JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
18 September 2024 (*)
( Common foreign and security policy – Restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine – Freezing of funds – Lists of persons, entities and bodies subject to the freezing of funds and economic resources – Inclusion of the applicant’s name on the list – Support for the regime – Financial support – Benefiting from the regime – Repression of civil society – Error of assessment )
In Case T‑521/22,
Ivan Ivanovich Golovaty, residing in Soligorsk (Belarus), represented by V. Ostrovskis, lawyer,
applicant,
v
Council of the European Union, represented by J. Rurarz and A. Boggio-Tomasaz, acting as Agents,
defendant,
supported by
Republic of Latvia, represented by K. Pommere and J. Davidoviča, acting as Agents,
intervener,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos, President, S. Gervasoni and N. Półtorak (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Mr Ivan Ivanovich Golovaty, seeks annulment of (i) Council Implementing Decision (CFSP) 2022/881 of 3 June 2022 implementing Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine (OJ 2022 L 153, p. 77) and Council Implementing Regulation (EU) 2022/876 of 3 June 2022 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine (OJ 2022 L 153, p. 1) (together, ‘the initial acts’), and (ii) Council Decision (CFSP) 2023/421 of 24 February 2023 amending Decision 2012/642 (OJ 2023 L 61, p. 41) and Council Implementing Regulation (EU) 2023/419 of 24 February 2023 implementing Article 8a of Regulation (EC) No 765/2006 concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine (OJ 2023 L 61, p. 20) (together, ‘the maintaining acts’), in so far as those acts concern the applicant.
Background to the dispute and events subsequent to the bringing of the action
2        The applicant is a businessman active in Belarus.
3        The present case has been brought in the context of the restrictive measures adopted by the European Union since 2004 in view of the situation in Belarus with regard to democracy, the rule of law and human rights, and the involvement of Belarus in the Russian aggression against Ukraine.
4        On 18 May 2006, the Council of the European Union adopted, pursuant to Articles [75 and 215 TFEU], Regulation (EC) No 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2006 L 134, p. 1) and, on 15 October 2012, it adopted, pursuant to Article 29 TEU, Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1).
5        In the versions applicable when the initial acts were adopted, Article 4(1)(b) of Decision 2012/642 and Article 2(1) and (5) of Regulation No 765/2006 provide for the freezing of all funds and economic resources belonging to, owned, held or controlled by, inter alia, natural or legal persons, entities or bodies benefiting from or supporting the Lukashenko regime.
6        Moreover, according to Article 4(1)(a) of Decision 2012/642 and Article 2(4) of Regulation No 765/2006, all funds and economic resources owned, held or controlled by, inter alia, persons, entities or bodies responsible for serious violations of human rights or the repression of civil society and democratic opposition, or whose activities otherwise seriously undermine democracy or the rule of law in Belarus, are also to be frozen.
7        On 24 February 2022, the President of the Russian Federation announced a military operation in Ukraine and, on the same day, Russian armed forces attacked Ukraine at a number of places in the country.
8        On 24 February 2022, the High Representative of the Union for Foreign Affairs and Security Policy published a declaration on behalf of the European Union condemning the ‘unprovoked invasion’ of Ukraine by the armed forces of the Russian Federation and stated that ‘the price to be paid for the involvement of Belarus in the unjustified and unprovoked military aggression [then] being conducted against Ukraine will be high’ and that ‘those who, in Belarus, collaborate[d] in these attacks against Ukraine [were to be targeted by restrictive measures] and trade in a certain number of key sectors [was to be restricted]’.
9        As is apparent from the second recital and the citations of the initial acts, those acts were adopted in view of the gravity of the situation in Belarus and in reaction to the persistent human rights violations and systematic repression of civil society and democratic opposition. The citations of the initial acts also refer to the involvement of Belarus in the Russian aggression against Ukraine.
10      By the initial acts, the applicant was listed under entry No 195 in Table A of the list of persons, entities and bodies subject to the restrictive measures contained in the annex to Decision 2012/642 and in Annex I to Regulation No 765/2006 (together, ‘the lists at issue’).
11      In the initial acts, the Council justified including the applicant on the lists at issue on the following grounds:
‘Ivan [Golovaty] is the Director-General of the state-owned enterprise Belaruskali, which is a major source of revenue and foreign currency for the [Lukashenko] regime. He is a member of the Council of the Republic of the National Assembly and holds multiple other high positions in Belarus. He has received multiple state awards, including directly from Al[ex]and[e]r [Lukashenko], during his career. He has been closely associated with [Lukashenko] and members of his family. He is therefore benefiting from and supporting the [Lukashenko] regime.
The employees of Belaruskali who took part in strikes and peaceful protests in the aftermath of the fraudulent August 2020 presidential elections in Belarus were deprived of premiums and dismissed. [Lukashenko] himself personally threatened to replace the strikers with miners from Ukraine. Ivan [Golovaty] is therefore responsible for the repression of civil society.’
12      On 7 June 2022, the Council published a Notice for the attention of persons subject to the restrictive measures provided for in the initial acts (OJ 2022 C 221, p. 2) in the Official Journal of the European Union. The persons concerned by that notice had the possibility, pursuant to that notice, of submitting to the Council, by 30 November 2022, a request for reconsideration of the decision to include them on the lists at issue.
13      By letter of 24 June 2022, the applicant asked the Council for the evidence on which it had based the initial acts.
14      On 30 June 2022, the applicant received the working documents bearing the references WK 5821/2022 INIT, WK 5821/2022 ADD 1, WK 6656/2022 ADD 1 and WK 6656/2022 INIT, respectively.
15      By letter of 30 November 2022, the applicant lodged a request with the Council for reconsideration of his inclusion on the lists at issue by the initial acts.
16      By letter of 21 December 2022, the Council informed the applicant of its intention to maintain the restrictive measures against him, and sent to him working document WK 17512/2022 INIT, dated 13 December 2022.
17      On 12 January 2023, the applicant submitted his observations to the Council.
18      On 24 February 2023, in response to the request for reconsideration, the Council sent the applicant an official letter in which it reiterated the allegations made in the initial statement of reasons. In the same letter, the Council informed the applicant that it had decided to continue to include the applicant on the lists at issue.
19      By way of the maintaining acts, the measures taken against the applicant were extended to 28 February 2024, with the addition, in relation to the grounds set out in the initial acts, of the clarification that ‘furthermore, [the applicant] is the Chairman of the supervisory board of JSC Belarussian Potash Company’.
Procedure and forms of order sought
20      The applicant claims that the Court should:
–        annul the initial and maintaining acts in so far as they concern him;
–        order the Council to pay the costs.
21      The Council contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
22      The Republic of Latvia submits that the Court should dismiss the action.
Law
23      It is appropriate to examine, in the first place, the application for partial annulment of the initial acts and then, in the second place, the application for partial annulment of the maintaining acts.
The application for partial annulment of the initial acts
24      In support of his application for partial annulment of the initial acts, the applicant raises six pleas in law, alleging (i) infringement of the principle of legality; (ii) manifest error of assessment; (iii) infringement of the principle of non-discrimination; (iv) disproportionate interference with the applicant’s property rights; (v) infringement of the obligation to state reasons; and (vi) infringement of the principle of respect for the rights of the defence.
25      It is appropriate to begin by examining the fifth and sixth pleas.
The fifth plea, alleging infringement of the obligation to state reasons
26      The applicant claims that the reasons given by the Council for including him on the lists at issue merely reproduce the criteria applied to justify inclusion and do not specify in any way the manner in which the applicant supports the Lukashenko regime, benefits from it, or is responsible for the repression of civil society in Belarus. However, according to the case-law, without any other information to support it, such reproduction cannot serve as a sufficient statement of reasons on the part of the Council.
27      The Council, supported by the Republic of Latvia, disputes that line of argument.
28      It should be recalled that, according to settled case-law, the purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, second, to enable those courts to review the legality of that act (see judgment of 23 September 2014, Ipatau v Council, T‑646/11, not published, EU:T:2014:800, paragraph 92 and the case-law cited).
29      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 person concerned to ascertain the reasons for the measures and to enable the court having jurisdiction to exercise its power of review (see judgment of 23 September 2014, Ipatau v Council, T‑646/11, not published, EU:T:2014:800, paragraph 93 and the case-law cited).
