU:T:2021:330, paragraph 80). 147 It follows that the Council erred in finding that, at the time when the initial acts were adopted, the applicant was a member of the presidium of the association Belaya Rus. – Whether the facts established by the Council demonstrate that the applicant benefits from or supports the Lukashenko regime 148 It follows from the foregoing considerations that the Council did indeed err in finding that, at the time when the initial acts were adopted, the applicant was a member of the presidium of the association Belaya Rus. 149 However, that finding is not sufficient to conclude that the initial acts should be annulled, since the Council rightly found, moreover, that, at the time when the initial acts were adopted, the applicant was one of the leading businessmen operating in Belarus, with business interests in construction, machine building, agriculture and other sectors, that he is one of the persons who benefited most from the privatisation carried out during Lukashenko’s tenure as President, and that he was a member of the CDE. 150 In order to establish that those elements justify the adoption of restrictive measures against the applicant in the initial acts, the Council refers to document WK 14796/2020 EXT 3 and claims that, in a country such as Belarus, activities which are sustained over time on the scale of those of the applicant are not possible without the endorsement of the regime. 151 In that connection, it should be observed that, as at the date on which the initial acts were adopted, it was apparent from Article 4(1)(b) of Decision 2012/642 and Article 2(5) of Regulation No 765/2006 that these essentially concerned persons benefiting from or supporting the Lukashenko regime, as well as legal persons, entities or bodies owned or controlled by them. However, neither that decision nor that regulation contained definitions of the concepts of ‘benefit’ derived from the Lukashenko regime or of ‘support’ for that regime. Nor did they contain any details regarding how those matters are to be proved. Consequently, neither that decision nor that regulation established a presumption that the heads of the leading businesses of Belarus support the Lukashenko regime. Consequently, it cannot be inferred from the mere fact that he is one of the leading businessmen operating in Belarus that the applicant supports the Lukashenko regime or benefits from it (see, to that effect, judgment of 21 April 2015, Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraphs 43 and 44). 152 However, the items of evidence produced by the Council concerning the conditions under which economic activities are exercised in Belarus may be taken into account in the examination of the evidence not in isolation, but in the context to which it belongs, in accordance with the case-law cited in paragraph 111 above. 153 In that connection, amongst the items of evidence set out in document WK 14796/2020 EXT 3, the article published on the website ‘cepa.org’ dated 30 July 2020, the article published on the website ‘naviny.belsat.eu’ dated 15 October 2015, the article published on the website ‘news.tut.by’ dated 13 December 2016, the article published on the website ‘en.belpan.by’ dated 9 July 2020 and the article published on the website ‘russian.rt.com’ on 22 March 2016 are so consistent that the exercise of significant economic activities by businessmen in Belarus is possible only with the endorsement of the Lukashenko regime. Among those articles, the article published on the website ‘naviny.belsat.eu’ and that published on the website ‘news.tut.by’ refer to the applicant as one of the businessmen whose activities benefit from such endorsement. 154 Admittedly, the applicant criticises the items of evidence set out in document WK 14796/2020 EXT 3. However, he merely makes unsubstantiated claims that those documents are ‘general, anecdotal in character … based on conjecture … and not actual’ without providing further details, and maintains that the information in the article published on the aforementioned website ‘news.tut.by’ dates from 2016 or even before, is not actual but speculative and in any event outdated by the events of recent years without, however, putting forward any specific and detailed explanation. 155 It follows that, in the light of the context described in paragraph 153 above, the Council did not err in finding that the applicant’s position in Belarusian economic life, his membership of the CDE, his status as principal shareholder and chairman of the board of directors of the holding company Amkodor and as shareholder of the holding company SALEO, the fact that the assets of those holding companies were added to as a result of the privatisation of State-owned undertakings, together with the fact that the applicant belongs to a small group of Belarusian businessmen who benefited most from that privatisation during Lukashenko’s tenure as President, constituted a sufficiently concrete, precise and consistent body of evidence to establish that he benefits from and supports the regime. 156 It should also be observed that the applicant’s arguments are not sufficient to call that conclusion into question. 