JUDGMENT OF THE GENERAL COURT (First Chamber)
11 September 2024 (*)
( Common foreign and security policy – Restrictive measures taken in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine – Freezing of funds – Restriction on entry into the territory of the Member States – List of persons, entities and bodies subject to the freezing of funds and restrictions on entry into the territory of the Member States – Maintenance of the applicant’s name on the list – Letter informing the applicant of the maintenance of his name on the list – Act not open to challenge – Inadmissibility – Concept of ‘association’ – Article 2(1) in fine of Decision 2014/145/CFSP – Concept of ‘person benefiting from a leading businessperson’ – Article 2(1)(g) of Decision 2014/145 – Obligation to state reasons – Principle of good administration – Error of assessment – Proportionality )
In Case T‑741/22,
Pavel Ezubov, residing in Moscow (Russia), represented by D. Rovetta, M. Campa and V. Villante, lawyers,
applicant,
v
Council of the European Union, represented by J. Rurarz and P. Mahnič, acting as Agents, and by B. Maingain and S. Remy, lawyers,
defendant,
THE GENERAL COURT (First Chamber),
composed of D. Spielmann, President, M. Brkan and I. Gâlea (Rapporteur), Judges,
Registrar: M. Zwozdziak-Carbonne, Administrator,
having regard to the written part of the procedure,
and further to the hearing on 23 January 2024,
gives the following
Judgment
1        By his action under Article 263 TFEU, the applicant, Mr Pavel Ezubov, seeks annulment of (i) 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), in so far as that act maintains his name on the list of persons and entities set out in the annex to Council Decision 2014/145/CFSP of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 16), (ii) 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), in so far as that act maintains his name on the list of persons and entities set out in Annex I to Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 6), and (iii) the Council’s letter to him of 15 September 2022 (‘the letter of 15 September 2022’) informing him of the maintenance of his name on the lists of persons and entities set out in the annex to Decision 2014/145 and in Annex I to Regulation No 269/2014 (‘the lists at issue’). After a first modification of the application, the applicant also seeks the annulment of (i) Council Decision (CFSP) 2023/572 of 13 March 2023 amending Decision 2014/145 (OJ 2023 L 75I, p. 134), in so far as that act maintains his name on the list of persons and entities set out in the annex to Decision 2014/145, (ii) Council Implementing Regulation (EU) 2023/571 of 13 March 2023 implementing Regulation No 269/2014 (OJ 2023 L 75I, p. 1), in so far as that act maintains his name on the list of persons and entities set out in Annex I to Regulation No 269/2014 and (iii) the Council’s letter to him of 14 March 2023 informing him of the maintenance of his name on the lists at issue (‘the letter of 14 March 2023’). After a second modification of the application, the applicant also seeks the annulment of (i) Council Decision (CFSP) 2023/1767 of 13 September 2023 amending Decision 2014/145 (OJ 2023 L 226, p. 104), in so far as that act maintains his name on the list of persons and entities set out in the annex to Decision 2014/145, (ii) Council Implementing Regulation (EU) 2023/1765 of 13 September 2023 implementing Regulation No 269/2014 (OJ 2023 L 226, p. 3), in so far as that act maintains his name on the list of persons and entities set out in Annex I to Regulation No 269/2014, and (iii) the Council’s letter to him of 15 September 2023 informing him of the maintenance of his name on the lists at issue (‘the letter of 15 September 2023’).
I.      Background to the dispute
2        The applicant is a businessperson of Russian nationality. He is the cousin of Mr Oleg Deripaska.
3        The present case falls within the context of the restrictive measures adopted in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine.
4        On 17 March 2014, the Council of the European Union adopted Decision 2014/145 on the basis of Article 29 TEU. On the same date, it adopted Regulation No 269/2014 on the basis of Article 215(2) TFEU.
5        On 25 February 2022, the Council adopted Decision (CFSP) 2022/329 amending Decision 2014/145 (OJ 2022 L 50, p. 1), and Regulation (EU) 2022/330 amending Regulation No 269/2014 (OJ 2022 L 51, p. 1). Article 2(1) and (2) of Decision 2014/145, as amended by Decision 2022/329, is worded as follows:
‘1.      All funds and economic resources belonging to, or owned, held or controlled by:
(a)      natural persons responsible for, supporting or implementing actions or policies which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine, or stability or security in Ukraine, or which obstruct the work of international organisations in Ukraine;
…
(d)      natural or legal persons, entities or bodies supporting, materially or financially, or [benefiting] from Russian decision-makers responsible for the annexation of Crimea or the destabilisation of Ukraine;
…
(f)      natural or legal persons, entities or bodies supporting, materially or financially, or [benefiting] from the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine; or
(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.’
6        Article 1(1) of Decision 2014/145, as amended by Decision 2022/329, prohibits the entry into or transit through the territories of the Member States of natural persons who satisfy essentially the same criteria as those set out in Article 2(1) of that decision.
7        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 identical, in essence, to those of Decision 2014/145, as amended by Decision 2022/329. Article 3(1)(a) to (g) of that regulation essentially reproduces Article 2(1)(a) to (g) of that decision.
8        Pursuant to the second paragraph of Article 6 of Decision 2014/145, as amended by Decision 2022/329, the restrictive measures at issue applied until 15 March 2022. By Decision (CFSP) 2022/411 of 10 March 2022 amending Decision 2014/145 (OJ 2022 L 84, p. 28), the Council extended the application of those measures until 15 September 2022.
9        On 8 April 2022, the Council added the name of Mr Deripaska to the lists at issue by Decision (CFSP) 2022/582 amending Decision 2014/145 (OJ 2022 L 110, p. 55), and Implementing Regulation (EU) 2022/581 implementing Regulation No 269/2014 (OJ 2022 L 110, p. 3).
10      In that context, on 21 July 2022, the Council adopted (i) Decision (CFSP) 2022/1272 amending Decision 2014/145 (OJ 2022 L 193, p. 219), on the basis of Article 29 TEU, and (ii) Implementing Regulation (EU) 2022/1270 implementing Regulation No 269/2014 (OJ 2022 L 193, p. 133), on the basis of Article 215 TFEU.
11      By those two acts, the applicant’s name was included on the lists at issue for the following reasons:
‘Pavel Ez[u]bov is the cousin of Oleg Deripaska, who owns the Russian Machines industrial conglomerate which includes the Military Industrial Company, a major arms and military equipment provider to the Russian armed forces. Oleg Deripaska has transferred large assets to his cousin Pavel Ez[u]bov, including several properties in France, via a holding company owned by Ez[u]bov, a hotel in Lech, Austria, through the Russian-based holding company Gost Hotel Management LLC owned by Ez[u]bov and the control of the company Terra Limited. Ez[u]bov further controls Hestia International LLC, the company which owns a mansion in Washington DC connected to Oleg Deripaska. Pavel Ez[u]bov is therefore a natural person associated with a listed person, responsible for supporting or implementing actions or policies which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine, or stability or security in Ukraine.’
12      In accordance with the second paragraph of Article 6 of Decision 2014/145, as amended by Decision 2022/411, the restrictive measures imposed on the applicant applied until 15 September 2022 (see paragraph 8 above).
13      On 1 August 2022, the applicant requested the release of all the documents and evidence on which the inclusion of his name on the lists at issue was based.
14      By letter of 9 August 2022, the Council sent him a file of evidence bearing the reference WK 10503/2022 INIT (‘the first WK file’).
15      By letter sent to the Council on 15 August 2022, the applicant disputed the validity of the inclusion of his name on the lists at issue and requested a review of that listing.
16      On 14 September 2022, the Council adopted Decision 2022/1530 and Implementing Regulation 2022/1529 (together, ‘the September 2022 acts’). By those acts, it maintained the applicant’s name on the lists at issue without amending the grounds set out in paragraph 11 above.
17      Pursuant to Article 1 of Decision 2022/1530, the application of the restrictive measures at issue against the applicant was extended until 15 March 2023.
18      By the letter of 15 September 2022, the Council rejected the request for reconsideration submitted by the applicant on 15 August 2022 and informed him of the adoption of the September 2022 acts.
19      On 16 September 2022, the applicant asked the Council to provide any new document that it had added to the file since sending the first WK file. On 27 October 2022, the Council replied that no new evidence had been added to the file after the first WK file was sent on 9 August 2022.
20      On 31 October 2022, the applicant submitted a request for reconsideration of the inclusion of his name on the lists at issue.
21      It is in that context that, on 24 November 2022, the applicant brought the present action.
II.    Facts subsequent to the bringing of the action
22      By letter of 22 December 2022, the Council informed the applicant that it was considering maintaining the restrictive measures taken against him. That letter was accompanied by a file bearing the reference WK 17700/2022 INIT (‘the second WK file’) containing new evidence. By letter of 20 January 2023, the applicant submitted a request for reconsideration of the inclusion of his name on the lists at issue.
23      On 6 February 2023, the Council informed the applicant of its intention to amend the statement of reasons for the inclusion of his name on the lists at issue. By letter of 15 February 2023, the applicant submitted a second request for reconsideration of the inclusion of his name on the lists at issue.
24      On 13 March 2023, the Council adopted Decision 2023/572 and Implementing Regulation 2023/571 (together, ‘the March 2023 acts’). By those acts, the Council maintained the applicant’s name on the lists at issue, on grounds identical to those set out in paragraph 11 above, with the exception of the statement that the applicant ‘further controls Hestia International LLC, the company which owns a mansion in Washington DC connected to Oleg Deripaska’, which was deleted from those grounds.
25      Pursuant to Article 1 of Decision 2023/572, the application of the restrictive measures at issue against the applicant was extended until 15 September 2023.
26      By letter of 14 March 2023, the Council rejected the requests for reconsideration submitted by the applicant on 31 October 2022 and 20 January and 15 February 2023 and informed him of the adoption of the March 2023 acts.
27      On 24 May 2023, the applicant lodged a first statement of modification of the application.
28      On 31 May 2023, the applicant submitted a request for reconsideration of the inclusion of his name on the lists at issue.
