JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
6 September 2023 (*)
(Common foreign and security policy – Restrictive measures adopted in view of the situation in Belarus – Freezing of funds – Restrictions on admission to the territory of the Member States – Inclusion and retention of the applicant’s name on the lists of persons, entities and bodies concerned – Error of assessment – Right to property – Right to conduct a business – Right to respect for reputation – Rights of the defence)
In Case T‑526/21,
Mikail Safarbekovich Gutseriev, residing in Moscow (Russia), represented by B. Kennelly, Senior Counsel, J. Pobjoy, Barrister-at-Law, and D. Anderson, lawyer,
applicant,
v
Council of the European Union, represented by S. Van Overmeire and L. Bratusca, acting as Agents,
defendant,
THE GENERAL COURT (Fifth Chamber),
composed of J. Svenningsen, President, J. Laitenberger and M. Stancu (Rapporteur), Judges,
Registrar: I. Kurme, Administrator,
having regard to the written part of the procedure,
further to the hearing on 31 January 2023,
gives the following
Judgment
1        By his action under Article 263 TFEU, the applicant, Mr Mikail Safarbekovich Gutseriev, seeks annulment of:
–        Council Implementing Decision (CFSP) 2021/1002 of 21 June 2021 implementing Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus (OJ 2021 L 219 I, p. 70), and Council Implementing Regulation (EU) 2021/997 of 21 June 2021 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2021 L 219 I, p. 3) (together, ‘the initial acts’),
–        Council Implementing Decision (CFSP) 2022/307 of 24 February 2022 amending Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus (OJ 2022 L 46, p. 97), and Council Implementing Regulation (EU) 2022/300 of 24 February 2022 implementing Article 8a of Regulation (EC) No 765/2006 concerning restrictive measures in view of the situation in Belarus (OJ 2022 L 46, p. 3) (together, ‘the maintaining acts’),
in so far as those acts (together, ‘the contested acts’) concern the applicant.
Background to the dispute and facts subsequent to the bringing of the action
2        The applicant is a businessman in Belarus.
3        The present case has arisen in the context of the restrictive measures adopted by the European Union,
from 2004 onwards, in view of the situation in Belarus with regard to democracy, the rule of law and human rights. As is apparent from the recitals of the contested acts, the case is connected more specifically with (i) the presidential elections of 9 August 2020, which were found to be inconsistent with international standards and marred by the repression of independent candidates and a brutal crackdown on peaceful protesters in the wake of those elections; (ii) the escalation of serious human rights violations in Belarus, the violent repression of civil society, democratic opposition and journalists as well as of persons belonging to national minorities; and (iii),
the forced landing of a Ryanair flight in Minsk (Belarus), on 23 May 2021, endangering aviation safety, and the detention by Belarusian authorities of Mr Raman Pratassevich and Ms Sofia Sapega.
4        On 18 May 2006, the Council of the European Union adopted, on the basis of Articles [75 and 215 TFEU], Regulation (EC) No 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2006 L 134, p. 1) and, on 15 October 2012, on the basis of Article 29 TEU, Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1).
5        The criterion applied in order to adopt the restrictive measures against the applicant (‘the general criterion at issue’) is laid down, first, in Article 3(1)(b) and, second, in Article 4(1)(b) of Decision 2012/642, as well as in Article 2(5) of Regulation No 765/2006, in the versions thereof in force at the time when the contested acts were adopted.
6        Article 3(1)(b) of Decision 2012/642 provides for the prohibition on entry into, and transit through, the territory of the European Union for persons who benefit from or support the regime of President Lukashenko.
7        Article 4(1)(b) of Decision 2012/642 and Article 2(5) of Regulation No 765/2006, which refers to the former provision, provide for the freezing of all funds and economic resources belonging to natural or legal persons, entities and bodies who benefit from or support the regime of President Lukashenko, as well as legal persons, entities and bodies owned or controlled by them.
8        By way of the initial acts, the applicant’s name was included on the lists of persons, entities and bodies subject to the restrictive measures set out in the annex to Decision 2012/642 and in Annex I to Regulation No 765/2006 (together, ‘the lists at issue’).
9        In those acts, the Council justified the adoption of the restrictive measures against the applicant by identifying him as a ‘businessman, owner of Safmar, Slavkali and Slavneft companies’ and providing the following reasons:
‘[The applicant] is a prominent Russian businessman, with business interests in Belarus in the sectors of energy, potash, hospitality and others. He is a long-time friend of [President Lukashenko] and thanks to this association has accumulated significant wealth and influence among the political elite in Belarus. “Safmar”, a company controlled by [the applicant], was the only Russian oil firm that carried on supplying oil to Belarusian refineries during the energy crisis between Belarus and Russia in early 2020.
[The applicant] also supported [President Lukashenko] in disputes with Russia over oil deliveries. [The applicant] owns the “Slavkali” company, which is building Nezhinsky potassium chloride mining and processing plant based on the Starobinsky potash salt deposit near Lyuban. It is the largest investment in Belarus, worth $2 billion. [President Lukashenko] promised to rename the town of Lyuban to Gutserievsk in his honor. His other businesses in Belarus include “Slavneft” fueling stations and oil depots, a hotel, a business center and an airport terminal in Minsk. [President Lukashenko] came to [the applicant’s] defence after a criminal investigation was initiated against him in Russia. [President Lukashenko] also thanked [the applicant] for his financial contributions to charity and investments of billions of dollars in Belarus. [The applicant] is reported to have gifted [President Lukashenko] luxurious presents.
He [is] also declared to be the owner of a residency, which de facto belongs to [President Lukashenko], thus covering him up when journalists started to investigate [the President’s] assets. [The applicant] is reported to have attended [President Lukashenko’s] secret inauguration on 23 September 2020. In October 2020 [President Lukashenko] and [the applicant] both appeared at the opening of an Orthodox church, which the latter sponsored. According to media reports, when the striking employees of Belarusian state-owned media were fired in August 2020, Russian media workers were flown to Belarus on board of aircraft belonging to [the applicant] in order to replace the fired workers, and lodged in hotel Minsk Renaissance belonging to [the applicant]. [The applicant] is therefore benefiting from and supporting the regime [of President Lukashenko].’
10      By letter of 13 September 2021, the applicant asked to be provided with the evidence supporting the inclusion of his name on the lists at issue.
11      By letter of 20 September 2021, the Council sent the applicant documents WK 7409/2021 REV 1, WK 7409/2021 REV 1 ADD 1 and WK 8225/2021 EXT 4, containing the evidence relating to him.
12      On 30 November 2021, the applicant challenged the inclusion of his name on the lists at issue and requested that the Council reconsider that listing.
13      On 17 January 2022, the Council responded to the applicant’s request for reconsideration, informing him that it intended to maintain his name on the lists at issue with an amended statement of reasons, and also sending him documents WK 15386/2021 REV 1, WK 15436/2021 EXT 1, WK 15436/2021 ADD 1. Furthermore, the Council gave the applicant the opportunity to submit observations by 2 February 2022, and asked him to provide any relevant information regarding his role in the companies Safmar and Slavkali, together with an independent overview of his current interests ‘in any of the entities operating under the Safmar brand, as well as his interests in Slavkali and the entities linked to it’.
14      On 31 January 2022, the applicant sought an extension – to 11 February 2022 – of the deadline for providing the information requested by the Council.
15      On 11 February 2022, the applicant challenged the validity of the inclusion of his name on the lists at issue and submitted a number of documents to the Council.
16      By way of the maintaining acts, the measures taken against the applicant were extended to 28 February 2023.
17      In the maintaining acts, the Council justified the extension of the restrictive measures against the applicant by reproducing all of the reasons contained in the initial acts, and essentially comprising the following amendments, namely that the applicant is a ‘businessman, shareholder and chairman of the board of executives of Safmar and Slavkali companies’ and is ‘a long-time acquaintance of [President Lukashenko]’, that Safmar is ‘a company which has been controlled by [the applicant]’, that he ‘has been the chairman of the board of directors of, and a shareholder in, the Slavkali company’ and that ‘his other businesses in Belarus have included fuelling stations and oil depots, a hotel, a business centre and an airport terminal in Minsk’.