157 In the first place, the applicant claims that the privatisation referred to by the Council took place during the period from 2007 to 2014, during which time the applicant had no decisive influence over the holding company Amkodor. In his view, the role of chairman of the board of directors of that holding company, which he has exercised since 2005, is organisational and not decision-making in nature, and his participation in that holding company, whether direct or indirect, was always a minority shareholding between 2007 and 2018. In any event, the privatisation of State-owned undertakings between 2007 and 2014 is outdated information which could not be taken into account at the time when the initial acts were adopted. 158 In that regard, as to whether the applicant is justified in claiming that he did not exercise decisive influence over the decisions of the holding company Amkodor during the period from 2007 to 2014 during which the privatisation of certain State-owned undertakings took place, it should be noted that, according to the applicant’s own statements, the applicant accepts that he has, since 2005, occupied the position of chairman of the board of directors of that holding company and, since that date, has directly or indirectly held an increasing shareholding in that holding company, amounting to at least 35% of the capital thereof in 2014. These are elements which, taken together, undoubtedly gave the applicant power to influence that holding company’s decisions, contrary to what the applicant maintains. 159 Moreover, it is true that the grounds of the initial acts refer to ‘privatisation during Lukashenko’s tenure as President’, which is therefore a past event. 160 However, as regards the possibility for the Council to rely on past events in order to justify the inclusion of a person on the lists at issue, the applicant wrongly refers to the case-law from which it is apparent that a measure freezing funds must identify the ‘actual and specific reasons’ why the Council considers, in the exercise of its discretion, that such a measure must be adopted in respect of the person concerned. That case-law relates to the qualities which the statement of reasons, required by the second paragraph of Article 296 TFEU, must fulfil in order to show clearly and unequivocally the reasoning of the institution which is the author of the act (see, to that effect, judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraphs 50 to 52). 161 In so far as concerns the substantive examination of the relevance – in particular the temporal relevance – of the facts relied on by the Council to justify the inclusion of a person’s name on the lists at issue, reference should be made to the relevant criteria laid down in Article 4(1) of Decision 2012/642 and in Article 2(4) and (5) of Regulation No 765/2006. 162 In that regard, first, it cannot be considered that the use, in Article 4(1) of Decision 2012/642 and in Article 2(4) and (5) of Regulation No 765/2006, of the present participle in the definition of the listing criteria means that the conduct giving rise to the entry of a person’s or entity’s name on the lists at issue must be ongoing when the decision is taken to list or maintain that listing. It has already been held that, as regards inclusion on a list of the names of persons and entities subject to restrictive measures, the present participle refers to the general meaning particular to legal definitions, not to a given period of time (see, to that effect, judgment of 12 February 2020, Boshab v Council, T‑171/18, not published, EU:T:2020:55, paragraph 83 and the case-law cited). 163 Second, the fact that the grounds for including the applicant’s name on the list at issue refer to conduct which occurred before the adoption of the contested decision and which had ended as at that date does not necessarily mean that the restrictive measures maintained against him by that decision are obsolete. For the purposes of establishing that the applicant benefits from or supports the Lukashenko regime, such a reference cannot, as a matter of principle, be regarded as irrelevant solely on the ground that certain actions belong to the more or less distant past (see, to that effect, judgment of 12 February 2020, Boshab v Council, T‑171/18, not published, EU:T:2020:55, paragraph 84 and the case-law cited). 164 That interpretation is supported by Article 8 of Decision 2012/642, under which that decision is to be kept under constant review and is to be renewed or amended, as appropriate, if the Council deems that its objectives have not been met, and by Article 8a(4) of Regulation No 765/2006, from which it is apparent that the list in Annex I to that regulation is to be reviewed at regular intervals and at least every 12 months. If those provisions are not to be rendered redundant, they must be considered to allow the continued inclusion on the lists at issue of the names of persons and entities not having committed any act which shows that they benefit from or support the Lukashenko regime during the period preceding the review, if that continued inclusion is still justified in the light of all the relevant circumstances and, in particular, of the fact that the objectives pursued by the restrictive measures have not been achieved (see, to that effect, judgment of 12 February 2020, Boshab v Council, T‑171/18, not published, EU:T:2020:55, paragraph 85 and the case-law cited). 