30      The statement of reasons for an act of the Council which imposes a restrictive measure must not only identify the legal basis of that act but also 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 party concerned (see judgment of 24 May 2023, Lyubetskaya v Council, T‑556/21, not published, EU:T:2023:283, paragraph 19 and the case-law cited).
31      The statement of reasons required by Article 296 TFEU must, however, be appropriate to the act at issue and the context in which it was adopted. The requirement to state reasons must be assessed in the light of the circumstances of the case, in particular the content of the act, the nature of the reasons given and the interest which the addressees or other persons affected by the act within the meaning of the fourth paragraph of Article 263 TFEU may have in receiving explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, 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 (see judgment of 23 September 2014, Ipatau v Council, T‑646/11, not published, EU:T:2014:800, paragraph 95 and the case-law cited).
32      In particular, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him or her to understand the scope of the measure concerning him or her (see judgment of 23 September 2014, Ipatau v Council, T‑646/11, not published, EU:T:2014:800, paragraph 96 and the case-law cited).
33      As is apparent from the statement of reasons, referred to in paragraph 11 above, the applicant was included on the lists at issue because, first, he is the Director-General of Belaruskali, which is a major source of revenue and foreign currency for the Lukashenko regime, is a member of the Council of the Republic of the National Assembly, also holds multiple other high positions in Belarus, and has received multiple State awards, including directly from Lukashenko, during his career. In addition, he has been closely associated with Lukashenko and members of his family. Based on that evidence, it was concluded that the applicant benefited from and supported the Lukashenko regime. Second, it was found that the employees of Belaruskali who had taken part in strikes and peaceful protests in the aftermath of the August 2020 presidential elections in Belarus were deprived of premiums and dismissed, and that Lukashenko himself personally threatened to replace the strikers with miners from Ukraine. In those circumstances, the view was taken that the applicant was responsible for the repression of civil society in Belarus and, in that sense, supported the Lukashenko regime.
34      In that connection, the use, in that statement of reasons, of the wording ‘benefiting from and supporting the [Lukashenko] regime’ and ‘repression of civil society’ refers explicitly to the listing criteria at issue mentioned in paragraphs 5 and 6 above, from which it is apparent that persons, entities or bodies identified as benefiting from or supporting the Lukashenko regime or who are responsible for serious violations of human rights or the repression of civil society and democratic opposition, or whose activities otherwise seriously undermine democracy or the rule of law in Belarus, are to be included on the lists at issue. Thus, it must be held that the applicant could readily understand the criteria on which his inclusion on the lists at issue was based.
35      Furthermore, it is clear that the initial acts also refer to the ‘actual and specific reasons’, recalled in paragraph 33 above, why the applicant is regarded as supporting and benefiting from the Lukashenko regime and as being responsible for the repression of civil society in Belarus.
36      Consequently, in the light of the foregoing considerations, it must be found that the initial acts are sufficiently reasoned, and the fifth plea must be rejected as unfounded.
The sixth plea, alleging infringement of the principle of respect for the rights of the defence
37      The applicant states that the Council appears to have supplied him with incomplete working documents: working document WK 5821/2022 ADD 1, with the subject line ‘BELARUS: 20220422 – 13 supporting evidence’, actually contains only five items of evidence, with item
No 6 supplied only in part, thereby infringing the applicant’s right of access to the file concerning him.
38      According to the applicant, it follows from the case-law that the reasons for the sanctions must be communicated at the same time as, or immediately after, their adoption. Under Article 14(2) of Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 6), the Council is to notify the person concerned of its reasoned decision either directly or by means of a public notice if that person’s address is not known, after attempting to contact him or her.
39      The applicant submits that the right to be heard at the same time as, or immediately after, the adoption of the decision was not respected in the present case. He maintains that the very strict obligation imposed by the case-law was not fully respected for at least two reasons. First, the possibility of requesting a review is not included in the decision itself. Second, the notice mentions the possibility of requesting a review of the decision, but nowhere does it mention the possibility of being heard. In so doing, it is argued, the Council failed to comply with the obligations laid down in the case-law.
40      The applicant states that, for example, three months after the adoption of the initial acts, he had still not been afforded the opportunity to address the Council on that issue. That therefore constitutes a clear breach of the principle of respect for the rights of the defence.
41      According to the applicant, that breach is all the more flagrant because, if he had been afforded a hearing with the Council, he would have been able to show that the grounds relied on against him were incorrect.
42      The Council, supported by the Republic of Latvia, disputes that line of argument.
43      It should be borne in mind that respect for the rights of the defence includes the right to be heard, which is enshrined in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’) (see judgment of 8 November 2023, Zaytsev and Bremino-Grupp v Council, T‑563/21 and T‑564/21, not published, EU:T:2023:707, paragraph 44 and the case-law cited).
44      In proceedings relating to the adoption of the decision to list or maintain the listing of the name of an individual in an annex to an act imposing restrictive measures, respect for the rights of the defence and the right to effective judicial protection requires that the competent EU authority disclose to the individual concerned the evidence against that person available to that authority and relied on as the basis of its decision, so that that individual is in a position to defend his or her rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in bringing an action before the Courts of the European Union. When that disclosure takes place, the competent EU authority must ensure that that individual is placed in a position in which he or she may effectively make known his or her views on the grounds advanced against him or her (see judgment of 8 November 2023, Zaytsev and Bremino-Grupp v Council, T‑563/21 and T‑564/21, not published, EU:T:2023:707, paragraph 45 and the case-law cited).
45      In that regard, the Courts of the European Union distinguish between, on the one hand, the initial inclusion of a person’s name on the lists imposing restrictive measures and, on the other, the maintenance of that person’s name on those lists (see judgment of 8 November 2023, Zaytsev and Bremino-Grupp v Council, T‑563/21 and T‑564/21, not published, EU:T:2023:707, paragraph 46 and the case-law cited).
46      As regards the applicant’s argument that the grounds for his inclusion on the lists at issue should have been disclosed to him at the same time as, or immediately after, their adoption, it must be recalled that, in the case of an initial act freezing a person or entity’s funds, the Council is not obliged to inform the person or entity concerned beforehand of the grounds on which it intends to base the first entry of their name on the list of persons and entities whose funds are frozen. So that its effectiveness may not be jeopardised, such a measure must, by its very nature, be able to take advantage of a surprise effect and to apply immediately. In such a case, it is as a rule enough if the institution notifies the person or entity concerned of the grounds and affords that person or entity the right to be heard at the same time as, or immediately after, the decision is adopted (see judgment of 8 November 2023, Zaytsev and Bremino-Grupp v Council, T‑563/21 and T‑564/21, not published, EU:T:2023:707, paragraph 47 and the case-law cited).
47      As far as the applicant is concerned, it is true that the initial acts were not notified to him individually by the Council by means of a communication to his personal address.
48      However, it is clear from the case-law that the Council may be considered to be unable to communicate individually to a natural or legal person or to an entity an act incorporating restrictive measures relating to that person or entity either when the latter’s address is not published and has not been supplied to the Council or when the communication sent to the address which the Council has fails, in spite of the steps which it has taken, with all necessary diligence, in order to effect such communication (judgment of 5 November 2014, Mayaleh v Council, T‑307/12 and T‑408/13, EU:T:2014:926, paragraph 61).
49      In the present case, first, the Council stated that, when the initial acts were adopted, it did not have the applicant’s address, which is not disputed by the applicant.
50      Second, it should be noted that although the initial acts were not notified individually, their publication in the Official Journal of the European Union enabled the applicant to bring the present action for annulment before the Court.
51      Furthermore, by letter of 30 June 2022, the Council granted the applicant’s request of 24 June 2022 for access to the evidence on which the Council had based the initial acts and forwarded the file containing the evidence supporting the applicant’s inclusion on the lists at issue (see paragraph 14 above). The applicant also submitted observations on that evidence in his request for reconsideration of 30 November 2022.
52      As regards the applicant’s claim concerning working document WK 5821/2022 ADD 1, dated 6 May 2022, it should be noted that it contained five items of evidence. The fact that the cover page incorrectly referred to ‘13 supporting evidence’, which is a mere clerical error, is not such as to impair the right thus exercised by the applicant of access to the evidence.
53      In conclusion, the arguments put forward by the applicant in support of the sixth plea are not such as to demonstrate that the Council infringed his rights of defence.
