62022TJ0193
JUDGMENT OF THE GENERAL COURT (First Chamber, Extended Composition)
15 November 2023 (
*1
)
(Common foreign and security policy – Restrictive measures 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 freezing of funds and economic resources – Inclusion and maintenance of the applicant’s name on the lists – Notion of ‘leading businessperson’ – Article 2(1)(g) of Decision 2014/145/CFSP – Plea of illegality – Obligation to state reasons – Error of assessment – Right to be heard – Right to property – Freedom to conduct a business – Proportionality – Misuse of powers)
In Case T‑193/22,
OT, represented by J.‑P. Hordies and C. Sand, lawyers,
applicant,
v
Council of the European Union, represented by V. Piessevaux, A. Boggio-Tomasaz and M.‑C. Cadilhac, acting as Agents,
defendant,
supported by
Kingdom of Belgium, represented by C. Pochet, L. Van den Broeck and M. Van Regemorter, acting as Agents,
intervener,
THE GENERAL COURT (First Chamber, Extended Composition),
composed of D. Spielmann (Rapporteur), President, R. Mastroianni, M. Brkan, I. Gâlea and T. Tóth, Judges,
Registrar: H. Eriksson, Administrator,
having regard to the order of 30 May 2022, OT v Council (T‑193/22 R, not published, EU:T:2022:307),
having regard to the written part of the procedure, in particular:
–
the application lodged at the Court Registry on 15 April 2022,
–
the decision of 2 June 2022 granting the applicant’s request for anonymity and refusing his request for an expedited procedure,
–
the decision of 25 August 2022 granting the Kingdom of Belgium leave to intervene in support of the Council,
–
the statement of modification lodged at the Court Registry on 11 November 2022,
–
the applicant’s documents lodged at the Court Registry on 19 December 2022 and placed on file,
–
the decision of 6 February 2023 not to place on file new documents produced by the applicant on 24 January 2023,
further to the hearing on 26 April 2023,
gives the following
Judgment
1
By his action under Article 263 TFEU, the applicant, OT, seeks the annulment of, first, Council Decision (CFSP) 2022/429 of 15 March 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 87I, p. 44) and Council Implementing Regulation (EU) 2022/427 of 15 March 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 87I, p. 1) (together, ‘the initial acts’) and, second, after modification of the application, 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) and 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 maintaining acts’), in so far as those acts (together, ‘the contested acts’) concern him.
Background to the dispute
2
The applicant is a businessman who is a Russian national.
3
On 17 March 2014, the Council of the European Union adopted, on the basis of Article 29 TEU, Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 16). On the same date, it adopted, on the basis of Article 215 TFEU, Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 6).
4
On 21 February 2022, the President of the Russian Federation signed a decree recognising the independence and sovereignty of the self-proclaimed ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’ and ordered that Russian military forces be deployed in those areas.
5
On 22 February 2022, the High Representative of the Union for Foreign Affairs and Security Policy (‘the High Representative’) published a declaration on behalf of the European Union condemning those actions, since they constituted a serious violation of international law. He announced that the European Union would respond to those latest violations by the Russian Federation by adopting additional restrictive measures as a matter of urgency.
6
On 23 February 2022, the Council adopted a first package of restrictive measures. Those measures concerned, first, restrictions applicable to economic relations with the regions not controlled by the government of Donetsk and Luhansk; second, restrictions on access to capital markets, in particular by prohibiting the financing of the Russian Federation, its Government and its Central Bank; and, third, the addition of members of the government, banks, businesspersons, generals and 336 members of the Gosudarstvennaya Duma Federal’nogo Sobrania Rossiskoï Federatsii (State Duma of the Federal Assembly of the Russian Federation) to the list of persons, entities and bodies subject to restrictive measures.
7
On 24 February 2022, the President of the Russian Federation announced a military operation in Ukraine and Russian armed forces attacked Ukraine.
8
On the same day, the High Representative published a declaration on behalf of the European Union condemning in the strongest possible terms the ‘unprovoked invasion’ of Ukraine by Russian armed forces and stated that the European Union’s response would include both sectoral and individual restrictive measures.
9
At its special meeting on the same day, the European Council condemned the Russian military operation in Ukraine while agreeing in principle on the adoption of restrictive measures and economic sanctions against the Russian Federation in the light of proposals made by the European Commission and the High Representative.
10
On 25 February 2022, the Council adopted a second package of restrictive measures. On the same date, in view of the gravity of the situation in Ukraine, the Council adopted, first, Decision (CFSP) 2022/329 amending Decision 2014/145 (OJ 2022 L 50, p. 1) and, second, Regulation (EU) 2022/330 amending Regulation No 269/2014 (OJ 2022 L 51, p. 1) in order, inter alia, to amend the criteria by which natural or legal persons, entities or bodies could be made subject to the restrictive measures at issue.
11
Article 2(1) and (2) of Decision 2014/145, as amended by Decision 2022/329, provides as follows:
‘1.   All funds and economic resources belonging to, or owned, held or controlled by:
…
(d)
natural or legal persons, entities or bodies supporting, materially or financially, or benefitting from Russian decision-makers responsible for the annexation of Crimea or the destabilisation of Ukraine;
…
(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.’
12
The detailed rules for the freezing of those funds are set out in Article 2(3) to (6) of Decision 2014/145.
13
Article 1(1)(b) and (e) of Decision 2014/145, as amended, provides that Member States must take the necessary measures to prevent the entry into, or transit through, their territories of natural persons who satisfy essentially the same criteria as those set out in Article 2(1)(d) and (g) of that decision.
14
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. Article 3(1)(a) to (g) of that regulation, as amended, largely reproduces Article 2(1)(a) to (g) of the decision.
15
Against this background, by the initial acts the Council added the applicant’s name to the lists of persons, entities and bodies subject to the restrictive measures annexed to Decision 2014/145, as amended, and in Annex I to Regulation No 269/2014, as amended (‘the lists at issue’).
16
The reasons for the inclusion of the applicant’s name on the lists at issue are as follows:
‘[The applicant] is a major shareholder of the Alfa Group conglomerate, which includes Alfa Bank, one of Russia’s largest taxpayers. He is believed to be one of the most influential persons in Russia. He has well established ties to the Russian president. Vladimir Putin’s eldest daughter Maria ran a charity project, Alfa-Endo, which was funded by Alfa Bank. Vladimir Putin rewarded Alfa Group’s loyalty to the Russian authorities by providing political support to Alfa Group foreign investment plans.
He has therefore been actively supporting materially or financially and benefitting from Russian decision-makers responsible for the annexation of Crimea or the destabilisation of Ukraine. He is also a leading Russian business person 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.’
17
On 16 March 2022, the Council published in the Official Journal of the European Union a Notice for the attention of the persons, entities and bodies subject to the restrictive measures provided for in Decision 2014/145, as amended by Decision 2022/429, and Regulation No 269/2014, as implemented by Implementing Regulation 2022/427 (OJ 2022 C 121I, p. 1). That notice stated, inter alia, that the persons concerned could submit a request to the Council, together with supporting documentation, that the decision to include their names on the lists annexed to those acts should be reconsidered.
18
By letters of 5 and 8 April 2022, the applicant requested from the Council the file on the basis of which his name had been included on the lists at issue.
19
On 13 April 2022, the Council sent the applicant, in its entirety, file WK 3073/2022 (‘the evidence file’), on which it had based its decision.
20
On 14 April, 30 May, 7 June, 5 July and 18 August 2022, the applicant sent his observations to the Council, requesting it in particular to reconsider the decision to include his name on the lists at issue and to grant him a hearing.
21
On 14 September 2022, the Council adopted the maintaining acts. Under those acts, the individual restrictive measures applicable to the applicant were extended until 15 March 2023 for the same reasons as set out in the initial acts (see paragraph 16 above).
22
By letter of 15 September 2022, the Council informed the applicant inter alia that the observations contained in his letters of 14 April, 30 May, 7 June, 5 July and 18 August 2022 did not call into question its assessment regarding the need to maintain the restrictive measures at issue. The Council also stated that, given the similarity of the arguments, it made reference to its observations submitted in the proceedings for interim relief and in the present case. It concluded that the applicant’s name had to be maintained on the lists at issue.
23
On 15 September 2022, the Council published in the Official Journal of the European Union the Notice for the attention of the persons and entities subject to the restrictive measures provided for in Decision 2014/145, as amended by Decision 2022/1530, and in Regulation No 269/2014, as implemented by Implementing Regulation 2022/1529 (OJ 2022 C 353I, p. 1).
24
On 1 November 2022, the applicant sent the Council a request for reconsideration.