165 Consequently, contrary to what the applicant claims, the facts which occurred before the initial acts were adopted and which were completed as at that date cannot be disregarded as a matter of principle. Those facts must be assessed on a case-by-case basis, in the context of all the relevant circumstances, in order to determine whether they show that the applicant is one of the individuals benefiting from or supporting the Lukashenko regime. 166 In the light of the foregoing, it must be observed that, on the date on which the application was lodged, the applicant acknowledged that he had held a 62% shareholding in the holding company Amkodor since 2018, of which he was, moreover, chairman of the board of directors. Moreover, the applicant does not claim that the State-owned undertakings that were privatised during Lukashenko’s tenure as President are no longer amongst the assets of that holding company. 167 However, the fact that the assets of the holding company Amkodor which the applicant held at the time when the initial acts were adopted were added to as a result of the privatisation, during Lukashenko’s tenure as President, of certain State-owned undertakings is relevant for the purposes of establishing that the applicant is one of the individuals benefiting from the Lukashenko regime. 168 As to the applicant’s claim that the holding company SALEO, which was also a beneficiary of the privatisation of certain State-owned undertakings during Lukashenko’s tenure as President, is the subject of insolvency proceedings opened in September 2020, in respect of which his personal assets were seized or pledged in security, this is in no way substantiated, since the applicant confines himself to claiming that it is ‘a fact widely publicised in the media’. In any event, the fact that that holding company, controlled by the applicant, was able to acquire State-owned undertakings during privatisation, just as the holding company Amkodor did, is relevant for the purposes of establishing that the applicant is one of the persons benefiting from the Lukashenko regime. 169 In the second place, the applicant claims that the privatisation at issue took place in full compliance with Belarusian legislation, following competitive tendering on the basis of calls for tenders involving significant commitments in terms of protection of employment, development, and modernisation of acquired entities, with the result that they cannot be regarded as preferential treatment on the part of the regime. The reason why State undertakings could be acquired was that these were in a difficult situation and the holding company Amkodor was the only investor able to provide the financial, technical and material resources to render them competitive. 170 In that connection, as the Council observes, the applicant merely refers to Belarusian legislation which is relevant in his view, the existence of calls for tenders and the fact that the holding company Amkodor was the only investor able to acquire privatised State-owned undertakings, without providing any evidence whatever in that regard. He has produced only a series of photographs intended to demonstrate that the premises of the privatised State-owned undertakings were initially in very poor condition and that they have since been the subject of large-scale renovations. However, that does not demonstrate that those undertakings were faced with such difficulties that only that holding company could acquire them following a competitive tendering procedure on the basis of calls for tender. 171 In the third place, the applicant claims that the holding company Amkodor and its shareholders did not benefit from the privatisation of certain State-owned undertakings during Lukashenko’s tenure as President, because those companies were not profitable and no dividends were distributed. The same applies to the holding company SALEO. 172 It should be observed that, in the grounds of the initial acts, the Council did not find that the applicant derived a financial benefit from the regime. 173 Moreover, the acquisition of control of certain undertakings may in itself appear to be a profit, although that may not involve immediate financial profits. In that regard, it is apparent in particular from the application that ‘what [the holding company Amkodor] found particularly valuable in those [State-owned undertakings over which it acquired control], was the experience and know-how of the employees in the privatised entities’. 174 It cannot therefore be argued that the holding companies in question and, consequently, the applicant who manages those companies and holds shares in the capital thereof have derived no profit from the privatisation of State-owned undertakings. 