JUDGMENT OF THE GENERAL COURT (First Chamber)
20 March 2024 (*)
(Common foreign and security policy – Restrictive measures taken in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine – Freezing of funds – List of persons, entities and bodies subject to the freezing of funds and economic resources – Change of the factual and legal circumstances which led to the adoption of the restrictive measures – Concept of ‘association’ – Error of assessment)
In Case T‑743/22,
Nikita Dmitrievich Mazepin, residing in Moscow (Russia), represented by D. Rovetta, M. Campa, M. Moretto, V. Villante, T. Marembert and A. Bass, lawyers,
applicant,
v
Council of the European Union, represented by J. Rurarz and P. Mahnič, acting as Agents,
defendant,
supported by
Republic of Latvia, represented by J. Davidoviča and K. Pommere, acting as Agents,
intervener,
THE GENERAL COURT (First Chamber),
composed of D. Spielmann, President, M. Brkan and T. Tóth (Rapporteur), Judges,
Registrar: I. Kurme, Administrator,
having regard to the written part of the procedure,
further to the hearing on 5 December 2023,
gives the following
Judgment
1        By his action under Article 263 TFEU, the applicant, Mr Nikita Dmitrievich Mazepin, seeks the annulment:
–        of Council Decision (CFSP) 2022/1530 of 14 September 2022 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 239, p. 149), of Council Implementing Regulation (EU) 2022/1529 of 14 September 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 239, p. 1) (together, ‘the first set of maintaining acts’), and of the letter of 15 September 2022 by which the Council of the European Union decided to maintain his name on the list of persons, entities and bodies covered by the restrictive measures provided for by Council Decision 2014/145/CFSP of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 16), as amended, in so far as those acts maintain his name on the lists annexed to the acts;
–        of Council Decision (CFSP) 2023/572 of 13 March 2023 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2023 L 75I, p. 134), of Council Implementing Regulation (EU) 2023/571 of 13 March 2023 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2023 L 75I, p. 1) (together, ‘the second set of maintaining acts’), and of the letter of 14 March 2023 by which the Council decided to maintain his name on the list of persons, entities and bodies covered by the restrictive measures provided for by Council Decision 2014/145/CFSP of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 16), as amended, and by Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 6), as amended, in so far as those acts maintain his name on the lists annexed to the acts;
–        of Council Decision (CFSP) 2023/1767 of 13 September 2023 amending Decision 2014/145 (OJ 2023 L 226, p. 104), of Council Implementing Regulation (EU) 2023/1765 of 13 September 2023 implementing Regulation (EU) No 269/2014 (OJ 2023 L 226, p. 3) (together, ‘the third set of maintaining acts’ and, taken together with the first and second sets of maintaining acts, the ‘contested acts’), and of the letter of 15 September 2023 by which the Council decided to maintain his name on the list of persons, entities and bodies covered by the restrictive measures provided for by Council Decision 2014/145 (OJ 2014 L 78, p. 16), as amended, and by Regulation No 269/2014 (OJ 2014 L 78, p. 6), as amended, in so far as those acts maintain the applicant’s name on the lists annexed to the acts.
I.      Background to the dispute
A.      The initial inclusion of the applicant’s name on the lists of persons subject to the restrictive measures
2        The present case has been brought in connection with the restrictive measures adopted by the European Union in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine.
3        The applicant is a citizen of Russian nationality.
4        On 17 March 2014, the Council adopted, on the basis of Article 29 TEU, Decision 2014/145.
5        On the same date, the Council adopted, on the basis of Article 215(2) TFEU, Regulation No 269/2014 (OJ 2014 L 78, p. 6).
6        On 25 February 2022, in view of the gravity of the situation in Ukraine, the Council adopted Decision (CFSP) 2022/329 amending Decision 2014/145 (OJ 2022 L 50, p. 1) and Regulation (EU) 2022/330 amending Regulation No 269/2014 (OJ 2022 L 51, p. 1), in order, inter alia, to amend the criteria according to which natural or legal persons, entities or bodies could be subject to the restrictive measures at issue.
7        Article 2(1) and (2) of Decision 2014/145, as amended by Decision 2022/329, is worded as follows:
‘1.      All funds and economic resources belonging to, or owned, held or controlled by:
…
(g)      leading businesspersons or legal persons, entities or bodies involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine,
and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.
2.      No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in the Annex.’
8        The detailed rules governing that freezing of funds are laid down in the subsequent paragraphs of that article.
9        Article 1(1)(e) of Decision 2014/145, as amended by Decision 2022/329, prohibits the entry into or transit through the territories of the Member States of natural persons who satisfy essentially the same criteria as those set out in Article 2(1)(g) of that decision.
10      Regulation No 269/2014, as amended by Regulation 2022/330, requires the adoption of measures to freeze funds and lays down the detailed rules governing that freezing in terms essentially identical to those of Decision 2014/145, as amended by Decision 2022/329. Article 3(1)(a) to (g) of that regulation essentially reproduces the content of Article 2(1)(a) to (g) of that decision.
11      By Council Decision (CFSP) 2022/397 of 9 March 2022 amending Decision 2014/145 (OJ 2022 L 80, p. 31) and Council Implementing Regulation (EU) 2022/396 of 9 March 2022 implementing Regulation (EU) No 269/2014 (OJ 2022 L 80, p. 1) (‘the initial acts’), the applicant’s name was added, respectively, to the list annexed to Decision 2014/145 and to that contained in Annex I to Regulation No 269/2014 (‘the lists at issue’) for the following reasons:
‘[The applicant] is the son of Dmitry Arkadievich Mazepin, General Director of JSC UCC Uralchem. As Uralchem sponsors Haas F1 Team, Dmitry [Arkadievich] Mazepin is the major sponsor of his son’s activities at Haas F1 Team.
He is a natural person associated with a leading businessperson (his father) involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine.’
12      By letter of 21 April 2022, the applicant requested that the Council provide him with access to the documents on the basis of which the initial acts concerning him were adopted.
13      By letter of 28 April 2022, the Council communicated the information upon which it relied in order to adopt the initial acts and which is contained in the file bearing the reference WK 3065/2022 INIT, dated 8 March 2022 (‘the first WK file’).
14      By letter of 31 May 2022, the applicant asked the Council to reconsider the decision to include him on the lists at issue.
15      By letter of 20 June 2022, the Council informed the applicant of its intention to renew the restrictive measures imposed on him with a new statement of reasons.
16      By letter of 4 July 2022, the applicant replied to the Council’s letter of 20 June 2022, but did not bring an action before the General Court seeking the annulment of the initial acts.
B.      The maintaining of the applicant’s name on the lists at issue until 15 March 2024
17      On 14 September 2022, the Council adopted the first set of maintaining acts, which extended the application of the initial acts until 15 March 2023. The reasons for including the applicant’s name on the lists at issue were amended as follows:
‘[The applicant] is the son of Dmitry Arkadievich Mazepin, former General Director of JSC UCC Uralchem. He was a driver at Haas F1 Team until March 2022, sponsored by Uralchem.
He is a natural person associated with a leading businessperson (his father) involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine.’
18      Thus, the main amendment vis-à-vis the initial acts consisted in the update to the applicant’s position in the Haas F1 Team and to his father’s position within Uralchem.
19      By letter of 15 September 2022, the Council, after examining the observations submitted by the applicant in the letters of 31 May and 4 July 2022, informed him that, in its view, those observations did not cast doubt on the assessment that restrictive measures should be maintained against him and that, consequently, it had decided to maintain his name on the lists at issue.
20      By letter of 1 November 2022, the applicant asked the Council to reconsider the decision to maintain his name on the lists at issue.
21      On 25 November 2022, the applicant brought the present action, registered under Case T‑743/22, seeking the annulment of the first set of maintaining acts, in so far as those acts concerned him.
22      By separate document lodged at the General Court Registry on 9 December 2022, the applicant brought an initial application for interim measures, in which he claimed, in essence, that the President of the General Court should suspend in part the operation of the first set of maintaining acts, in so far as his name was maintained on the lists at issue.