Forms of order sought
25
The applicant claims that the Court should:
–
annul the contested acts;
–
order the Council to pay the costs.
26
The Council contends that the Court should:
–
dismiss the action for annulment;
–
order the applicant to pay the costs.
27
The Kingdom of Belgium contends that the Court should dismiss the action for annulment.
Law
28
In support of the action, the applicant raises a plea of illegality in respect of Article 1(d) and (g) of Regulation 2022/330. In addition, he relies on a plea in law alleging infringement of Articles 7 and 24 of the Charter of Fundamental Rights of the European Union, Articles 2 and 3 of the New York Convention on the Rights of the Child, signed on 20 November 1989, and Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, a plea in law alleging breach of the obligation to state reasons, a plea in law alleging infringement of the rights of the defence and the right to be heard, a plea in law alleging a manifest error of assessment, a plea in law alleging breach of the principle of proportionality and a plea in law alleging infringement of the right to property, the freedom to conduct a business and the right to pursue a profession. In the statement of modification, he also relies on a plea in law alleging the existence of a misuse of powers.
29
At the hearing, the applicant stated that he was waiving reliance on the arguments concerning infringement of Articles 7 and 24 of the Charter of Fundamental Rights, Articles 2 and 3 of the New York Convention on the Rights of the Child and Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the arguments relating to private and family life, which was noted.
The illegality, raised as a plea, of Article 1(d) and (g) of Regulation 2022/330, entailing breach of the principles of equal treatment, legal certainty and sound administration
30
The applicant asserts, principally, that the inclusion of his name on the lists at issue results from the application of illegal legislation on the ground that Regulation No 269/2014, as amended, permits the Council to include on the lists at issue the names of Russian nationals who have no links with the regime subject to the restrictive measures at issue, under the pretext that, by virtue of their economic activities, they are a source of revenue to the Russian Government. He alleges breach of the principles of equal treatment, legal certainty and sound administration. The inclusion of his name on the lists at issue resulting from the application of illegal legislation should therefore be annulled. In the reply, he submits that the Council exercised its discretionary power in a selective and thus discriminatory manner on the basis of nationality or the economic sectors concerned. Furthermore, in his view, the Council had to be able to justify how the establishment of the categories referred to in Article 1(d) and (g) of Regulation 2022/330 succeeded in remedying the ineffectiveness of the measures adopted since 2014 and to demonstrate that they were necessary, appropriate and not substitutable. In the statement of modification, he emphasises the removal of the link between the situation in Ukraine and the role of the natural persons subject to sanctions in the criteria established since 2022 and the ensuing need for an enhanced judicial review.
31
The Council, supported by the Kingdom of Belgium, disputes those arguments.
32
Under Article 277 TFEU, any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the Union is at issue, plead the grounds specified in the second paragraph of Article 263 TFEU in order to invoke before the Court of Justice of the European Union the inapplicability of that act.
33
Article 277 TFEU gives expression to a general principle conferring upon any party to proceedings the right to challenge incidentally, with a view to obtaining the annulment of a decision addressed to that party, the validity of acts of general application which form the legal basis of that decision, if that party was not entitled under Article 263 TFEU to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that it be declared void. The general measure claimed to be illegal must be applicable, directly or indirectly, to the issue with which the action is concerned and there must be a direct legal connection between the contested individual decision and the general measure in question (see judgment of 17 February 2017, Islamic Republic of Iran Shipping Lines and Others v Council, T‑14/14 and T‑87/14, EU:T:2017:102, paragraph 55 and the case-law cited).
34
With regard to the intensity of judicial review, according to settled case-law, the Courts of the European Union must, in accordance with the powers conferred on them by the FEU Treaty, ensure the review, in principle the full review, of the lawfulness of all Union acts in the light of the fundamental rights forming an integral part of the European Union legal order. That obligation is expressly laid down by the second paragraph of Article 275 TFEU (see judgments of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 58 and the case-law cited, and of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 65 and the case-law cited).
35
The fact remains that the Council enjoys a broad discretion as regards the general and abstract definition of the legal criteria and procedures for adopting restrictive measures (see, to that effect, judgment of 21 April 2015, Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 41 and the case-law cited). Consequently, rules of general application defining these criteria and procedures, such as the provisions of the contested acts providing for the criteria at issue, referred to in the present plea in law, are subject to a limited judicial review, restricted to checking that the rules governing procedure and the statement of reasons have been complied with, that the facts are materially accurate, that there has been no error in law and that there has been no manifest error of assessment of the facts or misuse of power (see, to that effect, judgments of 9 July 2009, Melli Bank v Council, T‑246/08 and T‑332/08, EU:T:2009:266, paragraphs 44 and 45, and of 12 February 2020, Amisi Kumba v Council, T‑163/18, EU:T:2020:57, paragraph 149 (not published)).
36
In the present case, Article 2 and Article 3(1)(d) and (g) of Regulation No 269/2014, as amended, provide that funds and economic resources belonging to ‘natural or legal persons, entities or bodies supporting, materially or financially, or benefitting from Russian decision-makers responsible for the annexation of Crimea or the destabilisation of Ukraine’ (Article 3(1)(d) of Regulation No 269/2014, as amended) (‘criterion (d)’) and ‘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’ (Article 3(1)(g) of Regulation No 269/2014, as amended) (‘criterion (g)’) are to be frozen.
37
The applicant submits that criteria (d) and (g) (together, ‘the contested criteria’), as applied in the case at issue, breach the principles of equal treatment, legal certainty and sound administration.
38
In the first place, it must be observed that the principle of equal treatment, which constitutes a fundamental principle of law, prohibits comparable situations from being treated differently or different situations from being treated in the same way, unless such difference in treatment is objectively justified (judgment of 9 July 2009, Melli Bank v Council, T‑246/08 and T‑332/08, EU:T:2009:266, paragraph 135).
39
In this case, it must be stated that the contested criteria do not apply only to Russian nationals or certain economic sectors, but to any person supporting, materially or financially, Russian decision-makers and any leading natural person within the meaning of the applicable criteria. As the Council asserts, nationals of EU Member States can also be subject to restrictive measures.
40
Furthermore, in so far as the applicant submits that the Council failed to adopt restrictive measures in respect of certain persons or certain entities fulfilling the contested criteria, exercised its power in a discriminatory manner and failed to examine carefully and impartially all the evidence relating to those persons or entities, such arguments fall within the scope of the examination of the applicant’s individual situation. Consequently, they must be rejected as being irrelevant to the legality of the criterion at issue.
41
This complaint must therefore be dismissed.
42
In the second place, the principle of legal certainty requires that EU legislation be clear and precise and its application foreseeable by those subject to it (see judgments of 5 March 2015, Europäisch-Iranische Handelsbank v Council, C‑585/13 P, EU:C:2015:145, paragraph 93 and the case-law cited, and of 17 February 2017, Islamic Republic of Iran Shipping Lines and Others v Council, T‑14/14 and T‑87/14, EU:T:2017:102, paragraph 192 and the case-law cited).
43
In the present case, the applicant submits that the contested criteria do not satisfy the requirement of foreseeability on the ground that, in essence, they are defined in too broad terms.
44
It should be noted that, first, as regards criterion (d), it is absolutely clear from the actual wording of Regulation No 269/2014, as amended, that that criterion applies in a targeted and selective manner to natural and legal persons which, even if they do not, as such, have any link with the destabilisation of Ukraine, support, materially or financially, or benefit from Russian decision-makers responsible for that destabilisation. Criterion (d) thus comprises two elements: material or financial support for Russian decision-makers responsible for the annexation of Crimea or the destabilisation of Ukraine and benefit from those decision-makers, those two elements not being cumulative. In addition, this criterion does not require that the persons or entities concerned benefit personally from the annexation of Crimea or the destabilisation of Ukraine. It is sufficient that they benefit from one of the ‘Russian decision-makers’ responsible for those events, and it is not necessary to establish a link between the advantages enjoyed by the designated persons and the annexation of Crimea or the destabilisation of Ukraine (see, to that effect, judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraph 87).
45
Second, as regards criterion (g), its wording refers sufficiently clearly and precisely inter alia to leading businesspersons involved in sectors providing a substantial source of revenue to the Russian Government. In the light of the wording of this criterion, the persons referred to must be considered to be influential on account of their importance in the sector in which they are involved and the importance of that sector for the Russian economy (see, to that effect, judgment of 13 September 2018, Rosneft and Others v Council, T‑715/14, not published, EU:T:2018:544, paragraph 157).