29      On 5 June 2023, the Council adopted Decision (CFSP) 2023/1094 amending Decision 2014/145 (OJ 2023 L 146, p. 20). By that decision, it amended Article 2(1)(g) of Decision 2014/145, as follows:
‘1.      All funds and economic resources belonging to, or owned, held or controlled by:
…
(g)      leading businesspersons operating in Russia and their immediate family members, or other natural persons, [benefiting] from them, or businesspersons, legal persons, entities or bodies involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine;
and natural or legal persons, entities or bodies associated with them, as listed in the annex, shall be frozen.’
30      The criterion for freezing funds and economic resources set out in Article 2(1)(g) of Decision 2014/145, as amended by Decision 2023/1094, corresponds in essence to the criteria laid down in Article 1(1)(e) of Decision 2014/145, as amended by Decision 2023/1094, concerning the prohibition to enter into, or transit through, the territory of the Member States.
31      On 5 June 2023, the Council also adopted Regulation (EU) 2023/1089 amending Regulation No 269/2014 (OJ 2023 L 146, p. 1), by which it amended the criterion laid down in Article 3(1)(g) of Regulation No 269/2014, essentially in the same terms as those set out in paragraph 29 above.
32      On 19 June 2023, the Council informed the applicant that it was considering extending the restrictive measures taken against him by amending the last sentence of the statement of reasons against him. That letter was accompanied by new evidence contained in a file bearing the reference WK 8064/2023 INIT (‘the third WK file’).
33      By the letters of 10 July and 18 August 2023, the Council sent the applicant the evidence file bearing the reference WK 5142/2023 INIT (‘the fourth WK file’) and the evidence file bearing the reference WK 5142/2023 ADD 1 (‘the fifth WK file’), respectively. In the meantime, by letter of 24 July 2023, the applicant had submitted a new request for reconsideration of the inclusion of his name on the lists at issue.
34      On 13 September 2023, the Council adopted Decision 2023/1767 and Implementing Regulation 2023/1765 (together, ‘the September 2023 acts’). By those acts, the Council maintained the applicant’s name on the lists at issue, on grounds identical to those set out in paragraph 11 above, as amended in accordance with what is stated in paragraph 24 above, by replacing the last sentence with the following:
‘Pavel Ezubov is therefore an immediate [family] member [benefiting] from his cousin Oleg Deripaska.’
35      Pursuant to Article 1 of Decision 2023/1767, the application of the restrictive measures at issue against the applicant was extended until 15 March 2024.
36      By letter of 15 September 2023, the Council rejected the requests for reconsideration submitted by the applicant on 31 May and 24 July 2023 and informed him of the adoption of the September 2023 acts.
37      On 24 November 2023, the applicant lodged a second statement of modification of the application.
III. Forms of order sought
38      The applicant claims that the General Court should:
–        annul the September 2022 acts, the March 2023 acts and the September 2023 acts, in so far as they concern him;
–        annul the letter of 15 September 2022, the letter of 14 March 2023 and the letter of 15 September 2023;
–        order the Council to pay the costs.
39      The Council contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
IV.    Law
A.      The application for annulment of the letter of 15 September 2022, the letter of 14 March 2023 and the letter of 15 September 2023
40      In its defence, the Council argues that the action is inadmissible in so far as it is brought against the letter of 15 September 2022, on the ground that that letter is not an act affecting the applicant’s legal position and, therefore, the applicant has no interest in challenging it. In reply to a question put by the Court at the hearing, the Council also contended that the action was inadmissible in so far as it was directed against the letters of 14 March 2023 and of 15 September 2023, on the ground that those letters were of an informative nature.
41      The applicant contests the plea of inadmissibility raised by the Council. In particular, the applicant maintains that the letter of 15 September 2022 is a challengeable act, in that it rejects his request for reconsideration submitted on 15 August 2022.
42      According to settled case-law, any measure the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his or her legal position is an act or a decision which may be the subject of an action for annulment under Article 263 TFEU. In that connection, it has been held that a measure of a purely informative nature can neither affect the interests of the addressee or change his or her legal position compared with the situation prior to receipt of that measure (see, to that effect, order of 4 October 2007, Finland v Commission, C‑457/06 P, not published, EU:C:2007:582, paragraph 36; judgment of 11 December 2012, Sina Bank v Council, T‑15/11, EU:T:2012:661, paragraph 30, and order of 25 April 2023, RT France v Council, T‑605/22, not published, EU:T:2023:228, paragraph 31).
43      In the present case, as regards the letter of 15 September 2022, it should be noted that, in that letter, the Council rejected the arguments which the applicant had put forward in his request for reconsideration of 15 August 2022, according to which the initial inclusion of his name on the lists at issue was not sufficiently reasoned and was not based on sufficient evidence. It added that the observations and evidence that the applicant submitted to it confirmed that he was to be regarded as associated with Mr Deripaska.
44      The Council then ended the letter of 15 September 2022 by stating that it had decided to adopt the acts of September 2022 and, by those acts, to maintain the applicant’s name on the lists at issue.
45      It is true that, under the third paragraph of Article 6 thereof, Decision 2014/145, as amended by Decision 2022/329, ‘shall 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’. Thus, it cannot be ruled out, in principle, that the Council’s rejection of a request for reconsideration submitted, with new information in support, by a person whose name is included on the lists at issue may adversely affect that person and, therefore, be the subject of an action for annulment under Article 263 TFEU.
46      However, in the present case, the rejection of the applicant’s request for reconsideration and the maintenance of his name on the lists at issue are reflected in the acts of September 2022, to which the Council expressly referred in the concluding paragraph of the letter of 15 September 2022. Those acts were adopted as the restrictive measures initially imposed on the applicant were about to expire, in accordance with the second paragraph of Article 6 of Decision 2014/145, as amended by Decision 2022/411 (see paragraph 12 above).
47      In those circumstances, only the September 2022 acts are in the nature of a decision and the letter of 15 September 2022 must be regarded as an act of a purely informative nature within the meaning of the case-law cited in paragraph 42 above.
48      The same conclusion must be drawn so far as concerns the letters of 14 March and 15 September 2023.
49      By those letters, the Council rejected the arguments put forward by the applicant in his previous requests for reconsideration, before informing him that, consequently, it had decided to maintain his name on the lists at issue by adopting the March 2023 acts and the September 2023 acts, respectively. Therefore, it is those acts – adopted as the restrictive measures imposed on the applicant by the earlier acts were about to expire (see paragraphs 17 and 25 above) – which are in the nature of a decision, and not the letters of 14 March and 15 September 2023.
50      Lastly, while the applicant relies on the content of the letters of 15 September 2022 and 14 March and 15 September 2023 to claim that the Council infringed the principle of good administration by failing to assess his requests for reconsideration impartially, such an argument seeks really, however, to call into question the legality of the September 2022, the March 2023 and September 2023 acts, and in particular the proper conduct of the procedure which led to their adoption.
51      It follows from the foregoing that the applicant’s claims for annulment, first, of the letter of 15 September 2022, second, of the letter of 14 March 2023, and third, of the letter of 15 September 2023, must be rejected as inadmissible, in the light of the purely informative nature of those letters.
52      It is therefore necessary to examine the merits of the applications for annulment, first, of the September 2022 acts, second, of the March 2023 acts and, third, of the September 2023 acts (together, ‘the contested acts’).
B.      The claim for annulment of the contested acts
53      In support of his application for annulment of the contested acts, the applicant puts forward, in essence, four pleas in law, the first, alleging infringement of the obligation to state reasons and of the right to effective judicial protection; the second, alleging breach of the principle of good administration; the third, alleging an error of assessment; and the fourth, alleging infringement of the principle of proportionality and of the right to property, of the freedom to conduct a business and of the right to free movement within the territory of the Member States.
54      In his second statement of modification, the applicant raises a fifth plea, alleging that the criterion laid down in Article 1(1)(e) and Article 2(1)(g) of Decision 2014/145, as amended by Decision 2023/1094, and Article 3(1)(g) of Regulation No 269/2014, as amended by Regulation 2023/1089 (‘amended criterion (g)’), is unlawful.
1.      The first plea, alleging infringement of the obligation to state reasons and of the principle of effective judicial protection
55      The applicant claims that the inclusion of his name on the lists at issue, maintained by the contested acts, is insufficiently reasoned.
56      In the first place, he emphasises in this respect that the reasons given for his listing do not include any criticism of his conduct with regard to the situation in Ukraine.
57      In the second place, the applicant submits that the grounds for including his name on the lists at issue do not explain why Mr Deripaska was considered to be responsible for supporting or implementing actions or policies that undermine or threaten the territorial integrity, sovereignty and independence of Ukraine or the stability or security of that country. In his reply, the applicant emphasises that Mr Deripaska challenged the inclusion of his name on the lists at issue and that, on review, the Council revised the statement of reasons for his listing.
58      In the third place, the applicant argues that the grounds for including his name on the lists at issue is merely a collection of statements with no relationship between them. Thus, he cannot understand from that reasoning why he is considered to be ‘associated’ with Mr Deripaska, within the meaning of Article 2(1) in fine of Decision 2014/145, as amended by Decision 2022/329, and of Article 3(1) in fine of Regulation No 269/2014, as amended by Regulation 2022/330.
59      In support of that position, the applicant emphasises, first, that, in the first part of the statement of reasons relied on against him, he is presented as the cousin of Mr Deripaska, followed by a list of the companies which the latter owns. According to the applicant, there is no link between those two pieces of information, with the result that they do not enable him to understand why his name has been included on the lists at issue. Next, he claims that his family relationship with Mr Deripaska alone does not permit the inference that he was his ‘associate’ for the purposes of Article 2(1) in fine of Decision 2014/145, as amended by Decision 2022/329, or of Article 3(1) in fine of Regulation No 269/2014, as amended by Regulation 2022/330. Lastly, he observes that, in the second part of the statement of reasons relied on against him, the Council merely listed certain assets which Mr Deripaska transferred to him. First, those assets show an ordinary business relationship between the applicant and Mr Deripaska. Second, none of those assets is linked to the military sector in which Mr Deripaska operates.
60      In the fourth place, the applicant submits that the Council cannot avail itself of the first WK file in order to supplement the statement of reasons concerning him, since that file was released to him only after the inclusion of his name on the lists at issue was published.