54      The sixth plea must therefore be rejected.
The first plea, alleging infringement of the principle of legality
55      The applicant claims that the initial acts infringe the principle of legal certainty and, subsequently, the principle of legality. The relevant criteria applied to the applicant contain a number of terms which are not defined in either the initial acts or the case-law. Therefore, the meaning of those terms, namely ‘[Lukashenko] regime’, ‘support’, ‘benefit’, ‘civil society’ and ‘repression’, is not clear to the applicant, and he cannot unambiguously understand them or decide how to act in the context of the measures taken against him by the Council.
56      The Council, supported by the Republic of Latvia, disputes that line of argument.
57      It should be recalled that the criteria for inclusion on the lists at issue cover ‘persons, entities or bodies responsible for serious violations of human rights or the repression of civil society’ and ‘benefiting from or supporting the [Lukashenko] regime’; these criteria are laid down by Article 4(1)(a) and (b) of Decision 2012/642. The applicant’s claim is therefore essentially concerned with challenging the wording of that provision of Decision 2012/642.
58      In that connection, the case-law makes it possible to consider that a plea of illegality may be raised implicitly in so far as it is sufficiently clear from the application that the applicant intended to raise such a plea (see, to that effect, judgments of 15 September 2016, Yanukovych v Council, T‑346/14, EU:T:2016:497, paragraph 56; of 15 September 2016, Yanukovych v Council, T‑348/14, EU:T:2016:508, paragraph 57; and of 22 September 2021, Al-Imam v Council, T‑203/20, EU:T:2021:605, paragraph 39 (not published)).
59      It is apparent from an examination of the application, in particular paragraphs 19 and 34 thereof, that the applicant, without formally raising a plea of illegality under Article 277 TFEU, relies on the unlawfulness of the aforementioned criteria, laid down by Article 4(1)(a) and (b) of Decision 2012/642, in the context of the claim for annulment of the initial acts.
60      In that connection, it should be recalled that according to settled case-law, the principle of legal certainty – which is one of the general principles of EU law – requires, particularly, that rules of law be clear, precise and predictable in their effects, in particular where they may have negative consequences on individuals and undertakings. A penalty, even of a non-criminal nature, cannot be imposed unless it rests on a clear and unambiguous legal basis. The principle of legal certainty means, in particular, that any EU legislation, in particular when it imposes or permits the imposition of sanctions, must be clear and precise so that the persons concerned may know without ambiguity what rights and obligations flow from it and may take steps accordingly. That requirement of a clear and precise legal basis has also been enshrined in the field of restrictive measures (see, to that effect, judgment of 4 September 2015, NIOC and Others v Council, T‑577/12, not published, EU:T:2015:596, paragraphs 131 and 132 and the case-law cited).
61      In accordance with settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part. The legislative history of a provision of EU law may also reveal elements that are relevant to its interpretation (see judgment of 2 September 2021, CRCAM, C‑337/20, EU:C:2021:671, paragraph 31 and the case-law cited).
62      Furthermore, the Courts of the European Union must, in their judicial review of restrictive measures, allow the Council a broad discretion in establishing the general criteria defining the category of persons that could be made subject to restrictive measures (judgment of 13 September 2018, Vnesheconombank v Council, T‑737/14, not published, EU:T:2018:543, paragraph 94).
63      The existence of vague terms in a provision does not necessarily entail an infringement of fundamental rights, and the fact that a law confers a discretion is not in itself inconsistent with the requirement of foreseeability, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference. Moreover, the requirement of foreseeability which accompanies the principle that penalties must have a proper legal basis – which requires that legislation must clearly define offences and penalties – does not preclude the law from conferring discretion the scope and manner of exercise of which are indicated with sufficient clarity. Those principles of case-law are also applicable with regard to restrictive measures which, although they are not aimed in principle at penalising infringements, but constitute preventive measures, have a considerable impact on the rights and freedoms of the persons concerned (see, to that effect, judgments of 16 July 2014, National Iranian Oil Company v Council, T‑578/12, not published, EU:T:2014:678, paragraphs 116 and 117, and of 4 September 2015, NIOC and Others v Council, T‑577/12, not published, EU:T:2015:596, paragraphs 135 and 136 and the case-law cited).
64      In the light of the foregoing, it should be held, first, that the broad wording of the criteria at issue conferring a discretion on the Council can be compatible with the principles of proportionality and legal certainty (see, to that effect, judgment of 22 September 2016, Tose’e Ta’avon Bank v Council, T‑435/14, not published, EU:T:2016:531, paragraph 39).
65      Second, it should be observed that the meaning and scope of the terms in question must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part, it being noted that the interpretation of a provision of EU law cannot have the result of depriving the clear and precise wording of that provision of all effectiveness (judgment of 18 October 2023, MAZ-upravljajusaja kompanija holdinga Belavtomaz v Council, T‑532/21, not published, EU:T:2023:656, paragraph 52).
66      It should also be borne in mind that a regulation providing for restrictive measures must be interpreted in the light not only of the decision adopted in the framework of the common foreign and security policy (CFSP) referred to in Article 215(2) TFEU, but also of the historical context in which the provisions were adopted by the European Union, that regulation being one such provision. The same applies to a decision adopted in the area of the CFSP, which must be interpreted taking into account the context in which it is adopted (judgment of 18 October 2023, MAZ-upravljajusaja kompanija holdinga Belavtomaz v Council, T‑532/21, not published, EU:T:2023:656, paragraph 53).
67      In the light of the case-law cited in paragraph 66 above, it should be observed that, in the context of the restrictive measures taken against Belarus since 2004, the criteria of ‘benefiting’ from the Lukashenko regime and ‘supporting’ that regime were introduced by Article 1(1) and (2) of Council Decision 2012/36/CFSP of 23 January 2012 amending Decision 2010/639/CFSP concerning restrictive measures against Belarus (OJ 2012 L 19, p. 31).
68      Furthermore, it was apparent from recitals 3 and 4 of Decision 2012/36 that, in view of the gravity of the situation in Belarus, additional restrictive measures against that country had to be adopted, including with respect to persons and entities benefiting from or supporting the Lukashenko regime, in particular persons and entities providing financial or material support to the regime.
69      Article 2 of Regulation No 765/2006 was consequently amended by Article 1 of Council Regulation (EU) No 114/2012 of 10 February 2012 amending Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2012 L 38, p. 3).
70      On 1 November 2012, Council Decision 2010/639/CFSP of 25 October 2010 concerning restrictive measures against certain officials of Belarus (OJ 2010 L 280, p. 18) was repealed and replaced by Decision 2012/642.
71      As is apparent from recitals 1 to 5 and 8 of Decision 2012/642, the restrictive measures against Belarus were taken and extended as a result of the continued lack of respect in that country for human rights, democracy and the rule of law and were, therefore, directed, in particular, against those responsible for fraud and violations of international electoral standards in connection with certain election or referendum procedures in Belarus, and against those responsible for serious human rights violations and the repression of peaceful demonstrators in the aftermath of those procedures.
72      Furthermore, in that regard, it should be recalled that it is apparent from recital 6 of Decision 2012/642 that, in so far as concerns persons and entities benefiting from or supporting the Lukashenko regime, the objective is to target any person or entity supporting that regime, in particular – but not exclusively – persons and entities providing financial or material support thereto.
73      It follows from the foregoing that, by introducing the act of benefiting from or supporting the Lukashenko regime as criteria justifying the inclusion of a name on the lists at issue, the Council, in view of the serious and persistent nature of the breach of human rights, democracy and the rule of law and the repression of civil society and democratic opposition in Belarus, sought to increase pressure on that regime by broadening the circle of persons and entities subject to EU restrictive measures. In that respect, the Council has provided for the possibility of applying measures freezing funds and economic resources to, inter alia, persons and entities benefiting from or supporting the Lukashenko regime and in particular – but not exclusively – those providing financial support to it (see, to that effect, judgment of 18 October 2023, MAZ-upravljajusaja kompanija holdinga Belavtomaz v Council, T‑532/21, not published, EU:T:2023:656, paragraph 60).