46
In addition, criterion (g) exists within a legal framework that is clearly circumscribed by the objectives pursued by the legislation governing the restrictive measures at issue, namely the need, in view of the gravity of the situation, to exert maximum pressure on the Russian authorities so that they bring an end to their actions and policies destabilising Ukraine and to the military aggression against Ukraine. From that perspective, the restrictive measures at issue are consistent with the objective, referred to in Article 21(2)(c) TEU, of preserving peace, preventing conflicts and strengthening international security, in accordance with the purposes and principles of the United Nations Charter, signed in San Francisco (United States) on 26 June 1945 (see, to that effect, judgments of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraphs 115 and 123; of 25 June 2020, VTB Bank v Council, C‑729/18 P, not published, EU:C:2020:499, paragraph 59; and of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 163).
47
Furthermore, the discretion conferred on the Council by the contested criteria is counterbalanced by an obligation to state reasons and by strengthened procedural rights (see, to that effect, judgment of 16 July 2014, National Iranian Oil Company v Council, T‑578/12, not published, EU:T:2014:678, paragraph 122 and the case-law cited).
48
It follows that the contested criteria satisfy the degree of foreseeability required by EU law.
49
Furthermore, as regards criterion (g), contrary to the assertion made by the applicant, there is a rational connection between the targeting of leading businesspersons involved in economic sectors providing a substantial source of revenue to the Government, in view of the importance of those sectors for the Russian economy, and the objective of the restrictive measures pursued in the present case, which is to increase pressure on the Russian Federation and the costs of its actions to undermine Ukraine’s territorial integrity, sovereignty and independence (see, to that effect, judgment of 13 September 2018, Rosneft and Others v Council, T‑715/14, not published, EU:T:2018:544, paragraph 157 and the case-law cited).
50
The applicant’s argument concerning the removal of the link between the situation in Ukraine and the role of natural persons subject to the restrictive measures at issue must therefore be dismissed.
51
Accordingly, the complaint alleging breach of the principle of legal certainty must be dismissed.
52
In the third place, the complaint alleging breach of the principle of sound administration, which entails the obligation for the competent institution to examine, carefully and impartially, all the relevant aspects of the individual case (see, to that effect, judgments of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 58, and of 6 June 2018, Arbuzov v Council, T‑258/17, EU:T:2018:331, paragraph 61), is not otherwise substantiated and must also therefore be dismissed.
53
In the fourth place, in the reply, the applicant alleges that the Council was not able to justify how the establishment of the categories of persons and entities referred to in Article 1(d) and (g) of Regulation 2022/330 succeeded in remedying the ineffectiveness of the measures adopted since 2014 and to demonstrate that they were necessary, appropriate and not substitutable.
54
However, as the Council asserts, without this having been rebutted by the applicant at the hearing, this argument was not raised in the application. It must therefore be rejected as inadmissible under Article 84(1) of the Rules of Procedure of the General Court, which prohibits the submission, in the course of proceedings, of new pleas in law which are not based on matters of law or of fact which come to light in the course of the procedure.
55
Moreover, the legality of restrictive measures is not dependent on their being found to have immediate effects; all that is required is that they are not manifestly inappropriate in regard to the objective that the competent institution seeks to pursue (see, to that effect, judgment of 17 September 2020, Rosneft and Others v Council, C‑732/18 P, not published, EU:C:2020:727, paragraph 97). Consequently, the Council was not required to demonstrate that the contested criteria were such as to remedy the alleged ineffectiveness of the measures adopted since 2014.
56
As regards the applicant’s complaint disputing that the contested criteria are necessary and appropriate, it should be recalled that the principle of proportionality, which is one of the general principles of European Union law, requires that measures implemented through provisions of European Union law be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve them (judgment of 13 March 2012, Melli Bank v Council, C‑380/09 P, EU:C:2012:137, paragraph 52).
57
In addition, the Council enjoys a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments and the legality of a measure adopted in those fields can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (judgment of 1 March 2016, National Iranian Oil Company v Council, C‑440/14 P, EU:C:2016:128, paragraph 77).
58
In the present case, the contested criteria, as interpreted in the light of the legislative and historical content in which they were adopted, do not appear to be manifestly inappropriate having regard to the objective of the restrictive measures, as noted in paragraph 46 above, the prime importance of maintaining peace, and European and global security and stability.
59
Lastly, the applicant’s complaints alleging that his name is included on the lists at issue only because he was a shareholder in Alfa Bank and because Alfa Bank is regarded as a major taxpayer in Russia, which he disputes, fall within the scope of the examination of his individual situation and, therefore, the examination of the plea in law alleging an error of assessment.
60
Accordingly, the plea of illegality must be dismissed.
The plea in law alleging breach of the obligation to state reasons
61
The applicant asserts, first, that the statement of reasons for the contested acts did not enable him to determine precisely what the ‘contested transactions’ were or to understand the scope of the measure taken against him. Second, the statement of reasons did not show that the Council examined carefully the grounds for including his name on the lists at issue and is in reality purely formal. He adds, in the reply, that the statement of reasons for the acts is not substantiated and that it is inaccurate. In the statement of modification, the applicant submits that the acts maintaining his name on the lists at issue do not allow the reasons for such maintenance in September 2022 to be identified, when the situation had changed from the time of the initial regulation in 2014. Furthermore, no appraisal of the impact of the measures or updated assessment was conducted. Similarly, the letter of 15 September 2022 by which the Council refused his request for reconsideration did not include a statement of the reasons enabling him to understand the reasons for maintaining his name on the lists at issue.
62
The Council, supported by the Kingdom of Belgium, disputes those arguments.
63
According to case-law, the purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the European Union judicature and, second, to enable that judicature to review the legality of that act (judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 49).
64
The statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. In particular, it is not necessary for the reasoning to go into all the relevant facts and points of law or to provide a detailed answer to the considerations set out by the person concerned when consulted prior to the adoption of that same measure, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. Consequently, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him or her to understand the scope of the measure concerning him or her (judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 53; see also judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 48 and the case-law cited).
65
Thus, first, the reasons given for a decision adversely affecting a person are sufficient if that decision was adopted in circumstances known to the party concerned which enable him or her to understand the scope of the measure concerning him or her. Second, the degree of precision of the statement of the reasons for a measure must be weighed against practical realities and the time and technical facilities available for taking the measure (see judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 104 and the case-law cited).
66
In addition, it has been made clear in the case-law that the statement of reasons for an act of the Council which imposed a restrictive measure had not only to identify the legal basis for that measure but also the actual and specific reasons why the Council considered, in the exercise of its discretion, that such a measure had to be adopted in respect of the person concerned (see judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 105 and the case-law cited).
67
In the present case, the measures at issue were adopted on the basis of the contested acts, which, in the case of both the initial acts and the maintaining acts, specified the context, in their respective recitals, and the legal bases on which they were adopted.
68
In addition, the statement of facts as reproduced in paragraph 16 above constitutes a sufficiently clear and precise statement of reasons enabling the applicant to understand the reasons why his name was included, then maintained, on the lists at issue.
69
In this regard, the argument that the statement of reasons for the contested acts did not enable him to determine precisely what the ‘contested transactions’ were does not invalidate this finding, as it is not necessary for the reasoning to go into all the relevant facts and points of law prior to the adoption of an act maintaining his name on the list at issue. Similarly, in the light of the reasoning used, the argument that it is purely formal must also be rejected since the statement of reasons in this case contains sufficient factual information and clarifications to enable the applicant to understand the scope of the measure taken against him and the Court to exercise its power of review.
70
The applicant’s arguments that the Council’s statement of reasons is inaccurate and unsubstantiated relate to substantive legality and are not relevant to the obligation to state reasons. The same holds for the argument that no appraisal of the impact of the measures or updated assessment was conducted.
71
Lastly, in the statement of modification, the applicant submits that the maintaining acts do not permit the reasons for such maintenance to be identified.
72
However, as was stated in paragraphs 20 and 22 above, the Council, after examining the observations submitted by the applicant, considered that, given the similarity of the arguments, its previous observations in the present case were applicable.
73
This indicates sufficiently clearly that the grounds for maintaining the applicant’s name on the lists at issue are the same as those justifying his initial inclusion, without the need for an additional statement of reasons after an interval of six months. In addition, it is also unnecessary for the statement of reasons for maintaining acts to provide a detailed answer to the considerations set out by the person concerned when consulted prior to the adoption of that same measure.
74
Furthermore, the argument that Implementing Regulation 2022/1529 refers to Regulation No 269/2014, when, according to the applicant, the situation had changed, relates to the validity of the reasons and is not effective with regard to the obligation to state reasons. In any event, it must be rejected. The recitals of Decision 2022/1530 are based on the continuing Russian military aggression in Ukraine and Implementing Regulation 2022/1529 merely adapts Annex I to Regulation No 269/2014 in order to make it consistent with the annex to Decision 2014/145 following its amendment by Decision 2022/1530.