23      By letter of 22 December 2022, the Council informed the applicant of its intention to maintain the restrictive measures against him, without amending the reasons for including his name on the lists at issue.
24      On 11 January 2023, the applicant replied to the Council’s letter of 22 December 2022.
25      On 6 February 2023, the Council informed the applicant of its intention to renew the restrictive measures imposed on him, on the basis of the file bearing the reference WK 1127/2023 INIT (‘the second WK file’) and the file bearing the reference WK 1127/2023 ADD 1 (‘the third WK file’), adding the following information to the reasons for including the applicant’s name on the lists at issue: ‘His foundation “We Compete As One” is financed with funds of the Uralkali company and therefore he unduly benefits from his father’.
26      On 15 February 2023, the applicant replied to the Council’s letter of 6 February 2023.
27      By order of 1 March 2023, Mazepin v Council (T‑743/22 R, not published, EU:T:2023:102), the President of the General Court suspended the operation of the first set of maintaining acts in so far as the applicant’s name was maintained on the lists at issue and the costs were reserved.
28      On 7 March 2023, the applicant asked the Council to implement the order of 1 March 2023, Mazepin v Council (T‑743/22 R, not published, EU:T:2023:102).
29      On 13 March 2023, the Council adopted the second set of maintaining acts, which extended the restrictive measures taken against the applicant until 15 September 2023. The reasons for including the applicant’s name on the lists at issue were amended as follows:
‘[The applicant] is the son of Dmitry Arkadievich Mazepin, former General Director of JSC UCC Uralchem. He was a driver at Haas F1 Team until March 2022, sponsored by Uralchem. His foundation “We Compete As One” is financed with funds of the Uralkali company and he therefore unduly benefits from his father.
He is a natural person associated with a leading businessperson (his father) involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine.’
30      Thus, the only amendment vis-à-vis the first set of maintaining acts was the addition of the entry concerning the ‘We Compete As One’ foundation (‘the foundation’).
31      By letter of 14 March 2023, the Council, after examining the observations submitted by the applicant in the letter of 1 November 2022 and in the emails of 11 January and 15 February 2023, informed the applicant that, in its view, those observations did not cast doubt on the assessment that restrictive measures should be maintained against him and that, consequently, it had decided to maintain his name on the lists at issue.
32      By separate document lodged at the Court Registry on 4 April 2023, the applicant brought a second application for interim measures, in which he claimed, in essence, that the President of the General Court should suspend in part the operation of the second set of maintaining acts, in so far as his name was maintained on the lists at issue.
33      By order of 5 April 2023, Mazepin v Council (T‑743/22 R II, not published), the President of the General Court granted that application, pursuant to Article 157(2) of the Rules of Procedure of the General Court.
34      On 5 June 2023, the Council adopted Decision (CFSP) 2023/1094 amending Decision 2014/145 (OJ 2023 L 146, p. 20) and Regulation (EU) 2023/1089 amending Regulation No 269/2014 (OJ 2023 L 146, p. 1).
35      Decision 2023/1094 amended, with effect from 7 June 2023, the criteria for listing the names of the persons subject to the freezing of funds, with the text of Article 2(1)(g) of Decision 2014/145 being replaced with the following text:
‘(g)      leading businesspersons operating in Russia and their immediate family members, or other natural persons, benefitting from them, or businesspersons, legal persons, entities or bodies involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine;’
36      Regulation No 269/2014 was similarly amended by Regulation 2023/1089.
37      On 19 June 2023, the Council informed the applicant of its intention to maintain the restrictive measures against him, making one amendment to the reasons for including his name in the lists at issue, namely by stating that he was an immediate family member benefitting from his father.
38      On 10 July 2023, the Council again told the applicant of its intention to renew the restrictive measures imposed on him, on the basis of the files bearing the references WK 8979/2023 INIT (‘the fourth WK file’), WK 5142/2023 INIT (‘the fifth WK file’) and WK 9510/2023 INIT (‘the sixth WK file’).
39      By order of 19 July 2023, Mazepin v Council (T‑743/22 R II, not published, EU:T:2023:406), the President of the General Court suspended the operation of the second set of maintaining acts, in so far as the applicant’s name was maintained on the lists at issue.
40      By email of 24 July 2023, the applicant emphasised the shortcomings of the Council’s letters of 19 June and 10 July 2023 and the lack of any documentary basis likely to support the statement of reasons adopted.
41      On 28 July 2023, the Council informed the applicant of its intention to renew the restrictive measures imposed on him, on the basis of the file bearing the reference WK 9948/23 INIT (‘the seventh WK file’), adding the following information to the reasons for including the applicant’s name on the lists at issue:
‘He is also associated with his father through joint business interests in the company Hitech GP, which was partly owned by Dmitry [Arkadievich] Mazepin through Uralkali and whose objective is to benefit Nikita Mazepin’s career as a motorsport driver, and which is now owned by a common business associate of the two men. He is an immediate family member benefitting from and associated with his father, Dmitry [Arkadievich] Mazepin, a leading businessperson involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine.’
42      On 18 August 2023, the Council once again told the applicant of its intention to renew the restrictive measures imposed on him, on the basis of the file bearing the reference WK 5142/23 ADD 1 (‘the eighth WK file’).
43      By separate document lodged at the Court Registry on 7 September 2023, the applicant brought a third application for interim measures, in which he claimed, in essence, that the President of the General Court should suspend the announced re-listing of his name on the lists at issue under the same conditions as those provided for by the order of 19 July 2023, Mazepin v Council (T‑743/22 R II, not published, EU:T:2023:406).
44      By order of 7 September 2023, Mazepin v Council (T‑743/22 R III, not published), the President of the General Court granted that application, pursuant to Article 157(2) of the Rules of Procedure.
45      On 13 September 2023, the Council adopted the third set of maintaining acts, which extended the restrictive measures taken against the applicant until 15 March 2024. The reasons for including the applicant’s name on the lists at issue were amended as follows:
‘[The applicant] is the son of Dmitry [Arkadievich] Mazepin, owner and former General Director of JSC UCC Uralchem. He was a driver at Haas F1 Team until March 2022, sponsored by Dmitry [Arkadievich] Mazepin through Uralchem’s subsidiary, Uralkali. His foundation … is set to be financed with funds from Uralkali. He is also associated with his father through joint business interests in the company Hitech GP, which was partly owned by Dmitry [Arkadievich] Mazepin through Uralkali and whose objective is to benefit [the applicant’s] career as a motorsport driver, and which is now owned by a common business associate of the two men.
He is an immediate family member benefitting from and associated with his father, … a leading businessperson involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine.’
46      On 14 September 2023, the applicant made, pursuant to Article 164 of the Rules of Procedure, an application for rectification of the order of 7 September 2023, Mazepin v Council (T‑743/22 R III, not published).
47      By letter of 15 September 2023, the Council, referring to the observations submitted by the applicant in the letters of 31 May, 30 June, 24 July, 10 August and 31 August 2023, informed the applicant that, in its view, those observations did not cast doubt on the assessment that restrictive measures should be maintained against him and that, consequently, it had decided to maintain his name on the lists at issue.
48      By order of 19 September 2023, Mazepin v Council (T‑743/22 R III, not published), the President of the General Court adopted interim measures essentially comparable to those set out in the order referred to in paragraph 44 above and cancelled the order.
49      By order of 28 September 2023, Council v Mazepin (C‑564/23 P(R), EU:C:2023:727), the order of 7 September 2023, Mazepin v Council (T‑743/22 R III, not published) was set aside and the case was referred back to the General Court.
50      By separate document lodged at the Court Registry on 2 October 2023, the applicant brought a fourth application for interim measures, in which he claimed, in essence, that the President of the General Court should suspend the announced re-listing of his name on the lists at issue under the same conditions as those provided for by the order of 19 July 2023, Mazepin v Council (T‑743/22 R II, not published, EU:T:2023:406).
51      By order of 3 October 2023, Mazepin v Council (T‑743/22 R III and T‑743/22 R IV, not published), the President of the General Court granted that application, pursuant to Article 157(2) of the Rules of Procedure.