175 In the fourth place, it is to no avail that the applicant relies on an article published on the website ‘Euroradio.fm’ on 22 March 2021 in order to claim that it contains statements from a Belarusian opposition member which are favourable to the applicant. In accordance with the case-law cited in paragraph 135 above, that fact subsequent to the initial acts cannot be taken into account in the examination of the lawfulness of those acts. 176 In the light of all the foregoing considerations, the grounds on which, at the time when the initial acts were adopted, the applicant was one of the leading businessmen operating in Belarus, with business interests in construction, machine building, agriculture and other sectors, that he is one of the persons who benefited most from the privatisation carried out during Lukashenko’s tenure as President, and that he was a member of the CDE, and, as such, benefited from and supported the Lukashenko regime, have been substantiated to the requisite legal standard. 177 In accordance with the case-law cited in paragraph 112 above, that finding is sufficient to reject the plea alleging errors of assessment as regards the initial acts, without there being any need to examine the applicant’s arguments directed against the other grounds justifying those acts, since the fact that those grounds may not be substantiated cannot lead to the annulment of those acts. The first set of maintaining acts 178 It should be noted that the first set of maintaining acts, like the initial acts, are based on the grounds that the applicant is one of the leading businessmen operating in Belarus, with business interests in construction, machine building, agriculture and other sectors, that he is one of the persons who benefited most from the privatisation carried out during Lukashenko’s tenure as President and that he is a member of the presidium of the association Belaya Rus and the CDE and, as such, benefits from and supports the Lukashenko regime. 179 In the first place, it should be observed that the assessment that, at the time when the first set of maintaining acts were adopted, the applicant was a member of the presidium of the association Belaya Rus is incorrect for the same reasons as those set out in paragraphs 142 to 147 above. 180 Furthermore, it is to no avail that the Council claims that the applicant failed to forward to it the letter dated 2 February 2021 from the Vice-President of the association Belaya Rus before the adoption of the first set of maintaining acts at the time of the request for review of 23 December 2020. 181 The applicant may in fact submit, at any time, observations or new evidence, in accordance with Article 6(3) of Decision 2012/642 and Article 8a(3) of Regulation No 765/2006, as amended, but this is a power vested in the applicant which cannot relieve the Council from the burden of proof incumbent on it before the Court (see, to that effect, judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 73). Accordingly, in the present case, the letter dated 2 February 2021 may legitimately be produced, for the first time, in support of the present action, even though it had not been annexed to the request for review of 23 December 2020. 182 In the second place, as regards the grounds of the first set of maintaining acts set out in paragraph 178 above, other than those relating to the applicant’s membership of the presidium of the association Belaya Rus, it should be noted that, in support of those acts, the Council has produced, inter alia, documents WK 13841/2020 INIT and WK 14796/2020 EXT 3 on which it relied in support of the initial acts. Furthermore, it puts forward the same arguments supported by the same evidence as those put forward in relation to the latter acts. The applicant, for his part, raises arguments and produces identical evidence against the initial acts and the first set of maintaining acts. 183 Consequently, for the same reasons as those set out in paragraphs 117 to 141 and 148 to 176 above, it must be found that the grounds of the first set of maintaining acts – according to which, at the time when those acts were adopted, the applicant was one of the leading businessmen operating in Belarus, with business interests in construction, machine building, agriculture and other sectors, that he is one of the persons who benefited most from the privatisation carried out during Lukashenko’s tenure as President and that he is a member of the CDE and, as such, benefited from and supported the Lukashenko regime – have been substantiated to the requisite legal standard. 184 The foregoing conclusion is all the more valid inasmuch as, with regard to the privatisation of State-owned undertakings from which the applicant benefited, the body of evidence referred to in paragraph 155 above is reinforced by three documents contained in document WK 1772/2021 INIT which was added by the Council to its file at the time when the first set of maintaining acts were adopted: – an article published on the website ‘gomel.today’, dated 9 January 2020, from which it is apparent that the undertaking Gidroprivod established in Gomel was acquired by the holding company SALEO under Presidential Decree No 328 of 2014 and that ‘there was no traditional competitive bidding’; – an article published on the website ‘news.tut.by’, dated 30 June 2011, according to which the holding company Amkodor was to be allowed to buy, ‘out of competition’, three State-owned undertakings, including ‘Dzerzhinsky Plant Agromash’ and ‘Minsk Instrument-Making Plant’; – an article published on the website ‘news.tut.by’, dated 26 August 2013, relating to the acquisition, inter alia, of ‘Dzerzhinsk Experimental Mechanical Plant’ containing the applicant’s statements that ‘[local authorities] approached us with an offer [to buy the factories]’ and ‘we carried out an assessment and agreed. Now a draft decree has been prepared that will allow us to buy out the factories’. 