75
In the light of the above considerations, it must be concluded that the contested acts state to the requisite legal standard the matters of fact and law on which, according to the Council, those acts are based.
76
The plea in law alleging breach of the obligation to state reasons must therefore be dismissed.
The plea in law alleging infringement of the rights of the defence and the right to be heard
77
The applicant alleges infringement of his rights of defence on the ground that he did not receive the grounds for the inclusion of his name on the lists at issue in good time. He maintains that the Council did not notify him individually of the contested acts, but published a notice in the Official Journal, although his address was known to the French authorities. He asserts that there was no response to his request for a hearing, which was made in his letter of 7 June 2022. In the statement of modification, he adds that the Council was required to bring to his attention the reasons for maintaining his name on the lists at issue. Furthermore, the production of new evidence in the rejoinder infringes his rights of defence.
78
The Council, supported by the Kingdom of Belgium, disputes those arguments.
79
It should be noted that the right to be heard in all proceedings, laid down in Article 41(2)(a) of the Charter of Fundamental Rights, which is inherent in respect for the rights of the defence, guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of a decision in relation to that person that is liable to affect his or her interests adversely (see judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 75 and the case-law cited).
80
Article 52(1) of the Charter nevertheless allows limitations on the exercise of the rights enshrined in the Charter, subject to the conditions that the limitation concerned is provided for by law, that it respects the essence of the fundamental right in question and, subject to the principle of proportionality, that it is necessary and genuinely meets objectives of general interest recognised by the European Union (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 101 and the case-law cited).
81
In that regard, the Court of Justice has held on a number of occasions that the rights of the defence might be subject to limitations or derogations, including in the sphere of the restrictive measures adopted in the context of the common foreign and security policy (see, to that effect, judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 67 and the case-law cited).
82
Further, the question whether there is an infringement of the rights of the defence must be examined in relation to the specific circumstances of each particular case, including, the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question (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 102 and the case-law cited).
83
It should also be noted that the EU Courts distinguish between, on the one hand, the initial entry of a person’s name on the lists at issue and, on the other, the maintenance of that person’s name on those lists (see, to that effect, judgment of 30 April 2015, Al-Chihabi v Council, T‑593/11, EU:T:2015:249, paragraph 40).
84
It is in the light of these principles of case-law that the plea of law at issue should be considered.
The initial acts
85
In the first place, the applicant submits that the Council was required to communicate the initial acts to him by means of direct notification.
86
In the present case, the grounds for including the applicant’s name on the lists at issue were communicated in a notice published in the Official Journal of 16 March 2022 (see paragraph 17 above).
87
It must be observed in this regard, first, that both Article 3(2) of Decision 2014/145, as amended, and Article 14(2) of Regulation No 269/2014, as amended, provide that the Council is to communicate its decision, including the grounds for listing, to the person subject to the restrictive measures ‘either directly, if the address is known, or through the publication of a notice, providing such natural or legal person, entity or body with an opportunity to present observations’.
88
Second, according to case-law, although an individual communication of that type of decision is, in principle, necessary, since the mere publication in the Official Journal is not sufficient, the EU Courts must nevertheless examine, in each case, whether the fact that the statement of reasons for the contested decision was not individually brought to the attention of the applicant has had the effect of depriving the latter of an opportunity to be aware, in good time, of the reasons for the contested decision and to assess the validity of the measure freezing funds and economic resources adopted in his regard (judgments of 13 September 2013, Makhlouf v Council, T‑383/11, EU:T:2013:431, paragraph 48, and of 22 September 2021, Al-Imam v Council, T‑203/20, EU:T:2021:605, paragraph 102; see also, to that effect, judgment of 16 November 2011, Bank Melli Iran v Council, C‑548/09 P, EU:C:2011:735, paragraph 56).
89
In addition, according to case-law, the Council may be considered to be unable to communicate individually to a natural or legal person or to an entity an act incorporating restrictive measures relating to that person or entity either when the latter’s address is not published and has not been supplied to the Council or when the communication sent to the address which the Council has fails, in spite of the steps which it has taken, with all necessary diligence, in order to effect such communication (judgments of 5 November 2014, Mayaleh v Council, T‑307/12 and T‑408/13, EU:T:2014:926, paragraph 61, and of 22 September 2021, Al-Imam v Council, T‑203/20, EU:T:2021:605, paragraph 103).
90
In the present case, the Council submits that it did not have the applicant’s address.
91
The applicant has not provided any evidence to show that the Council had his personal or business address on the date of adoption of the initial acts either because the address had been supplied to it or because it was published. In this regard, the applicant’s assertion that the French authorities had his address must be disregarded. The fact that the French authorities might have his address does not invalidate the finding that on the date of those acts the Council did not have it.
92
Consequently, the argument that the Council should have communicated the initial acts to the applicant by means of direct notification must be dismissed.
93
Moreover, it must be observed that, according to case-law, while the absence of individual communication of the initial acts has an impact on the point at which time starts running for the purpose of the bringing of an action, it does not in itself justify the annulment of the acts at issue. The applicant does not put forward any arguments that would demonstrate that, in the present case, the failure to communicate those acts individually resulted in a breach of his rights that would justify the annulment of those acts in so far as they concern him (see, to that effect, judgment of 13 September 2018, VTB Bank v Council, T‑734/14, not published, EU:T:2018:542, paragraph 111 and the case-law cited).
94
In the second place, the applicant submits that he did not receive the grounds for the inclusion of his name on the lists at issue in good time.
95
However, it is apparent from the documents before the Court that, following the notice published on 16 March 2022, the applicant requested, by letter of 5 April 2022, that the Council communicate to him the documents supporting that listing, which the Council did by letter of 13 April 2022. By letter of 14 April 2022, the applicant’s observations were sent to the Council.
96
Consequently, the communication of the grounds must be considered to have been effected in good time in this case in so far as it placed the applicant in a position in which he could effectively make known his views on the grounds advanced against him.
97
In the third place, it should be recalled that neither the legislation in question nor the general principle of respect for the rights of the defence gives the persons concerned the right to a hearing, the opportunity to submit their observations in writing being sufficient (see, to that effect and by analogy, judgments of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraph 93; of 6 September 2013, Bank Melli Iran v Council, T‑35/10 and T‑7/11, EU:T:2013:397, paragraph 105; and of 10 November 2021, Alkattan v Council, T‑218/20, not published, EU:T:2021:765, paragraph 64).
98
In the present case, following the receipt of the evidence file in its entirety on 13 April 2022, the applicant sent his observations to the Council on 14 April, 30 May, 7 June, 5 July and 18 August 2022. He was also able to bring an action before the General Court and to make an application for interim relief in a substantiated manner.
99
It must therefore be stated that in this case the decision by the Council not to grant a hearing to the applicant did not infringe his rights of defence.
The maintaining acts
100
The applicant submits in the statement of modification that the Council was required to bring to his attention, prior to the maintenance of his name on the lists at issue, of the reasons for such maintenance.
101
It must be observed that, in the case of a decision to freeze funds by which the name of a person or entity already appearing on the list of persons and entities whose funds are frozen is maintained on the list, the adoption of such a decision must, in principle, be preceded by notification of the incriminating evidence and by allowing the person or entity concerned an opportunity of being heard (judgment of 15 September 2021, Boshab v Council, T‑107/20, not published, EU:T:2021:583, paragraph 78; see also, to that effect, judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 62).
102
The right to be heard prior to the adoption of acts maintaining the name of a person or an entity on a list of persons or entities subject to restrictive measures is necessary where, in the decision maintaining a person’s name on that list, the Council has included new evidence against him, namely evidence which was not taken into account in the initial decision to include his name on the list (see judgment of 12 February 2020, Amisi Kumba v Council, T‑163/18, EU:T:2020:57, paragraph 54 and the case-law cited).
103
However, where maintaining the name of the person or entity concerned on a list of persons or entities subject to restrictive measures is based on the same reasons as those which justified the adoption of the initial measure without new evidence being adduced, the Council is not obliged, in order to respect the right of that person or entity to be heard, to notify it again of the evidence against it (judgments of 7 April 2016, Central Bank of Iran v Council, C‑266/15 P, EU:C:2016:208, paragraphs 32 and 33, and of 22 June 2022, Haswani v Council, T‑479/21, not published, EU:T:2022:383, paragraph 85).
104
In the present case, by letter of 15 September 2022, the Council refused the request for reconsideration on the ground that the applicant’s observations did not call into question its assessment that there were sufficient grounds to maintain his name on the lists at issue. In addition, given the similarity of the arguments, the Council made reference to its observations in the proceedings for interim relief concerning the applicant (Cases T‑193/22 R and C‑526/22 P(R)) and the defence in the present case.