52      By order of 27 October 2023, Mazepin v Council (T‑743/22 R III, not published, EU:T:2023:693), the President of the General Court dismissed the third application for interim measures.
53      By order of 22 November 2023, Council v Mazepin (C‑585/23 P(R), not published, EU:C:2023:922), the order of 19 September 2023, Mazepin v Council (T‑743/22 R III, not published) was set aside and the case was referred back to the General Court.
II.    Forms of order sought
54      Further to the modifications of the application, the applicant claims, in essence, that the Court should:
–        annul the contested acts and the letters of 15 September 2022, 14 March 2023 and 15 September 2023, in so far as they concern him;
–        order the Council to pay the costs.
55      Further to the observations on the modifications of the application, the Council contends that the Court should:
–        dismiss the action as inadmissible in so far as it seeks the annulment of the three letters of 15 September 2022, 14 March 2023 and 15 September 2023 by which the Council decided to maintain his name on the lists at issue, and as unfounded as to the remainder;
–        order the applicant to pay the costs.
III. Law
A.      Admissibility
56      The Council, without raising a formal objection under Article 130(1) of the Rules of Procedure, contends that the present action is inadmissible in part, based on the applicant’s lack of interest in bringing proceedings against the three letters of 15 September 2022, 14 March 2023 and 15 September 2023.
57      In the present case, as the Council rightly states, the three letters of 15 September 2022, 14 March 2023 and 15 September 2023 were sent to the applicant by the Council in response to the applicant’s claims challenging the maintaining of his name on the lists at issue by Decisions 2022/1530, 2023/572 and 2023/1767, and by Implementing Regulations 2022/1529, 2023/571 and 2023/1765. In those three letters, the Council communicated those acts to the applicant and informed him that the inclusion of his name on the lists at issue remained justified, in essence, because the arguments he had put forward were not sufficient to alter the Council’s conclusions.
58      It follows that the three letters of 15 September 2022, 14 March 2023 and 15 September 2023 are merely informative documents addressed to the applicant, which, as such, cannot be challenged by way of an action for annulment, for the purposes of Article 263 TFEU (see, to that effect, judgment of 13 November 2014, Hamcho and Hamcho International v Council, T‑43/12, not published, EU:T:2014:946, paragraph 80 and the case-law cited).
59      Consequently, the action must be dismissed as inadmissible in so far as it is directed against those three letters.
B.      Substance
60      In support of the action, the applicant raises, in essence, five pleas in law, alleging (i) infringement of the right to effective judicial protection and of the obligation to state reasons; (ii) a ‘manifest’ error of assessment, failure to discharge the burden of proof and breach of the applicable listing criteria; (iii) failure to observe the principle of proportionality and infringement of fundamental rights; (iv) failure to observe the principle of non-discrimination; and (v) failure to comply with essential procedural requirements, infringement of the rights of the defence and breach of the Council’s obligation to review sanctions periodically.
61      The Court considers it appropriate to begin by examining the second plea in law.
1.      The second plea, alleging a manifest error of assessment, failure to discharge the burden of proof and breach of the applicable listing criteria
62      As regards the first and second sets of maintaining acts, the applicant claims that the Council made a manifest error of assessment in maintaining his name on the lists at issue, on the basis of the association criterion laid down in Article 2(1), in fine, of Decision 2014/145, as amended by Decision 2022/329, in Article 3(1), in fine, of Regulation No 269/2014, as amended by Regulation 2022/330, as a person associated with Mr Dmitry Arkadievich Mazepin, whose name was included on the lists at issue pursuant to Article 2(1)(g) of Decision 2014/145, as amended by Decision 2022/329, and in Article 3(1)(g) of Regulation No 269/2014, as amended by Regulation 2022/330 (‘the association criterion’). As regards the third set of maintaining acts, the applicant claims that the Council made a manifest error of assessment in maintaining his name on the lists at issue on the basis of, first, the association criterion and, secondly, the criterion relating to ‘immediate family members … benefitting from a leading businessperson operating in Russia’ (criterion laid down in Article 2(1)(g) of Decision 2014/145, as amended by Decision 2023/1094, in Article 3(1)(g) of Regulation No 269/2014, as amended by Regulation 2023/1089 and, in essence, in Article 1(1)(e) of Decision 2014/145, as amended by Decision 2023/1094; ‘criterion (g) as amended’).
63      In essence, the applicant argues that, in the contested acts, the Council does not adduce, in accordance with its burden of proof, specific, precise and consistent evidence constituting a sufficient factual basis to support maintaining his name on the lists at issue pursuant to those criteria.
64      The Council contests the merits of the second plea in law.
65      As a preliminary point, it should be pointed out that the second plea in law must be regarded as alleging an error of assessment, and not a manifest error of assessment. While it is true that the Council has a degree of discretion to determine, on a case-by-case basis, whether the legal criteria on which the restrictive measures at issue are based are met, the fact remains that the Courts of the European Union must ensure the review, in principle the full review, of the lawfulness of all Union acts (see, to that effect, judgments of 3 July 2014, National Iranian Tanker Company v Council, T‑565/12, EU:T:2014:608, paragraphs 54 and 55, and of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 61 and the case-law cited).
66      Furthermore, it should be emphasised that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires, in particular, that the Courts of the European Union ensure that the decision by which restrictive measures were adopted or maintained, which affects the person or entity concerned individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the 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 (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, paragraph 119, and of 5 November 2014, Mayaleh v Council, T‑307/12 and T‑408/13, EU:T:2014:926, paragraph 128).
67      There is no requirement that that the Council produce before the Courts of the European Union all the information and evidence underlying the reasons alleged in the act the annulment of which is sought. It is however necessary that the information or evidence produced should support the reasons relied on against the person concerned (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, paragraph 122, and of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 67).
68      The assessment of whether the factual basis adopted by the Council is sufficiently solid must be carried out by examining the evidence and information not in isolation but in their context. The Council discharges its burden of proof if it presents to the EU Courts a set of indicia sufficiently specific, precise and consistent 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 20 July 2017, Badica and Kardiam v Council, T‑619/15, EU:T:2017:532, paragraph 99 and the case-law cited). In accordance with case-law, press articles may be used in order to corroborate the existence of certain facts if they are sufficiently specific, precise and consistent as regards the facts there described (see judgment of 14 March 2018, Kim and Others v Council and Commission, T‑533/15 and T‑264/16, EU:T:2018:138, paragraph 108 and the case-law cited).
69      It is the task of 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. It is however necessary that the information or evidence produced should support the reasons relied on against the person concerned (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 121 and 122, and of 3 July 2014, National Iranian Tanker Company v Council, T‑565/12, EU:T:2014:608, paragraph 57).
70      In addition, it should be borne in mind that restrictive measures are of a precautionary and, by definition, provisional nature, the validity of which always depends on whether the factual and legal circumstances which led to their adoption continue to apply and on the need to persist with them in order to achieve their aims. It is thus incumbent on the Council, in the course of its periodic review of those restrictive measures, to conduct an updated assessment of the situation and to appraise the impact of such measures, in order to determine whether they have made it possible to achieve the objectives pursued by the initial inclusion of the names of the persons and entities concerned on the list at issue or whether the same conclusion in respect of those persons and entities can still be drawn (judgment of 12 February 2020, Amisi Kumba v Council, T‑163/18, EU:T:2020:57, paragraphs 58 and 59; see also judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 67 and the case-law cited).
71      In order to justify maintaining a person’s name on the list, the Council is not prohibited from basing its decision on the same evidence justifying the initial inclusion, re-inclusion or previous retention of the name of the person concerned on the list, provided that the grounds for inclusion remain unchanged and the context has not changed in such a way that that evidence is now out of date. That context includes not only the situation of the country in respect of which the system of restrictive measures was established, but also the particular situation of the person concerned (see judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 78 and the case-law cited).
72      It is in the light of those case-law principles that the Court must determine whether the Council made an error of assessment in considering that, in the present case, there was a sufficiently solid factual basis capable of justifying the applicant’s name being maintained on the lists at issue.