The Council also added the following reason: ‘[The applicant] assisted with the acquisition of CT scanners for Belarus during the COVID-19 crisis’.
18      On 25 February 2022, the Council replied to the applicant’s letter of 31 January 2022 (see paragraph 14 above), informing him that two weeks was a standard period for a person subject to restrictive measures, or a lawyer acting on that person’s behalf, to submit observations on the Council’s intention to maintain those measures and that, accordingly, it could not grant him additional time until 11 February 2022 to present observations.
19      On 3 March 2022, the applicant asked to be provided with the documents and evidence on which the Council had relied in maintaining his name on the lists at issue.
20      On 28 March 2022, the Council informed the applicant that all the relevant materials on which it had based its decision had already been provided to him, on 17 January 2022 and earlier.
Forms of order sought
21      By his action, brought on 27 August 2021, the applicant originally challenged the initial acts in so far as they concern him. By way of a procedural document lodged at the Registry of the General Court on 4 May 2022, the applicant amended the form of order sought so that it also covered the maintaining acts in so far as they concern him.
22      The applicant claims, in essence, that the Court should:
–        annul the contested acts in so far as they concern him;
–        order the Council to pay the costs.
23      The Council contends that the Court should:
–        dismiss the action as manifestly unfounded;
–        in the alternative, should the Court annul the contested acts, order that the effects of Implementing Decision 2022/307 be maintained as regards the applicant until the annulment in part of Implementing Regulation 2022/300 takes effect;
–        order the applicant to pay the costs.
Law
24      In support of his claim for annulment, the applicant essentially raises four pleas in law. The first three pleas relate to both the initial and the maintaining acts, whereas the fourth relates the latter acts only.
25      The first plea is divided into two parts. Under the first part, the applicant claims that the Council has misinterpreted the concepts of ‘support’ and ‘benefit’
within the meaning of the general criterion at issue. Under the second part, the applicant submits that the Council made manifest errors of assessment in considering that there was a sufficient factual basis to justify the inclusion of his name on the lists at issue on the basis of the general criterion at issue. The second plea alleges infringement of fundamental rights. The third plea, which is raised in the alternative, is an objection of illegality relating to Article 4(1) of Decision 2012/642 and Article 2(5) of Regulation No 765/2006. The fourth plea alleges infringement of the rights of defence.
26      It is appropriate to examine, first, the fourth plea, which concerns the formal legality of the maintaining acts; next, the first part of the first plea and the third plea together; the second part of the first plea; and, finally, the second plea.
The fourth plea, alleging infringement of the rights of the defence
27      By his fourth plea, which relates to the maintaining acts only, the applicant submits that the Council infringed his right to sound administration, his right to an effective remedy and his rights of defence, as enshrined in Articles 41, 47 and 48, respectively, of the Charter of Fundamental Rights of the European Union (‘the Charter’), on the ground, first of all, that he has not been given serious and credible evidence or concrete evidence and information to justify maintaining restrictive measures against him. Next, the detailed submissions set out in his application, his reply and the letters of 30 November 2021 and 11 February 2022, were not, in the applicant’s view, the subject of any careful or impartial examination on the part of the Council. Lastly, the applicant has not been given an effective opportunity to make his views known, given that the Council failed to take into account any of the material submitted in the letter of 11 February 2022, on the ground that 16 days were a sufficient period of time to make representations.
28      The Council contends that the applicant withdrew the plea regarding the rights of defence in the reply, and that the present plea therefore constitutes a new plea for the purposes of Article 84 of the Rules of Procedure; in any event, the Council disputes the merits of the applicant’s arguments.
29      From the outset, the Council’s argument that the present plea is a new plea for the purposes of Article 84 of the Rules of Procedure must be rejected. In that connection, it is sufficient to find that the plea relating to infringement of the rights of the defence raised in the application concerned the disclosure of evidence which accompanied the initial acts and was subsequently disclosed to the applicant on 20 September 2021 (see paragraph 11 above), whereas the present plea, which was raised in the statement of modification, relates to the maintaining acts which were adopted at a date subsequent to the date on which the application was lodged.
30      As to the substance of that plea, in the first place, it should be observed that the applicant’s allegations
in relation to (i) the fact that he has yet to be given serious and credible evidence or concrete evidence and information to justify maintaining restrictive measures against him, and (ii) the failure to carry out a careful or impartial examination on the part of the Council, actually seek to call the merits of the maintaining acts
into question. Those complaints will consequently be examined in the context of the second part of the first plea alleging error of assessment.
31      In the second place, as to the time allowed for the applicant to respond to the material sent to him on 17 January 2022 (see paragraph 13 above), it should be pointed out that the obligation of the part of the EU institutions to enable the persons concerned to make their views known effectively where an act adversely affecting an individual is being adopted requires only that those views be submitted in good time so that those institutions may take cognisance of them and assess, with all the requisite attention, their relevance for the content of that act. Thus, where it fixes the period within which observations are to be submitted to it, the Council is required to take into account the period of time it would need to consider those observations (see, to that effect, judgment of 27 April 2022, Amisi Kumba v Council, T‑107/21, not published, EU:T:2022:252, paragraph 66). Furthermore, the ‘reasonableness’ of the period of time is to be appraised in the light of all of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties to the case (see, to that effect, judgment of 22 September 2021, Al-Imam v Council, T‑203/20, EU:T:2021:605, paragraph 92).
32      In that connection, it should be observed that it is apparent from Article 8 of Decision 2012/642 as amended by Council Decision (CFSP) 2021/353 of 25 February 2021 (OJ 2021 L 68, p. 189), that the restrictive measures at issue, which concern 180 persons and entities, including the applicant, were due to expire on 28 February 2022.
33      It should be noted that a period of three weeks in which to review the individual situation of 180 persons and entities is a relatively short time-frame. Under those circumstances, setting a final date – in the present case, 2 February 2022 – for the submission of observations on the intention to renew restrictive measures is a legitimate means for the Council to ensure that it receives the observations and evidence submitted by the persons and entities concerned before the end of the review phase and has sufficient time to examine those elements with the necessary diligence (see, to that effect, judgment of 22 September 2021, Al-Imam v Council, T‑203/20, EU:T:2021:605, paragraph 94).
34      Admittedly, the period of 16 days granted, in the present case, to the applicant to submit his observations on the Council’s intention to maintain his name on the lists at issue involved his taking cognisance of the amendments to the reasons for including his name on the lists at issue and of the fresh evidence sent by the Council. Nevertheless, as is clear from paragraphs 9 and 17 above, the reasons for listing were only slightly amended, in order to take account of the observations and evidence submitted by the applicant concerning his role, inter alia, in the companies Safmar and Slavkali, and only one reason was added in the maintaining acts, namely that relating to the applicant’s contribution to the purchase of scanners for Belarus during the COVID-19 pandemic.
35      Furthermore, it should be pointed out that it has already been held that a period of 12 days in which to submit observations in the context of the renewal of restrictive measures was sufficient (see, to that effect, judgments of 8 July 2020, Ocean Capital Administration and Others v Council, T‑332/15, not published, EU:T:2020:308, paragraph 191, and of 27 April 2022, Amisi Kumba v Council, T‑107/21, not published, EU:T:2022:252, paragraph 68).
36      Consequently, the period of 16 days granted to the applicant to submit his observations on the Council’s letter of 17 January 2022 does not seem unreasonable.
37      That finding cannot be called into question by the applicant’s argument that he explicitly asked the Council for an extension to the time allowed.
38      In that regard, it should be held that, in his letter of 31 January 2022, the applicant justified his request for an extension on account of, first, the considerable volume of evidence and observations sent by the Council and, second, the need to gather
the relevant information in order to respond to the information sent by the latter.