61      The Council disputes the applicant’s line of argument.
62      According to settled case-law, the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measures in such a way as to enable the persons concerned to ascertain the reasons for the measures for the purpose of assessing whether they are well founded and to enable the court having jurisdiction to exercise its power of review (judgments of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 50, and of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 47).
63      The statement of reasons required by Article 296 TFEU must be appropriate to the measure 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 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 (judgments of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 53, and of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 48).
64      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 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).
65      In the case of an act of the Council imposing a restrictive measure, the statement of reasons must identify, in addition to the legal basis of that measure, the actual and specific reasons why the Council considers, in the exercise of its discretion, that such a measure must be adopted in respect of the person concerned (see judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 105 and the case-law cited).
66      In the present case, it must be stated at the outset that the general context surrounding the adoption of the contested acts was known to the applicant, since, according to their respective recitals 3, Decision 2022/1530, Decision 2023/572 and Decision 2023/1767 were taken ‘in view of the continuing actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine’.
67      As regards the specific reasons justifying the inclusion of the applicant’s name on the lists at issue, it should be noted that, by the September 2022 acts, the Council decided to maintain that listing without amending the reasons relied on against him reproduced in paragraph 11 above.
68      In that connection, it is clear from the last of the three sentences setting out those reasons that the applicant’s name was included on the lists at issue in his capacity as a person associated with another person subject to restrictive measures, which corresponds to the listing criterion set out in Article 1(1) in fine and Article 2(1) in fine of Decision 2014/145, as amended by Decision 2022/329, and Article 3(1) in fine of Regulation No 269/2014, as amended by Regulation 2022/330 (‘the associated person criterion’).
69      The two preceding sentences of those reasons also make it possible to understand that, first, Mr Deripaska was considered, as the owner of a company supplying arms and military material to the armed forces of the Russian Federation, to be responsible for actions undermining and threatening Ukraine’s territorial integrity, sovereignty and independence, which corresponds to the listing criterion set out in Article 1(1)(a) and Article 2(1)(a) of Decision 2014/145, as amended by Decision 2022/329, and in Article 3(1)(a) of Regulation No 269/2014, as amended by Regulation 2022/330, referred to in paragraphs 5 to 7 above. Second, it is apparent from those sentences that the Council considered that the applicant was associated with Mr Deripaska because of their family relationship, in that they are cousins, and their business relationship, which is evidenced by the transfer of large assets from Mr Deripaska to the applicant, examples of which the Council listed in the body of those reasons.
70      Thus, contrary to what the applicant claims, the information put forward in the grounds for including his name on the lists at issue are not unrelated to each other, but they make it possible to explain that the applicant was, in the Council’s view, associated with Mr Deripaska and the reasons for such an association and that, therefore, he satisfied the associated person criterion.
71      The same is true of the March 2023 acts, given that they are based on the same grounds, with the exception of only one of the examples of assets which Mr Deripaska allegedly transferred to the applicant which is not referred to therein.
72      Moreover, both in the application and in the first statement of modification, the applicant raised a plea alleging an error of assessment, in which he claims that the Council was wrong to regard him as a person associated with Mr Deripaska on account of transactions that took place between them.
73      As regards the reasons for the September 2023 acts, it is apparent that the Council relied on the same transfers of assets between Mr Deripaska and the applicant as those it had relied on to justify the March 2023 acts.
74      By contrast, the Council replaced the last sentence of those reasons, from which it was apparent that the applicant was considered to be associated with Mr Deripaska (see paragraph 68 above), by the statement that he is an ‘immediate [family] member [benefiting] from his cousin Oleg Deripaska’. Such wording clearly refers to amended criterion (g), which allows the inclusion on the lists at issue of the names of ‘leading businesspersons operating in Russia and their immediate family members, or other natural persons, [benefiting] from them’. The applicant was therefore in a position to understand that the Council had considered that, owing to the transfer of large assets which he had allegedly received from Mr Deripaska, the applicant benefited from him for the purposes of that criterion.
75      Moreover, in the context of the second statement of modification, he raises a plea of illegality against amended criterion (g) and a plea alleging an error of assessment in which he complains that the Council applied that criterion incorrectly.
76      Lastly, it is necessary to reject, as irrelevant in the context of the present plea, the applicant’s arguments that his family relationship with Mr Deripaska is not sufficient to justify the maintenance of his name on the lists at issue, and that the grounds against him do not refer to his involvement in Ukraine or to his links with the arms sector.
77      By such arguments, the applicant seeks to call into question the merits of the contested acts and not their statement of reasons. The obligation to state reasons laid down in Article 296 TFEU is an essential procedural requirement consisting in a formal statement of the reasons on which an act is based, which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the act. If those reasons are vitiated by errors, those errors will vitiate the substantive legality of the act at issue, but not its statement of reasons, which may be adequate even though it sets out reasons which are incorrect (see, to that effect, judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 37 and the case-law).
78      It follows from the foregoing that the statement of reasons for the contested acts makes it possible to identify the actual and specific reasons why the Council considered that the applicant had to continue to be subject to the restrictive measures at issue, with the result that that statement of reasons must be regarded as sufficient to enable him to ascertain the reasons for those measures for the purpose of assessing whether they are well founded and to enable him to defend himself before the Court and to enable the Court to exercise its power of review.
79      Therefore, the first plea must be rejected.
2.      The second plea, alleging breach of the principle of good administration
80      The applicant complains that the Council failed to take account of the arguments and evidence which he put forward with his request for reconsideration of 15 August 2022. He emphasises, in particular, that, in order to show that he did not meet the associated person criterion, he provided detailed information on his involvement in the companies mentioned in the statement of reasons relied on against him and complains that the Council did not take a position with regard to that information. On the contrary, the Council used that information to justify maintaining his name on the lists at issue, which demonstrates the conduct of administrative proceedings against him.
81      In the first statement of modification, the applicant claims that the letter of 14 March 2023 shows that the Council disregarded the evidence he produced in the present action and in the letters he sent to the Council on 20 January and 15 February 2023. In the second statement of modification, the applicant also complains that the Council ignored the evidence which he submitted in the first statement of modification and in his letters of 31 May and 24 July 2023.
82      The Council disputes the applicant’s line of argument.
83      In that regard, it should be recalled that, in the context of the adoption of restrictive measures, the Council is under an obligation to observe the principle of good administration, enshrined in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which entails inter alia the obligation for the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 116 and the case-law cited).
84      That said, first, the mere fact that the Council did not conclude that the renewal of the imposition of restrictive measures against persons was not well founded, or even considered it useful to carry out verifications in the light of the observations submitted by them, does not mean that such observations were not taken into account (see, to that effect, judgments of 27 September 2018, Ezz and Others v Council, T‑288/15, EU:T:2018:619, paragraph 331, and of 15 September 2021, llunga Luyoyo v Council, T‑101/20, not published, EU:T:2021:575, paragraph 104). Second, the Council is not required to reply, prior to the adoption of restrictive measures envisaged, to the observations submitted by the person or entity concerned (judgment of 31 January 2019, Islamic Republic of Iran Shipping Lines and Others v Council, C‑225/17 P, EU:C:2019:82, paragraph 92).
85      Therefore, in the present case, the fact that the Council did not expressly reply to all the arguments and evidence put forward by the applicant in his requests for reconsideration, and that it considered that some of those arguments and evidence justified the maintenance of the applicant’s name on the lists at issue, do not make it possible to establish that it did not act diligently and impartially, in infringement of the principle of good administration.
86      Consequently, the second plea must be rejected.
3.      The third plea, alleging an error of assessment
87      In the first place, the applicant disputes the relevance of the fact, mentioned in the statement of reasons relied on against him, that he is the cousin of Mr Deripaska. That mere family relationship cannot justify maintaining his name on the lists at issue.
88      In the second place, the applicant disputes that the assets he allegedly holds, and on which the Council relied, support the conclusion that he meets the associated person criterion and, therefore, justify the maintenance of his name on the lists at issue by means of the September 2022 and March 2023 acts. According to the applicant, such a transfer of assets is neither well founded nor, in any case, relevant.
89      In the third place, the applicant argues that documents produced as annexes to the defence are inadmissible because they are intended to establish that he was associated with Mr Deripaska through certain companies that were not mentioned in the statement of reasons for the inclusion of his name on the lists at issue, maintained by the contested acts.
90      The Council disputes the applicant’s line of argument.
91      According to settled case-law, the effectiveness of the judicial review guaranteed by Article 47 of the Charter requires in particular that the EU judicature is 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 (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119, and of 5 November 2014, Mayaleh v Council, T‑307/12 and T‑408/13, EU:T:2014:926, paragraph 128).
92      That assessment must be carried out by examining the evidence and information not in isolation but in its context. The Council discharges the burden of proof borne by it if it presents to the Courts of the European Union a body of evidence sufficiently specific, precise and consistent to establish that there is a sufficient link between the entity subject to a measure freezing its funds and the regime or, in general, the situations being combated (see judgment of 20 July 2017, Badica and Kardiam v Council, T‑619/15, EU:T:2017:532, paragraph 99 and the case-law cited).
93      It is the task of the competent EU authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded. In that regard, it is important 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).
94      In that regard, it is important to recall that, 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).
95      Furthermore, it should be noted that the conflict situation involving the Russian Federation and Ukraine makes it in practice particularly difficult to access certain sources, to specify the primary source of some information and to collect testimonies from persons who agree to be identified. Ensuing investigation difficulties can prevent specific evidence and objective information from being provided (see judgment of 15 November 2023, OT v Council, T‑193/22, EU:T:2023:716, paragraph 116 and the case-law cited).
96      It is in the light of those considerations, deriving from case-law, that the Court must assess whether the Council made an error of assessment in considering that, in the present case, there was a sufficiently solid factual basis capable of justifying the maintenance of the applicant’s name on the lists at issue by the contested acts.
(a)    The evidence relied on by the Council
97      As was noted in the context of the first plea, the inclusion of the applicant’s name on the lists at issue, maintained successively by the contested acts, is based on the existence of a transfer of large assets from Mr Deripaska to him, such a transfer having justified the application of the associated person criterion in the September 2022 and March 2023 acts, and subsequently the application of amended criterion (g) in the September 2023 acts.