(a)    The first set of maintaining acts
73      In the present case, in order to justify maintaining the applicant’s name on the lists at issue in the first set of maintaining acts in accordance with the association criterion, it is not disputed that the Council relied on the same evidence as that contained in the first WK file and on the basis of which it adopted the initial acts. It should be pointed out that the information in question is publicly available, namely links to websites, press articles and screenshots relating to the applicant and his father.
(1)    The scope of the association criterion
74      It must be observed, first of all, that, in the circumstances of the present case, the association criterion involves the establishment of an ‘association’ with a leading businessperson involved in ‘economic sectors providing a substantial source of revenue to the Government of the Russian Federation’. Next, while the criterion of ‘associated’ is often used in Council acts relating to restrictive measures, it is not, as such, defined and its meaning depends on the context and circumstances of the case. Nevertheless, the fact remains that it may be regarded as covering natural or legal persons who are, generally speaking, linked by common interests without, however, requiring a link by means of a common economic activity (see, to that effect, judgment of 8 March 2023, Prigozhina v Council, T‑212/22, not published, EU:T:2023:104, paragraph 93 and the case-law cited). It is also apparent that, in most cases, that concept implies the existence of a link going beyond a family relationship. The concept of ‘association’, provided for by the relevant provisions of Decision 2014/145 and Regulation No 269/2014, may therefore be interpreted as covering any natural or legal person or any entity with a link which goes beyond a family relationship with a person or entity subject to restrictive measures, especially, as in the present case, by virtue of his or her status as a leading businessperson involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation. Lastly, it should be noted that the listing criterion relating to persons ‘associated’ with persons responsible for actions undermining the situation in Ukraine is clearly worded in the present tense, which means that the association must be established at the time the contested acts are adopted (see, to that effect, judgment of 8 March 2023, Prigozhina v Council, T‑212/22, not published, EU:T:2023:104, paragraphs 92 and 93 and the case-law cited).
(2)    The application of the association criterion to the applicant
75      The applicant disputes that this criterion may be applied to him. He submits, in essence, that the first set of maintaining acts are vitiated by an error of assessment since, first, the Council relies only on past situations which are no longer relevant to justify his being maintained on the lists at issue and, secondly, the only allegation serving as grounds for applying the association criterion is unfounded. He argues, first, that Uralchem was never the sponsor of the Haas F1 Team, secondly, that the evidence produced by the Council fails to establish that, by means of the sponsorship agreement between Uralkali and the Haas F1 Team (‘the sponsorship agreement’), he unduly benefited from his father and, thirdly, that that sponsorship agreement was a commercial operation that made perfect economic sense for that company.
76      The Council contests the applicant’s arguments.
77      First, the Council states that the applicant has not been maintained on the lists at issue solely because of his family connection with his father. He was listed for being financially dependent on his father and for unduly benefitting from his father’s position. The Council adds that the short passage of time since the termination of the sponsorship agreement does not support the conclusion that the applicant is no longer financially connected with his father. According to the Council, even after the termination of his contract as a driver at Haas F1 Team, the applicant continues to reap the benefits of his situation, in particular the public recognisability, financial stability and the possibility of being recruited to drive in various top-level motorsport championships. Accordingly, it was that financial connection, and not family ties, that was the decisive factor in including the applicant’s name on the lists at issue.
78      Secondly, the Council contends that, while it is true that it was Uralkali, and not Uralchem, that was the sponsor of the Haas F1 Team, it is beyond doubt that the applicant’s father was the Deputy Chairman of the Board of Directors of Uralkali when the sponsorship agreement was signed and that that company was more than 80% owned by Uralchem, which was itself wholly owned by the applicant’s father. Consequently, his father was controlling both Uralchem and Uralkali and was sponsoring his son’s activities through those two companies.
79      Thirdly, the Council contends that the applicant unduly benefited from his father through the sponsorship agreement, since the applicant could not have obtained the seat as a driver in the Haas F1 Team without bringing the significant sponsorship provided by his father, that sponsorship made little commercial sense for Uralkali, the applicant’s father was responsible for the benefits provided to his son and there is no evidence that that company ever sponsored anyone else for similar sporting activities.
80      Fourthly, the Council contends that, even after he ceased being a driver for the Haas F1 Team, the applicant continued to unduly benefit from his father. According to the applicant’s own statements, and as reported in various press articles, some of which are produced by the Council in the defence, the applicant himself created a foundation financed with the money which Uralkali was supposed to use for sponsoring the Haas F1 Team.
81      In the present case, it must be borne in mind that the applicant’s name was initially included on the lists at issue by the initial acts essentially because he was linked to his father due to their family connection and their respective activities. Indeed it was apparent from those reasons that Mr Dmitry Arkadievich Mazepin, General Director of JSC UCC Uralchem, was, through Uralchem, the major sponsor of his son’s activities in the Haas F1 Team (see paragraph 11 above).
82      In the first set of maintaining acts, the Council continues to refer to the family connection between the applicant and his father and to their positions within Uralchem and the Haas F1 Team. However, the Council updated the statement of reasons relied on in relation to the applicant, stating that his father was the ‘former General Director of JSC UCC Uralchem’ and that ‘until March 2022, [the applicant] was a driver at Haas F1 Team’ (see paragraph 17 above).
83      In that context, it is therefore necessary to ascertain whether, in accordance with the case-law referred to in paragraph 70 above, the Council could, following its updated assessment of the situation carried out in the context of the review of the restrictive measures at issue and on the basis of new information, continue to refer to past situations already relied on in the initial acts concerning the applicant in order to justify maintaining those restrictive measures against him. To that end, it is necessary to examine whether it is apparent from the first WK file that the applicant could be regarded, on the date of adoption of the first set of maintaining acts, as being associated with a leading businessperson for the purposes of the association criterion as defined in paragraph 74 above.
84      In that regard, it should be noted at the outset that, while it is true that the general context of the situation in Ukraine, as regards threats to its territorial integrity, sovereignty and independence, has remained unchanged since the initial acts were adopted, the same is not true of the applicant’s situation.
85      As regards the applicant’s individual situation when the first set of maintaining acts were adopted, it should be pointed out that he was no longer a driver for the Haas F1 Team. The Council itself stated in the reasons for those acts that that position had ceased as from March 2022 (see paragraphs 17 and 82 above). This means that the Council accepted, as demonstrated, the fact that the applicant no longer occupied that position from that date, which, moreover, the Council confirmed in the defence.
86      In the present case, it is therefore clear that the factual basis for the reasons relied on in the first sets of maintaining acts in respect of the applicant, which relates to the association criterion, consists exclusively of his former position as a driver for the Haas F1 Team, allegedly sponsored by Uralchem. Even if those positions might have been sufficient in themselves to justify the initial inclusion of the applicant’s name as being associated with his father for the purposes of the association criterion, the same cannot be said for maintaining his name on the lists at issue, which lists are based on a periodic review of the restrictive measures in order to enable the Council to take account of any changes in circumstances concerning, in particular, the individual situation of the persons subject to them.
87      First, the Council cannot assume from the mere fact that, when the applicant’s name was included on the lists at issue, his father was, through Uralchem, the major sponsor of the applicant’s activities in the Haas F1 Team, that the applicant continues to be associated with his father, even several months after the termination of his contract as a driver for the Haas F1 team and of the sponsorship agreement. If that were the case, it would lead to the applicant’s situation being frozen and to the periodic review provided for, inter alia, in the third paragraph of Article 6 of Decision 2014/145 and Article 14(4) of Regulation No 269/2014 being deprived of any practical effect (see, to that effect and by analogy, judgment of 15 September 2021, Ghaoud v Council, T‑700/19, not published, EU:T:2021:576, paragraph 85 and the case-law cited).
88      Secondly, nor can it be considered that the mere fact that the applicant was a driver for the Haas F1 Team not long before the adoption of the first set of maintaining acts may constitute sufficient evidence that links with a leading businessperson, in this case his father, continued. It is clear from the case-law referred to in paragraph 68 above that the appropriateness of maintaining the applicant’s name on the lists at issue must be examined in its overall context and not in isolation.