39      However, it should be observed that that request was sent to the Council only two days before the expiry of the two-week period that it had granted, in the context where, as has been stated in paragraph 34 above, the reasons for listing already set out in the initial acts had only been slightly amended and a single reason had been added. Furthermore, the evidence which the applicant submitted in annex to his letter of 11 February 2022 consists in two statements, dated 9 and 10 February 2022, relating to the shareholding in the companies Russneft and Neftisa. It is apparent from the content of those statements that they were issued by the companies themselves and obtained further to requests made by the applicant’s representatives, on 8 and 9 February 2022 respectively, that is to say, after the expiry of the time limit set by the Council at 2 February 2022. The applicant has failed to put forward any argument to explain why it may have been impossible to make those requests before 2 February 2022. Lastly, it should be observed that the information on the structure of the shareholding of those companies in those statements had already been submitted by the applicant in his letter of 30 November 2021, and the Council had already taken that information into consideration with a view to adopting the maintaining acts, as is apparent from its letter of 17 January 2022 (see paragraph 13 above).
40      Accordingly, since the Council infringed neither the applicant’s rights of defence nor his rights to sound administration and an effective remedy, the fourth plea must be rejected as unfounded.
The first part of the first plea, alleging misinterpretation of the general criterion at issue, and the third plea, raising an objection of illegality
41      Relying essentially on the case-law arising from the judgment of
6 October 2015, Chyzh and Others v Council (T‑276/12, not published, EU:T:2015:748), the applicant submits that the Council misinterpreted the general criterion at issue by considering that it could be interpreted so as to capture any form of support or any form of benefit, irrespective of its materiality and irrespective of any direct link between the putative support or benefit and the regime of President Lukashenko. In that respect, the applicant submits that such an interpretation would make the general criterion at issue unlawful pursuant to Article 277 TFEU. According to the applicant, if the criterion truly had that scope, it would be disproportionate to the objectives of Decision 2021/642 and Regulation No 765/2006, or to the specific objectives of the Common Foreign and Security Policy (CFSP), as it would exceed the limits of what is appropriate and necessary in order to achieve those objectives.
42      The Council disputes the applicant’s arguments.
43      As a preliminary point, it should be stated that, as is apparent from the summary of the third plea set out in the application and in the statement of modification, the objection of illegality raised by the applicant has no independent content in the light of the first part of the first plea. Thus it is appropriate to deal with the first part of the first plea and the third plea together.
44      At the outset, it should be noted that the applicant’s arguments comprise two complaints. First, the applicant maintains that the general criterion at issue should be interpreted as encompassing only financial or material benefit from or support for the regime of President Lukashenko. Any other interpretation would, in the applicant’s submission, be unlawful since it would be contrary to the principle of proportionality. Second, he claims that there must be a sufficient link between the person subject to restrictive measures and that regime, and that that link must demonstrated by evidence that is sufficiently specific, precise and consistent.
45      In so far as concerns the latter complaint, it should be observed that it is not disputed by the Council, as it also stated at the hearing, that the general criterion at issue means that there must be a sufficient link between the regime of President Lukashenko and the person subject to restrictive measures for having benefited from
or supported that regime.
46      In the present case, the question whether there exists such a sufficient link between the applicant and the regime of President Lukashenko will be examined below, in the context of the second part of the first plea, alleging errors of assessment.
47      As to the first complaint, it should be recalled that, with regard to judicial review of compliance with the principle of proportionality, the Court of Justice has held that the EU legislature must be allowed 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. It concluded from this that 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 (see judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 120 and the case-law cited).
48      As regards the objectives of Decision 2012/642, it must be held that it follows from recitals 1 to 5 of that decision that the objective pursued by the restrictive measures adopted pursuant to the general criterion at issue against the persons and entities benefiting from
or supporting
the regime of President Lukashenko is to apply greater pressure on that regime in order for it to change and cease its policies and activities the result of which is the continued lack of respect for human rights, democracy and the rule of law in Belarus.
49      It is in fact clear from those recitals that the inclusion of names of persons on the lists at issue has gradually been extended to cover not only the circle of persons identified as bearing particular responsibility for the fraudulent nature of the presidential elections and breaches of international electoral standards or those responsible for severe human rights violations and the repression of peaceful demonstrators following those elections, but also the persons and entities benefiting from or supporting the regime in Belarus.
50      In that connection, noting that the presidential elections of 23 September 2012 had also been found to be inconsistent with international standards and that the situation as regards democracy, human rights and rule of law had not improved (see recital 8 of Decision 2012/642), the Council considered, in essence, that new measures should be introduced in order to increase the pressure on the regime of President Lukashenko and force it to change its behaviour.
51      While not challenging the legitimacy of that objective or the fact that it corresponds to the objectives pursued by the TEU concerning the CFSP set out, in particular, in Article 21(2)(b) TEU, the applicant nevertheless takes the view that the interpretation of the general criterion at issue put forward by the Council exceeds the limits of what is appropriate and necessary in order to achieve those objectives.
52      In that connection, it must be held that, contrary to what the applicant claims, the objective of applying greater pressure on that regime in order for it to change and cease its policies and activities the result of which is the continued lack of respect for human rights, democracy and the rule of law in Belarus can mean that forms of benefit from and support for the regime of President Lukashenko other than those of a financial or material nature may be made subject to the restrictive measures adopted pursuant to the general criterion at issue.
53      Given that benefit from or support for the regime of President Lukashenko can take various forms, the restrictive measures taken against the persons and entities benefiting from or supporting that regime other than financially or materially must be regarded not only as appropriate but even as necessary in order to achieve the objective referred to in paragraph 48 above.
Thus it was open to the Council to consider that, if the restrictive measures at issue were to cover only the circle of persons identified as bearing particular responsibility for the fraudulent nature of the presidential elections and breaches of international electoral standards or those responsible for severe human rights violations and the repression of peaceful demonstrators following those elections, the attainment of those objectives could have been frustrated. The choice made by the Council to extend the personal scope of the restrictive measures to those persons benefiting from or supporting the regime is therefore in conformity with the purpose of the measures at issue, which seek to apply greater pressure on the regime of President Lukashenko in order for it to cease such activities.
54      Furthermore, in that regard, it should be recalled that it is apparent from recital 6 of Decision 2012/642 that, in so far as concerns the persons and entities supporting the regime of President Lukashenko, the aim is to target any person or entity supporting that regime, in particular, but not exclusively, persons and entities who support it financially or materially (see, to that effect and by analogy, judgment of 1 March 2016, National Iranian Oil Company v Council, C‑440/14 P, EU:C:2016:128, paragraph 84).
55      As to the lessons to be drawn from the judgment of 6 October 2015, Chyzh and Others v Council (T‑276/12, not published, EU:T:2015:748), it must be held that the applicant’s argument that support for the regime must necessarily be financial or material in nature is based on a misreading of that judgment. Unlike the present case, in the context of the case which gave rise to the aforementioned judgment, the reasons justifying the restrictive measures adopted against Mr Chyzh referred explicitly and exclusively to the financial support which the latter gave to the regime of President Lukashenko, which is not so in the present case.
56      Furthermore, in the judgment of 6 October 2015, Chyzh and Others v Council (T‑276/12, not published, EU:T:2015:748), the Court confined itself to finding that there was no evidence, in the Council’s file, to substantiate that allegation of financial support without, however, considering that the general criterion at issue was to be interpreted as meaning that it refers exclusively to financial or material support provided to the regime of President Lukashenko.
57      In the light of the foregoing, the first part of the first plea and the third plea must both be rejected as unfounded.
The second part of the first plea, alleging errors of assessment
58      As is apparent from paragraphs 9 and 17 above, the applicant’s name was included and maintained on the lists at issue for a number of reasons, which can be grouped into four main reasons relating to (i) the applicant’s business interests as a prominent businessperson in Belarus, (ii) his personal relationship with President Lukashenko, (iii) the Russian journalists flown to Belarus on board an aircraft owned by the applicant, and (iv) his contribution to the purchase of scanners during the COVID-19 pandemic.
59      At the outset, it should be recalled that, according to settled case-law, the effectiveness of the judicial review guaranteed by Article 47 of the Charter requires, inter alia, that the Courts of the European Union ensure that the decision by which restrictive measures were adopted or maintained, which affects the person 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 (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 119 and the case-law cited).
60      It is for the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded. To that end, it is necessary that the information or evidence produced should support the reasons relied on against the person concerned (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, paragraphs 121 and 122).