98      In order show that those reasons are well founded, which is disputed by the applicant, the Council refers to the first WK file, which contains 11 items of evidence sent to the applicant on 9 August 2022. It should be noted that that evidence is publicly available information, namely:
–        an article from the website of the American magazine Forbes of 5 March 2022 (Exhibit 1);
–        an article from the website ‘www.opensecrets.org’ of 20 October 2021 (Exhibit 2);
–        an article from the English newspaper The Sunday Times of 20 March 2016 (Exhibit 3);
–        two extracts from the online platform ‘Russian Asset Tracker’, published on the website of the Organised Crime and Corruption Reporting Project (OCCRP) (Exhibits 4 and 11);
–        extracts from the website of Companies House, the United Kingdom’s company register, concerning Terra Services Limited (‘Terra Services’) (Exhibits 5 and 6);
–        an extract from Terra Services’ financial report for the accounting year ending 31 March 2016 (Exhibit 7);
–        an article from the website of the Austrian newspaper Kronen Zeitung of 8 March 2022 (Exhibit 8);
–        an article from the website of Seth Hettena, an investigative journalist, dated 22 October 2021 (Exhibit 9);
–        an article from the website ‘quitrobbingohio.com’ of 20 October 2021 (Exhibit 10).
99      In addition, as regards the March 2023 acts, the Council also relies on the second WK file, which contains three other items of evidence sent to the applicant on 22 December 2022. That evidence is also publicly available information, namely:
–        an extract from the website of Companies House (UK) concerning Terra Services (Exhibit 1);
–        an extract from the page dedicated to the applicant on the website ‘rupep.org’ (database: ‘Public database of domestic politically exposed persons of Russia and Belarus’) (Exhibit 2);
–        an article published on the EU website of the Union of Printing Industry Enterprises of Russia on 5 October 2022 concerning the insolvency of the company Rospechat (Exhibit 3).
100    In the context of the adoption of the September 2023 acts, in addition to documents relating to the general situation in Russia included in the fourth and fifth WK files, the Council also sent the applicant the third WK file on 19 June 2023, consisting of an article published on the website ‘Important Stories’ on 13 January 2023 relating to Mr Alexei Ezubov, the father of the applicant and a member of the State Duma of the Federal Assembly of the Russian Federation.
101    In the annexes to the defence, the Council also produces other items of evidence, which it presents as ‘background documents’, on which it could rely as additional evidence on the ground that those items are in the public domain, they were available when the contested acts were adopted and they support the statement of reasons for the inclusion of the applicant’s name on the lists at issue.
102    In essence, the applicant challenges whether it is open to the Court to take those documents into account.
103    In that connection, it is true that, in principle, the review of substantive legality incumbent on the Court must be carried out, as regards in particular cases involving restrictive measures, in the light not only of the material set out in the statements of reasons of the acts at issue, but also in the light of the material provided by the Council, in the event of challenge, to the Court in order to establish that the facts alleged in those statements are made out, provided that the Council had that material at its disposal when it adopted those acts (see judgment of 1 June 2022, Prigozhin v Council, T‑723/20, not published, EU:T:2022:317, paragraph 52 and the case-law cited).
104    That being so, such a rule does not preclude the possibility for the Court to take into account, in its review of the legality of acts imposing restrictive measures, additional evidence which was not in the evidence file relating to the person concerned and which is produced, at the litigation stage, for the purpose of confirming that the facts alleged in the reasons for listing relied on against that person are made out, as long as, first, that evidence supports material which was available to the Council at the time of the adoption of the acts in question and, second, that evidence relates to facts which predate that adoption.
105    In the present case, in Annex B.1 to the defence, the Council produces an article dated 20 March 2016 entitled ‘Son of a Putin ally has £35m London House’. Such an article clearly corresponds to the article listed as Exhibit 3 of the first WK file and summarised by the Council, in that file, as showing that the applicant was the cousin of Mr Deripaska and that his name appeared on the land register entry for a property, linked to Mr Deripaska, in Surrey (United Kingdom). Accordingly, the Council relied on that document in order to adopt the contested acts, with the result that it may be taken into account in order to assess whether they are well founded.
106    Annex B.2 to the defence is an extract from the Wikipedia page, in English, devoted to the property in question. Therefore, that annex is intended to support material which was available to the Council at the time the contested acts were adopted and may be taken into account by the Court in its assessment of all the contested acts.
107    Lastly, in Annexes B.3 and B.4 to the defence, the Council produces two press articles dated 16 October 2020 and 13 September 2015, respectively, in order to show that Mr Deripaska transferred to the applicant three assets other than those mentioned in the reasons relied on against him, namely the companies Ingosstrakh and For Media LLC and the non-profit foundation Fidelitas. While both articles predate the September 2022 acts, they relate to assets allegedly transferred to the applicant by Mr Deripaska which are not mentioned in the grounds for including his name in the lists at issue and in relation to which there is no evidence in the first WK file. Therefore, Annexes B.3 and B.4 cannot be regarded as supporting material available to the Council at the time of the adoption of the September 2022 acts and, accordingly, the Court cannot take them into account in order to assess the legality of those acts.
108    In that regard, the Council cannot rely usefully on the judgment of 15 November 2012, Council v Bamba (C‑417/11 P, EU:C:2012:718, paragraph 62) in order to produce, for the first time at the litigation stage of the proceedings, new documents to substantiate the validity of the contested acts. In that judgment, the Court of Justice allowed the production of documents in order to prove that the context surrounding the adoption of the acts at issue was known to the persons subject to the restrictive measures at issue and, therefore, that the statement of reasons for those acts was sufficient, in accordance with the case-law cited in paragraphs 63 and 64 above. By contrast, it cannot be inferred from that judgment that the Council may produce, for the first time at the litigation stage of the proceedings, documents to justify the validity of acts imposing restrictive measures, without those documents serving to support evidence available to it at the time of their adoption, in accordance with what has been stated in paragraph 104 above.
109    On the other hand, since the defence was lodged at the General Court Registry on 13 February 2023, the annexes to that defence were available to the Council no later than on that date, which predates the adoption of the March 2023 and September 2023 acts. Accordingly, the Court may take into account the documents in Annexes B.3 and B.4 to the defence in order to assess the legality of the March 2023 and September 2023 acts, in accordance with the rule set out in paragraph 103 above.
110    In the light of the foregoing, it is necessary to assess the arguments seeking to call into question the merits of the contested acts in the light of, first, the first WK file and Annexes B.1 and B.2 so far as concerns the September 2022 acts, second, the first and second WK files and Annexes B.1 to B.4 as regards the March 2023 acts and, third, all the WK files and Annexes B.1 to B.4 with respect to the September 2023 acts.
(b)    The application of the associated person criterion to the applicant in the September 2022 acts and the March 2023 acts
111    As a preliminary point, it should be noted that the applicant does not dispute that he is the cousin of Mr Deripaska. Nor does he contest that Mr Deripaska is the owner of an industrial conglomerate which includes a major arms and military equipment provider to the Russian Federation’s armed forces, and therefore falls within the listing criterion set out in Article 1(1)(a) and Article 2(1)(a) of Decision 2014/145, as amended by Decision 2022/329, and in Article 3(1)(a) of Regulation No 269/2014, as amended by Regulation 2022/330.
112    By contrast, the applicant submits that the Council made an error of assessment in considering him to be a person associated with Mr Deripaska.
113    In support of this, first, regarding the properties in France, the applicant disputes that he directly or indirectly controls the companies that own those properties and states that he holds only 1% of the relevant property rights. He adds that, as regards the companies incorporated under French law, the Council could easily have obtained information on the other owners of those properties. Second, as regards the hotel in Lech (Austria), he maintains, first of all, that he acquired it at an arm’s length price in December 2021, before the restrictive measures against the Russian Federation were adopted in February 2022. Next, he argues that ownership of a hotel in Austria has nothing to do with the situation in Ukraine. Lastly, he asserts that he acquired that hotel from a company called Advante Management Corporation, which has no link to Mr Deripaska. Third, as for Terra Services, the applicant emphasises that it is a dormant company and that he became a shareholder of that company in January 2018, that is to say before the imposition of restrictive measures against Mr Deripaska, be it by the European Union or by the United States of America. Fourth, as regards the building in Washington DC (United States), the applicant claims that he controlled the company Hestia International through the company Penates International; however he sold the latter in January 2020. He also emphasises that, by the March 2023 acts, the Council removed the mention of Hestia International from the statement of reasons for the inclusion of his name on the lists at issue.
114    In his first statement of modification, the applicant refers to the arguments which he put forward in his application and his reply.
115    The applicant adds that, on 14 October 2022, the Austrian courts ordered that the registration of the restrictive measures relating to the hotel in Lech be removed from the Austrian land register and the Austrian company register on the ground that he was not the owner of that hotel and could not exercise any controlling influence over its operations. Furthermore, as regards the company Rospechat, which the Council presented in the second WK file as having been transferred to the applicant by Mr Deripaska, the applicant argues that he ceased to be a beneficiary of the company as from April 2022 and that the company was put into liquidation in September 2022.
116    The Council disputes the applicant’s line of argument.
(1)    The scope of the associated person criterion
117    According to the applicant, the Council cannot rely on the assets transferred to him by Mr Deripaska, since such transfers are evidence of ordinary business relationships unrelated to the situation in Ukraine or to the companies of Mr Deripaska operating in the arms sector and which justified the inclusion of his name on the lists at issue. The applicant adds that the transfers of assets from Mr Deripaska took place before restrictive measures were imposed on the latter. It follows that the only concrete evidence is the family relationship between the applicant and Mr Deripaska, which is not sufficient to justify the imposition of restrictive measures against him.
118    In that regard, it should be noted that, while the concept of association is often used in Council acts relating to restrictive measures, it is not, as such, defined and its meaning depends on the context and circumstances at issue. That being so, such a concept may be regarded as covering natural or legal persons who are, generally speaking, linked by common interests without, however, requiring a connection by means of a common economic activity, but which nonetheless cannot be based exclusively on a family relationship (judgment of 25 October 2023, QF v Council, T‑386/22, not published, EU:T:2023:670, paragraph 54; see also, to that effect, judgment of 8 March 2023, Prigozhina v Council, T‑212/22, not published, EU:T:2023:104, paragraphs 93 and 103 and the case-law cited).