185 It is apparent from the items of evidence at issue that the undertakings controlled by the applicant acquired State-owned undertakings not following calls for tenders open to competition, but as a result of exceptional treatment or proposals made directly by the public authorities, which supports the existence of favour on the part of the regime. 186 When questioned, at the hearing, on the items of evidence at issue, the applicant, in order to explain the absence of a competitive tendering procedure when certain State-owned undertakings were privatised, merely reiterated the argument that these were undertakings experiencing significant difficulties and that the holding company Amkodor was the only private operator in Belarus in a position to acquire them. Such an argument, which is not otherwise substantiated, cannot suffice to counter the evidence produced by the Council. 187 In the light of the foregoing, and in accordance with the case-law cited in paragraph 112 above, the finding that the grounds set out in paragraph 178 above have been substantiated to the requisite legal standard is sufficient to reject the plea alleging errors of assessment in so far as concerns the first set of maintaining acts, without there being any need to examine the applicant’s arguments directed against the other grounds justifying those acts, since the fact that those grounds are unsubstantiated cannot lead to the annulment of those acts. The second set of maintaining acts 188 In the first place, it should be noted that the second set of maintaining acts, like the initial acts and the first set of maintaining acts, are based on the grounds that the applicant is one of the leading businessmen operating in Belarus, with business interests in construction, machine building, agriculture and other sectors, and that he is one of the persons who benefited most from the privatisation carried out during Lukashenko’s tenure as President. 189 By contrast, unlike the grounds of the initial acts and the first set of maintaining acts, first, the grounds of the second set of maintaining acts indicate that the applicant is a ‘former’ member of the presidium of the association Belaya Rus and of the CDE. 190 Second, the grounds of the second set of maintaining acts do not state that, as a result of the matters referred to in paragraphs 188 and 189 above, the applicant benefits from and supports the Lukashenko regime. 191 In the first place, it should be noted, as regards the absence of any mention that the applicant benefits from and supports the Lukashenko regime, that the Council, at the hearing, claimed that this is a clerical error. 192 In the present case, it should be observed that the second set of maintaining acts are also based on the criteria laid down in Article 4(1)(b) of Decision 2012/642, a provision to which Article 2(5) of Regulation No 765/2006 refers, namely ‘natural or legal persons, entities or bodies benefiting from or supporting the Lukashenk[o] regime’, which the applicant acknowledges in the statement of modification, since he disputes the allegation that he benefits from and supports the Lukashenko regime. 193 In the second place, as regards the grounds referred to in paragraph 188 above, it should be noted that, in support of the second set of maintaining acts, the Council reiterates the arguments put forward in relation to the initial acts and the first set of maintaining acts and contends that it has proved that these are well founded. It has also placed on the file document WK 15381/2021 REV 1, which contains an extract from the website ‘amkodor.by’ dated 3 January 2022 stating that the applicant remains, as at that date, chairman of the board of directors of the holding company Amkodor. 194 The applicant, for his part, reiterates the arguments and maintains the evidence already produced against the initial acts and the first set of maintaining acts. He does not claim that new facts which have arisen since the first set of maintaining acts would render obsolete the evidence on which the Council relies. 195 Admittedly, first, in the statement of modification, the applicant amplifies his criticism of the evidence of his interests in the agriculture sector by referring to the documents enclosed with the Council’s letter of 17 January 2022. For the reasons set out in paragraphs 119 and 120 above, that argument cannot succeed, since it has been established that the applicant has interests in the machine-building sector. 