61      If the competent European Union authority provides relevant information or evidence, the Courts of the European Union must then determine whether the facts alleged are made out in the light of that information or evidence and assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person concerned (judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 124).
62      The assessment as to whether a listing was well founded must be carried out by examining the evidence not in isolation but in its context. The Council discharges the burden of proof borne by it if it presents to the Courts of the European Union a sufficiently concrete, precise and consistent body of evidence to establish that there is a sufficient link between the person subject to restrictive measures and the regime or, in general, the situations, being combated (see, to that effect, judgment of 20 July 2017, Kazemba Musonda v Council, T‑177/18, not published, EU:T:2020:59, paragraph 95 and the case-law cited).
63      Furthermore, the Courts of the European Union may also rely on evidence, both inculpatory or exculpatory, adduced by the applicant during the judicial proceedings. The fact that a piece of evidence has been submitted as exculpatory evidence by the person subject to the restrictive measures does not prevent that evidence from possibly being used against that person to support the merits of the reasons underpinning the restrictive measures taken against them (see, to that effect, judgment of 12 February 2020, Ilunga Luyoyo v Council, T‑166/18, not published, EU:T:2020:50, paragraph 124 and the case-law cited). The same applies to evidence presented by that person in connection with a request for a review of restrictive measures concerning him or her.
64      Lastly, as regards the reliability and probative force of evidence, including that from digital sources, it should be borne in mind that the activity of the Court of Justice and of the General Court is governed by the principle of the unfettered evaluation of evidence, and that it is only the reliability of the evidence before the Court which is decisive when it comes to the assessment of its value. In addition, 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, and the person to whom it was addressed and whether, on its face, the document appears to be sound and reliable (judgment of 12 February 2020, Kande Mupompa v Council, T‑170/18, EU:T:2020:60, paragraph 107; see also, to that effect, judgment of 14 March 2018, Kim and Others v Council and Commission, T‑533/15 and T‑264/16, EU:T:2018:138, paragraph 224).
65      The present plea must be analysed in the light of those considerations, by examining (i) the accuracy of the facts alleged by the Council in so far as concerns the first two reasons, then (ii) whether those facts may justify the finding that the applicant can be regarded as a person benefiting from or supporting the regime of President Lukashenko.
The applicant’s business interests in Belarus
66      In so far as concerns the first reason, the applicant submits, in essence, that the fact that he is a significant investor in the Belarusian economy does not demonstrate that he benefits from or supports the regime of President Lukashenko, and that the information given in the lists at issue as to his ownership of the companies Safmar, Slavkali and Slavneft, or his involvement in those companies, and as to his investments in Belarus, is incomplete or incorrect.
67      First, as regards Safmar, the applicant states that he understands the Council, when it refers to the oil company Safmar in the reasons for including and maintaining his name on the lists at issue, to be referring in reality to the companies Russneft and Neftisa which, the applicant states, operate under the Safmar brand name. The applicant claims, however, that he transferred the majority of his shares in those companies on 10 June 2021, which was before the contested acts were adopted. The applicant states that he was not aware of the measures that were to be taken against him, that the decision to transfer his shares in Russneft and Neftisa was taken months before the initial acts were adopted, and that that was a matter of public record. In any event, he submits that the mere ownership of commercial and business interests under the ‘Safmar’ brand is not sufficient to demonstrate that he benefits from or supports the regime of President Lukashenko.
68      As regards the activities of Safmar during the energy crisis between Belarus and Russia, and the allegation that the applicant supported President Lukashenko in his dispute with Russia over deliveries of oil, he submits that those allegations are factually incorrect, unfounded and unsupported by evidence.
69      Second, as regards Slavneft, the applicant claims that he is not the owner of that company, contrary to what the Council states, but simply held the position of president of that company between 2000 and 2002.
70      Third, as regards Slavkali, in the first place, the applicant states that that company was formed by an English public limited company, GCM Global Energy Plc (‘GCM’), for the purposes of implementing an investment agreement dated 5 October 2011 concluded between that company and the Belarusian government (‘the investment agreement of 5 October 2011’) relating to the planned development of the Nezhinsky potassium chloride mining and processing plant (‘the Nezhinsky project’), and that he is currently a minority shareholder in GCM, holding a 9.00009% interest through its parent company, Lambency Holdings Limited (‘Lambency’). The applicant states that he previously held a majority shareholding in GCM, but that he transferred that shareholding to his brother on 10 June 2021. The applicant emphasises that, prior to transferring his shares in GCM, he was not aware of the measures that were to be taken against him.
71      In the second place, in so far as concerns the Nezhinsky project, the applicant submits that the mere fact that he has invested heavily in that project cannot mean that he benefits from or supports the regime of President Lukashenko. If that were the case, the same could be said of every company that has invested in Belarus. He emphasises that, through GCM, he was awarded the contract enabling Slavkali to construct the Nezhinsky project following a designated process provided for by the local laws. He states that, to the best of his knowledge, GCM was the only tenderer in that process, and that it is settled case-law that the fact that a person obtains public contracts is insufficient to lead to a conclusion that that person benefits from the regime of President Lukashenko.
72      Fourth, in relation to the hotel, the business centre and the airport terminal referred to in the contested acts, the applicant states that it is incorrect to describe these projects as ‘his businesses’ as they are projects that were implemented in accordance with the investment agreement of 5 October 2011 under which, in order to retain the licence for the construction of the Nezhinsky project, GCM was obliged to invest up to USD 250 million in Belarus. Furthermore, the infrastructure in question benefits the people of Belarus and is not intended for the use of the Belarusian government or the regime of President Lukashenko.
73      Fifth, in his statement of modification, the applicant takes note of the removal of the references to Slavneft, and further submits that the Council implies that his divestment of his majority stake in Russneft, Neftisa and Slavkali occurred simply because of the imminent inclusion of his name on the lists at issue. He states, however, that the press article submitted by the Council as item No 15 of document WK 15386/2021 REV 1 does not support that conclusion in the absence of details as to the information that appeared in public sources prior to the adoption of the initial acts. Furthermore, the applicant claims that the fact that he had previous business dealings in Belarus does not allow it to be considered that the general criterion at issue has been satisfied.
74      The Council disputes the applicant’s arguments.
75      As a preliminary point, it should be observed that the applicant does not dispute that he is a prominent businessperson with various business interests in Belarus in the sectors set out in the reasons for listing, namely energy, potash and commercial property.
76      However, the applicant takes the view that his interests in the Belarusian economy do not justify the conclusion that he benefits from or supports the regime of President Lukashenko. In that connection, he claims, in essence, first, that his involvement in the activities of the companies Safmar, Slavkali and Slavneft had either much reduced or ceased as at the date on which his name was included on the lists at issue and, second, that his business activities in the commercial property sphere were investments that he made in pursuance of his business commitments.
77      The Court considers it appropriate to begin the analysis of whether there has been an error of assessment with the applicant’s business interests in the potash and energy sectors.
–       The applicant’s business interests in the potash sector
78      The applicant’s business interests in this sector relate to the development of the Nezhinsky project, which is a potassium chloride mining and processing plant based on the Starobinsky potash salt deposit near Lyuban (Belarus). The development of the Nezhinsky project took place pursuant to the investment agreement of 5 October 2011 between GCM and the Belarus Government.
79      From the outset, as regards the magnitude of that project, it is apparent from the evidence submitted by the Council that the Nezhinsky project of one of the largest investments made in Belarus.
80      In that sense, several items of evidence produced by the Council – including item No 16 of document WK 7409/2021 REV 1, taken from the official website of the company Slavkali, which is developing the Nezhinsky project – indicate, first, that the total cost of that project amounts of USD 2 billion. That information is also confirmed by the investment agreement of 5 October 2011, which provides that investment in the Nezhinsky project must amount as a minimum to USD 1.521 billion. Second, Slavkali is the second largest undertaking in Belarus in the potash extraction sector, with a potassium chloride production capacity of 2 million tonnes per annum. That information is also confirmed by the investment agreement of 5 October 2011, under the terms of which the Nezhinsky project must have a capacity of at least 1.1 million tonnes of potassium chloride per annum. Third, the Nezhinsky project is intended to make Belarus a world leader in the potassium chloride production sector.