105
In doing so, the Council informed the applicant that his name was being maintained on the lists at issue for the same reasons as those which justified the adoption of the initial acts without new evidence being adduced.
106
In view of these circumstances, the Council was not obliged, in order to respect his right to be heard, to notify him again of the evidence against him.
107
Furthermore, as the Council asserts, the newspaper article in the September 2019 edition of the Monde diplomatique concerning corruption in Russia must be considered to have been produced in the rejoinder in response to an argument in the reply and not by way of an a posteriori statement of reasons. An infringement of the rights of the defence cannot therefore be established in this regard.
108
Accordingly, the plea in law alleging infringement of the rights of the defence and the right to be heard must be dismissed.
The plea in law alleging a manifest error of assessment and an unfounded statement of reasons
109
According to the statement of reasons for the inclusion and the maintenance of the applicant’s name on the lists at issue, he is subject to the restrictive measures at issue on the basis of the contested criteria.
110
In the context of the plea in law at issue, the applicant, first, contests the probative value of the evidence produced in support of the inclusion of his name on the lists at issue and, second, alleges that the assessments made in the statement of reasons for the contested acts are manifestly incorrect.
111
The Court considers it useful to begin by examining these two limbs having regard to criterion (g).
The first limb, alleging the absence of probative value of the evidence produced in support of criterion (g)
112
The applicant contests the probative value of the documents comprising the Council’s evidence file. He submits that the press articles produced by the Council are not dated or date from more than 17 years ago or that their author is unknown. He questions their reliability and asserts that regard was not had to their credibility by cross-checking them with other official sources.
113
The Council, supported by the Kingdom of Belgium, disputes those arguments.
114
It should be noted that, in accordance with settled case-law, the activity of the EU Courts is governed by the principle of the unfettered assessment of the evidence, and it is only the reliability of the evidence before the Court which is decisive when it comes to the assessment of its value. In this regard, in order to assess the probative value of a document, regard should be had to the credibility of the account it contains and, in particular, to the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears to be sound and reliable (see judgments of 31 May 2018, Kaddour v Council, T‑461/16, EU:T:2018:316, paragraph 107 and the case-law cited, and of 12 February 2020, Amisi Kumba v Council, T‑163/18, EU:T:2020:57, paragraph 95 (not published) and the case-law cited).
115
In the absence of investigative powers in third countries, the assessment of the EU authorities must rely on publicly available sources of information, reports, articles in the press, intelligence reports or other similar sources of information (judgments of 14 March 2018, Kim and Others v Council and Commission, T‑533/15 and T‑264/16, EU:T:2018:138, paragraph 107, and of 1 June 2022, Prigozhin v Council, T‑723/20, not published, EU:T:2022:317, paragraph 59).
116
Furthermore, it must be observed that the conflict situation involving the Russian Federation and Ukraine makes it particularly different in practice to access certain sources, to specify the primary source of some information and, where appropriate, to collect testimonies from persons who agree to be identified. The ensuing investigation difficulties can thus be a factor in preventing specific evidence and objective information being provided (see, to that effect and by analogy, judgments of 21 April 2015, Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 46, and of 24 November 2021, Al Zoubi v Council, T‑257/19, EU:T:2021:819, paragraph 73).
117
In the present case, to justify the inclusion of the applicant’s name on the lists at issue having regard to criterion (g), the Council relied on an article which appeared on 6 April 2018 on an American news website, the Daily Beast, written by a US historian (evidence item 1). The applicant’s argument that these pages sought to exploit a new field of satirical and popular blogs on the eve of US election cannot deprive that document of its probative value.
118
The article taken from the website ‘astral.ru’ (evidence item 2), although undated, includes a subheading showing that it concerns the biggest taxpayers in Russia in 2020. In addition, even though, as the applicant points out, it is the commercial website of a Russian digital services provider, it refers to an order of the Russian Federal Tax Service and indicates the criteria based on which an organisation is considered to be among the biggest taxpayers. It adds a list of the biggest Russian taxpayers in 2020. It follows that the probative value of that article, which cites its sources and the verifiable data on which it is based, cannot be discounted.
119
The article published on the website ‘banki.ru’ on 30 August 2018 (evidence item 3) refers to the ranking in Forbes magazine of the most influential Russians. Even though it is a secondary source, it cites its source as being the Forbes 2018 influencers list and its probative value cannot therefore be called into question.
120
In the light of the above, given the context characterising the situation in Russia and in the absence of investigative powers for the Council in third countries (see the case-law cited in paragraphs 115 and 116 above), the probative value of the items in the evidence file cannot be discounted.
The second limb, alleging a ‘manifestly’ incorrect assessment of the facts having regard to criterion (g)
121
First, it must be observed that this plea in law must be regarded as alleging an error of assessment and not a manifest error of assessment. Whilst 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 Courts of the European Union must ensure the review, in principle the full review, of the lawfulness of all European Union acts (see, to that effect, judgment of 1 June 2022, Prigozhin v Council, T‑723/20, not published, EU:T:2022:317, paragraph 70 and the case-law cited).
122
Second, it must be observed that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights requires in particular that the Courts of the European Union are to 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 (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).
123
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 entity to adduce evidence of the negative, that those reasons are not well founded (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 121, and of 3 July 2014, National Iranian Tanker Company v Council, T‑565/12, EU:T:2014:608, paragraph 57).
124
The assessment whether those reasons are well founded 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 Courts a set of indicia sufficiently specific, precise and consistent to establish that there is a sufficient link between the entity subject to a restrictive measure 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).
125
It is in the light of these principles of case-law that it must be determined whether the Council committed an error of assessment in considering that in the present case there was a sufficiently solid factual basis to justify, first, the initial inclusion and, second, the maintenance of the applicant’s name on the lists at issue.
126
It is necessary first to rule on the admissibility of the additional documents produced by the applicant.
– Admissibility of the additional documents produced by the applicant
127
Article 85(3) of the Rules of Procedure provides that the main parties may, exceptionally, produce or offer further evidence before the oral part of the procedure is closed or before the decision of the General Court to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified.
128
In the present case, the applicant produced five additional documents on 19 December 2022, justifying their lateness by stating that he was continuing to investigate his case on a day-to-day basis and was responding to arguments made by the Council.
129
The Council submits that that evidence was submitted out of time and is therefore inadmissible and, in any event, irrelevant.
130
The first additional document is a certificate dated 9 December 2022 from the auditors of ABH Holdings SA and the second additional document is a certificate dated 16 December 2022 from that company’s law firm. Those documents mention inter alia the applicant’s status as a minority shareholder, an agreement for the sale of his shares in ABH Holdings just before the adoption of the contested acts in March 2022 and the company’s shareholder structure. That evidence thus relays information of which the applicant must have been aware at an earlier stage. However, the applicant has not indicated that he had not been able to arrange production at an earlier stage of the proceedings or why he had not done so. The fact that he stated that he was continuing to investigate his case on a day-to-day basis does not constitute an exceptional circumstance justifying their late production in accordance with Article 85(3) of the Rules of Procedure.
131
The third additional document contains a testimony dated 28 March 2022, while the fourth and fifth additional documents contain testimonies dated 1 April 2022. Those documents clearly could have been produced as an annex to the reply of 19 August 2022 or even as an annex to the application of 15 April 2022.
132
In those circumstances, the applicant cannot be considered to have justified, for the purposes of Article 85(3) of the Rules of Procedure, the late production of that additional evidence. That evidence is therefore inadmissible and will not be taken into account by the Court in the examination of the plea in law at issue.
– The initial inclusion
133
The applicant submits that he does not satisfy the conditions of criterion (g), which, in his view, targets a small circle of leading businesspersons who are favoured by President Putin and support the Russian regime, which is not the case with him. None of the documents in the evidence file indicate that he is a leading businessperson. He also contests the term ‘influential person’ used by the Council, which cannot be based solely on the person’s importance, without regard to his or her close links with the political regime in question. He disputes the ranking in the Russian edition of Forbes, claiming that certain businessmen are mentioned without being subject to sanctions. He adds that he does not meet the definition of oligarch in Ukrainian law.
134
In addition, he challenges the confusion arising between him and the entity Alfa Bank when he has never held an executive role in that entity, in which he was a minority shareholder with a 16.3% interest, without even a blocking minority, and from which he resigned when the initial acts were adopted. Alfa Bank carries on a lawful activity in Russia without, however, supporting the regime’s actions. He asserts that the notion of ‘influence’ is not limited solely to holding shares in a company in the country concerned, without regard being had to an executive function or majority interest. He does not exercise control and is not the beneficial owner of any entity in the Alfa Group.