89      It is true that it cannot automatically be ruled out that the applicant might still be classified as a person linked to his father by common interests, even after his position as a driver in the Haas F1 Team ceased and the sponsorship agreement was terminated, all the more so since the ceasing of his position coincides with his initial inclusion on the lists at issue. However, where that status is disputed, as it is in the present case, it is for the Council to put forward sufficiently probative evidence from which it may reasonably be inferred that the person concerned maintained links with his father, justifying his name being maintained on the list, even after the termination of his contract as a Haas F1 driver (see, to that effect and by analogy, judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 93 and the case-law cited).
90      The Council did not, however, provide any evidence relating to the applicant in the first WK file to explain why he should be regarded as still being linked by common interests to his father, a leading businessperson of the Russian Federation, after the termination of his contract as a Haas F1 driver and the sponsorship agreement.
91      Since it is apparent from the reasons for the first set of maintaining acts that the applicant’s position as a driver for the Haas F1 team – which justified his initial inclusion – ceased, it must be held that, regardless of whether Uralchem was ever the sponsor of the Haas F1 team, or whether the evidence adduced by the Council establishes that the applicant unduly benefited from his father through the sponsorship agreement or whether that agreement was a commercial operation that made perfect economic sense for that company, the association between the applicant and his father is in no way established by means of economic or capital links or by the existence of common interests linking them at the time when the first set of maintaining acts was adopted. Accordingly, it is clear that maintaining the applicant’s name on the lists at issue is based, de facto, solely on the family connection between the applicant and his father.
92      However, as is apparent from case-law, the application of restrictive measures to natural persons irrespective of their personal conduct and on the sole ground of their family connection with persons associated with the leaders of the third country concerned must be regarded as at variance with the case-law of the Court of Justice. That requirement ensures that there is a sufficient link between the persons concerned and the third country targeted by the restrictive measures adopted by the European Union (see, to that effect, judgment of 8 March 2023, Prigozhina v Council, T‑212/22, not published, EU:T:2023:104, paragraph 95 and the case-law cited).
93      It follows that, in the light of all of the foregoing, the applicant’s association with his father established at the time of adoption of the first set of maintaining acts and relied on by the Council on that date cannot suffice to justify maintaining the applicant’s name on the lists at issue.
94      That conclusion cannot be called into question by the Council’s other arguments.
95      In the first place, it is necessary to reject the argument that the applicant continues to unduly benefit from his father in so far as the applicant set up the foundation financed with the money which Uralkali was supposed to use for sponsoring the Haas F1 Team (see paragraph 80 above). Even if that foundation had been set up by the applicant and financed by Uralkali, as the Council claims, that foundation does not appear at all, either in the reasons for the first set of maintaining acts, or in the first WK file on which those acts are based.
96      It should be borne in mind that it is for the competent EU authority to establish, in the event of challenge, that the reasons relied on against the person or entity concerned are well founded, and not for that person or entity to adduce evidence of the negative, that those reasons are not well founded (see paragraph 69 above). Furthermore, in accordance with settled case-law, the legality of a Union act must be assessed on the basis of the elements of facts and law existing at the date on which the act was adopted. Accordingly, the Council cannot rely, before the Court, on factors on which it did not rely when adopting the contested acts in order to justify the inclusion of the applicant’s name on the lists in question and its retention (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).
97      In those circumstances, unless a substitution of grounds is admitted, and although, in the rejoinder, the Council claims to have been aware of the creation of that foundation prior to the adoption of the first set of maintaining acts, the Council cannot be permitted to rely on it to justify the appropriateness of the first set of maintaining acts, when the foundation is unrelated to the reasons for those acts and does not appear at all in the first WK file.
98      In the second place, and for the same reasons, it is necessary to reject the argument that, in essence, even after the termination of his contract as a Haas F1 driver, there is still a financial link between the applicant and his father since he continues to reap the benefits of his situation, in particular the public recognisability, financial stability and the possibility of being recruited to drive in various top-level motorsport championships. In addition to it being hypothetical and wholly unsubstantiated, that argument does not appear at all, either in the reasons for the first set of maintaining acts or in the first WK file on which those acts are based.
99      It must therefore be concluded that, analysed as a whole, the material submitted by the Council in the present case does not constitute a set of indicia sufficiently specific, precise and consistent, within the meaning of the case-law referred to in paragraph 68 above, to establish to the requisite legal standard that the reasons relied on against the applicant are well founded as regards the first set of maintaining acts.
100    It follows from the foregoing considerations that the second plea in law relating to the first set of maintaining acts must be upheld and those acts must be annulled in so far as they concern the applicant, without it being necessary to rule on the other arguments or on the other pleas in law relied on by the applicant in relation to them.
(b)    The second set of maintaining acts
101    In the present case, in order to justify maintaining the applicant’s name on the lists at issue in accordance with the association criterion, the Council relied on evidence contained in the first WK file and on additional evidence contained in the second and third WK files. It should be pointed out that the information in question is publicly available, namely links to websites, press articles and screenshots relating to the applicant and his father. Contrary to the applicant’s suggestion in his first statement of modification, and as the Council rightly maintains, there is nothing to suggest that the Council substituted the second and third WK files for the first WK file sent to the applicant as the factual basis for the initial inclusion of his name on the lists at issue. It must therefore be held that the second and third WK files merely supplement the first and that it is in the light of all the evidence in the three WK files that the lawfulness of the second set of maintaining acts is to be assessed (see, to that effect and by analogy, judgment of 13 September 2023, Rashnikov v Council, T‑305/22, not published, EU:T:2023:530, paragraph 57).
102    The applicant claims that those acts are vitiated by an error of assessment, relying, to a large extent, on the same arguments as those put forward against the first set maintaining acts, as referred to in paragraph 75 above.
103    First, the applicant submits that the Council relied only on past situations which are no longer relevant to justify his retention on the lists at issue. Secondly, he claims, first of all, that Uralchem was never the sponsor of the Haas F1 Team; next, that the evidence adduced by the Council does not establish his father’s involvement in the decision-making process leading to the signing of the sponsorship agreement; then, that the sponsorship agreement was a commercial operation that made perfect economic sense for that company; and, lastly, that the Council failed to show that he would not have been able to obtain that position as a driver for the Haas F1 Team without the sponsorship agreement. Thirdly, the applicant disputes the merits of the claim relating to the foundation, added by the Council in the reasons for the second set of maintaining acts. In particular, he argues that none of the evidence produced by the Council establishes that that foundation is financed by Uralkali. He further submits that he has furnished evidence establishing, first, that although he inspired the creation of that foundation, he is not able to use the assets for his benefit, meaning that the foundation is not his foundation, nor can he determine the foundation’s decisions, and, secondly, that, in any event, the foundation is not financed by Uralkali or with that company’s funds.
104    The Council disputes the applicant’s arguments, reiterating, in part, the same arguments as those relied on in respect of the first set of maintaining acts, as referred to in paragraphs 77 to 80 above.
105    First, the Council contends that the applicant’s father controls both Uralchem and Uralkali, that his involvement in the sponsorship negotiations is established and that he is therefore responsible for sponsoring his son’s activities. Secondly, the Council submits, in essence, that the applicant unduly benefited from his father through the sponsorship agreement and that he continues to unduly benefit from him through the foundation, since (i) he could not have obtained the position as a driver for the Haas F1 Team or set up his own charitable foundation without the financial support of his father, and (ii) that sponsorship and the creation of that foundation makes little commercial sense for Uralchem and Uralkali. In that regard, the Council states that all other sponsorship activities of Uralkali to which the applicant refers, which concern local initiatives, differ in scale and objectives from those linked to the sponsorship of the Haas F1 Team. The Council argues, in particular, that the foundation was created by the applicant and received funding from Uralkali, a company owned by Uralchem, whose major owner is the applicant’s father. Thus, the foundation exists solely by virtue of financial support from a company associated with the applicant’s father and the applicant benefits from that foundation. Thirdly, the Council states that the applicant’s name was maintained on the lists at issue because of the financial association with his father – who was the General Director of Uralchem, which controls Uralkali, a company sponsoring the career and various professional activities of his son – and because he unduly benefits from his father.