119    The associated person criterion may therefore be interpreted as referring to any natural or legal person, or any entity with a link, as defined in paragraph 118 above, with a person who is subject to restrictive measures under one of the listing criteria laid down by Decision 2014/145 and Regulation No 269/2014 thus amended.
120    Therefore, contrary to what the applicant claims, the associated person criterion does not require there to be a link between the person covered by that criterion and the grounds relied on against the person with whom he or she is considered to be associated or, more generally, with the situation in Ukraine.
121    The not insignificant danger that a person subject to restrictive measures may, in order to circumvent those measures, exploit his or her link with the persons associated with him or her in order to exert pressure on those persons explains why it is possible to impose restrictive measures in such a situation (see, to that effect, judgment of 8 March 2023, Prigozhina v Council, T‑212/22, not published, EU:T:2023:104, paragraph 103 and the case-law cited).
122    Consequently, the Court must reject the argument by which the applicant criticises the Council for having used against him an ordinary business relationship which has no link with Mr Deripaska’s activity in the arms sector or with the situation in Ukraine. Similarly, it is to no avail that the applicant claims that the transactions with Mr Deripaska in question predated the imposition of restrictive measures against Mr Deripaska and were therefore not intended to circumvent such measures, since the associated person criterion does not require such a link with those restrictive measures.
123    Furthermore, it must be pointed out that, since the associated person criterion is worded in the present tense, the link between the person whose name is included on the lists at issue and the person associated with him or her must still exist at the time when restrictive measures are adopted against that associated person (see, to that effect, judgment of 8 March 2023, Prigozhina v Council, T‑212/22, not published, EU:T:2023:104, paragraph 92).
124    It is in the light of those considerations that it is now necessary to ascertain whether the evidence put forward by the Council, as referred to in paragraph 110 above, is capable of substantiating the reasons relied on against the applicant in the September 2022 and March 2023 acts, according to which he was a person associated with Mr Deripaska owing to a transfer of large assets by the latter.
(2)    The existence of an association between the applicant and Mr Deripaska
125    A distinction must be drawn between the September 2022 acts and the March 2023 acts, since, first, those acts were adopted on different dates and, second, they are not based on strictly identical reasons or on a strictly identical documentary basis.
(i)    The September 2022 acts
126    In the grounds for including the applicant’s name on the lists at issue, as maintained by the September 2022 acts, the Council relied, in order to maintain that the applicant and Mr Deripaska were associated, on the existence of a transfer of large assets by Mr Deripaska, including several properties in France through a holding company owned by the applicant, a hotel in Lech through the company Gost Hotel Management, the control of Terra Services and the control of Hestia International, which owns a property in Washington DC linked to Mr Deripaska. In addition, as noted in paragraph 105 above, the Council also relied on relations between the applicant and Mr Deripaska as regards a property in Surrey.
127    The Court considers that it is necessary to examine, in the first place, the ground relating to the transfer of a hotel located in Lech.
128    In that regard, it is apparent from the OCCRP’s asset tracker (Exhibit 4 in the first WK file) that Mr Deripaska was, via a company established in Cyprus, the owner of a hotel located in the ski resort of Lech in the Austrian Alps and valued at 3 million United States dollars (USD) (approximately EUR 2.77 million). According to that document, the applicant has owned the hotel in question since January 2022 through a company established in Russia called Gost Hotel Management LLC. Such a document appears particularly credible given that it was referred to in the American magazine Forbes – which is a reputable source in the economic field – in an article published on its website on 5 March 2022, entitled ‘A guide to all the outrageous mansions and estates owned by sanctioned Russian billionaires’ and produced as Exhibit 1 of the first WK file. In the part of that article dedicated to Mr Deripaska, it is stated that ‘according to data from the OCCRP, [Mr] Deripaska also owns [a] 5-star … Hotel in Lech, Austria, which features a spa, chalet and an indoor swimming pool; he owns it through [Mr] Ezubov’s Russia-based Gost Hotel Management LLC’.
129    In addition, Exhibit 8 of the first WK file is an article published on 8 March 2022 on the website of the Austrian newspaper Kronen Zeitung, entitled ‘A Russian oligarch sold a hotel in Lech’. In its summary of that document, the Council stated that Kronen Zeitung is a newspaper with a wide circulation in Austria and a credible source of information, which the applicant does not dispute in the present action. According to that article, the hotel in question was owned by Dornton Ltd, a company established in Cyprus and linked to Mr Deripaska, before being sold to the ‘Russian hotel group “GOST”’, which was owned by Mr Deripaska until the United States imposed sanctions on him, following which the applicant became the owner of that group.
130    It should also be noted that, as an annex to the application, the applicant produces an extract from a contract of sale between a company named LLC Gost Hotel Management Corp. and another company called Advante Management, dated 8 December 2021 and relating, inter alia, to the transfer of ownership of a hotel in Lech.
131    It follows that, at the time of the adoption of the September 2022 acts, the Council had a sufficiently solid factual basis for considering that Mr Deripaska had transferred to the applicant, via a company owned by the latter, ownership of a hotel located in Lech between December 2021 and January 2022, and that the consequences of that transfer subsisted at the time of its adoption.
132    While the applicant claims that he acquired the hotel in question in an arm’s length transaction before restrictive measures were imposed on the Russian Federation in February 2022, those considerations do not call into question the veracity of the transfer of ownership of that hotel. The fact that a transaction is carried out on arm’s length terms does not preclude the existence of common interests, within the meaning of the case-law cited in paragraph 118 above.
133    Furthermore, in the reply, the applicant puts forward an argument, the admissibility of which is disputed by the Council, that the hotel in question was sold to him by the company Advante Management, which is not linked to Mr Deripaska.
134    In that regard, it should be borne in mind that Article 84(1) of the Rules of Procedure of the General Court provides that the submission of new pleas in law during the course of proceedings is prohibited unless those pleas are based on matters of law or fact which have come to light during the proceedings. According to the case-law, that provision is also applicable to submissions or arguments (see judgment of 13 July 2022, JC v EUCAP Somalia, T‑165/20, EU:T:2022:453, paragraph 114 and the case-law cited).
135    In the present case, it is apparent from the very grounds for including the applicant’s name on the lists at issue, confirmed by the September 2022 acts, that the Council considered that Mr Deripaska had transferred the hotel in question to the applicant, with the result that the applicant was able to challenge that consideration as soon as the present action was brought. Accordingly, the argument put forward in the reply that the applicant acquired that hotel from a company which is not linked to Mr Deripaska is out of time and must therefore be rejected as inadmissible in so far as it seeks to call into question the merits of the September 2022 acts.
136    It follows from the foregoing that the Council’s assertion that Mr Deripaska transferred ownership of a hotel in Lech to the applicant has a sufficiently solid factual basis. Having regard to its characteristics, and in particular its estimated value of USD 3 million (approximately EUR 2.77 million), that hotel must be regarded as a ‘large asset’.
137    In the second place, concerning the control of Terra Services, it is apparent from the extracts from Companies House (UK) in the first WK file (Exhibits 5 and 6) that, in January 2018, Mr Deripaska transferred control of that company to the applicant by transferring to him 75% of the shares and voting rights which he held therein, which the applicant does not dispute. Those documents show that the applicant is the director of Terra Services, which he does not dispute either.
138    It is true, as the applicant notes, that it is apparent from those documents that, for the accounting year ending 31 March 2021, Terra Services filed annual accounts as a dormant company. However, as the Council submits, such a circumstance has no effect on the ownership of Terra Services or on the assets which it owns. It is apparent from Terra Services’ abridged accounts for the accounting year ending 31 March 2021, produced by the applicant as an annex to the reply, that the dormant company status meant merely that, during that accounting year, that company did not carry out any transactions, with the result that its accounts remained unchanged in relation to the preceding financial year.
139    As regards the notice of compulsory strike off received by Terra Services on 28 February 2023, produced by the applicant as an annex to the reply, it should be noted that such a document concerns an event subsequent to the September 2022 acts and cannot therefore be taken into account in assessing the legality of those acts. According to settled case-law, in an action for annulment the legality of the contested act must be assessed on the basis of the facts and the law as they stood at the time when the act was adopted (see judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraph 37 and the case-law cited).
140    In any event, there is nothing to suggest that the notice for compulsory strike off in question is linked to Terra Services’ dormant company status, or that that measure entails the dissolution of that company, in so far as that document allows a period of two months to halt the strike-off procedure. In that regard, as the Council notes, Terra Services had already received a notice for compulsory strike off on 19 March 2019, which did not result in its being struck off from the register or its dissolution.
141    Thus, at the time of the adoption of the September 2022 acts, the Council had a sufficiently solid factual basis for considering that Mr Deripaska had transferred control of Terra Services to the applicant and that the latter retained such control on that date.
142    As to whether that company could be regarded as a ‘large asset’, it must be stated that, according to Seth Hettena’s article (Exhibit 9 in the first WK file), Terra Services is presented as the company which ‘controls [Mr] Deripaska’s luxury properties around the globe through a network of subsidiary companies’, those properties ‘include stunning villas in St. Tropez and Sardinia’ and ‘a home in Paris near the Seine’. In that article, it is also stated that the applicant’s name ‘shows up … in connection with properties connected to [Mr] Deripaska that are being run by Terra Services’, of which ‘what may be the most expensive piece of property connected to his billionaire cousin’, namely a ‘villa … in St. Tropez [which] includes a 15 000-square foot main house, a guest house, a 345-acre park, two swimming pools, a tennis court, and a helipad’.
143    That information is supported, first, by Open Secrets’ article (Exhibit 2 in the first WK file), which presents Terra Services as ‘[Mr] Deripaska’s real estate firm’. Second, according to Terra Services’ financial report for the accounting year ending 31 March 2016, drawn up by the applicant as director of that company, the property investment companies which own the French assets at issue had carried out transactions with Terra Services.
144    It follows from the foregoing that the Council had a sufficiently solid factual basis, with regard to the September 2022 acts, for considering that Mr Deripaska had transferred control of Terra Services, which is a large asset, to the applicant, and that the consequences of such a transfer subsisted at the time of the adoption of those acts.