135
[Confidential]. (
1
)
136
The Council, supported by the Kingdom of Belgium, disputes those arguments.
137
It should be noted that the applicant’s name was included on the lists at issue based on criterion (g) on the ground that he ‘is a major shareholder of the Alfa Group conglomerate, which includes Alfa Bank, one of Russia’s largest taxpayers [and that he] is believed to be one of the most influential persons in Russia’.
138
Criterion (g) employs the notion of ‘leading businesspersons’ in conjunction with involvement ‘in economic sectors providing a substantial source of revenue to the [Russian] Government’, without any other condition relating to a link, whether direct or indirect, with that government. The aim pursued by that criterion is to exert maximum pressure on the Russian authorities so that they bring an end to their actions and policies destabilising Ukraine and to the military aggression against Ukraine.
139
In that regard, as was stated above (see paragraph 49 above), there is a rational connection between the targeting of leading businesspersons involved in economic sectors providing a substantial source of revenue to the Russian Government and the objective of the restrictive measures in the present case, which is to increase pressure on the Russian Federation and the costs of its actions to undermine Ukraine’s territorial integrity, sovereignty and independence (see, to that effect, judgment of 13 September 2018, Rosneft and Others v Council, T‑715/14, not published, EU:T:2018:544, paragraph 157).
140
However, there is nothing in the recitals or the provisions of Decision 2014/145 and Regulation No 269/2014, as amended, to indicate that it is for the Council to demonstrate the existence of a close link or interdependence between, on the one hand, the person whose name is included on the lists at issue and, on the other, the Russian Government or its actions undermining the territorial integrity, sovereignty and independence of Ukraine.
141
Contrary to the assertion made by the applicant, it cannot be inferred from the case-law concerning the criterion ‘leading businessperson’ as applied in connection with restrictive measures taken against the Syrian Arab Republic that the notion of ‘leading businesspersons’ used in the context of the criterion applied in the present case obliges the Council to demonstrate the existence of close links or interdependence with the Russian Government.
142
Such an interpretation would run counter to not only the wording of criterion (g), but also the objective pursued.
143
Having regard, first, to the wording of criterion (g), as is recalled in paragraph 44 above, the persons referred to must be considered to be influential on account of their importance in the sector in which they are involved and the importance of that sector for the Russian economy (see, to that effect, judgment of 13 September 2018, Rosneft and Others v Council, T‑715/14, not published, EU:T:2018:544, paragraph 157 and the case-law cited). In this regard, the notion of ‘leading businessperson’ must therefore be understood as referring to their importance in the light, in particular, of their professional status, the importance of their economic activities, the extent of their capital holdings or their functions within one or more undertakings in which they pursue those activities.
144
Second, the objective of the restrictive measures at issue is not to penalise certain persons or entities because of their links with the situation in Ukraine or their links with the Russian Government, but, as was noted in paragraph 46 above, to impose economic sanctions on the Russian Federation in order to increase pressure on it and the costs of its actions to undermine Ukraine’s territorial integrity, sovereignty and independence and to put an end, as quickly as possible, to the aggression suffered by Ukraine (see, to that effect, judgment of 13 September 2018, Rosneft and Others v Council, T‑715/14, not published, EU:T:2018:544, paragraph 160).
145
Therefore, contrary to the assertion made by the applicant, criterion (g) does not require the Council to demonstrate the existence of close links or a relationship of interdependence with the Russian Government. Nor is it dependent on the imputability to the applicant of the decision to continue the military aggression against Ukraine or on a direct or indirect link with the annexation of Crimea or the destabilisation of Ukraine, as is claimed in the statement of modification.
146
It is in the light of those considerations that it must be assessed whether the Council’s decision is vitiated by an error of assessment in so far as it took the view that the applicant was a leading businessperson involved in an economic sector providing a substantial source of revenue to the Russian Government.
147
In the present case, in the first place, with regard to the status of leading businessperson applied to the applicant, it should be stated that, as is apparent from evidence item 1 in particular, he is the co-founder of Alfa Group, a major private industrial and financial group in Russia which, as the applicant acknowledged at the hearing, has interests in various sectors such as oil, gas, commerce, insurance, telecommunications and commercial and investment banking.
148
It is also clear from evidence item 3 that Forbes magazine compiled a ranking of the most influential Russian men and women, including politicians, parliamentarians, governors and directors of the largest undertakings, and that the applicant appears on the list of the 100 most influential Russians. As the Council states, although opinions may differ on the parameters used to produce the ranking in question, it is nevertheless indicative of the persons occupying an important position in the economic, political or administrative spheres in Russia. Moreover, this is also confirmed by the Insider article of 13 April 2022, produced as an annex to the application, which refers to the 2022 Forbes international ranking and mentions the applicant as ‘one of the most influential persons in Russia’. The applicant’s argument that certain businessmen are mentioned without being subject to restrictive measures must be rejected since any divergent practice on the part of the Council in this regard lies within its discretion and cannot give rise to any legitimate expectations on the part of the persons or entities concerned (see, to that effect, judgment of 13 March 2012, Melli Bank v Council, C‑380/09 P, EU:C:2012:137, paragraph 62).
149
Furthermore, it is apparent from the documents before the Court that the applicant was one of the eight members of the Supervisory Board of A 1 Investment Holding SA, an investment structure of the Alfa Group consortium, from October 2018 to 15 March 2022.
150
Lastly, it is clear from the documents before the Court and the clarifications provided by the applicant at the hearing that Alfa Group includes a banking structure, ABH Holdings, which owns inter alia Alfa Bank, and that the applicant was a shareholder in ABH Holdings with a 16.3% interest.
151
It follows that, even though since 2010 the applicant has no longer held executive functions in ABH Holdings or in its subsidiaries, the Council did not commit an error of assessment in describing him as a ‘major shareholder of the Alfa Group conglomerate’ in view of the fact that he held an interest of 16.3% in ABH Holdings. Whilst it is true that this is a minority interest, it is nevertheless significant given that that company in turn owns Alfa Bank, which is the largest Russian private commercial and investment bank.
152
The certificate of 6 April 2022 from the director of ABH Holdings does state that the applicant sold his shares in that company on 14 March 2022 and that he no longer has an ownership interest in it.
153
However, aside from the fact that the probative value of that certificate, which originates from the director of the company in which the applicant was a shareholder, should be qualified in accordance with the abovementioned case-law (see paragraph 114 above), it must be stated that the certificate implies that the applicant was a shareholder in ABH Holdings until just before the adoption of the initial acts. This alleged change in situation which occurred just before the adoption of the initial acts, assuming it to be true, cannot remove the applicant’s status as a leading businessperson and establish an error of assessment by the Council in this regard.
154
Furthermore, in view of criterion (g), the notion of ‘leading businesspersons’ refers to factual matters occurring both in the past and over time. Consequently, the fact that the grounds for including the applicant’s name on the lists at issue refer to a factual situation which existed before the adoption of the initial acts and which was very recently modified does not necessarily mean that the restrictive measures against him by those acts are obsolete (see, by analogy, judgment of 12 February 2020, Amisi Kumba v Council, T‑163/18, EU:T:2020:57, paragraph 83).
155
Accordingly, in the light of all those considerations, the Council did not commit an error of assessment when, on the date of adoption of the initial acts, it took the view that the applicant satisfied the conditions as a leading businessperson within the meaning of criterion (g).
156
In the second place, with regard to the economic sector at issue, it should be noted that Alfa Bank, which is owned by ABH Holdings, is a private bank which, as the applicant states, carries on a lawful activity in Russia, is the largest Russian private commercial and investment bank and is part of Alfa Group, a major private industrial and financial group in Russia. In this regard, it is clear from criterion (g) that it is the economic sector, and not the natural or legal person whose name is included on the lists at issue, that must constitute a substantial source of revenue to the Russian Government. The economic sector at issue in the present case is the banking sector, which is indisputably a substantial source of revenue to the Russian Government.
157
In addition, the finding that Alfa Bank is one of the largest taxpayers in Russia is based on consistent evidence produced by the Council. In particular, evidence item 1 mentions Alfa Bank as one of the largest private banks in Russia and evidence item 2 contains a list of the 24 biggest Russian taxpayers in 2020, which include Alfa Bank.
158
The applicant’s argument disputing Alfa Bank’s position among the 24 biggest taxpayers in Russia must be dismissed. The applicant contests the ranking mentioned in that document on the ground that, unless companies publish their financial statements, capacity as a taxpayer cannot be verified and proven without obtaining from the tax authority of the country concerned precise information on the contributory position of the taxpayer in question. However, although the applicant contests the reliability and accuracy of the ranking, he does not call into question the company’s position as a significant taxpayer.