74      As regards persons, entities or bodies responsible for serious violations of human rights or the repression of civil society and democratic opposition, it is apparent from the context in which the expression ‘responsible for the repression’ is used, in particular from the use, in Article 4(1)(a) of Decision 2012/642 and Article 2(4) of Regulation No 765/2006, of the wording ‘persons, entities or bodies responsible for … the repression of civil society and democratic opposition, or whose activities otherwise seriously undermine democracy or the rule of law in Belarus’, that the legislative intent was to target, by the criterion at issue, in general, any person, entity or body whose activities seriously undermine democracy or the rule of law in Belarus. Furthermore, the use of the term ‘otherwise’ in the second part of those provisions demonstrates the legislative intent to regard the repression of civil society and democratic opposition as a type of activity seriously undermining democracy or the rule of law in Belarus. Lastly, the use of the term ‘activities’ is an indication of the legislative intent to target persons, entities or bodies whose activities seriously undermine democracy or the rule of law in Belarus because those activities contribute to that undermining, irrespective of whether or not there is an intentional element in that regard (judgment of 15 February 2023, Belaeronavigatsia v Council, T‑536/21, EU:T:2023:66, paragraph 27).
75      Third, the applicant’s claims as to the comprehension of the wording used in the listing criteria – namely, in the present case, of the phrase ‘[Lukashenko] regime’, the word ‘support’, the act of ‘benefiting’, the phrase ‘civil society’ and the word ‘repression’ – do not relate to compliance with the principle of legal certainty, but rather to the application of those criteria by the Council, which is the subject of the second plea in law.
76      Thus, the arguments put forward by the applicant do not call into question the lawfulness of the listing criteria at issue, which are sufficiently clear and precise. Consequently, they comply with the principle of legal certainty.
77      The first plea must therefore be rejected.
The second plea, alleging error of assessment
78      The second plea can be divided into two parts. The first part alleges failure to demonstrate that the applicant benefits from or supports the Lukashenko regime. The second part alleges failure to demonstrate that the applicant was responsible for the repression of civil society in Belarus.
79      As a preliminary point, it should be pointed out that the second plea in law must be regarded as alleging error of assessment, and not manifest error of assessment. Whilst it is, admittedly, true that the Council has a degree of discretion to determine, on a case-by-case basis, whether the legal criteria on which the restrictive measures at issue are based are satisfied, the fact remains that the Courts of the European Union must ensure the review, in principle the full review, of the lawfulness of all EU acts (see judgment of 6 September 2023, Pumpyanskiy v Council, T‑291/22, not published, EU:T:2023:499, paragraph 40 and the case-law cited).
80      Furthermore, it should be borne in mind that the effectiveness of the judicial review guaranteed by Article 47 of the Charter requires inter alia that, as part of the review of the lawfulness of the grounds which are the basis of the decision to list or to maintain the name of a person or entity on the lists of persons subject to restrictive measures, the Courts of the European Union are to ensure that that decision, which affects that person or entity 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 the question whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (judgment of 13 September 2023, Synesis v Council, T‑97/21 and T‑215/22, not published, EU:T:2023:531, paragraph 35).
81      That is because it is the task of the competent EU
authority to establish, in the event of challenge, that the reasons relied on against the person or entity concerned are well founded, and not the task of that person or entity to adduce evidence of the negative, namely that those reasons are not well founded (see judgment of 13 September 2023, Synesis v Council, T‑97/21 and T‑215/22, not published, EU:T:2023:531, paragraph 37 and the case-law cited).
82      If the competent EU authority provides relevant information or evidence, the Courts of the European Union must then determine whether the facts alleged are made out in the light of that information or evidence and assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person or entity concerned (see judgment of 13 September 2023, Synesis v Council, T‑97/21 and T‑215/22, not published, EU:T:2023:531, paragraph 38 and the case-law cited).
83      It should be recalled that the inclusion of the applicant’s name on the lists at issue has been justified by the reasons set out in paragraph 11 above. It is therefore necessary to examine, first, whether the facts put forward in the statement of reasons for the decision to include the applicant on the lists at issue are established and, second, whether they fall within the scope of Article 4(1)(a) and (b) of Decision 2012/642.
–       The first part of the plea, alleging failure to demonstrate that the applicant benefits from or supports the Lukashenko regime
84      The applicant disputes the grounds for his inclusion on the lists at issue, according to which he benefits from or supports the Lukashenko regime.
85      In the first place, concerning the factual allegation that he is the Director-General of Belaruskali, which is a major source of revenue and foreign currency for the Lukashenko regime, the applicant does not deny that he holds the position of Director-General at Belaruskali.
86      However, according to the applicant, it is important to note that he is a separate person from Belaruskali. Those two persons, one legal and the other natural, cannot be treated as one and the same.
87      In that context, it is argued that the Council failed to show how the applicant himself, as a natural person, supported or benefited from the regime.
88      Concerning Belaruskali, the applicant maintains that the Council also failed to demonstrate the existence of ‘support’ or ‘benefit’.
89      The applicant states that Belaruskali’s shares are owned by the Republic of Belarus. However, the Government of the Republic of Belarus is not the subject of any restrictive measure and does not appear to come under the Lukashenko regime. Moreover, the mere fact that the shares in Belaruskali are owned by the Republic of Belarus does not indicate that the company supported the Lukashenko regime and/or benefited from it.
90      The applicant claims that Belaruskali is one of the largest potash producers in the world. It is responsible for approximately 20% of the world’s potash fertiliser production. Each year, the company exports most of its products.
91      In that regard, the applicant states that the sale of potash fertilisers produced by the company and the receipt of payments for those sales, including in foreign currency, are ordinary business activities for the company. Funds received by the company in connection with those activities are used in strict compliance with the laws of Belarus.
92      The applicant submits that the Council cannot rely solely on the fact that the company receives revenue and foreign currency from the sale of its products, without specifying how that amounts to supporting or benefiting from the regime with respect to the company or the applicant.
93      The applicant maintains that the company uses the foreign currency and revenue it receives from its business activities in strict compliance with the laws of Belarus. In particular, the company pays tax.
94      In the second place, concerning the factual allegation that he is a member of the Council of the Republic of the National Assembly and holds multiple other high positions in Belarus, the applicant claims that the Council’s summary of the positions held by him is vitiated by errors. Moreover, the Council did not explain how, by holding those positions, the applicant supports or benefits from the regime.
95      The applicant submits, first of all, that he was elected to the Council of the Republic from the province of Minsk (Belarus) in accordance with the laws of Belarus.
96      He states that his position as ‘Member of the Standing Committee of the Council of the Republic of the National Assembly of the Republic of Belarus for Foreign Affairs and National Security’ is not a separate position. Instead, it is one of the forms in which he carries out his activities as member of the Council of the Republic of the National Assembly.
97      The applicant also confirms that he is a member of the Executive Committee for the district of Salihorsk (Belarus).
98      However, under Belarusian law, the functions of District Executive Committees are of a purely social and economic nature, according to the applicant. Thus, his membership of the Executive Committee for the district of Salihorsk is confined to mere participation in the local social and economic decision-making process.
99      The applicant also claims that, when the listing decision was adopted, he was no longer a member of the supervisory board of JSC Belarussian Potash Company, having stood down on 16 August 2021. In addition, his membership of the Supervisory Board of JSC A ceased on 1 June 2022.
100    Lastly, the applicant states that he is indeed a member of B, a Belarusian public organisation. However, that organisation is not subject to restrictive measures.
101    In the third place, concerning the factual allegation that he has received multiple State awards during his career, including directly from Mr Lukashenko, the applicant confirms that President Lukashenko awarded him the State prize.
102    According to the applicant, that prize is the highest recognition of a person’s achievements in the eyes of society and the State in the fields of science and technology, literature, art and architecture, and is awarded for the outstanding creative contribution of a single candidate or a group of candidates consisting of not more than six persons.
103    The applicant submits that the State prize was awarded to a group of six persons: three representatives of Belaruskali, including the applicant, and three persons with no connection to that company. Therefore, the applicant was not the only prize recipient.
104    The applicant states that the candidates for State prizes are not chosen by President Lukashenko. President Lukashenko merely presents the State prize as a gesture of commendation and respect. The award procedure is governed by Belarusian law and provides for the nomination of candidates by the institutions where the relevant candidates are employed. The award decision is taken by the Belarusian Academy of Sciences.