196 Second, the applicant also relies on the article published on the website ‘Euroradio.fm’ on 22 March 2021, referred to in paragraph 175 above, which can be taken into account with regard to the second set of maintaining acts, since it existed on the day on which those acts were adopted. 197 However, the article at issue merely refers to the statements of a politician and economist, presented by the applicant as a member of the Belarusian opposition. According to those statements, the applicant is not a businessman ‘who work[s] with state resources, suppressing competitors’ but is involved ‘in a competitive field’ and is ‘pressed by ministries, departments, government’. The applicant’s companies’ financial indicators show that he ‘is not playing on the side of the authorities’ and ‘the fact that [he] saves his business, contacts the government or Lukashenko, is hardly a reason for being included on the [lists at issue]’. Such statements do not refer to any specific evidence capable of contradicting the evidence relied on by the Council to justify maintaining the restrictive measures against the applicant in the second set of maintaining acts. 198 Therefore, for the reasons already set out in paragraphs 117 to 132, 149 to 174 and 184 to 186 above, the applicant has failed to establish that the grounds referred to in paragraph 188 above are vitiated by an error of assessment. 199 In the third place, as regards the grounds that the applicant is a former member of the presidium of the association Belaya Rus and of the CDE, the Council states that it took account, during the annual review of the restrictive measures, of the statements made in the application and in the reply, from which it is apparent that the applicant is no longer a member of those entities. 200 In the statement of modification, the applicant claims that, in so doing, the Council relied on facts which were out of date. 201 In that regard, it should be recalled that facts which occurred before the adoption of the second set of maintaining acts and which had ended as at that date cannot be disregarded as a matter of principle. Those facts must be assessed on a case-by-case basis, in the context of all the relevant circumstances, in order to determine whether they show that the applicant is one of the individuals benefiting from or supporting the Lukashenko regime (see paragraph 165 above). 202 In the present case, first of all, as regards the applicant’s membership of the association Belaya Rus, it should be noted that four years elapsed between the applicant ceasing to occupy a position within that association and the adoption of the second set of maintaining acts, which is a considerable period of time. 203 Furthermore, the Council’s argument that the applicant’s past membership of the association Belaya Rus remains relevant because he continues to support the regime cannot succeed. 204 In that regard, the Council relies on an article published on the website ‘gomel.today’, dated 29 December 2020, from which it is apparent that the applicant stated that ‘[he] very highly appreciate[d] what the President ha[d] done for the country and for the industry of Belarus’ that ‘[the President had] kept production’, that it was necessary to ‘look what [had] happened in this sense in Germany, Lithuania, Latvia, Russia’ and that ‘it [was] a great thing that we have the opportunity to develop!’. First, that statement is unrelated to the applicant’s activities within the association Belaya Rus. Second, a laudatory comment on the economic policy of President Lukashenko cannot, in itself, constitute support for the regime within the meaning of Article 4(1)(b) of Decision 2012/642. 205 It follows that, in view of the applicant’s former membership of the association Belaya Rus, the Council erred in finding that this could justify maintaining the restrictive measures against the applicant in the second set of maintaining acts. 206 As regards the applicant’s status as a former member of the CDE, first, it should be borne in mind that, as the Council has established, that factor may be regarded as relevant in so far as it is a status reserved to a small group of businessmen and that it involves close and constant links with the authorities of the Lukashenko regime, in particular high-level members of the government, with the aim of contributing to the definition of public policies and legislation in the country’s interest (see paragraphs 141 and 155 above). 207 Second, only a few months elapsed between the time when the applicant ceased to occupy a position within the CDE and the adoption of the second set of maintaining acts, with the result that past membership of that entity is not a sufficiently outdated fact as to be excluded. Furthermore, the applicant has adduced no evidence to explain how the fact that he is no longer a member of the CDE at the latest since the reply was lodged on 30 August 2021 makes his former membership of that entity irrelevant. 