145    In the third place, in the grounds relied on against the applicant, the Council stated that Mr Deripaska had ‘transferred large assets [to the applicant], including several properties in France, via a holding company owned by’ the applicant.
146    In that regard, it is stated in the article published on the website of the American magazine Forbes
referred to in paragraph 128 above (Exhibit 1 in the first WK file) that Mr Deripaska holds, through companies owned by his mother and his cousin, namely the applicant, several properties in France, including a luxury apartment in the centre of Paris and a 15 000 square-foot (approximately 1 400 m²) house in Saint-Tropez.
147    That being so, it should be noted that, first, the applicant claims that he holds only 1% of the companies owning those assets, which the Council does not dispute.
148    Second, contrary to the Council’s summary of Exhibit 7 in the first WK file, Terra Services’ financial report does not permit the inference that that company is a holding company for the properties in France, but only that that company and the companies managing those properties carried out transactions together, as stated in paragraph 143 above.
149    Third, the Council’s argument that while the applicant holds 1% of the companies owning the immovable property in question, the remaining 99% could be held by companies of the applicant, since it is well known that he owns holding companies, cannot be accepted. The Council cannot discharge its burden of proof by such a purely speculative argument.
150    Fourth, assuming, first, that Terra Services is included in the list of creditors of the companies owning immovable property in France and, second, that the Court may take account of such a situation – which the Council pointed out for the first time in the rejoinder – that would only provide evidence of the existence of commercial links between that company and the immovable property in question, but not demonstrate that the control of that immovable property was transferred by Mr Deripaska to the applicant.
151    Therefore, contrary to what is suggested in the extract from the grounds relied on against the applicant reproduced in paragraph 145 above, the Council has not established that the applicant, or a company owned by him, owns the French immovable property in question.
152    Nevertheless, despite that terminological vagueness, the Council was correct to refer to the properties in question in order to establish the existence of a business relationship between the applicant and Mr Deripaska, since it is sufficiently clear from the first WK file that those properties were linked to Mr Deripaska and managed by Terra Services, a company controlled by the applicant (see paragraphs 137 to 144 above).
153    In the light of the foregoing, the Council established that Mr Deripaska had transferred to the applicant ownership of a luxury hotel and control of a company managing luxury properties, inter alia in France. Such transfers make it possible to establish a business relationship between the applicant and Mr Deripaska and, therefore, the existence of common interests linking them that go beyond a family relationship, within the meaning of the case-law cited in paragraph 118 above.
154    Since the consequences of those transfers subsisted at the time of the adoption of the September 2022 acts, it must be concluded that the applicant remained associated with Mr Deripaska on that date.
155    It follows that the ground for including the applicant’s name on the lists at issue, on account of his association with Mr Deripaska, is sufficiently substantiated, with the result that, in the light of the associated person criterion, the maintenance of his name on the lists at issue, by means of the September 2022 acts, is well founded.
156    Consequently, the third plea must be rejected, as regards the September 2022 acts, without its being necessary to assess the merits of the reasons relating to the transfer by Mr Deripaska of assets other than those examined at this stage. According to the case-law, having regard to the preventive nature of a decision 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 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).
(ii) The March 2023 acts
157    In order to support the existence of an association between the applicant and Mr Deripaska and to justify the merits of the March 2023 acts, the Council relied on the evidence listed in paragraph 126 above, with the exception of that involving the company Hestia International, the mention of which was withdrawn from the grounds relied on against the applicant. In addition, it is apparent from Exhibit 3 in the second WK file that, as regards the March 2023 acts, the Council also took into account the existence of links between the applicant and Mr Deripaska as regards the company Rospechat.
158    In the first place, as regards the hotel in Lech, the applicant reiterates that he acquired that hotel from Advante Management, which is not linked to Mr Deripaska.
159    While such an argument is not admissible with regard to the September 2022 acts in that it was put forward for the first time in the reply (see paragraph 135 above), it is necessary to examine its merits in the context of the assessment of the legality of the March 2023 acts, since that argument was raised in the first statement of modification.
160    In that connection, first of all, it should be noted that the contract of sale relating to the acquisition of the hotel in question, produced by the applicant, had as its object the acquisition of shares in Dornton Ltd, which owned that hotel, and in respect of which the article in the Kronen Zeitung (Exhibit 8 in the first WK file) states that it is linked to Mr Deripaska, which the applicant does not call into question. Thus, such evidence tends to establish that the company which directly controlled that hotel was owned by Mr Deripaska, and subsequently by the applicant.
161    Next, in the article from the American magazine Forbes
referred to in paragraph 128 above (Exhibit 1 in the first WK file), it is stated that Mr Deripaska owns a property in Montenegro ‘through British Virgin Islands-based Advante Management Corp.’. Such information tends to show that, contrary to what the applicant claims by means of a mere unsubstantiated assertion, Advante Management is indeed linked to Mr Deripaska.
162    Lastly, as an annex to the rejoinder, the Council produces a document from the OCCPR, updated on 21 March 2022, according to which Advante Management is controlled by Mr Deripaska. Since that document is intended to support information relating to the sale of the hotel in Lech, which predates the March 2023 acts and which is referred to in the grounds relied on against the applicant and in documents in the first WK file, the Court may take it into account in order to assess whether those acts are well founded, in accordance with what has been stated in paragraph 104 above.
163    Consequently, the applicant’s argument that he acquired the hotel in question, located in Lech, from a company which is not linked to Mr Deripaska, must be rejected.
164    Second, the applicant submits that, at the time of the adoption of the March 2023 acts, he no longer controlled that hotel, which is confirmed by the removal of the registration of the restrictives measures relating to that hotel from the Austrian land register and the Austrian company register.
165    In support of that assertion, the applicant produces a sole document which he describes as a report on the measures taken by the companies managing the hotel in question.
166    In that regard, it must be borne in mind that the activity of the Courts of the European Union 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 order to assess the probative value of a document, regard should be had to the credibility of the account it contains, taking account in particular of 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).
167    In the present case, very limited evidential value should be given to the document at issue, given that it was drawn up by the Austrian law firm which defends the interests of the companies managing the hotel in question and that, moreover, it was drawn up on 10 May 2023, that is to say, subsequently to the adoption of the March 2023 acts.
168    In addition, although it is stated in that document that the applicant is a minority shareholder of the hotel in question, since the applicant’s shareholding is now only 41%, it must be stated that no official document confirms that assertion and it lacks precision concerning, inter alia, the identity of the recipient of the applicant’s shares and the arrangements for the transfer of those shares, in particular the date of that transfer.
169    Similarly, while the applicant submits that the Austrian courts ordered that the registration of the restrictive measures relating to that hotel be removed from the Austrian land register and the Austrian company register, he does not produce the judgment in question, with the result that the Court is not in a position to assess the reasons why, as the case may be, it was held that that hotel should not be subject to restrictive measures and, therefore, to assess the relevance of that situation as regards the existence of an association between the applicant and Mr Deripaska.
170    In those circumstances, it must be found that the Council had sufficient information to consider that the consequences of the transfer of ownership of the hotel in question, located in Lech, from Mr Deripaska to the applicant, subsisted at the time of the adoption of the March 2023 acts.
171    In the second place, as regards Terra Services, the applicant reiterates, in the first statement of modification, that that company was dormant.
172    However, as has been pointed out in paragraphs 138 to 140 above, the status of dormant company and the notice for compulsory strike off received by Terra Services on 28 February 2023 are not relevant for the purpose of ruling out that that company be regarded as a large asset transferred by Mr Deripaska to the applicant.
173    In the light of the foregoing, it must be concluded that, at the time of the adoption of the March 2023 acts, the Council had sufficient information to consider that the applicant’s situation had not changed as regards the hotel in question in Lech and Terra Services, which constitute large assets which Mr Deripaska had transferred to him.
174    Accordingly, the third plea must be rejected as regards the March 2023 acts, without its being necessary to assess the merits of the grounds relating to the transfer, by Mr Deripaska, of assets other than those examined at this stage, in accordance with the case-law cited in paragraph 156 above.
(c)    The application to the applicant of amended criterion (g) in the September 2023 acts
175    In the second statement of modification, the applicant essentially reiterates his arguments contained in the application and in the first statement of modification in an attempt to establish that the Council was wrong to consider that Mr Deripaska had transferred large assets to him.
176    In addition, he submits that the Council was wrong to regard him as an ‘immediate family member’ of Mr Deripaska, within the meaning of amended criterion (g), given that a cousin is not part of the ‘immediate family’, which should be limited to a spouse, parents and children, as well as to dependent ascendants and descendants.
177    For its part, the Council refers to the evidence which justified the September 2022 and March 2023 acts. In that regard, it submits that that evidence proves the existence of common interests between the applicant and Mr Deripaska, within the meaning of the associated person criterion, and that the latter and amended criterion (g) must be interpreted in the same way.
178    The Council also states that the applicant received a benefit within the meaning of amended criterion (g), which it describes as ‘undue’ on account, first, of the timeline of the transactions between Mr Deripaska and the applicant, all of which occurred after the annexation of Crimea in 2014 and, second, of the context of those transactions, which go beyond normal or usual business relations, owing to their number and the amounts involved.
179    According to the case-law, in order to maintain a person’s name on the list of persons subject to restrictive measures, the Council is not prohibited from basing its decision on the same evidence as that justifying the initial inclusion, re-inclusion or previous maintenance of the name of the person concerned on the list, provided that the grounds for inclusion remain unchanged and the context has not changed in such a way that that evidence is now out of date (see, to that effect, judgment of 15 November 2023, OT v Council, T‑193/22, EU:T:2023:716, paragraph 169 and the case-law cited).
180    In the present case, it is true that, both in the September 2023 acts and in the earlier acts, the grounds relied on by the Council against the applicant relate to the existence of a transfer of large assets which he allegedly received from Mr Deripaska. However, the criterion used for the inclusion of the applicant’s name on the lists at issue was amended in the September 2023 acts; since the adoption of those acts, such a criterion is no longer the associated person criterion – which had served as the basis for the September 2022 and March 2023 acts – but amended criterion (g), which the Council expressly acknowledged at the hearing.