105    In the fourth place, concerning the factual allegation that he has been closely associated with President Lukashenko and members of the latter’s family, the applicant maintains that the Council failed to substantiate that allegation in a manner consistent with the applicable norms and legal standards.
106    The applicant asserts that the information that he is the godfather of President Lukashenko’s granddaughter is incorrect. The sources on which that allegation is based are themselves based on hearsay and therefore lack credibility and probative value. According to the applicant, the truth is that he was not and is not the godfather of any of the Lukashenko grandchildren, as confirmed by the Archbishop of Grodno and Vawkavysk.
107    The Council, supported by the Republic of Latvia, disputes that line of argument.
108    In the first place, as regards the examination of the accuracy of the facts alleged by the Council, it is common ground, first of all, that the applicant has been Director-General of Belaruskali since 2014.
109    In that connection, the applicant does not deny that Belaruskali is State-owned, since all of its shares are held by the Republic of Belarus. The applicant has stated, moreover, that the State Committee on Property of the Republic of Belarus is the ultimate beneficial owner of Belaruskali.
110    Furthermore, the applicant himself acknowledges, as is apparent from the information before the Court, that Belaruskali is ‘indeed one of the biggest potash producers in the world[, which] produced 12 045 920 tonnes of potash in 2019, 12 479 064 tonnes in 2020, and 13 798 250.39 tonnes in 2021’, that ‘the share of potash fertilisers produced by [it] in the global market is about 20%’, and that Belaruskali is ‘one of the largest employers in the country [and] employs 17 622 workers’.
111    Next, the applicant does not deny that President Lukashenko appointed him to the position of Director-General of Belaruskali.
112    Lastly, the applicant also does not dispute the information reported by the Council that, in 2019, Belaruskali made a net profit of more than 4.797 billion Belarusian roubles (BYN) (approximately EUR 1.8 billion). Furthermore, he confirms that (i) Belaruskali pays dividends to the State, as a shareholder, and (ii) it paid, in addition to taxes, compulsory contributions to the State target budget fund for national development.
113    Accordingly, the Council did not err in finding that the applicant is Director-General of Belaruskali, a public undertaking and a major source of revenue and foreign currency for the Lukashenko regime.
114    Second, the applicant does not deny that he is a member of the Council of the Republic of the National Assembly or that he holds several other high positions in Belarus. Nor does he deny that President Lukashenko awarded him the State prize (see paragraphs 101 to 104 above).
115    Third, as regards the factual allegation that the applicant is closely associated with President Lukashenko and members of his family, it should be noted first of all that the applicant denies being godfather to the children of Mr Lukashenko’s son. In support of that argument, he produces a certificate from the Archbishop of Grodno and Vawkavysk. However, that information does not call into question the Council’s overall assessment of the links between the applicant and President Lukashenko, which are moreover corroborated by other items of evidence. It follows therefrom that the applicant, who is described as a confidant of Lukashenko, is indeed a close associate of the latter. He participates in meetings concerning major State issues, such as amendments to the constitution or the impact of the restrictive measures imposed on the Belarusian economy.
116    Thus, the accuracy of the facts taken into account by the Council in order to include the applicant on the lists at issue must be regarded, overall, as having been established.
117    In the second place, the applicant claims that the factors set out above do not amount to the act of ‘benefiting from’ the regime or ‘support for the regime’ within the meaning of Article 4(1)(b) of Decision 2012/642.
118    In accordance with the case-law cited in paragraph 65 above, the meaning and scope of the terms in question must be determined by considering their usual meaning in everyday language, while also taking into account, in particular, the purposes of the rules of which they are part and the need to preserve the effectiveness of their clear and precise wording.
119    As a preliminary point, it should be observed that it is apparent both from the clear and precise wording of Article 4(1)(b) of Decision 2012/642, which refers to persons and entities ‘benefiting from or supporting the [Lukashenko] regime’, and from the objective pursued by that provision, which is to increase pressure on that regime, that it is the relationship that certain persons and entities have with that regime which justifies the adoption of restrictive measures, where that relationship takes the form of support, in particular financial support (see, to that effect, judgment of 18 October 2023, MAZ-upravljajusaja kompanija holdinga Belavtomaz v Council, T‑532/21, not published, EU:T:2023:656, paragraph 65).
120    First, as regards the criterion of ‘support for the regime’, it should be noted that the potash sector, in addition to being highly regulated in Belarus, is one of the strategic sectors of the Belarusian economy which also plays a role in the Lukashenko regime’s foreign policy.
121    As is clear from paragraphs 109 and 110 above, Belarus is one of the world’s largest producers of potassium fertilisers and, consequently, that business sector generates billions of dollars in gross sales every year. Thus, Belaruskali makes a significant contribution to the budget of Belarus, in particular in the form of taxes, revenues, dividends and transfers to the State fund for national development.
122    In that regard, the applicant submits that the funds which the company receives in connection with those activities are used in full compliance with the laws of Belarus.
123    It is apparent from the information before the Court that, according to Resolution No 772 of the Council of Ministers of the Republic of Belarus of 18 November 2019, Belaruskali had, for the first half of 2019, to transfer more than BYN 46 million (EUR 17.6 million) from its excess profits to the State target budget fund for national development, in accordance with subparagraph 3-2 of Edict No 637 of the President of the Republic of Belarus of 28 December 2005 on the procedure for entry in the budget of part of the profits of State enterprises, State associations which are commercial organisations, as well as income from shares (stakes in the share capital) of business entities owned by the State or municipalities, and on the formation of a State special-purpose budget fund for national development (National Register of Legal Acts of the Republic of Belarus No 1/7075 of 29 December 2005) (‘Edict No 637’).
124    It follows from the first paragraph of Resolution No 772 of the Council of Ministers that the undertakings that are required to pay a part of their profits to the State or to infra-State bodies, including Belaruskali, are those whose decisions the State or those bodies determine. Thus, that obligation concerns only a defined category of economic operators and not all Belarusian taxpayers.
125    Accordingly, it should be observed that the fact that Belaruskali is required to pay part of its profits to the State pursuant to Edict No 637 bears out the assessment that it is financially supporting the Lukashenko regime since, by way of that edict, that regime increased the control that it already had, as sole shareholder, over Belaruskali’s resources by ensuring that the regime regularly has at its disposal part of the profits that the applicant makes.
126    A person exercising functions which confer on him or her the power to manage an entity covered by restrictive measures may, as a general rule, himself or herself be considered to be involved in the activities that justified the adoption of the restrictive measures covering the entity in question (see, to that effect, judgments of 12 December 2013, Nabipour and Others v Council, T‑58/12, not published, EU:T:2013:640, paragraph 110, and of 5 November 2014, Mayaleh v Council, T‑307/12 and T‑408/13, EU:T:2014:926, paragraph 143).
127    In his capacity as Director-General of an important company for the Belarusian economy, the applicant has himself been involved, since his appointment in 2014 to the post of Director-General, in supporting the Lukashenko regime and in managing the resulting profits. In that regard, the evidence submitted by the Council indicates, in particular, that the applicant, at the time of his appointment to that post, was specifically instructed by Lukashenko himself to increase the support provided by Belaruskali, including in foreign currency earnings, to Belarus.
128    The applicant’s appointment to State posts, including his role in the National Assembly, his activities in the fields of foreign affairs and security, and his membership of the Executive Committee of Soligorsk (Belarus), are proof of his integration and participation in the power mechanisms of Belarus. That direct involvement in political and administrative structures characterises him as an actor aligned with the Belarusian authorities, accentuating his support for the regime.
129    It follows from the foregoing that the Council did not err in finding that the fact that the applicant was Director-General of Belaruskali, a company which represents a source of revenue and currency for the regime, and the fact that he held high positions in Belarus, were, when taken together, sufficient for it to be considered that he supported the Lukashenko regime within the meaning of Article 4(1)(b) of Decision 2012/642.
130    Second, as regards the act of ‘benefiting’ from the Lukashenko regime, it is common ground that Belaruskali is the sole producer of potassium fertilisers in Belarus.
131    As regards the potassium fertiliser sector, aside from the fact that it is a highly regulated sector in Belarus – as the applicant himself accepts – it is apparent from the evidence submitted by the Council that that sector is a source of significant revenue. In that connection, suffice it to recall that, in 2019, Belaruskali made a net profit of over BYN 4.797 billion (approximately EUR 1.8 billion) (see paragraph 112 above).