81      Without seriously challenging either the scale of the project or the fact that he has made significant investments therein, the applicant nevertheless claims that his contribution to that project has been limited since 10 June 2021, on account of his minority shareholding in the company GCM and that, furthermore, the Council incorrectly
described him in the initial acts as owning Slavkali. However, the applicant does not challenge his characterisation as ‘shareholder’ in that company, on which description the Council relied in the maintaining acts.
82      In order to dispute his capacity as the owner of Slavkali in the initial acts, the applicant relies, in particular, on an organisational chart which shows that (i) GCM is wholly owned by Lambency, the shareholders of which were, until 10 June 2021, the applicant, who held 99.9997% of the shares, and his son, who held 0.0003%, and (ii) following several transfers which took place on 10 June 2021 between the applicant, his brother and his son, the structure of the shareholding in Lambency changed in favour of the applicant’s brother, who has since held 89.59% of the shares, with the applicant himself only holding approximately 9%.
83      It should be observed, in that regard, that while it is true that the applicant is no longer a majority shareholder in GCM, it is not apparent from the information before the Court that, despite that change of shareholding in GCM, the applicant is no longer involved either in the company Slavkali or in the Nezhinsky project. The fact that he remains a shareholder in GCM demonstrates that he has not relinquished
any financial gain as he may make from that project and, consequently, his business interests in the potash sector were current at the time when the initial acts were adopted.
84      Furthermore, as is apparent from item No 16 of document WK 7409/2021 REV 1, referred to in paragraph 80 above, the applicant held the position of chairman of the board of directors of that company at the time when both the initial acts and the maintaining acts were adopted, which he has never disputed in his written pleadings.
85      Lastly, item No 15 of document WK 7409/2021 REV 1, taken from the website ‘safmargroup.ru’, which the applicant does not dispute, indicates that Slavkali is part of the Industrial and Financial Group Safmar (‘Safmar Group’), which is a Russian multi-sector conglomerate, the founder and principal owner (shareholder) of which is the applicant. According to the same document, that group, of which the applicant is also chairman of the board of directors, is responsible for the strategic development of the companies which it holds. Those considerations are not invalidated by the ad hoc notice of Safmar Financial Investments, taken from the website ‘safmarinvest.ru’
and produced by the applicant, since it is clear therefrom that that entity is not the same as the entity Industrial and Financial Group Safmar, to which the aforementioned item No 15 refers.
86      It follows that, having regard to his duties in the context of Slavkali and the Safmar Group, the applicant not only remained involved in the management of Slavkali but also exercised control over that company, even when the initial acts were adopted.
87      Moreover, as the Council rightly observes, President Lukashenko has always identified the applicant as being the main driver of the Nezhinsky project, and the latter has failed to produce any evidence from which it may be concluded that that is no longer the case. In that connection, it should in fact be recalled that it is apparent from item No 16 of document WK 7409/2021 REV 1, referred to in paragraph 80 above, that the applicant benefited from the personal support of President Lukashenko for that project, that latter having stated, moreover, that it was ‘natural that he, who created dozens of enterprises and hundreds of jobs, was entrusted with the implementation of the largest investment project in the history of independent Belarus’.
88      In the light of the foregoing considerations, it should be found that, even if the applicant were no longer the majority shareholder in GCM – and therefore, indirectly, in Slavkali – when the initial acts were adopted, the material set out in paragraphs 83 to 87 above, constitutes a sufficiently concrete, precise and consistent body of evidence allowing the Council to conclude that, when those acts were adopted, the applicant had business interests in the potash sector in Belarus.
Furthermore, contrary to the applicant’s claims, his business interests in that sector had not diminished since, although he became a minority shareholder in GCM, he remained involved in the management of Slavkali and even controlled it, as has been found in paragraph 86 above.
89      It follows from the foregoing that the description of the applicant’s activities in the potash sector, as relied on in the contested acts, is ultimately correct.
–       The applicant’s business interests in the energy sector
90      The applicant’s business interests in the energy sector relate, in essence, first, to Safmar activities in that sector, and more particularly to the fact that that undertaking was the only Russian oil firm to continue supplying Belarusian refineries during the energy crisis between Belarus and Russia in early 2020. Second, the contested acts state that the applicant’s activities in the energy sector in Belarus are also linked to Slavneft fuelling stations and oil depots.
91      As regards Safmar activities in the oil sector referred to in the contested acts, it should be noted at the outset that it is common ground between the parties that these are the activities of that part of the Safmar Group which is active in the production and refining of Russian oil, namely the companies Russneft and Neftisa. Furthermore, the applicant does not dispute that those companies were the only Russian oil firms to continue supplying oil to Belarusian refineries during the energy crisis between Belarus and Russia in early 2020.
92      That said, it is necessary to ascertain the applicant’s involvement in Russneft and Neftisa, which he denies owning, contrary to what the Council relied on, in essence, in the initial acts. However, the applicant does not challenge his being described as a ‘shareholder’ in those companies, on which description the Council relied in the maintaining acts.
93      In order to dispute his alleged ownership of Russneft and Neftisa at the time when the initial acts were adopted, the applicant relies, in particular, on an organisational chart showing that those companies are wholly owned by Cypriot companies, including Lambency, which are, in turn, owned by the applicant and members of his family. In particular, it is apparent from the organisational charts for those companies that, until 10 June 2021, the applicant held 99.9997% of shares in Neftisa and 99.95% of shares in Russneft and that, following a number of transfers which took place on 10 June 2021 between the applicant, his brother and his son, the structure of the shareholding in those companies changed, with the result that the applicant now holds only 10% of shares in Neftisa and 9% of shares in Russneft, approximately.
94      It should be observed, in that regard, that, while it is true that the applicant is no longer the majority shareholder in certain companies which own Russneft and Neftisa, the fact that he remains a shareholder demonstrates that he has not relinquished any financial gain as he may make from that project and, consequently, his business interests in the oil production and refining sector in Belarus were current at the time when the initial acts were adopted.
95      Moreover, despite that change of shareholding, the applicant’s involvement in the management of Russneft and Neftisa is confirmed by item No 15 in document WK 7409/2021 REV 1, referred to in paragraph 85 above, which demonstrates that Russneft and Neftisa are part of the Safmar Group, which is a Russian multi-sector conglomerate, the founder and principal owner (shareholder) of which is the applicant.
According to the same document, the Safmar Group, of which the applicant is also chairman of the board of directors, is responsible for the strategic development of the companies which it holds.
96      The ad hoc notice issued by Safmar Financial Investments, taken from the website ‘safmarinvest.ru’
and produced by the applicant, does not invalidate that finding, since it is clear therefrom that that entity is not the same as the entity Industrial and Financial Group Safmar.
97      In the light of the foregoing considerations, it should be found that, even if the applicant were no longer the majority shareholder in Russneft and Neftisa when the initial acts were adopted, the material set out in paragraphs 94 to 96 above, constitutes a sufficiently concrete, precise and consistent body of evidence allowing the Council to conclude that, when those acts were adopted, the applicant had business interests in the oil sector in Belarus. Furthermore, contrary to the applicant’s claims, his business interests in that sector had not diminished since, first, although he became a minority shareholder in certain companies holding Russneft and Neftisa, he has not relinquished any financial gain as he may make therefrom and second, he remained involved in the management of and even controlled those companies, as has been held in paragraph 95 above.
98      It follows that the description of the applicant’s activities in the contested acts as a prominent businessperson with business interests in the energy sector is ultimately correct.
99      Admittedly, in so far as concerns Slavneft, the evidence produced by the Council demonstrates only that the applicant was chairman of that company from 2000 to 2002 which, moreover, the applicant confirms, and that his appointment to that role was made by approval of the Presidents of the Russian Federation and of the Republic of Belarus.
100    However, while the Council has failed to demonstrate that the applicant ever held shares in Slavneft, that is insufficient to call into question the finding made in paragraph 98 above, since Slavneft’s activities relating to fuelling stations and oil depots represent only part of the applicant’s activities in the oil sector, to which the contested acts refer.