181    It is therefore necessary to examine whether, in the present case, the existence of a transfer of large assets from Mr Deripaska to the applicant justifies maintaining his name on the lists at issue, under amended criterion (g), on the ground that he is an ‘immediate [family] member [benefiting] from his cousin [Mr] Deripaska’.
182    Amended criterion (g), relied on for maintaining the applicant’s name on the lists at issue in the September 2023 acts, makes it possible to include the names of immediate family members or other persons who benefit from a leading businessperson operating in Russia on such lists.
183    In that regard, it must be borne in mind that, even though the preamble to an EU act has no binding legal force and cannot be relied on as a ground either for derogating from the actual provisions of the act in question or for interpreting those provisions in a manner that is clearly contrary to their wording, it may explain their content, since the recitals in that preamble constitute important elements for the purposes of interpretation that may clarify the intentions of the author of that act (see judgment of 26 January 2021, Hessischer Rundfunk, C‑422/19 and C‑423/19, EU:C:2021:63, paragraph 64 and the case-law cited).
184    In the present case, according to recital 5 of Decision 2023/1094, amended criterion (g) was introduced in order to both increase pressure on the Government of the Russian Federation as well as to avoid the risk of circumvention of the restrictive measures. In addition, it is apparent, in essence, from that recital that the need for the designation of immediate family members or other persons who benefit from leading businesspersons operating in Russia was justified by the fact that those businesspersons distribute their funds and assets amongst their immediate family members and other persons, inter alia in order to hide their assets, to circumvent the restrictive measures and to maintain control over the resources available to them.
185    Therefore, a benefit for the purposes of amended criterion (g) must be interpreted in the light of the objectives pursued by that criterion set out in paragraph 184 above, which involve an increase in the cost of the actions of the Russian Federation to undermine Ukraine’s territorial integrity, sovereignty and independence. Therefore, a benefit for the purposes of that provision covers any benefit regardless of its nature, which is not necessarily undue, but which must be quantitatively or qualitatively non-negligible. It may therefore be a financial or non-financial benefit, such as a donation, a transfer of funds or of economic resources, an intervention to further the award of public contracts, an appointment or a promotion. Furthermore, having regard to the objective of avoiding practices used to circumvent restrictive measures, expressly referred to in recital 5 of Decision 2023/1094, benefits awarded by leading businesspersons operating in Russia in a situation which may lead to the circumvention of the restrictive measures to which they are subject may also be covered by amended criterion (g).
186    Therefore, first, contrary to what the applicant submitted, in essence, at the hearing, the concept of ‘benefit’ within the meaning of amended criterion (g) is not limited solely to benefits in the form of transfers of funds and assets made with the aim of circumventing restrictive measures. Such a limitation of the concept of ‘benefit’ is not apparent from the wording of that criterion and would not make it possible to identify the multiple ways in which a benefit may manifest itself. In addition, while a situation capable of leading to circumvention may justify the existence of a benefit within the meaning of amended criterion (g) (see paragraph 185 above), proof of such a situation need not necessarily be adduced by the Council for the purpose of listing a person’s name on the basis of that criterion. Second, the Council cannot contend that amended criterion (g) should be understood in a similar way to the associated person criterion, laid down in Article 2(1) in fine of Decision 2014/145 as amended, in so far as it covers persons linked by common interests. Such an interpretation would have the effect of depriving amended criterion (g) of effectiveness in that it would become meaningless as compared with the associated person criterion where the latter criterion is applied in relation to a listed person on the basis of criterion (g).
187    In the present case, the Council submits, in essence, that it adduced evidence of a ‘benefit’, for the purposes of amended criterion (g), by relying on the assets transferred by Mr Deripaska to the applicant, namely, the ownership of a hotel located in Lech, properties in France and a property in Surrey, the companies Terra Services, Rospechat, Ingosstrakh and For Media LLC and the non-profit foundation Fidelitas. More specifically, the argument raised by the Council is based on the number and value of the assets transferred, which, in its view, go beyond normal business relations, and it maintains that they all took place after the annexation of Crimea by the Russian Federation. In addition, as regards, in particular, the transfer of ownership of the hotel located in Lech, the Council states that that transfer occurred shortly before the beginning of the Russian Federation’s invasion of Ukraine and when Mr Deripaska was already subject to sanctions by the United States and that such a time frame permits the inference that that transaction is linked to a circumvention of future restrictive measures.
188    In the first place, as regards the Council’s argument that the transactions on which it relies are subsequent to the annexation of Crimea, it is true that the restrictive measures at issue are part of the continuity of the European Union’s reaction to the policies and activities of the Russian authorities in relation specifically to Ukraine, which started with the annexation of Crimea at the end of February 2014, with the result that the Council cannot, under amended criterion (g), rely on benefits which were granted prior to the end of February 2014 by leading businesspersons to members of their immediate family or to other persons (see, by analogy, judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraph 92).
189    However, such a time frame does not mean that any benefit granted after that date necessarily falls within the scope of amended criterion (g), since the circumstances in which it was granted and the passage of time between that grant and the date on which the businessperson’s name behind that grant was included on the lists at issue are also factors to be taken into account in assessing whether the inclusion, on those lists, of the name of the recipient of that benefit is well founded. In any event, the benefit received by the person whose name is included on the lists at issue under amended criterion (g), or at least its consequences, must subsist at the time when the restrictive measures against him or her are adopted.
190    It is therefore necessary in the present case to examine, in the second place, whether the assets received by the applicant from Mr Deripaska, relied on by the Council, make it possible to establish the existence of a benefit for the purposes of amended criterion (g).
191    In that regard, the fact, emphasised by the Council, that Mr Deripaska transferred to the applicant eight sets of assets, some of which had a value of several million euro, does not in itself support the conclusion that he derived a benefit therefrom for the purposes of amended criterion (g).
192    Where, as in the present case, the Council intends to rely on a longstanding business relationship involving a businessperson operating in Russia and another person, such a benefit cannot arise from that business relationship alone, or from the existence of transactions, even if they are numerous and involve significant amounts, between that businessperson and that other person. In such a situation, the Council must adduce sufficient evidence that one or more of those transactions, or all those transactions taken together, conferred a non-negligible benefit specifically on the partner of the businessperson operating in Russia, in that it is the former who takes advantage of the latter, and not vice versa.
193    Therefore, although the existence of transfers of large assets is capable of establishing the existence of a business relationship between the applicant and Mr Deripaska and, therefore, the existence of common interests between them capable of justifying the application of the associated person criterion in accordance with the case-law referred to in paragraph 118 above, that business relationship and the transactions which took place within that framework do not support the conclusion that, at the time when the September 2023 acts were adopted, it was the applicant who had taken advantage of Mr Deripaska.
194    As regards the assets transferred by Mr Deripaska to the applicant and relied on by the Council, it is appropriate to examine, first, the hotel in Lech.
195    In this respect, the Council has not demonstrated that the arrangements for transferring ownership of that hotel, that is to say a synallagmatic contract of sale, supported the conclusion that such a transfer constituted a non-negligible benefit in favour of the applicant. Therefore, the Council has not established that, by the sale of that hotel, it was the applicant who took advantage of Mr Deripaska to a non-negligible extent.
196    Since the Council has not demonstrated that the transfer of ownership of the hotel located in Lech constituted a non-negligible benefit, its arguments relating to the time frame of that transaction are irrelevant. The mere timing of a transaction cannot suffice for it to be classified as a benefit for the purposes of amended criterion (g). Furthermore, while it is true that, at the time of that transaction, Mr Deripaska was already subject to sanctions by the United States Treasury Department, it must be noted, first, that the restrictive measures system put in place by the European Union against the Russian Federation is independent from that of third States. Second, it is apparent from Exhibit 2 in the first WK file that the sanctions imposed on Mr Deripaska by the United States were not linked to the situation in Ukraine, the reason for the restrictive measures taken by the European Union, but ‘due to his role in Russia’s 2016 [United States’] election interference efforts as well as allegations that he “bribed a government official, ordered the murder of a businessman, and had links to a Russian organized crime group”’.
197    Consequently, it is not apparent from the documents in the file that the transfer of ownership of the hotel in Lech could justify the maintenance, by the September 2023 acts, of the applicant’s name on the lists at issue under amended criterion (g).
198    Second, as regards Terra Services, the Council does not put forward any evidence to support the conclusion that the transfer, by Mr Deripaska, of shares in that company to the applicant produced for the benefit of the latter specifically a non-negligible advantage.
199    The same answer must be given, first, as regards the property in Surrey. Exhibit 3 in the first WK file, which predates the adoption of the September 2023 acts by more than seven years, merely states that the applicant’s name appears in the land registry entry for that property, which the English courts considered to be owned by Mr Deripaska through an offshore company, without providing further details of the applicant’s rights in that property. Second, as regards the non-profit foundation Fidelitas, the Council relies on Annex B.4 to the defence, which is an article dated 13 September 2015, that is to say, eight years before the adoption of the September 2023 acts, and from which it is apparent only that the applicant was the general director of that foundation and that that foundation had set up Mr Deripaska’s charitable foundation.
200    Third, so far as concerns the transfer of Rospechat to the applicant, it must be held that, since that company was declared insolvent in September 2022, as is apparent from Exhibit 3 of the second WK file, the transfer of Rospechat cannot constitute a benefit the consequences of which subsisted at the time the September 2023 acts were adopted. The same is true of the companies Ingosstrakh and For Media LLC, in respect of which the applicant claims no longer to be a shareholder since August 2018 and September 2019, respectively, which the Council accepts.
201    Fourth, as regards the properties in France, it is apparent from the documents before the Court that Mr Deripaska transferred to the applicant 1% of the companies owning those properties between 2005 and 2006, that is to say, before the end of February 2014 and the annexation of Crimea. Such transfers are therefore not relevant for the purpose of establishing the existence of a benefit within the meaning of amended criterion (g), in accordance with what has been stated in paragraph 188 above.
202    In the third place, the family relationship between the applicant and Mr Deripaska, his first cousin, is also not such as to indicate that the transactions between them necessarily entail the grant of a non-negligible benefit. The Council itself notes in its defence that the applicant and Mr Deripaska have a ‘longstanding’ business relationship, so that the transactions between them are part of such a business relationship, and not confined strictly to a family framework.