208 It follows that the Council did not err in relying on the applicant’s status as a former member of the CDE in order to justify maintaining the restrictive measures against the applicant in the second set of maintaining acts. 209 In the light of the foregoing, the grounds of the second set of maintaining acts, according to which, at the time when those acts were adopted, the applicant was one of the leading businessmen operating in Belarus, with business interests in construction, machine building, agriculture and other sectors, that he was one of the persons who benefited most from the privatisation carried out during Lukashenko’s tenure as President and that he was a former member of the CDE, and, as such, benefited from and supported the Lukashenko regime, have been substantiated to the requisite legal standard. 210 Furthermore, in accordance with the case-law cited in paragraph 112 above, the finding that those grounds have been substantiated to the requisite legal standard is sufficient to reject the plea alleging errors of assessment in so far as concerns the second set of maintaining acts, without there being any need to examine the applicant’s arguments directed against the other grounds justifying those acts, since the fact that those arguments are unsubstantiated cannot lead to the annulment of those same acts. 211 In the light of all the foregoing considerations, the present plea must be rejected in its entirety. The plea alleging failure to state reasons 212 In the context of the first plea raised in the application and the second part of the third plea raised in the reply, the applicant states that the criterion laid down in Article 4(1)(a) of Decision 2012/642 concerns, in particular, the persons responsible for the repression of civil society and democratic opposition in Belarus, whereas the criterion set out in point (b) of that provision refers, in particular, to persons benefiting from or supporting the Lukashenko regime. 213 In the present case, document WK 13841/2020 INIT which the Council sent to the applicant refers to Article 4(1)(b) of Decision 2012/642 and the items of evidence contained therein are intended to support his listing on that basis. 214 However, only the first part of the grounds of the initial acts and the first set of maintaining acts, which ends with the conclusion that the applicant benefits from and supports the Lukashenko regime, corresponds to the criterion set out in Article 4(1)(b) of Decision 2012/642. By contrast, the last part of those grounds, according to which ‘in July 2020 he made public comments condemning the opposition protests in Belarus, thereby contributing to the repression of civil society and democratic opposition’, might suggest that the criterion laid down in Article 4(1)(a) of that decision is also relevant. 215 Therefore, it is not possible for the applicant to ascertain whether he is included on the lists at issue solely on the basis of the criterion laid down in Article 4(1)(b) of Decision 2012/642 or on the basis of the two criteria laid down in points (a) and (b) of that provision. 216 In the statement of modification, the applicant adds that the grounds of the second set of maintaining acts were amended so as to remove any reference to his responsibility for the repression of civil society, which demonstrates the ambiguity of the grounds of the initial acts and of the first set of maintaining acts. 217 The Council’s response is that, inasmuch as it is set out in the reply, the present plea is a new plea which is inadmissible and that the obligation to state reasons has been observed. 218 In the first place, it has consistently been held that an absence of or an inadequate statement of reasons constitutes an infringement of essential procedural requirements for the purposes of Article 263 TFEU and is a plea involving a matter of public policy which may, and even must, be raised by the EU Courts of their own motion (see judgment of 20 July 2017, Badica and Kardiam v Council, T‑619/15 P, EU:T:2017:532, paragraph 42 and the case-law cited). 219 In those circumstances, the Court may hear the present plea, without it being necessary to examine whether, in accordance with Article 84(1) of the Rules of Procedure, that plea, inasmuch as it is set out in the reply, is based on ‘matters of law or of fact which come to light in the course of the procedure’. 220 In the second place, it should be observed that the applicant’s arguments are directed solely against the final parts of the grounds of the contested acts, which relate to the public comments he made in July 2020, in that the Council created ambiguity as to whether or not they refer to the criterion laid down in Article 4(1)(a) of Decision 2012/642. 