106    In the present case, it must be stated at the outset that, as regards the second set of maintaining acts, the reasons for maintaining the applicant’s name on the lists at issue remained the same as those for the first set of maintaining acts, with the exception of the following statement: ‘his foundation … is financed with funds of the Uralkali company and he therefore unduly benefits from his father’ (see paragraphs 28 and 29 above).
107    It is therefore clear that the factual basis of the reasons relied on against the applicant in the second set of maintaining acts, which relates to the association criterion, encompasses, first, his former position as a driver for the Haas F1 Team, allegedly sponsored by Uralchem, and, secondly, the fact that he created a foundation financed by Uralkali.
108    It is therefore necessary to ascertain whether, in accordance with the case-law cited in paragraph 70 above, the Council duly took account of changes in the applicant’s situation in deciding to maintain his name on the lists at issue and whether it could, following its updated assessment of the situation carried out in the context of the review of the restrictive measures at issue and on the basis of new information, continue to refer in part to past situations already relied on in the initial acts and the first set of maintaining acts. To that end, it is necessary to examine whether it is apparent from the three WK files that the applicant could be regarded, on the date of adoption of the second set of maintaining acts, as being associated with a leading businessperson for the purposes of the association criterion as defined in paragraph 74 above.
109    As regards, in the first place, the reference to his former position as a driver for the Haas F1 Team allegedly sponsored by Uralchem, it is sufficient to refer in that regard to the reasons set out in paragraphs 83 to 90 above, which apply, mutatis mutandis, to the second set of maintaining acts. The Council did not adduce any evidence relating to the applicant in the first, second and third WK files to explain why he should be regarded as still being linked to his father, a leading businessperson of the Russian Federation, after the termination of his contract as a driver for the Haas F1 Team and the sponsorship agreement in March 2022.
110    As regards, in the second place, the part of the reasons according to which ‘[his] foundation … is financed with funds of the Uralkali company and he therefore unduly benefits from his father’, it should be noted that the Council considers, in essence, that the applicant is associated with his father, since his father, through Uralkali – more than 80% of which is owned by Uralchem – financed his son’s foundation.
111    However, the Council has failed to present a set of indicia sufficiently specific, precise and consistent, within the meaning of the case-law referred to in paragraph 68 above, to establish to the requisite legal standard that that part of the reasons is well founded. While it is apparent, inter alia, from exhibits 4, 6 and 8 of the second WK file, and from exhibit 4 of the third WK file, that the applicant took the initiative to create that foundation bearing his name, which, moreover, is not disputed by the Council, it must be stated that, as the applicant rightly maintains in the first statement of modification, the Council does not adduce any evidence in support of the part of the reasons for the second set of maintaining acts according to which that foundation ‘is financed with funds of the Uralkali company’.
112    In that regard, in order to demonstrate that the foundation is financed by Uralkali, and therefore to find that the applicant is associated with his father for the purposes of the association criterion, the Council relies on exhibits 6, 8 and 9 of the second WK file and on exhibit 4 of the third WK file. While it is true that that material mentions information or statements from the applicant and directors of Uralkali to the effect that that foundation is or will be financed with funds from that company, it consists of press articles dated March 2022 which the applicant states predate the creation of that foundation, which, according to the applicant, has ultimately not received any financial support from Uralkali. Moreover, and in any event, that material merely states the applicant’s intentions. In other words, that material constitutes, at most, a mere hypothesis put forward prior to the creation of the foundation and in no way demonstrates that, even if Uralkali had recovered the funds from the Haas F1 Team, those funds had actually been paid by that company in order to finance it.
113    That is all the more so since the applicant puts forward two statements from employees of the foundation and Uralkali which corroborate the fact that the foundation was not financed by that company or with its funds.
114    It must therefore be concluded that, analysed as a whole, the material submitted by the Council in the present case does not constitute a set of indicia sufficiently specific, precise and consistent, within the meaning of the case-law referred to in paragraph 68 above, to establish to the requisite legal standard that the reasons relied on against the applicant are well founded as regards the second set of maintaining acts.
115    It follows from the foregoing considerations that the second plea in law relating to the second set of maintaining acts must be upheld and those acts must be annulled in so far as they concern the applicant, without it being necessary to rule on the other arguments or on the other pleas in law relied on by the applicant in relation to them.
(c)    The third set of maintaining acts
116    As a preliminary point, first, it should be noted that, in order to justify maintaining the applicant’s name on the lists at issue, it is common ground between the parties that the Council relied on the association criterion and on criterion (g) as amended. As is apparent from the reasons set out in paragraph 45 above, the applicant’s name was maintained on the lists at issue on account of his status as an immediate family member of his father, who is a leading businessperson in Russia, with whom he is associated and from whom he benefits.
117    Secondly, it is not disputed that the factual basis of the reasons relied on in the third set of maintaining acts with regard to the applicant, which relates to the association criterion and criterion (g) as amended, encompasses, first of all, his former position as a driver for the Haas F1 Team and the sponsorship agreement, next, the fact that he allegedly created a foundation set to be financed by Uralkali and, lastly, the joint business interests in Hitech GP, a company partly owned by his father through Uralkali and whose objective is to benefit the applicant’s career as a motorsport driver.
118    Thirdly, the Council relied on evidence contained in the first three WK files and on additional evidence contained in the five other WK files. Contrary to the applicant’s submission in his second statement of modification and at the hearing, the mere fact that the letter of 18 August 2023 mentioned that the Council ‘was considering maintaining the restrictive measures concerning [the applicant]’ and that the ‘relevant supporting document[, namely the eighth WK file was] enclosed [with that letter]’ cannot be regarded as so confusing that it may be understood that the Council substituted the eighth WK file for all the WK files sent to the applicant since his initial inclusion on the lists at issue. Moreover, as the applicant confirmed at the hearing, he took account of the evidence contained in all the WK files sent by the Council since the initial inclusion of his name on the lists at issue in order to challenge the lawfulness of the third set of maintaining acts.
119    Accordingly, it must be held that the fourth to eighth WK files, containing publicly available information, namely links to websites, press articles and the corresponding screenshots, merely supplement the first three WK files and that it is in the light of all the evidence contained in those eight WK files that the lawfulness of the third set of maintaining acts is to be assessed (see, to that effect and by analogy, judgment of 13 September 2023, Rashnikov v Council, T‑305/22, not published, EU:T:2023:530, paragraph 57).
120    The applicant disputes that the association criterion and criterion (g) as amended can be applied to him. In essence, he argues that neither his former position as a driver for the Haas F1 Team, sponsored by Uralkali, nor the foundation, nor the alleged joint business interests in Hitech GP, support the conclusion that he is associated with his father and benefits from him.
121    The Council disputes the applicant’s arguments and states that it did not make any error of assessment when adopting the third set of maintaining acts.
122    In the present case, it is therefore necessary to ascertain whether, in accordance with the case-law cited in paragraph 70 above, the Council duly took into account changes in the applicant’s situation in deciding to maintain his name on the lists at issue and whether, in particular, it could, following its updated assessment of the situation carried out in the context of the review of the restrictive measures at issue and on the basis of new information, continue to refer in part to past situations already relied on in the first and second sets of maintaining acts. To that end, it is therefore necessary to examine whether it is apparent from the eight WK files that the applicant could be regarded, on the date of adoption of the third set of maintaining acts, as being associated with his father, and as being an immediate family member of a leading businessperson in Russia benefitting from that person, for the purposes of criterion (g) as amended.
(1)    The reason relating to the applicant’s former position as a driver for the Haas F1 Team and the sponsorship agreement
123    It should be recalled that it is apparent from the reasons for the third set of maintaining acts that the applicant was, as a driver for the Haas F1 Team until March 2022, sponsored by his father through Uralkali, a subsidiary of Uralchem.
124    That part of the reasons relates to the fact that the applicant’s father, owner and former General Director of JSC UCC Uralchem, and leading businessperson involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, sponsored his son’s activities through the sponsorship agreement.