132    The fact that Belaruskali is the only undertaking active in a market as important, from the perspective of the Belarusian economy as a whole, as the potassium fertiliser market, supports the conclusion that Belaruskali benefits from the regime, in so far as the regime has allowed it to exercise a monopoly.
133    Therefore, since he has held the position of Director-General since 2014, the applicant contributes to Belaruskali’s benefiting from the Lukashenko regime.
134    Indeed, a number of items of evidence submitted by the Council relating to the economic situation in Belarus – in particular, the article published on the website ‘cepa.org’ on 8 December 2021, the article published on the website ‘naviny.belsat.eu’ on 15 October 2015, the article published on the website ‘news.tut.by’ on 13 December 2016, the article published on the website ‘en.belapan.by’ on 9 July 2020, and the article published on the website ‘russian.rt.com’ on 22 March 2016 – confirm that the pursuit of significant economic activities is possible only with the endorsement of the regime of President Lukashenko.
135    It is also apparent from those items of evidence that the activities of prominent businesspersons in Belarus are highly dependent on the regime of President Lukashenko and that, in order to attain such a position, it is necessary to belong to a restricted group of persons who are close to President Lukashenko and enjoy his confidence. Moreover, the loss of President Lukashenko’s support results not only in a loss of influence, but also in repression which may be targeted at individuals who are no longer considered by President Lukashenko to enjoy his confidence.
136    In the present case, the applicant admits that he holds posts such as member of the Council of the Republic in the National Assembly, leading member of the Standing Committee for Foreign Affairs and Security, and member of the Executive Committee for the district of Soligorsk. Therefore, as holder of those prestigious posts, he enjoys a particularly advantageous position at the heart of the regime. That privileged status is evidenced not only by his considerable political influence, but also by the many State distinctions he has received, underscoring his influential role and his alignment with the regime’s policies. Those distinctions include a highly regarded State prize, awarded personally by President Lukashenko. That direct recognition by the Head of State confirms that the applicant benefits significantly from his affiliations and responsibilities within the regime, illustrating the close convergence between his personal interests and the prevailing political climate.
137    It follows from the foregoing that the Council did not err in finding that the applicant’s functions, including those of Director-General of Belaruskali, and the multiple high positions he holds in Belarus, were, when taken together, sufficient for it to be considered that he benefits from the Lukashenko regime within the meaning of Article 4(1)(b) of Decision 2012/642.
–       The second part of the plea, alleging failure to demonstrate that the applicant was responsible for the repression of civil society
138    The applicant also disputes the other ground for his inclusion on the lists at issue, namely that he shares responsibility for the repression of civil society and supports the Lukashenko regime.
139    In the first place, as regards the allegation that ‘employees of Belaruskali who took part in strikes and peaceful protests in the aftermath of the fraudulent August 2020 presidential elections in Belarus were deprived of premiums and dismissed’, the applicant claims that the right to strike is not an absolute right. It may be limited under certain legal conditions. In particular, the Labour Code of Belarus provides for certain procedural requirements concerning the call for a strike.
140    According to the applicant, in the case of the strike that took place on Belaruskali’s premises in August 2021, none of those requirements was fulfilled.
141    The applicant states that the ‘strike’ itself was announced retroactively by letter dated 18 August 2020 sent on behalf of a self-proclaimed 14-member ‘stachcom’ (strike committee); it lasted for just two days and involved a small number of employees.
142    Moreover, the overwhelming majority of the demands put forward by the self-proclaimed 14-member ‘stachcom’ were of a political nature.
143    The applicant maintains that most of the workers who did not report for duty on 17 and 18 August 2020 returned to their posts on 19 August 2020. Those who did not report for duty on 19 August 2020 but who returned to their posts on 20 August 2020, namely 41 workers, were disciplined for absenteeism, including by being deprived of premiums, but were not dismissed. It is also important to note, it is argued, that, between 30 November 2020 and 20 January 2021, Belaruskali cancelled all such disciplinary sanctions against the workers concerned, and that, between 30 November 2020 and 20 January 2021, the company reinstated all such premiums for all of those workers.
144    The applicant submits that, between 19 August 2020 and 1 March 2021, 122 workers declared themselves to be on a political ‘stachka’ and did not report for duty for prolonged periods of time. All of those workers were dismissed for prolonged absenteeism.
145    Therefore, the claim that workers were dismissed ‘because they participated in protests’ is untrue.
146    In the second place, as regards the statement that ‘[Lukashenko] himself personally threatened to replace the strikers with miners from Ukraine’, the applicant states that it seems to be drawn word for word from a BBC article. That article refers to one of the statements President Lukashenko made during his visit to the agro-industrial complex in Dzerzhinsky (Belarus) on 21 August 2020.
147    In that regard, it is argued, the Court has confirmed that producing a single document to prove a fact is not sufficient.
148    The applicant also maintains that it is clear from that statement that President Lukashenko merely speculated about the employment of workers wishing to work for the applicant, including Ukrainians. There was no threat in his statement.
149    The Council, supported by the Republic of Latvia, disputes that line of argument.
150    In the present case, it should be observed, first of all, that the parties are in agreement on the fact that the strikes and peaceful protests took place in the aftermath of the August 2020 presidential elections in Belarus.
151    In that connection, although the applicant does not dispute the accuracy of the facts relating to the strikes and protests that took place in the aftermath of the August 2020 presidential elections, his interpretation thereof differs to that put forward by the Council. He contests the Council’s assertion that those events led to the intimidation or dismissal of his workers, as the Council reports.
152    It is apparent from the items of evidence produced by the Council that, on 17 and 18 August 2020, 6 300 persons gathered peacefully on Belaruskali’s premises to protest against police brutality. That company responded by dismissing the striking workers, demanding explanations and depriving those workers of premiums, often for a full year. Following the presidential elections of 9 September 2020, the workers of a number of State-owned enterprises, including Belaruskali, organised a strike in support of the protestors’ demands calling for Lukashenko’s resignation, fresh and fair elections, and justice for the victims of police brutality. The strike lasted two days before it was declared unlawful, leading to immediate repression. According to the representatives of the strike committee, formed at the beginning of the strike, Belaruskali’s management board and the security forces used ‘unprecedented repression’ against those who opposed Lukashenko: they were allegedly tortured, beaten, imprisoned for a day and threatened with the removal of their children. Some members of the strike committee faced long prison sentences. The majority of the members of the strike committee were dismissed.
153    Those items of evidence cannot be called into question by the applicant’s arguments alleging, first, the irrelevance thereof and the subjective nature of the manner in which the Belarusian authorities treated Belaruskali’s striking workers; second, that certain working documents concern the way in which the Belarusian authorities treated Belaruskali’s workers and are not relevant to the applicant’s case; third, that the claim that the applicant ‘donated’ public minibuses to the police is incorrect; fourth, that the article accusing the company run by the applicant of providing accommodation to the police is incorrect; fifth, that certain articles describe working conditions at Belaruskali in too negative a light for one of the best industrial complexes in Belarus; and, sixth, that the claims of electoral fraud against the applicant are not supported by sufficient evidence and are based on politically biased sources. The applicant’s claims do not amount to grounds forming the basis for his inclusion on the lists at issue, with the result that they are irrelevant to the examination of the merits of those grounds.
154    As regards the dismissal of workers following the start of the strike and the deprivation of premiums, the applicant claims simply to have complied with Belarusian labour law, arguing that the dismissals were solely on account of the absence of the workers, having deemed the strike to be unlawful. However, the strict application of Belarusian law cannot justify all forms of repression taken against workers expressing their political views. In fact, a situation in which the compliance with national law of a specific action would serve to preclude, solely on those grounds, the possibility of inclusion on the lists at issue would mean that the listing criteria were rendered meaningless, since that would cancel out the Council’s broad discretion in that respect.
155    In that connection, even though the case file does not contain information making it possible to establish, beyond doubt, that the actual ground for dismissing the workers referred to in paragraph 152 above related to their absenteeism, those actions, taken as a whole, clearly indicate a deliberate intention to sanction workers for their participation in activities expressing their opposition to President Lukashenko.
156    Furthermore, it should be noted that the items of evidence submitted by the Council show that the applicant played an active role during the abovementioned strikes. President Lukashenko also ordered him to ‘fire [those] who participated in protests and strikes and … replace them’.