The personal relationship between the applicant and President Lukashenko
101    The applicant disputes, in essence, the claim that he is a long-time friend of President Lukashenko, as is stated in the initial acts and, in particular, that he was invited to a New Year reception hosted by the President. The applicant states that, as an investor in Belarus, he maintains professional relations with the political leadership solely as a matter of prudence. He denies having gifted President Lukashenko luxurious presents but states that he did make symbolic gifts to him which were of limited value.
He also denies the Council’s claim as to a residence which, it is alleged, belongs to President Lukashenko. He states that he crossed into Belarus from Russia in order to escape a criminal investigation which was opened against him in Russia and that he took a flight from Minsk airport to London (United Kingdom), but he denies receiving any support from the regime of President Lukashenko at that time.
102    He indicates that he acknowledges being an acquaintance of President Lukashenko, as is stated in the maintaining acts, but emphasises that this is not sufficient to include his name on the lists at issue. He states that the fact of having received a birthday greeting from President Lukashenko cannot demonstrate a bond of friendship with the latter. He acknowledges that President Lukashenko declared that he would rename the town of Lyuban in the applicant’s honour, but argues that that comment was made purely in jest. The applicant accepts that he has made considerable investments in Belarus and has been actively involved in charity work, but he emphasises that those activities benefit the people of Belarus and cannot demonstrate any benefit from or support for the regime of President Lukashenko. He also acknowledges that he attended President Lukashenko’s inauguration but states that, as a major investor in Belarus, he had no choice but to attend such a ceremony.
103    The Council disputes the applicant’s arguments.
104    At the outset, it should be noted that the applicant does not deny knowing President Lukashenko personally. He argues, however, that he is not a friend of President Lukashenko, but that they are mere acquaintances.
105    As regards the circumstances set out in the contested acts which are, it is alleged, evidence that there exists a personal relationship between the applicant and President Lukashenko, the applicant disputes only the claim that he took part in a New Year reception hosted by President Lukashenko and that he employed singers for the event, that he gifted President Lukashenko with luxurious presents, that he owned a luxury residence that belonged de facto to the latter, and that he received support from President Lukashenko in order to flee a criminal investigation in Russia in 2007.
106    Without it being necessary to rule on the accuracy of the aforementioned facts which are disputed by the applicant, it should be observed, first, that the applicant does not deny the veracity of the other facts alleged by the Council, namely that he received thanks and greetings on his birthday from President Lukashenko, the latter declaring his intention to rename a town in honour of the applicant, even though that promise was made in jest, and the applicant’s presence at President Lukashenko’s inauguration.
107    Next, it is apparent from the evidence submitted by the Council that, on numerous occasions, President Lukashenko made statements praising the applicant and even publicly declared that he had personally contacted the Russian President, Vladimir Putin, in support of the applicant in the context of two criminal investigations launched against the latter in Russia in 2020. In particular, in an official statement made by President Lukashenko and reported in the press, the content of which is not disputed by the applicant, President Lukashenko stated that he valued the applicant’s personal, professional and business qualities and always paid great attention to the projects that the applicant implemented. More specifically, President Lukashenko declared that the applicant’s work in Belarus would continue to be an example of successful bilateral cooperation and mutually beneficial investments. Furthermore, President Lukashenko’s press secretary also expressly stated, in an interview published in the press, that the applicant was ‘a person whom … President [Lukashenko] trusts implicitly’.
108    Moreover, the applicant does not dispute having financed the construction of a church, during the consecration of which President Lukashenko, who was in attendance, thanked him publicly.
109    Lastly, the applicant himself states that, in 2000, he was appointed chairman of Slavneft by approval of the President of the Russian Federation and the President of the Republic of Belarus, namely President Lukashenko.
110    It follows from the foregoing that the reference, in the contested acts, to the existence of a personal relationship between President Lukashenko and the applicant is correct, in that the latter may be regarded, at the very least, as a long-standing acquaintance of President Lukashenko.
Whether the facts established by the Council demonstrate that the applicant benefits from or supports the regime of President Lukashenko
111    It is apparent from paragraphs 89 to 98 above that the Council did not err in its assessment when it found that the applicant was a prominent businessperson with business interests in Belarus in the potash and energy sectors. The same applies to the personal relationship between President Lukashenko and the applicant, as has been found in paragraph 110 above.
112    In order to establish that that
material justifies the adoption of restrictive measures against the applicant, the Council claims, in essence, that, in a country such as Belarus, activities of a magnitude such as those of the applicant, in multiple sectors and which are sustained over time, bearing in mind, further, the applicant’s contacts with the regime of President Lukashenko, are not possible without the endorsement of that regime.
113    In that connection, it should be observed that, admittedly, the fact of being a prominent businessperson in Belarus, taken in isolation, does not suffice to establish that the applicant maintains good relations with public authorities or that his activities are indicative of closeness to the regime of President Lukashenko. When the initial acts were adopted, neither Decision 2012/642 nor Regulation No 765/2006 had introduced a presumption of support for the regime of President Lukashenko against prominent businesspersons operating in Belarus.
114    However, that aspect cannot be disregarded in the overall assessment of the various relevant factors which would justify the applicant being considered as a person benefiting from or supporting the regime of President Lukashenko (see, to that effect, judgment of 12 May 2015, Ternavsky v Council, T‑163/12, not published, EU:T:2015:271, paragraph 121).
115    In that connection, first, it should be noted that the applicant’s business interests in Belarus are distinguished by the variety and considerable magnitude thereof in a number of sectors of activity, in particular the oil and potash sectors.
116    Second, it must be pointed out that the oil and potash sectors, aside from being heavily regulated in Belarus, are two strategic sectors of the Belarusian economy and, as is apparent from the evidence produced by the Council, also play a part in the foreign policy of the regime of President Lukashenko.
117    As regards, in the first place, the oil sector, it is apparent from the evidence submitted by the Council, in particular the analysis published on 9 January 2020 on the website ‘novoyagazeta.ru’ and produced as item No 1 of document WK 7409/2021 REV 1, that relations with Russia in that sector, including the purchase of Russian oil, are one of the pillars of the Belarusian economy, with the result
that the interruption, by Russia, in the supply of oil in early 2020 caused a large-scale crisis in Belarus, which led to a halt in the export of petroleum products from that country.
118    In so far as concerns, in the second place, the potash sector, the evidence in the case file confirms that Belarus is one of the world’s richest countries in terms of natural reserves of potash. It is in fact apparent from the article published on 9 September 2020 on the website ‘forbes.ru’ and produced as item No 2 in document WK 7409/2021 REV 1 that, in 2019, potash exports reached 8.4% of the total value of exports from Belarus, that is, USD 2.8 billion.
119    Third, it should be noted that the circumstances in which the applicant’s undertakings carry on their activities in Belarus, and more specifically in the potash and oil sectors, demonstrate the applicant’s closeness to the regime of President Lukashenko and his very good relations with State-owned undertakings and public authorities.
120    In so far as concerns the potash sector, in the first place, it must be pointed out that it is apparent from the item of evidence referred to in paragraph 87 above that, in respect of the development of the Nezhinsky project, the applicant received the unconditional support of President Lukashenko, which he openly claimed on the website of the company Slavkali. Furthermore, the article published on 9 March 2018 on the website ‘navny.belsat.eu’ and produced as item No 17 in document WK 7409/2021 REV 1 ADD 1 quotes a statement made by President Lukashenko, according to which the applicant is ‘one of the few who received Belarusian mineral resources’.
121    Admittedly, the applicant states that, although GCM was the only candidate, it won the right to develop the Nezhinsky project following a public contract which was awarded following a designated process provided for by the local laws of the Republic of Belarus.