203    It follows from the foregoing that the Council has not discharged the burden of proof incumbent on it to establish that the applicant benefited from a leading businessperson operating in Russia, for the purposes of amended criterion (g).
204    The third plea must therefore be upheld in so far as it is directed against the September 2023 acts and those acts annulled, in so far as they concern him. It is therefore not necessary to examine, on the one hand, the other arguments raised by the applicant against the September 2023 acts in the context of the third plea or, on the other, the other pleas raised by the applicant against those acts.
4.      The fourth plea, alleging infringement of the principle of proportionality and of the right to property, the freedom to conduct a business and the right to free movement within the territory of the Member States
205    First, the applicant argues that the maintenance of his name on the lists at issue, by means of the September 2022 and March 2023 acts, constitutes an unjustified and disproportionate restriction of his right to property and his freedom to conduct a business.
206    According to the applicant, his name was included on the lists at issue on account of personal matters that are beyond his control, without him having been accused of having contributed to or supported, even indirectly, the actions of the Russian Federation with regard to Ukraine. Accordingly, maintaining his listing does not further the objective pursued by the restrictive measures at issue, which is to impose sanctions on the Russian Federation for its actions with regard to Ukraine.
207    Second, the applicant emphasises that his Cypriot citizenship has been revoked, as has that of his wife and children, for the sole reason that his name has been included on the lists at issue. Accordingly, he argues, essentially, that the restrictive measures that have been imposed on him deprive him of his right to free movement within the territory of the Member States.
208    The Council disputes the applicant’s line of argument.
209    It should be recalled that the freedom to conduct a business and the right to property are enshrined in Articles 16 and 17 of the Charter, respectively.
210    In the present case, the restrictive measures at issue undeniably entail, for the applicant, a restriction of the use of the fundamental rights set out in paragraph 209 above, since, in principle, under Article 2 of Decision 2014/145, as amended, first, he cannot freely dispose of the funds and economic resources situated within the territory of the European Union which he owns, holds or controls, which are frozen, and, second, no funds or economic resources may be made available, directly or indirectly, to him (see paragraph 5 above).
211    According to settled case-law, however, those fundamental rights do not enjoy absolute protection under EU law, but must be viewed in relation to their function in society (see judgment of 8 July 2020, Ocean Capital Administration and Others v Council, T‑332/15, not published, EU:T:2020:308, paragraph 125 and the case-law cited).
212    In that regard, it should be recalled that, under Article 52(1) of the Charter, ‘any limitation on the exercise of the rights and freedoms recognised by [the] Charter must be provided for by law and respect the essence of those rights and freedoms’ and ‘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 Union or the need to protect the rights and freedoms of others’.
213    Consequently, in order to comply with EU law, a limitation on the exercise of the fundamental rights at issue must satisfy four conditions. First, the limitation in question must be ‘provided for by law’, in the sense that the EU institution adopting measures liable to restrict those rights of a person must have a legal basis for its actions. Second, the limitation in question must respect the essence of the fundamental right in question. Third, it must effectively meet an objective of general interest, recognised as such by the European Union. Fourth, the limitation in question must be proportionate (see judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraphs 145 and 222 and the case-law cited).
214    In the present case, in the first place, the restrictive measures at issue, namely those stemming from the September 2022 and March 2023 acts are ‘provided for by law’, since they are set out in acts of general application with a clear legal basis in EU law, namely, first, Article 29 TEU as regards Decision 2022/1530 and Decision 2023/572 and, second, Article 215 TFEU as regards Implementing Regulation 2022/1529 and Implementing Regulation 2023/571.
215    In the second place, so far as concerns the question whether the limitation on the freedom to conduct a business and the right to property, stemming from the September 2022 and March 2023 acts, complies with the ‘essence’ of those fundamental rights, it should be observed that, having regard to the nature and scope of the restrictive measures at issue, those measures do not interfere with the essence of the applicant’s fundamental rights. In that connection, it must be pointed out that the restrictive measures imposed are temporary and reversible (see, to that effect and by analogy, judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraphs 153 and 154).
216    Under Article 6 of Decision 2014/145 in force at the time of the adoption of the September 2022 and March 2023 acts, the lists at issue are to be periodically reviewed so that persons and entities which no longer meet the necessary criteria for inclusion are removed from them.
217    In the third place, the restrictive measures at issue are intended to exert pressure on the Russian authorities to bring to an end their actions and policies destabilising Ukraine. That is an objective of general interest which falls within those pursued under the common foreign and security policy (CFSP) and referred to in Article 21(2)(b) and (c) TEU, such as the consolidation of and support for democracy, the rule of law, human rights and the principles of international law, and the preservation of peace, prevention of conflicts and strengthening of international security and the protection of civilian populations (see, by analogy, judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraph 176).
218    In the fourth place, with regard to the principle of proportionality, it must be noted that, as a general principle of EU law, this requires that measures adopted by the EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued by the legislation in question. Consequently, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 30 November 2016, Rotenberg v Council, C‑720/14, EU:T:2016:689, paragraph 178 and the case-law cited).
219    In the present case, as to the question whether the measures at issue are appropriate for attaining the objectives pursued, first, it should be observed that, given the importance of the objectives pursued by those measures, and the adverse consequences as described by the applicant resulting from their application (see paragraph 210 above), the latter are not manifestly disproportionate (see, to that effect and by analogy, judgments of 14 October 2009, Bank Melli Iran v Council, T‑390/08, EU:T:2009:401, paragraph 71, and of 12 March 2014, Al Assad v Council, T‑202/12, EU:T:2014:113, paragraph 116). That is all the more so since, in the examination of the third plea, it has been established that the restrictive measures adopted against the applicant in the September 2022 and March 2023 acts were justified, on the ground that his situation supported the conclusion that he satisfied the conditions for the application of the associated person criterion.
220    Second, the fact that the applicant did not have a direct role in actions against Ukraine is irrelevant, since restrictive measures were not imposed on him for that reason, but because of the fact that he was associated with a person whose name is included on the lists at issue. As stated in paragraph 121 above, the associated person criterion is justified by the not insignificant danger that a person subject to restrictive measures may, in order to circumvent those measures, exploit his or her link with the persons associated with him or her in order to exert pressure on those persons.
221    In so far as concerns the necessity of the restrictive measures at issue, it should be noted that alternative and less restrictive measures, such as a system of prior authorisation or an obligation to justify, a posteriori, how the funds transferred were used, are not as effective in achieving the objectives pursued, namely bringing pressure to bear on Russian decision-makers responsible for the situation in Ukraine, particularly given the possibility of circumventing the restrictions imposed (see, to that effect, judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraph 182 and the case-law cited). Moreover, the applicant has failed to indicate which less restrictive measures the Council could have adopted.
222    In addition, Article 2(3) and (4) of Decision 2014/145 and Article 4(1), Article 5(1) and Article 6(1) of Regulation No 269/2014, in the versions in force at the time of the adoption of the September 2022 acts, and later the March 2023 acts, provide for the possibility, first, of authorising the use of frozen funds in order to meet basic needs or to meet certain commitments and, second, of granting specific authorisations permitting the release of funds, other financial assets or other economic resources. Moreover, in accordance with Article 1(6) of Decision 2014/145 in the version in force at the time of the adoption of the September 2022 acts, and later the March 2023 acts, the competent authority of a Member State may authorise listed persons to enter its territory, inter alia on urgent humanitarian grounds.
223    It follows that the limitations of the applicant’s rights to conduct a business and to respect for his property resulting from the restrictive measures at issue, adopted in the September 2022 and March 2023 acts, are not disproportionate and cannot entail the annulment of those acts.
224    As regards, lastly, the applicant’s argument alleging infringement of his right to free movement in the Member States after his Cypriot nationality was revoked, it should be noted that such a revocation occurred following a decision of the Cypriot authorities, without having been imposed by the September 2022 acts or by the March 2023 acts. Consequently, the applicant cannot legitimately rely on such a decision taken by a Member State in order to establish that the Council infringed the principle of proportionality and the right to free movement in the Member States.
225    In the light of all the foregoing, the fourth plea must be rejected.
226    It follows from all of the foregoing that the action must be dismissed in so far as it seeks annulment of the September 2022 and March 2023 acts, and upheld in so far as it seeks annulment of the September 2023 acts, without its being necessary to grant the applicant’s request for the production of documents.
V.      Costs
227    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
228    In the present case, the applicant has been unsuccessful as regards his claims for annulment of the September 2022 and March 2023 acts and the letters of 15 September 2022, 14 March and 15 September 2023. On the other hand, his claims are upheld as regards the annulment of the September 2023 acts.
229    In those circumstances, each party must bear its own costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1.      Annuls Council Decision (CFSP) 2023/1767 of 13 September 2023, amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, and Council Implementing Regulation (EU) 2023/1765 of 13 September 2023 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, in so far as they concern Mr Pavel Ezubov;
2.      Dismisses the action as to the remainder;
3.      Orders each party to bear its own costs.
Spielmann
Brkan
Gâlea
Delivered in open court in Luxembourg on 11 September 2024.
V. Di Bucci
D. Spielmann
Registrar
President
Table of Contents
I. Background to the dispute
II. Facts subsequent to the bringing of the action
III. Forms of order sought
IV. Law
A. The application for annulment of the letter of 15 September 2022, the letter of 14 March 2023 and the letter of 15 September 2023
B. The claim for annulment of the contested acts
1. The first plea, alleging infringement of the obligation to state reasons and of the principle of effective judicial protection
2. The second plea, alleging breach of the principle of good administration
3. The third plea, alleging an error of assessment
(a) The evidence relied on by the Council
(b) The application of the associated person criterion to the applicant in the September 2022 acts and the March 2023 acts
(1) The scope of the associated person criterion
(2) The existence of an association between the applicant and Mr Deripaska
(i) The September 2022 acts
(ii) The March 2023 acts
(c) The application to the applicant of amended criterion (g) in the September 2023 acts
4. The fourth plea, alleging infringement of the principle of proportionality and of the right to property, the freedom to conduct a business and the right to free movement within the territory of the Member States
V. Costs
*      Language of the case: English.