157    The applicant submits that the Council did not raise the question of whether some of the company’s actions were in fact based on orders given by the applicant or on orders given by other authorised persons. He states in that regard that the decision-making procedure relating to labour issues within Belaruskali, for example, is governed by the order of 18 May 2017 on the ‘grant of decision-making rights arising from labour and related relations’, signed by the applicant himself. By that order, the applicant asserts that he delegated – with effect from 2017 and in order to improve how management at the company was organised – certain powers to other officials, including those relating to dismissals and disciplinary action. Accordingly, the Council cannot claim that the applicant is personally responsible for all disciplinary action taken within the company.
158    However, that argument is not such as to call into question the applicant’s responsibility for the facts taken into account by the Council. It may be considered that, as Director-General of Belaruskali, the applicant necessarily assumed responsibility for the activities of that undertaking (see, to that effect, judgment of 13 September 2023, Shatrov v Council, T‑523/21 and T‑216/22, not published, EU:T:2023:532, paragraph 81).
159    As regards President Lukashenko’s statement that the protestors could be replaced by miners from Ukraine, it must be observed that that statement takes on a particular relevance in that context, contrary to the applicant’s claims. That statement forms part of a wider trend of threats and intimidation on the part of the public authorities. It in fact reveals an attitude of contempt, on the part of President Lukashenko, for the right to strike and the concerns of the workers at Belaruskali, where the applicant is Director-General.
160    It follows from the foregoing that the Council did not err in finding, when adopting the initial acts, that the intimidation and dismissal of the workers of Belaruskali who had taken part in the strikes and peaceful protests in the aftermath of the August 2020 presidential elections were sufficient for the applicant to be considered, as Director-General of Belaruskali, to be responsible for the repression of civil society in Belarus within the meaning of Article 4(1)(a) of Decision 2012/642.
161    Consequently, the second plea in law must be rejected in its entirety.
The third plea, alleging infringement of the principle of non-discrimination
162    In the first place, the applicant claims, in essence, that he was treated differently from Company C, which is, however, a company also sanctioned by the EU acts concerning Belarus.
163    He submits that the strike by Belaruskali’s employees took place on 17 and 18 August 2020 and that the dismissal of several workers on account of their prolonged absence from work occurred during the period between 19 August 2020 and 1 March 2021. The applicant was not sanctioned for his legitimate response to those events until 3 June 2022, more than a year later.
164    According to the applicant, Company C is a Syrian airline operating commercial flights between Syria and Belarus and was sanctioned under the EU acts concerning Belarus on 2 December 2021. It ceased operating flights from Syria to Minsk in late 2021 and, in recognition thereof, the restrictive measures against that company were lifted on 18 July 2022.
165    It is therefore argued that, on the one hand, the applicant is being sanctioned for actions, albeit legitimate ones, that had in any case ceased by March 2021, that is to say, more than a year after they occurred, while, on the other hand, the European Union lifted the restrictive measures imposed on an undertaking under the very same regime of restrictive measures very shortly after the undertaking’s actions giving rise to those restrictive measures had come to an end.
166    In the second place, the applicant claims that the legal consequences of participating in an unlawful strike in Belarus are practically identical to those arising in other countries, in particular in Germany.
167    However, so the applicant argues, the Council chose to sanction him for the lawful actions he took in response to the strike and only with respect to workers who were absent from work for prolonged periods of time after the initially announced, albeit unlawful, strike of 17 and 18 August 2020 had ended.
168    According to the applicant, the Council does not seem to consider it necessary to sanction or otherwise reprimand European companies for dismissing workers participating in unlawful strikes.
169    The Council, supported by the Republic of Latvia, disputes that line of argument.
170    It should be recalled that, according to the case-law, the principle of equal treatment, which constitutes a fundamental principle of
law, prohibits comparable situations from being treated differently or different situations from being treated in the same way, unless such difference in treatment is objectively justified (see judgment of 31 May 2018, Kaddour v Council, T‑461/16, EU:T:2018:316, paragraph 152 and the case-law cited).
171    As regards the difference in treatment claimed by the applicant by comparison with Company C, it should be observed that, although the latter was included on the lists of restrictive measures on the basis of the same decision, namely Decision 2012/642, the criteria used to justify those two listings differed. Thus, the listing criterion applied to Company C concerned facilitating the illegal crossing of the external borders of the European Union, which is distinct from the criteria relied on to justify the applicant’s inclusion on the lists at issue.
172    Consequently, it must be held that the applicant is in a different situation to that of Company C.
173    Furthermore, it should be observed that Company C was included on the lists of restrictive measures for an ad hoc activity, namely the transport in Belarus of migrants intending to cross the external borders of the European Union illegally. Since that activity was not repeated, the Council could legitimately consider removing that company from the list.
174    However, as is apparent from the information before the Court and the items of evidence produced by the Council, the applicant’s support for the Lukashenko regime necessarily takes the form of an ongoing activity, since it consists in regular payments of funds into the State budget by Belaruskali, where the applicant is Director-General.
175    In any event, even if the Council had erred in removing an undertaking from the lists at issue, that fact could not reasonably be relied on by the applicant, since the principle of equal treatment must be reconciled with the broad discretion available to the Council when it determines the purpose of restrictive measures (see, to that effect, judgments of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 132; of 6 March 2024, BSW – management company of ‘BMC’ holding v Council, T‑258/22, not published, EU:T:2024:150, paragraph 90; and of 6 March 2024, Mostovdrev v Council, T‑259/22, not published, EU:T:2024:151, paragraph 81).
176    As regards the difference in treatment claimed by the applicant by comparison with other EU countries, it should be noted that the inclusion of the applicant on the lists at issue pursued a specific objective, namely that of increasing the pressure on the Lukashenko regime, particularly in the context of the involvement of Belarus in the Russian aggression against Ukraine and of the repression of civil society and democratic opposition in Belarus.
177    Although that argument is irrelevant in the context of a case concerning restrictive measures under the CFSP, which therefore relate to EU foreign policy, the situation of workers dismissed by employers within the European Union can in no way be compared to that of workers dismissed by the applicant for having taken part in a strike against the Lukashenko regime.
178    Accordingly, the third plea must be rejected in its entirety.
The fourth plea, alleging disproportionate infringement of the applicant’s right to property
179    The applicant submits that the freezing of his assets is a disproportionate restriction of his right to property.
180    First, the applicant argues that the initial acts – in so far as they concern him – have no legal basis and are thus unlawful.
181    Second, the applicant acknowledges that the measures taken against Belarus are aimed at combating violations of international electoral standards and human rights, and at combating the repression of civil society and democratic opposition in Belarus. However, he maintains that his actions do not contribute to those violations and, in that sense, the measures imposed on him do not pursue any of the objectives of the European Union in the context of the measures against Belarus.
182    Third, the applicant claims that the initial acts affect all of his property and economic resources, with prohibitions applying throughout the European Union. Consequently, the restrictions imposed on his right to property are considerable and unjustified.
183    The Council, supported by the Republic of Latvia, disputes that line of argument.
184    In that connection, it should be borne in mind that the right to property is among the general principles of EU law and is enshrined in Article 17 of the Charter.
185    In the present case, the restrictive measures imposed on the applicant constitute protective measures, which are not supposed to deprive the persons concerned of their property. However, the measures at issue undeniably involve a restriction on the use of property rights (see, to that effect, judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraph 167).
186    Nonetheless, the fundamental rights relied on by the applicant are not absolute, and may, therefore, be subject to limitations, as provided for in Article 52(1) of the Charter (see judgment of 13 September 2018, VTB Bank v Council, T‑734/14, not published, EU:T:2018:542, paragraph 138 and the case-law cited).
187    In that regard, it should be noted that, according to Article 52(1) of the Charter, first, ‘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, second, ‘subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’.
188    Consequently, in order to comply with EU law, a limitation on the exercise of the fundamental rights at issue must satisfy three conditions. First, the limitation must be provided for by law. In other words, the measure in question must have a legal basis. Second, the limitation must refer to an objective of general interest, recognised as such by the European Union. Third, the limitation may not be excessive. It must be necessary and proportional to the aim sought, and the ‘essential content’, that is, the substance, of the right or freedom at issue must not be impaired (see, to that effect, judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraphs 170 to 173 and the case-law cited).