122    However, it is clear that none of the evidence produced by the applicant supports that statement.
123    In the second place, it is apparent from the articles published on 9 July 2019 on the websites ‘navny.belsat.eu’ and ‘sputnik.by’ and produced as items Nos 18 and 24 in document WK 7409/2021 REV 1 ADD 1 – both of which quote statements made by the applicant and President Lukashenko – that, in the context of the development of the Nezhinsky project, the applicant agreed that Slavkali would not compete with the main Belarusian State-owned competitor, Belarusian Potash Company, in order to be granted access to the potash market. In that connection, the applicant publicly stated that ‘the pricing policy for entering foreign markets will be agreed upon, and there will be no competition’, that ‘it will be symmetrical’, that ‘[they] have an agreement that when [they] reach the completion of the construction [, they] will sign all the necessary documents’ and that ‘now there is a framework agreement that [they] are going in unison’. Furthermore, according to the article published on 9 September 2020 on the website ‘forbes.ru’ and produced as item No 2 of document WK 7409/2021 REV 1, Slavkali undertook to sell all its products only through the State-owned
undertaking, Belarusian Potash Company, which is confirmed, moreover, by the investment agreement of 5 October 2011.
124    In the third place, advantages of a financial nature were granted to GCM by virtue of the investment agreement of 5 October 2011 concerning the Nezhinsky project.
125    It is apparent from the evidence submitted by the Council, in particular item No 2 referred to in paragraph 123 above and from the article published on 9 March 2021 on the website ‘mbk-news.appspot.com’, produced as item No 7 of document WK 7409/2021 REV 1, that a loan of USD 1.4 billion was granted to Slavkali by a Chinese bank in respect of the development of the Nezhinsky project, and that that loan was guaranteed by the Belarus Government. The applicant disputes the reliability of the second item of evidence cited above. However, it should be observed that the information contained in the aforementioned press article on the government guarantee in respect of the loan granted to Slavkali is confirmed by Article 4 of the addendum, dated 21 November 2017, to the investment agreement of 5 October 2011. That article in fact provides that the loan, in the amount of USD 1.4 billion, granted for the project by the China Development Bank in respect of the financing of the Nezhinsky project – the value of which is estimated in the same document at USD 1.521 billion – is under a guarantee of the Belarus Government.
126    As regards the oil sector, it should be noted that, contrary to what the applicant maintains, the fact that the companies Russneft and Neftisa were the only Russian oil companies to continue supplying oil to Belarus when, in early 2020, Russia temporarily halted its oil deliveries to Belarus, in order to incite President Lukashenko to move towards greater integration in the context of the Union State of Russia and Belarus, constitutes evidence of the applicant’s closeness to the regime of President Lukashenko.
127    As the Council rightly states, it is apparent from the article published on 2 April 2020 on the website ‘news.tut.by’, produced as item No 3 of document WK 7409/2021 REV 1 and which quotes a statement made by President Lukashenko, that the latter defended the applicant against Russian President Vladimir Putin when two criminal investigations were launched against the applicant in Russia on account of the fact that his companies Russneft and Neftisa were alone in continuing to export oil to Belarus at the beginning of the 2020 energy crisis between Russia and Belarus.
128    In the fourth place, it should be recalled that, as has been stated in paragraph 110 above, there is an actual, long-standing personal relationship between the applicant and President Lukashenko.
129    That personal relationship also reflects the applicant’s closeness to the regime of President Lukashenko and, contrary to the applicant’s claims, the fact that, thanks to those ties, he has accumulated a considerable fortune and gained in influence in Belarus.
130    First, as stated in paragraph 120 above, in respect of the development of the Nezhinsky project, the applicant benefited from the personal support of President Lukashenko.
131    Second, it should be recalled that President Lukashenko defended the applicant against Russian President Vladimir Putin when two criminal investigations were launched against the applicant in Russia on account of the fact that his companies Russneft and Neftisa were alone in continuing to export oil to Belarus at the beginning of the 2020 energy crisis between Russia and Belarus.
132    Third, the applicant confirms that he was part of the circle of persons who attended President Lukashenko’s inauguration in September 2020 following the presidential elections of 9 August 2020, which were found to be inconsistent with international standards and marred by the repression of independent candidates and a brutal crackdown on peaceful protesters in the wake of those elections.
133    It is apparent from the article published on 28 November 2020 on the website ‘news.yahoo.com’ and produced as item of evidence No 14 of document WK 7409/2021 REV 1, the content of which the applicant has not challenged, that the
inauguration was held in secret and that the applicant travelled to Minsk for that ceremony, since he arrived in Minsk the day before and returned to Moscow the day after.
134    In the fifth place, the items set out in paragraphs 114 to 133 above must also be taken into consideration in the light of the circumstances in which business activities are carried on in Belarus.
135    The items produced by the Council regarding the circumstances in which business activities are carried on in Belarus may be taken into account as part of the examination of the evidence, not in isolation but in its context, in accordance with the case-law cited in paragraph 62 above.
136    In the present case, the evidence submitted by the Council in relation to the economic situation in Belarus demonstrate that, under the regime of President Lukashenko, the Belarusian economy is characterised by the control exerted by the regime in both the public and private sectors, and by a system which rewards loyalty to the regime.
137    In that connection, first, amongst the items of evidence contained in documents WK 8225/2021 INIT and WK 15436/2021 INIT, the article dated 30 July 2020 published on the website ‘cepa.org’, the article dated 15 October 2015 published on the website ‘naviny.belsat.eu’, the article dated 13 December 2016 published on the website ‘news.tut.by’, the article dated 9 July 2020 published on the website ‘en.belapan.by’, the article dated 22 March 2016 published on the website ‘russian.rt.com’, the article dated 13 October 2021 published on the website ‘atlanticconcil.org’, the article published on the website ‘belsat.eu’ and retrieved on 3 January 2022, together with the reports on Belarusian oligarchs and that entitled ‘How did Lukashenko’s friends latch on the feeder’ published on the websites ‘czasopisma.isppan.waw.pl’ and ‘cdn.3bls.eu’, respectively, all concur on the finding that significant business activities may be carried on only with the endorsement of the regime of President Lukashenko. Amongst those articles, that published on the website ‘cdn.3bls.eu’ refers to the applicant as one of the businesspersons whose activities benefit from such an endorsement.
138    Next, it is also apparent from those items of evidence that the activities of prominent businesspersons in Belarus are highly dependent on the regime of President Lukashenko and that, in order to attain such a position, it is necessary to belong to a restricted group of persons who enjoy President Lukashenko’s confidence. In particular, the article published on the website ‘news.tut.by’ states that the evolution of the autocratic political system in Belarus has produced its own type of businesspersons closely associated with the authorities – the so-called ‘Belarusian oligarchs’ – whose closeness to the regime is expressed not only in ‘political and social attributes’ by holding public office as a deputy, a senator, or a member of the presidium of a pro-government party but also by participating in profitable projects within the framework of public-private partnerships. As stated in paragraph 110 above, the applicant is amongst those who are close to President Lukashenko. Moreover, the report published on the website ‘cdn.3bls.eu’ refers to the applicant as being the man who President Lukashenko trusts implicitly. Furthermore, the fact that, as the applicant states (see paragraph 102 above), as a major investor in Belarus, he had no choice but to attend President Lukashenko’s inauguration in September 2020 following the presidential elections of 9 August 2020, is also such as to support the finding made in paragraph 136 above.
139    In the light of all the foregoing, it should be held that the magnitude and diversity of the applicant’s business interests, which are sustained over time, specifically in the strategic regulated oil and potash sectors, together with the personal relationship that he maintains with President Lukashenko, demonstrate the closeness of the applicant’s activities to the regime of President Lukashenko.
140    The Council thus did not commit an error of assessment in finding that the fact that, first, the applicant is a prominent businessperson with business interests in Belarus in the sectors of potash and energy and, second, he is personally associated with President Lukashenko, constituted a sufficiently concrete, precise and consistent body of evidence to establish that the applicant benefits from and supports the regime of President Lukashenko.
141    The first ground for listing and retention is therefore substantiated to the requisite legal standard, meaning that it is not necessary to examine the Council’s assessment of the applicant’s business interests in the property sector.
142    That finding cannot be called into question by the applicant’s argument, raised in his statement of modification, that past actions cannot form the basis for inclusion on the lists at issue.
143    It should be recalled, in that connection, that it has been established that, when both the initial and the maintaining acts were adopted, the applicant remained a shareholder in Slavkali, Russneft and Neftisa. In addition, it has also been established that those companies are owned by the Safmar Group, which is a Russian multi-sector conglomerate of which the applicant is the founder, principal owner (shareholder) and chairman of the board of directors.