221 By contrast, the applicant does not dispute that it is clear from the first three paragraphs of the grounds of the initial acts and the first set of maintaining acts, as well as from the first two paragraphs of the grounds of the second set of maintaining acts, that, in those parts of the grounds, the Council relied on the criteria laid down in Article 4(1)(b) of Decision 2012/642 in order to justify the inclusion of his name on the lists at issue. First, the considerations set out in those parts of the grounds, the clarity of which the applicant does not dispute, are precise and concrete. Second, as is apparent from paragraphs 177, 187 and 210 above, those findings are not vitiated by errors of assessment and that finding is sufficient to justify the contested acts. 222 Consequently, in accordance with the case-law cited in paragraph 112 above, the present plea must be rejected as ineffective. The plea alleging infringement of the principle of sound administration 223 In the statement of modification, the applicant relies on the amendments made to the grounds of the second set of maintaining acts as compared with the grounds of the initial acts and of the first set of maintaining acts in order to raise a fourth plea alleging infringement of the principle of sound administration. He claims that, as a result of those amendments, the Council acknowledged that it had made errors in the amended statement of reasons and should have removed his name from the lists at issue. According to the applicant, this is a considerable procedural irregularity, since the contested acts might have been different had they taken into account at the outset the ambiguous nature of the legal basis justifying the inclusion of his name on the lists at issue and the errors of assessment made by the Council. 224 The Council disputes both the admissibility and the merits of the present plea. 225 As a preliminary point, it should be recalled that the present plea is put forward solely in support of the application for annulment of the second set of maintaining acts (see paragraph 28 above). 226 First, as regards the Council’s argument that the fourth plea is inadmissible, it should be borne in mind that Article 86(4)(a) and (b) of the Rules of Procedure provides that, where appropriate, the statement of modification is to contain the modified pleas in law and arguments. 227 It should also be borne in mind that it would be inequitable if the institution in question were able, in order to counter criticisms of a measure, contained in an application to the Courts of the European Union, to amend the contested measure or to substitute another for it and to rely in the proceedings on such an amendment or substitution in order to deprive the other party of the opportunity of extending its original pleadings to the later measure or of submitting supplementary pleadings directed against that decision (see judgment of 28 September 2022, LAICO v Council, T‑627/20, not published, EU:T:2022:590, paragraph 39). 228 Accordingly, in the present case, it was open to the applicant to rely, as he did, on the amendments made to the grounds of the second set of maintaining acts compared with the grounds of the initial acts and the first set of maintaining acts in order to raise an additional plea alleging infringement of the principle of sound administration when modifying his action. 229 Contrary to the Council’s contention, the present plea is therefore admissible. 230 Second, as regards the substance, it should be noted that the present plea is based on the premiss that the initial acts and the first set of maintaining acts are vitiated by errors of assessment such that the applicant’s name should never have been included on the lists at issue. 231 It is clear from the examination of the plea alleging errors of assessment, carried out in paragraphs 105 to 211 above, that the Council did not make an error of assessment when it adopted the initial acts and the first set of maintaining acts. The premiss on which the present plea is based is therefore unfounded. 232 Accordingly, the present plea must be rejected, and the action dismissed in its entirety. Costs 233 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. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Dismisses the action; 2. Orders Mr Aleksandr Vasilevich Shakutin to pay the costs. Kanninen Półtorak Stancu Delivered in open court in Luxembourg on 7 June 2023. V. Di Bucci M. van der Woude Registrar President Table of contents Background to the dispute and facts subsequent to the bringing of the action Forms of order sought Law Preliminary observations on the pleas relied on by the applicant The pleas alleging infringement of the right to effective judicial protection and infringement of the rights of the defence Regarding the initial acts and the first set of maintaining acts – Admissibility of the pleas – The merits of the pleas in law The second set of maintaining acts The plea alleging errors of assessment The initial acts – The assessment that the applicant is one of the leading businessmen operating in Belarus, with business interests in construction, machine building, agriculture and other sectors – The assessment that the applicant is one of the persons who benefited most from privatisation during Lukashenko’s tenure as President – The assessment that the applicant is a member of the CDE – The assessment that the applicant is a member of the presidium of the association Belaya Rus – Whether the facts established by the Council demonstrate that the applicant benefits from or supports the Lukashenko regime The first set of maintaining acts The second set of maintaining acts The plea alleging failure to state reasons The plea alleging infringement of the principle of sound administration Costs * Language of the case: English.