189    Those three conditions are satisfied in the present case.
190    In the first place, the restrictive measures at issue are ‘provided for by law’, since they are set out in acts which are of general application that have a clear legal basis in EU law, namely Article 3(1) and Article 4(1) of Decision 2012/642 and Article 2(5) of Regulation No 765/2006. Those provisions are sufficiently foreseeable for the persons concerned as regards their purpose in serving as legal bases for the adoption of restrictive measures liable adversely to affect or limit fundamental rights (see, to that effect, judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraph 175 and the case-law cited).
191    In the second place, it should be borne in mind that, as pointed out in paragraph 72 above, the restrictive measures imposed on the applicant refer to an objective of general interest.
192    Furthermore, they are temporary and reversible.
193    First of all, in accordance with Article 8 of Decision 2012/642 and Article 8a(4) of Regulation No 765/2006, the maintenance of the applicant’s name on the lists at issue is to be kept under constant review in order to determine whether that maintenance is compatible with the listing criteria.
194    Next, Article 5 of Decision 2012/642 and Article 3 of Regulation No 765/2006 provide for the possibility of authorising the use of frozen funds in order to meet basic needs or to meet certain commitments, and of granting specific authorisations permitting the release of funds, other financial assets or other economic resources.
195    In the light of the foregoing, it must be held that the restriction on the applicant’s fundamental rights caused by the restrictive measures imposed on him is in conformity with Article 52(1) of the Charter.
196    It follows that the restrictive measures adopted by the initial acts against the applicant do not disproportionately interfere with his right to property.
197    Therefore, the fourth plea must be rejected.
198    In the light of all the foregoing considerations, the application for partial annulment of the initial acts must be dismissed.
The application for partial annulment of the maintaining acts
199    By a statement of modification, the applicant seeks, pursuant to Article 86 of the Rules of Procedure of the General Court, annulment of the maintaining acts in so far as they concern him, reiterating the pleas in law and arguments raised in the application.
200    The Council is of the view that it has already demonstrated in the defence and the rejoinder that the applicant supported and benefited from the Lukashenko regime, and contends that the evidence available to it justifies maintaining the applicant’s name on the lists at issue.
201    In the context of the first, third and fifth pleas alleging, respectively, infringement of the principle of legality, infringement of the principle of non-discrimination and infringement of the obligation to state reasons, the applicant has failed to submit any arguments in addition to those put forward against the initial acts.
202    Consequently, since the first, third and fifth pleas have been rejected, above, in the context of the examination of the lawfulness of the initial acts (see paragraphs 77, 178 and 36 above, respectively), they must be rejected on the same grounds in so far as they are directed at the maintaining acts.
203    In the context of the sixth plea, alleging infringement of the principle of respect for the rights of the defence, the applicant puts forward a fresh argument relating to the obligation of judicial protection, consisting of the obligation to carry out a periodic review of the initial acts. In essence, the applicant claims that, when deciding to maintain the name of an entity on a list of restrictions, the Council must examine not only the initial reasons for including the entity on the lists at issue, but also the observations and evidence submitted by it.
204    In the context of the fourth plea, which must be examined together with the sixth plea, the applicant claims that, since the Council failed to carry out, in the present case, a proper regular review of his listing and he did not therefore have the benefit of those procedural safeguards, the conditions laid down by the case-law for assessing the proportionality of measures such as the maintaining acts are not satisfied, with the result that those acts are manifestly disproportionate.
205    It should be borne in mind that restrictive measures are measures of a precautionary and, by definition, provisional nature, the validity of which always depends on whether the factual and legal circumstances which led to their adoption continue to apply and on the need to persist with them in order to achieve their objective. It is thus for the Council, in the course of its periodic review of those restrictive measures, to conduct an updated assessment of the situation and to appraise the impact of such measures, in order to determine whether they have made it possible to attain the objectives pursued by the initial inclusion of the names of the persons and entities concerned on the list at issue or whether the same conclusion in respect of those persons and entities can still be drawn (judgment of 12 February 2020, Amisi Kumba v Council, T‑163/18, EU:T:2020:57, paragraphs 58 and 59). In addition, in order to justify retaining a person’s name on the list, the Council is not prohibited from basing its decision on the same evidence justifying the initial inclusion, re-inclusion or previous retention of the name of the person concerned on the list, provided that (i) the reasons given for inclusion remain unchanged and (ii) the context has not changed in such a way that that evidence is now out of date. That context includes not only the situation of the country in respect of which the system of restrictive measures was established, but also the particular situation of the person concerned (see judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 78 and the case-law cited).
206    In the present case, the applicant’s claim as set out in his statement of modification concerning infringement of the Council’s obligation to carry out a periodic review is unfounded.
207    First, by letter of 21 December 2022, the Council informed the applicant of its intention to extend the restrictive measures against him and enclosed additional evidence on which the Council relied in the context of the annual review of the measures, and the applicant submitted observations on the extension of the measures and the new evidence by letter of 12 January 2023.
208    Second, by letter of 24 February 2023, the Council replied to the applicant’s observations. That letter contained detailed arguments explaining the reasons why the Council took the view that the applicant’s arguments were not sufficient for it to alter its assessment and that it was appropriate to continue to apply restrictive measures to the applicant.
209    The applicant was therefore able to submit his comments before the maintaining acts were adopted, and his observations were taken into account by the Council. In addition, all of the arguments on the merits of the grounds for maintaining the applicant’s inclusion on the lists at issue refer not to the issue of judicial protection or the rights of the defence, but to the substance of the case.
210    Moreover, inasmuch as the applicant essentially reiterates the arguments which have already been rejected in the context of the examination of the sixth plea in respect of the initial acts, without submitting fresh arguments concerning the maintaining acts, those arguments must also be rejected in the context of the examination of the lawfulness of the maintaining acts.
211    It follows that the sixth and fourth pleas must be rejected in their entirety.
212    In the context of the second plea, the applicant alleges an error of assessment of the facts and infringement of Article 4(1)(a) and (b) of Decision 2012/642.
213    In that regard, in the first place, it should be noted that, in so far as they concern the applicant, the grounds for the maintaining acts are essentially the same as the grounds for the initial acts, the only difference being the addition of a third sentence to the first paragraph of the grounds, which states: ‘Furthermore, [the applicant] is the Chairman of the supervisory board of JSC Belarussian Potash Company’.
214    Nevertheless, by seeking to challenge that aspect of the grounds for maintaining him on the lists at issue, the applicant restates the argument already put forward in his application to the effect that that factual allegation made by the Council is unfounded, without, however, substantiating that assertion with concrete evidence.
215    However, the information available on the website of the Council of the Republic of the National Assembly, which describes the applicant as a member of that body and which the Council produced as evidence in working document WK 17512/2022 INIT, shows that, on 2 November 2022, the applicant still held the position of Chairman of the supervisory board of JSC Belarussian Potash Company.
216    In addition, in support of the application for partial annulment of the maintaining acts, the applicant reiterates the arguments already relied on in respect of the initial acts. In its defence, the Council reiterates the same arguments as those already put forward to justify the validity of the initial acts.
217    It follows that, for the reasons set out in paragraphs 108 to 137 and 150 to 161 above, the applicant has failed to establish that the grounds for the maintaining acts are vitiated by an error of assessment with regard to the question whether the applicant benefits from and supports the Lukashenko regime and is responsible for the repression of civil society.
218    In the second place, the grounds underpinning the assessment that the applicant benefits from and supports the Lukashenko regime and is responsible for the repression of civil society are free from error of assessment of the facts or error of law and constitute in themselves a sufficient basis for maintaining the applicant’s name on the lists at issue.
219    Consequently, the second plea must be rejected as unfounded and, accordingly, the application for partial annulment of the maintaining acts dismissed.
220    In the light of all of the foregoing considerations, the present action must be dismissed in its entirety.
Costs
221    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to bear his own costs and to pay those of the Council, in accordance with the form of order sought by the Council.
222    Under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Republic of Latvia must be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Mr Ivan Ivanovich Golovaty to bear his own costs and to pay those incurred by the Council of the European Union;
3.      Orders the Republic of Latvia to bear its own costs.
da Silva Passos
Gervasoni
Półtorak
Delivered in open court in Luxembourg on 18 September 2024.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.