144    Furthermore, and in any event, the fact that the grounds for including the applicant’s name on the lists at issue refer to facts which occurred before the adoption of the contested acts and which, it is claimed, had ended on that date does not necessarily mean that the restrictive measures maintained against the person or entity referred to by those acts are obsolete. For the purposes of establishing that the applicant benefits from or supports the regime of President Lukashenko, such a reference cannot, as a matter of principle, be regarded as irrelevant solely on the ground that certain actions belong to the more or less distant past (see, to that effect, judgment of 12 February 2020, Boshab v Council, T‑171/18, not published, EU:T:2020:55, paragraph 84 and the case-law cited).
145    That interpretation is supported by Article 8 of Decision 2012/642, under which that decision is to be kept under constant review and is to be renewed or amended, as appropriate, if the Council deems that its objectives have not been met, and by Article 8a(4) of Regulation No 765/2006, from which it is apparent that the list in Annex I to that regulation is to be reviewed at regular intervals and at least every 12 months.
If those provisions are not to be rendered redundant, they must be considered to allow the continued inclusion on the lists at issue of the names of persons and entities not having committed any act which shows that they benefit from or support the regime of President Lukashenko during the period preceding the review, if that continued inclusion is still justified in the light of all the relevant circumstances and, in particular, of the fact that the objectives pursued by the restrictive measures have not been achieved (see, by analogy, judgment of 12 February 2020, Boshab v Council, T‑171/18, not published, EU:T:2020:55, paragraph 85 and the case-law cited).
The other reasons for listing
146    It is settled case-law that, having regard to the preventive nature of decisions adopting restrictive measures, 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 a sufficient basis to support that decision, the fact that the same cannot be said of other such reasons cannot justify the annulment of that decision (see 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).
147    Thus, to the extent that the facts alleged in the first and second reasons for listing have been established to the requisite legal standard and that those reasons justify in themselves the inclusions on the lists contained in the contested acts, it is not necessary to determine whether the third and fourth reasons are sufficiently detailed and specific, or whether those reasons are substantiated and constitute, in themselves, a sufficient basis to support those acts.
148    In the light of those considerations, the second part of the first plea must be rejected as unfounded.
The second plea, alleging infringement of fundamental rights
149    The applicant submits that the inclusion of his name on the lists at issue constitutes an unjustified and disproportionate interference with his right to property, as protected inter alia by Article 17(1) of the Charter, with his freedom to conduct a business, for the purposes of Article 16 of the Charter, and with his right to respect for his reputation, an aspect of the right to respect for private life, referred to in Article 7 of the Charter.
150    According to the applicant, a measure freezing funds entails a restriction of the exercise of the right to property, in that he is unable to dispose of his funds or economic resources situated in the territory of the European Union, or to transfer them to the European Union, except by virtue of special authorisations. His freedom to conduct a business is also impaired, given the restrictions imposed on his economic resources. Furthermore, the restrictive measures have impacted his professional activities by causing considerable damage to his reputation, and have inhibited his private life by restricting his movement and ability to dispose of economic resources.
151    The applicant adds that, in order to comply with EU law, a restriction must satisfy two conditions, namely that (i) it must further an objective of general interest, and (ii) it must be necessary and proportionate to the objective pursued. In the first place, the applicant observes that the restrictive measures adopted by the Council are intended to address concerns regarding infringements of international election standards, infringements of human rights and repression of society. The inclusion of the applicant’s name on the lists at issue does not advance those objectives, given that the Council has not sought to allege that he has been involved in acts of that kind. In the second place, the applicant maintains that the imposition of restrictive measures is neither necessary nor proportionate from the point of view of achieving the objectives of the contested acts. The applicant has neither supported the regime of President Lukashenko in infringing international election standards or human rights, nor has he benefited from the actions of the regime of President Lukashenko.
152    The Council disputes the applicant’s arguments.
153    In that connection, it should be borne in mind that the right to property is among the general principles of EU law and is enshrined in Article 17 of the Charter. In so far as concerns the right to respect for private life, and the right to respect for reputation more specifically, Article 7 of the Charter recognises the right to respect thereof. Similarly, the freedom to conduct a business is enshrined in Article 16 of the Charter.
154    In the present case, the restrictive measures imposed on the applicant constitute protective measures, which are not supposed to deprive the persons concerned of their property, the right to respect for their private life or their freedom to conduct a business. However, the measures in question undeniably entail a restriction of the exercise of the applicant’s right to property and affect his private life and his freedom to conduct a business (see, to that effect, judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraph 167).
155    However, the fundamental rights relied on by the applicant are not absolute, and may, therefore, be subject to limitations, as provided for in Article 52(1) of the Charter (see judgment of 13 September 2018, VTB Bank v Council, T‑734/14, not published, EU:T:2018:542, paragraph 138 and the case-law cited).
156    In that regard, it should be borne in mind that, under Article 52(1) of the Charter, first, ‘any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms’ and, second, ‘subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others’.
157    Consequently, in order to comply with EU law, a limitation on the exercise of the fundamental rights at issue must satisfy three conditions. First, the limitation must be provided for by law. In other words, the measure in question must have a legal basis. Second, the limitation must refer to an objective of general interest, recognised as such by the European Union. Third, the limitation may not be excessive. On the one hand, it must be necessary and proportional to the aim sought. On the other hand, the ‘essential content’, that is, the substance, of the right or freedom at issue must not be impaired (see, to that effect, judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraphs 170 to 173 and the case-law cited).
158    Those three conditions are satisfied in the present case.
159    In the first place, the restrictive measures at issue are ‘provided for by law’, since they are set out in acts of general application that have a clear legal basis in EU law, namely Article 3(1) and Article 4(1) of Decision 2012/642, and Article 2(5) of Regulation No 765/2006. Those provisions are sufficiently foreseeable for the persons concerned as regards their purpose in serving as legal bases for the adoption of restrictive measures liable adversely to affect or limit fundamental rights (see, to that effect, judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraph 175 and the case-law cited).
160    In the second place, it should be recalled that, as has been observed in paragraphs 48 to 54 above, the restrictive measures imposed on the applicant pursue an objective of general interest and are not excessive.
161    Furthermore, they are temporary and reversible.
162    First of all, in accordance with Article 8 of Decision 2012/642 and Article 8a(4) of Regulation No 765/2006, the maintenance of the applicant’s name on the lists at issue is to be kept under constant review in order to determine whether that maintenance is compatible with the listing criteria.
163    Next, Article 5 of Decision 2012/642 and Article 3 of Regulation No 765/2006 provide for the possibility of (i) authorising the use of frozen funds in order to meet basic needs or to meet certain commitments, and (ii) granting specific authorisations permitting the release of funds, other financial assets or other economic resources.
164    Lastly, in accordance with Article 3(6) of Decision 2012/642, the Member States may grant exemptions from the measures imposed in paragraph 1 of that article where travel is justified on the grounds of urgent humanitarian need.
165    In the light of the foregoing, it must be found that the restriction on the applicant’s fundamental rights caused by the restrictive measures imposed on him is in conformity with Article 52(1) of the Charter.
166    That finding cannot be called into question by the applicant’s arguments in relation to the specific circumstances concerning him or by the argument that he has been investing in Belarus since 2011, whereas the Council has had the power to designate persons benefiting from or supporting the regime of President Lukashenko since 2012, and that the Council could therefore have included the applicant’s name on the lists at issue much earlier had the latter inclusion truly been necessary. As the Council emphasises in its written pleadings, its approach has been gradual, in so far as it has proceeded with listings gradually, paying attention to developments in the situation in Belarus, which effectively demonstrates the Council’s objective of applying restrictive measures in a proportionate way.
167    Consequently, the second plea must be rejected and the action dismissed in its entirety, without it being necessary to rule on the request submitted in the alternative by the Council in its third head of claim.
Costs
168    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. As the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Council.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Mr Mikail Safarbekovich Gutseriev to bear his own costs and to pay those incurred by the Council of the European Union.
Svenningsen
Laitenberger
Stancu
Delivered in open court in Luxembourg on 6 September 2023.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.