159
It follows that the Council established by sufficiently specific, precise and consistent indicia that Alfa Group, which includes Alfa Bank, operates in an economic sector, in this case the banking sector, providing a substantial source of revenue to the Russian Government.
160
In view of all these considerations, the Council did not commit an error of assessment when, on the date of adoption of the initial acts, it took the view that the applicant satisfied the conditions for the application of criterion (g).
161
The other arguments raised by the applicant do not invalidate this finding.
162
First, the arguments presented by the applicant concerning the fact that Alfa Group, which is not controlled or supported by the Russian State, has remained outside of politics, applies ‘Western ethical standards’ and plays an important role in the Ukrainian economy are not relevant to criterion (g). The same holds for the claim that Alfa Bank carries on a lawful activity in Russia without, however, supporting the Russian Government’s actions against Ukraine. Criterion (g) mentions that the sector must be a substantial source of revenue to the Russian Government, without requiring that there is a link between that source of revenue and the actions of the Russian Government in Ukraine or proof of an intention to support those actions. Furthermore, as the applicant acknowledged at the hearing, Alfa Bank has appeared on the European lists of restrictive measures since 25 February 2022 (see Annex V of Council Decision (CFSP) 2022/327 of 25 February 2022 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2022 L 48, p. 1)).
163
Second, the applicant submits that the inclusion of his name on the lists at issue is an error in the light of the multilateral sanctions policy. However, the applicant’s arguments regarding the fact that his name is not included on the Ukrainian or US sanctions lists cannot be decisive in interpreting the listing criteria which are specific to the EU legal order. Similarly, the terms of a provision of EU law must normally be given an autonomous and uniform interpretation throughout the European Union, which must take into account the context of that provision and the purpose of the legislation in question (see, to that effect, judgment of 11 June 2020, Pantochim, C‑19/19, EU:C:2020:456, paragraph 37 and the case-law cited). Consequently, the definition of oligarch in Ukrainian law is not relevant in interpreting criterion (g), which has no regard to the applicant’s personal involvement in the war or the existence of direct or close links or a relationship of interdependence with the political regime concerned.
164
[Confidential].
165
It follows from all the foregoing that the Council did not commit an error of assessment in taking the view, in the initial acts, that the applicant satisfied the conditions of criterion (g).
– The maintenance of the applicant’s name on the lists at issue
166
The applicant asserts in the statement of modification that he submitted to the Council arguments which were not taken into account, such as the fact that he was only a minority shareholder, that he did not exert any influence over the bank’s operations or strategy and that he is not therefore a businessman involved in the sector concerned. He also invokes the ineffectiveness of the measures, the failure to appraise or assess those measures and the consideration of only the context existing in September 2022, ignoring his individual situation.
167
The Council, supported by the Kingdom of Belgium, disputes those arguments.
168
It should be borne in mind that restrictive measures are measures 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 objective. It is thus for 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 attain 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 (see judgment of 27 April 2022, Ilunga Luyoyo v Council, T‑108/21, EU:T:2022:253, paragraph 55 and the case-law cited; judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 67).
169
In order to justify retaining a person’s name on the lists in question, 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 that list, provided that (i) the grounds for inclusion remain unchanged and (ii) the context has not changed in such a way that that evidence is now out of date (see, to that effect, judgment of 23 September 2020, Kaddour v Council, T‑510/18, EU:T:2020:436, paragraph 99). 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 (judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 78; see also judgment of 9 June 2021, Borborudi v Council, T‑580/19, EU:T:2021:330, paragraph 60 (not published) and the case-law cited). Similarly, maintenance on the list at issue is 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, judgments of 12 February 2020, Amisi Kumba vCouncil, T‑163/18, EU:T:2020:57, paragraphs 83 and 84; of 27 April 2022, Boshab v Council, T‑103/21, not published, EU:T:2022:248, paragraph 121; and of 27 April 2022, Ilunga Luyoyo v Council, T‑108/21, EU:T:2022:253, paragraph 56).
170
In the present case, Article 6 of Decision 2014/145, as amended, provides that 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. Article 14(4) of Regulation No 269/2014, as amended, provides for the list in its annex to be reviewed at regular intervals and at least every 12 months.
171
In respect of the maintaining acts it must be stated that the grounds for inclusion remained the same as in the initial acts.
172
It must therefore be determined, pursuant to the abovementioned case-law (paragraph 169 above), whether the context, the objectives and the applicant’s individual situation permit the listing of his name to be maintained on the basis of unchanged grounds.
173
As regards the general context associated with the situation in Ukraine, on the date of the acts maintaining the applicant’s name, the gravity of the situation in Ukraine clearly remained.
174
Similarly, the restrictive measures are still justified in the light of the objective pursued, which is to exert maximum pressure on the Russian authorities so that they bring an end to their actions and policies destabilising Ukraine and to the military aggression against Ukraine and to increase the costs of the actions of the Russian Federation to undermine Ukraine’s territorial integrity, sovereignty and independence.
175
As regards the applicant’s individual situation, it must be observed that the letters from the applicant, in particular his letter of 30 May 2022 and his request for reconsideration of 1 November 2022, refer to arguments already raised in the observations concerning the initial acts. In particular, the applicant asserts there [confidential] that Alfa Bank alone is a Russian taxpayer and that he is only a minority shareholder in Alfa Bank without an executive function.
176
Consequently, the arguments presented by the applicant in his documents sent to the Council with a view to the reconsideration of the restrictive measures could rightly be considered by the Council to be neither new nor decisive in relation the exchanges made in the context of the present case regarding the initial acts.
177
It follows that, in view of these factors, the Council did not commit an error of assessment when it found that there was no change in the applicant’s individual situation and relied on the same information in order to maintain his name on the lists at issue.
178
The applicant’s argument concerning the absence of any imputability to him of the decision to continue the invasion of Ukraine, which is raised in the statement of modification, must be rejected because criterion (g) does not mention any such condition.
179
Similarly, the applicant’s other arguments concerning the failure to appraise or assess those measures and the ineffectiveness of the measures must be rejected as they are not such as to demonstrate an error of assessment in the appraisal of his individual situation in the light of the applicable criterion.
180
Lastly, as regards the applicant’s argument concerning the sale of his shares in ABH Holdings, it should be noted that that sale cannot be considered to have been established by sufficiently convincing evidence in the proceedings before the General Court. As is stated in paragraph 114 above, in order to assess the probative value of a document, regard should be had, in particular, to the person from whom it originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears to be sound and reliable.
181
In the present case, the certificate of 19 August 2022 produced as an annex to the reply originates from the director of ABH Holdings and states that on 14 March 2022 the applicant sold his shares in that company to a third party and that he no longer has an ownership interest in the company.
182
The certificate is produced without any other supporting official document and without clarification, in particular, as to the transferee of the applicant’s shares or the terms of the sale of the shares. Moreover, in the request for reconsideration sent to the Council on 1 November 2022, as well as in his written submissions before the General Court, the applicant continued to mention his status as a ‘minority partner’ or ‘minority shareholder in Alfa Bank’.
183
In the circumstances of the case, it must be considered that, in the absence of proof of the sale of the shares, as alleged by the applicant, to a third person not linked to him, the Council rightly took the view that the applicant’s individual situation had not changed in such a way that the items in the evidence file in connection with the initial inclusion of his name on the lists at issue are now out of date.
184
Consequently, in view of the remaining gravity of the situation in Ukraine, the fact that the objectives pursued by the restrictive measures have not been met and the absence of conclusive evidence to show that the applicant’s individual situation had changed, the Council did not commit an error of assessment in maintaining the restrictive measures at issue.
185
In the light of the above, the ground for inclusion of the applicant’s name on the lists at issue, based on status as a leading businessperson involved in economic sectors providing a substantial source of revenue to the Russian Government and corresponding to criterion (g), must be considered to be sufficiently substantiated such that, in the light of that criterion, the inclusion and the maintenance of his name on the lists at issue under the initial acts and the maintaining acts are well founded.
186
According to case-law, with regard to the review of the lawfulness of a decision adopting restrictive measures, and having regard to their preventive nature, if the Courts of the European Union consider that, at the very least, one of the reasons mentioned is sufficiently detailed and specific, that it is substantiated and that it constitutes in itself 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 judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 72 and the case-law cited).
187
Consequently, the fourth plea in law must be dismissed as unfounded, in respect of both the initial acts and the maintaining acts, without there being any need to examine the merits of the other complaints raised by the applicant seeking to call into question the Council’s assessment in the light of criterion (d).