125    The applicant disputes the merits of that part of the reasons. First, according to the applicant, the Council relied only on past situations which are no longer relevant to justify his being maintained on the lists at issue. Secondly, he claims, first, in essence, that despite the amendment of the reasons for the third set of maintaining acts relating to the sponsorship of the Haas F1 Team, the evidence adduced by the Council does not establish his father’s involvement in the decision-making process leading to the signing of the sponsorship agreement; next, that that sponsorship agreement was a commercial operation that made perfect economic sense for Uralkali; and, lastly, that the Council failed to show that he would not have been able to obtain that position as a driver for the Haas F1 Team without that agreement.
126    The Council disputes the applicant’s arguments. It states, in essence, that the applicant’s father was responsible for the sponsorship of his son’s activities and that, consequently, the applicant would not have been able to obtain the position as a driver in the Haas F1 Team without the sponsorship agreement. The Council states, in particular, that the applicant’s results in the Haas F1 Team were poor, indicating that his contract might have been terminated earlier if not for the sponsorship agreement.
127    In the first place, as regards the Council’s argument that, in essence, the applicant is associated with his father because of his former position as a driver in the Haas F1 Team and the sponsorship agreement, it is sufficient to refer to the reasons set out in paragraphs 83 to 90 above, which apply, mutatis mutandis, to the third set of maintaining acts. The Council did not adduce any evidence relating to the applicant in the eight WK files to explain why he should be regarded as still being linked to his father, a leading businessperson of the Russian Federation, after the termination of his contract as a F1 driver and the sponsorship agreement in March 2022.
128    In the second place, the Council’s argument that, in essence, the applicant benefits from his father since he would not have been able to obtain the position as a driver in the Haas F1 Team without the sponsorship agreement (see paragraph 126 above), cannot succeed.
129    Irrespective of whether or not the applicant’s father was involved in concluding the sponsorship agreement, it is clear that none of the evidence adduced by the Council shows that the applicant could not have obtained that position as a driver in the Haas F1 Team without that agreement.
130    As the Council maintains, it is true that some of the evidence contained in the various WK files suggests that the applicant benefited from the support of Uralkali, which is linked to his father, in order to become a Formula 1 driver, or refers to negative assessments in relation to his results as a driver at Haas F1. Nevertheless, it is clear that other evidence points to a positive assessment of his qualifications and experience for competing in Formula 1. That is the case, inter alia, for exhibit 16 of the second WK file, exhibit 12 of the first WK file and exhibit 1 of the third WK file which highlight the applicant’s good results in GP 3 (former name of Formula 3) and Formula 2 before he was recruited by the F1 team. In addition, as the applicant rightly states, the Council itself implicitly admitted, in its observations on the first statement of modification, that the applicant’s previous performance as a driver was a factor that might have contributed to his recruitment by the Haas F1 Team.
131    Furthermore, the Council’s argument that the sponsorship agreement was equivalent to philanthropy or a commercial transaction that ran counter to the economic interests of Uralkali and that that sponsorship did not benefit the two contracting parties must be rejected.
132    Irrespective of the fact that that argument is not supported by any evidence, it is clear that Formula 1 enjoys a worldwide reputation and is a sporting event broadcast in numerous countries, so that it cannot be ruled out that companies associated with Formula 1 through sponsorship may derive a commercial benefit from it, even if they are fertiliser companies unconnected with motorsport. That is, moreover, corroborated by the examples mentioned by the applicant in his second statement of modification, which refer to sponsorships from fertiliser companies in motorsport and sport in general.
133    In any event, that finding cannot be called into question by the Council’s argument that the termination of the sponsorship agreement, immediately after the applicant’s contract with the Haas F1 Team was terminated, shows that that sponsorship had no connection with the alleged benefits which that company would derive from sponsoring a F1 team and would gain from being present in the sport. First, it is clear from exhibits 6 and 9 of the second WK file, exhibits 12 to 15 of the sixth WK file, exhibit 3 of the seventh WK file and the statement of the Haas F1 Team of 5 March 2022, referred to by the applicant in his second statement of modification, that it was that team, and not Uralkali, which unilaterally terminated the sponsorship agreement. Secondly, that argument contradicts exhibit 13 of the first WK file, from which it is apparent that Uralchem was a long-standing partner of the Russian Swimming Federation and that Uralkali had been a sponsor of the organiser of the Russian Formula 1 Grand Prix.
134    It follows from the foregoing considerations that the Council failed to present a set of indicia sufficiently specific, precise and consistent, within the meaning of the case-law referred to in paragraph 68 above, to establish to the requisite legal standard that that part of the reasons is well founded.
(2)    The reason relating to the foundation
135    It should be borne in mind that it is apparent from the reasons for the third set of maintaining acts that ‘the foundation is set to be financed with funds from Uralkali’.
136    That part of the reasons for including the applicant’s name on the lists at issue relates to the fact that the applicant’s father, through Uralkali, intended to finance his son’s foundation.
137    The applicant denies benefitting from his father through the foundation and argues that the foundation is not set to be financed either directly by Uralkali or with its funds. He adds that that part of the reasons is based on evidence which predates the creation of the foundation by more than one month and which merely reports intentions and that, in any event, the Council has not demonstrated his father’s involvement in the alleged funding of that foundation.
138    The Council disputes the applicant’s arguments. In essence, it maintains that even if direct sponsorship has not yet been granted, that foundation benefits from the fact that the applicant and the directors of Uralkali have publicly stated that it will be funded by Uralkali. That has given credibility to the foundation, which has hitherto been unknown, attracting other potential sponsors. According to the Council, the fact that Uralkali and Uralchem financially support the applicant’s professional activities gives rise to a presumption that his father and the applicant pursue common interests, particularly since those companies have no commercial reason to support the creation of a new and unknown foundation supporting Russian athletes excluded from international competitions. The Council adds that the foundation organised a panel session, moderated by the applicant, at the St Petersburg International Economic Forum, which was partnered by, and most likely sponsored by, Uralchem. Lastly, the Council states that the foundation has partnered with Moscow State University, which is sponsored by Uralchem, and at which athletes supported by the foundation will be able to take part in an educational initiative. According to the Council, while all of those elements, taken in isolation, do not establish the existence of mutual interests between the applicant and his father, they must be considered together and taking into account the pattern in which companies owned or controlled by the applicant’s father financially support the applicant.
139    In the first place, as regards applying the association criterion to the applicant in so far as his foundation is ‘set to be financed with funds from Uralkali’, it must be noted, first, that it is common ground between the parties that, on the date of adoption of the third set of maintaining acts, the foundation had not received any funding from Uralkali, as is intimated, moreover, by the reasons for the third set of maintaining acts. Accordingly, the Council cannot reasonably claim that the fact that Uralkali and Uralchem financially support the applicant’s business activities gives rise to the presumption that the applicant and his father pursue common interests, particularly since those two companies have no commercial reason to support the creation of a new and unknown foundation (see paragraph 138 above).
140    Secondly, it is true that exhibits 6, 8 and 9 of the second WK file, exhibit 4 of the third WK file, exhibit 1 of the fourth WK file and exhibits 12 to 15 of the sixth WK file refer to information or statements from the applicant and the directors of Uralkali, according to which that foundation is or will be financed with funds from that company. Nevertheless, it is clear that those exhibits consist exclusively of press articles dated March 2022, which the applicant states predate the creation of that foundation and which merely report the intentions of the applicant and Uralkali. There is no evidence in the eight WK files that such intentions were repeated after the foundation was created, so that it cannot be maintained, in the absence of other evidence in support, that the foundation is set to be financed with funds from Uralkali.
141    In the second place, as regards applying criterion (g) as amended to the applicant, it is apparent from the preceding paragraphs that the Council has not adduced evidence showing that the foundation received funding from Uralkali and, consequently, it has not demonstrated the existence of an advantage from which the applicant allegedly benefited. In addition, it is necessary to reject the Council’s argument that, in essence, even if the foundation has not received any funding, it benefits by attracting potential sponsors simply because it received the assurance that it would be financed by Uralkali. First, that argument is not supported by any evidence. Secondly, and in any event, it should be pointed out that, by that argument, the Council is seeking to demonstrate that the foundation benefits whereas, under criterion (g) as amended, it is for the Council to demonstrate that it is the applicant who benefits from his father.