The pleas in law alleging breach of the principle of proportionality and infringement of the right to property, the freedom to conduct a business and the right to pursue a profession
188
The applicant submits that the contested acts are disproportionate in so far as they prevent him from pursuing a profession. The restrictive measures to which he is subject also constitute a disproportionate infringement of his right to property, his freedom to conduct a business and his right to pursue a profession, especially since the evidence on which the Council relied is manifestly insufficient.
189
The Council, supported by the Kingdom of Belgium, disputes those arguments.
190
It should be noted that the principle of proportionality, which is one of the general principles of EU law and is referred to in Article 5(4) TEU, requires that measures implemented through provisions of EU law be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve them (judgments of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 122, and of 1 June 2022, Prigozhin v Council, T‑723/20, not published, EU:T:2022:317, paragraph 133).
191
In addition, the right to property is one of the general principles of EU law and is enshrined in Article 17 of the Charter of Fundamental Rights. Similarly, under Article 16 of the Charter, ‘the freedom to conduct a business in accordance with Union law and national laws and practices is recognised’.
192
In the present case, the restrictive measures entailed by the contested acts give rise to limitations on the exercise by the applicant of his right to property and his freedom to conduct a business.
193
However, the fundamental rights relied on by the applicant are not absolute, and their exercise may be subject to restrictions justified by objectives of public interest pursued by the European Union, provided that such restrictions in fact correspond to objectives of general interest and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very essence of the rights guaranteed (judgments of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 148, and of 25 June 2020, VTB Bank v Council, C‑729/18 P, not published, EU:C:2020:499, paragraph 80).
194
In order to comply with EU law, a limitation on the fundamental rights at issue must be provided for by law, it must respect the essential content of that freedom and it must refer to an objective of general interest, recognised as such by the European Union, and it must not be disproportionate (see judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 222 and the case-law cited).
195
It is clear that those four conditions are satisfied in the present case.
196
In the first place, the restrictive measures at issue are ‘provided for by law’, since they are laid down in acts which, in particular, are of general application and have a clear legal basis in EU law and sufficient foreseeability, which is not disputed by the applicant.
197
In the second place, the contested acts apply for six months and are to be kept under constant review, as is specified in Article 6 of Decision 2014/145. Since the measures in question are temporary and reversible, it must be held that they do not undermine the essential content of the freedoms relied on. In addition, the contested acts provide for the possibility of granting exemptions to the restrictive measures applied. In particular, with regard to the freezing of funds, Article 2(3) and (4) of Decision 2014/145, as amended, and Article 4(1), Article 5(1) and Article 6(1) of Regulation No 269/2014, as amended, provide for the possibility, first, to authorise the use of frozen funds to meet essential needs or to satisfy certain commitments and, second, to grant specific authorisations to unfreeze funds, other financial assets or other economic resources.
198
In the third place, the restrictive measures at issue meet an objective of general interest, recognised as such by the European Union, such as to justify the possibility that, for certain operators, the consequences may be negative, even significantly so (see, to that effect and by analogy, judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 150). They aim to exert pressure on the Russian authorities so that they bring an end to their actions and policies destabilising Ukraine. In this regard, in February 2022 the Council intended to weaken the Russian economy strategically, first, by prohibiting inter alia the financing of the Russian Federation, its Government and its Central Bank and, second, by applying such measures inter alia in the fields of finance, defence and energy. In addition, it is clear from recital 11 of Decision 2022/329 that the Council considered that, in view of the gravity of the situation in Ukraine, the criteria of designation had to be amended. It is therefore apparent that the European Union is seeking to reduce the revenue of the Russian State and to put pressure on the Russian Government in order to limit its capacity to finance its actions undermining the territorial integrity, sovereignty and independence of Ukraine and to bring an end to them with a view to maintaining European and global stability. This is among the objectives pursued in the common foreign and security policy, as mentioned in Article 21(2)(b) and (c) TEU, such as the preservation of peace, the prevention of conflicts and the strengthening of international security.
199
In the fourth place, as regards the appropriateness of the restrictive measures at issue, it must be observed that, with reference to an objective of general interest as fundamental to the international community as those mentioned in paragraph 198 above, those measures cannot be regarded as inappropriate (see, to that effect and by analogy, judgment of 2 December 2020, Kalai v Council, T‑178/19, not published, EU:T:2020:580, paragraph 171 and the case-law cited).
200
In addition, with regard to their necessity, other less restrictive measures, such as a system of prior authorisation, are not as effective in achieving the objective pursued, namely exerting pressure on supporters of the Russian Government or on leading businesspersons, having regard in particular to the possibility of circumventing the restrictions imposed (see, to that effect and by analogy, judgment of 2 December 2020, Kalai v Council, T‑178/19, not published, EU:T:2020:580, paragraph 172 and the case-law cited). Furthermore, as was stated above, the restrictions are temporary and reversible and provide for possibilities of exemptions granted by the Member States.
201
As regards the harm caused to the applicant, it is true that the applicant’s right to property is restricted by the contested acts, since he cannot, inter alia, use the funds belonging to him which are situated in the territory of the European Union or transfer funds belonging to him to the European Union, unless specially authorised.
202
However, the disadvantages suffered by the applicant are not disproportionate in view of the importance of the objective pursued by the contested acts. Those acts provide for the periodic revision of entries on the lists at issue in order to ensure that, where persons or entities no longer meet the necessary criteria for inclusion, the names of those persons or entities are removed from those lists. In addition, as was stated in paragraph 197 above, the contested acts provide for the possibility to authorise the use of frozen funds to meet essential needs or to satisfy certain commitments and to grant specific authorisations to unfreeze funds, other financial assets or other economic resources. In this regard, it is for the national authorities to assess, in accordance with the principle of proportionality, the appropriateness and scope of the necessary authorisations and exemptions and to ensure that they are implemented at national level.
203
Lastly, the applicant’s argument that the evidence that the restrictive measures at issue are well founded is insufficient is a matter for the assessment of their merits and not of their proportionality.
204
It follows that the contested acts did not breach the principle of proportionality and did not entail a disproportionate infringement of the applicant’s right to property, freedom to conduct a business or right to pursue a profession.
205
In the light of the foregoing, the pleas in law alleging breach of the principle of proportionality and infringement of the right to property, the freedom to conduct a business and the right to pursue a profession should be rejected.
The plea in law, raised in connection with the modification of the application, alleging the existence of a misuse of powers
206
The applicant submits that, by including his name on the lists at issue, the Council holds him responsible, inter alia, for the situation in Ukraine, when there is no direct or indirect link between him and the destabilisation of Ukraine. By adopting restrictive measures whose objective cannot be the preservation of Ukraine’s territorial integrity, sovereignty and independence, as they are completely unrelated to the people who are actually responsible for the destabilisation of Ukraine and have no direct or indirect link with that situation, the Council modified the objective originally pursued, without drawing the necessary conclusions for the maintenance of the individual restrictive measures. In doing so, it committed a misuse of powers, consisting in a substitution of objectives without a prior appraisal justifying the maintenance of the restrictive measures against the applicant.
207
The Council, supported by the Kingdom of Belgium, disputes those arguments.
208
According to settled case-law, a measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken solely, or at the very least chiefly, for ends other than those for which the power in question was conferred or with the aim of evading a procedure specifically prescribed by the Treaties for dealing with the circumstances of the case (judgments of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 135, and of 25 June 2020, Vnesheconombank v Council, C‑731/18 P, not published, EU:C:2020:500, paragraph 63).
209
It need only be stated that the applicant has not provided such evidence in this case. As the Council asserts, the objective pursued, namely to exert maximum pressure on the Russian Federation so that it brings an end to the war in Ukraine, has not been modified at all.
210
Therefore, the plea in law alleging the existence of a misuse of powers must be dismissed and, accordingly, the action must be dismissed in its entirety.
Costs
211
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 bear his own costs and to pay the costs incurred by the Council, in accordance with the form of order sought by it, including the costs relating to the proceedings for interim relief.
212
Under Article 138(1) of the Rules of Procedure, the Member States and the institutions which have intervened in the proceedings are to bear their own costs. The Kingdom of Belgium must therefore bear its own costs.
On those grounds,
THE GENERAL COURT (First Chamber, Extended Composition)
hereby:
1.
Dismisses the action;
2.
Orders OT to bear his own costs and to pay the costs incurred by the Council of the European Union, including the costs relating to the proceedings for interim relief;
3.
Orders the Kingdom of Belgium to bear its own costs.
Spielmann
Mastroianni
Brkan
Gâlea
Tóth
Delivered in open court in Luxembourg on 15 November 2023.
[Signatures]
(
*1
)	Language of the case: French.
(
1
)	Confidential information omitted.