142    Furthermore, the argument that the foundation organised a panel session moderated by the applicant during the St Petersburg International Economic Forum and partnered with Moscow State University cannot succeed. Even if it were established that the foundation had organised a panel session and that it partnered with that university, suffice it to state that that does not appear anywhere in the reasons for the third set of maintaining acts and that, in any event, neither the panel session nor that partnership is such as to demonstrate that the applicant derives any benefit from his father.
143    In the light of the foregoing considerations, it must be concluded that the Council failed to present a set of indicia sufficiently specific, precise and consistent, within the meaning of the case-law referred to in paragraph 68 above, to establish to the requisite legal standard that this part of the reasons is well founded.
(3)    The reason relating to the joint business interests in Hitech GP
144    It is apparent from the third set of maintaining acts that the applicant ‘is also associated with his father through joint business interests in the company Hitech GP, which was partly owned by [his father] through Uralkali and whose objective is to benefit [the applicant’s] career as a motorsport driver, and which is now owned by a common business associate of the two men’.
145    The applicant disputes that part of the reasons and denies being associated with his father or benefitting from him through Hitech GP. First of all, he claims that, while it is true that he had joined that team when he was still a minor at the start of his career, he was no longer a part of it when he drove for the Haas F1 Team. Next, he adds that Hitech GP’s objective is not, and never was, to benefit his career. Lastly, he states that it is clear from the reasons for the third set of maintaining acts that his father no longer has any interests or shares in that company, which prevents him from being regarded as associated with his father or as benefitting from him through that company.
146    The Council disputes the applicant’s arguments. In essence, it submits that until 2022 the applicant’s father held partial ownership rights in Hitech GP, directly or through Uralkali, and that he continues to control Hitech GP. In addition, the applicant was employed by that company, which was sponsored by Uralkali during his time as a driver for the Formula 2 and 3 teams. Furthermore, Hitech GP, which has publicly confirmed that it plans to enter Formula 1 with its own team, is still closely associated with the applicant and his father. In particular, the applicant is considering joining the Hitech GP F1 team. The Council adds that the main shareholder in Hitech GP helped the applicant with creating the company 99 Racing, which currently employs him as a driver in the Asian Le Mans Series, and that the applicant’s father still supports his son’s driving career, on the ground that it is apparent from the evidence adduced that the applicant has travelled to races in that series using his father’s private jet.
147    In the present case, it is apparent from the reasons for the third set of maintaining acts that the Council considers that the applicant is associated with, and still benefits from, his father since, first, they have joint business interests in Hitech GP and, secondly, that company’s objective is to benefit the applicant’s career.
148    However, the Council has failed to produce a set of indicia sufficiently specific, precise and consistent, within the meaning of the case-law referred to in paragraph 68 above, to establish to the requisite legal standard the existence of common interests for the purposes of the association criterion and of benefits for the purposes of criterion (g) as amended.
149    As regards, in the first place, the objective of Hitech GP, none of the evidence adduced by the Council suggests that the objective of that company is, or even was, specifically to benefit the applicant’s career or to procure any advantage for him. Not only did that company exist before and after the applicant was its driver, it is clear, having regard to the second statement of modification and the annexes produced by the applicant, that a multitude of other racing drivers have been employed by that company, some of whom are still Formula 1 drivers. Accordingly, in the absence of any evidence to the contrary, while it may certainly be considered that that company’s objective is to employ motor racing drivers, which could have the effect of benefitting their careers depending on the results obtained, this is the case for all the drivers employed and not specifically the applicant, as he rightly states.
150    In the second place, as regards the alleged joint interests in Hitech GP, it is not disputed that until 2022 the applicant’s father owned that company through Uralkali, or that the applicant was employed by Hitech GP before he joined the Haas F1 Team. However, the fact remains that none of the evidence is such as to demonstrate that, on the date of adoption of the third set of maintaining acts, the applicant’s father still held shares in Hitech GP or that he controlled it. In addition, there is nothing to suggest that the applicant was still employed by that company or that his career was still linked to that company when those acts were adopted.
151    First of all, as regards the applicant’s father’s shares in Hitech GP, the Council itself acknowledges, in its observations on the second statement of modification, that they were transferred shortly before restrictive measures were imposed on the applicant’s father.
152    Next, as regards the alleged control which the applicant’s father continues to exercise despite the transfer of those shares, the Council relies exclusively on exhibits 5 and 6 of the seventh WK file. However, those two exhibits, which the Council states are based solely on a Russian journalist’s presentation of the transfer of those shares, report only unsubstantiated information according to which the majority shareholder of Hitech GP is a confidant of the applicant’s father and carries out all transactions under his direction.
153    Lastly, as regards the link that allegedly continues to exist between the applicant’s career and Hitech GP, the Council cannot reasonably maintain that that link is established on the ground that the applicant is considering competing for the F1 team which Hitech GP intends to create in the future. It is clear that this concerns only a purely hypothetical situation which is based on mere intentions and is irrelevant to determining whether, on the date of adoption of the third set of maintaining acts, the applicant was associated with his father or benefited from him through Hitech GP. Moreover, that finding cannot be called into question by the Council’s argument that the majority shareholder in Hitech GP helped the applicant with creating 99 Racing which currently employs him as a driver in the Asian Le Mans Series, and that the applicant’s father is still supporting his son’s career as a driver in that series. It is sufficient to note, first, that the applicant’s career as a driver in that series is not mentioned at all in the reasons for the third set of maintaining acts and, secondly, that the Council claims that the support comes from the majority shareholder of Hitech GP or from the applicant’s father, and not from Hitech GP itself to which those reasons directly refer.
154    In the light of the foregoing considerations, it must be concluded that the Council has failed to demonstrate that the applicant and his father have joint business interests in Hitech GP and that the objective of that company is to benefit the applicant’s career.
155    It must therefore be concluded that, analysed as a whole, the material submitted by the Council in the present case does not constitute a set of indicia sufficiently specific, precise and consistent, within the meaning of the case-law referred to in paragraph 68 above, to establish to the requisite legal standard the existence of joint interests for the purposes of the association criterion and of benefits for the purposes of criterion (g) as amended on the date of adoption of the third set of maintaining acts.
156    The second plea in law relating to the third set of maintaining acts must be upheld and those acts must be annulled in so far as they concern the applicant, without it being necessary to rule on the other arguments or on the other pleas in law put forward by the applicant in relation to them, or on the request for the adoption of a measure of organisation of procedure.
IV.    Costs
157    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.
158    In addition, under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs.
159    In the present case, 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, including those relating to the four sets of proceedings for interim measures. The Republic of Latvia shall bear its own costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1.      Dismisses the action as inadmissible in so far as it is directed against the three letters of 15 September 2022, 14 March 2023 and 15 September 2023 sent from the Council of the European Union to the applicant;
2.      Annuls Council Decision (CFSP) 2022/1530 of 14 September 2022 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, Council Implementing Regulation (EU) 2022/1529 of 14 September 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, Council Decision (CFSP) 2023/572 of 13 March 2023 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, Council Implementing Regulation (EU) 2023/571 of 13 March 2023 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, Council Decision (CFSP) 2023/1767 of 13 September 2023 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine and Council Implementing Regulation (EU) 2023/1765 of 13 September 2023 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, in so far as the name of Mr Nikita Dmitrievich Mazepin was maintained on the list of persons, entities and bodies to which those restrictive measures apply;
3.      Orders the Council of the European Union to bear its own costs and to pay those incurred by Mr Nikita Dmitrievich Mazepin, including those relating to the four sets of proceedings for interim measures;
4.      Orders the Republic of Latvia to bear its own costs.
Spielmann
Brkan
Tóth
Delivered in open court in Luxembourg on 20 March 2024.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.