62014TO0381(03)
ORDER OF THE GENERAL COURT (Ninth Chamber)
10 June 2016 (
*1
)
‛Action for annulment — Common foreign and security policy — Restrictive measures adopted in view of the situation in Ukraine — Freezing of funds — List of persons, entities and bodies covered by the freezing of funds and economic resources — Inclusion of the applicant’s name — Period allowed for commencing proceedings — Admissibility — Proof that inclusion on the list is justified — Manifestly well-founded action’
In Case T‑381/14,
Viktor Pavlovych Pshonka, residing in Moscow (Russia), represented by C. Constantina and J.-M. Reymond, lawyers,
applicant,
v
Council of the European Union, represented by V. Piessevaux and A. Vitro, acting as Agents,
defendant,
supported by
European Commission, represented by S. Bartelt and D. Gauci, acting as Agents,
intervener,
APPLICATION for annulment of Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26) and of Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 1), in so far as they relate to the applicant,
THE GENERAL COURT (Ninth Chamber),
composed of G. Berardis (Rapporteur), President, O. Czúcz and A. Popescu, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1
The present case has been brought in connection with the restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine.
2
The applicant, Mr Viktor Pavlovych Pshonka, is the former Prosecutor General of Ukraine.
3
On 5 March 2014, the Council of the European Union adopted, on the basis of Article 29 TEU, Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26, ‘the contested decision’).
4
Article 1(1) and (2) of the contested decision provides as follows:
‘1.   All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations in 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.’
5
The detailed rules for implementation of the restrictive measures at issue are defined in the subsequent paragraphs of that article.
6
On the same date, the Council adopted, on the basis of Article 215(2) TFEU, Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 1, ‘the contested regulation’).
7
In accordance with the contested decision, the contested regulation requires the adoption of the restrictive measures at issue and lays down the detailed rules for implementation of those restrictive measures in terms which are essentially identical to those used in that decision.
8
The names of the persons covered by the contested decision and regulation appear on the list in the annex to that decision and in Annex I to that regulation (‘the list’) together with, inter alia, the reasons for their listing.
9
The applicant’s name appeared on the list, together with the identifying information ‘former Prosecutor General of Ukraine’ and the following statement of reasons:
‘Person subject to criminal proceedings in Ukraine to investigate crimes in connection with the embezzlement of Ukrainian State funds and their illegal transfer outside Ukraine.’
10
On 6 March 2014, the Council published in the Official Journal of the European Union a notice for the attention of the persons subject to the restrictive measures provided for in the contested decision and in the contested regulation (OJ 2014 C 66, p. 1). According to that notice, ‘the persons concerned may submit a request to the Council, together with supporting documentation, that the decision to include them on the ... list should be reconsidered ...’. The notice also draws the attention of the persons concerned ‘to the possibility of challenging the Council’s decision before the [General Court], in accordance with the conditions laid down in Article 275, second paragraph, [TFEU], and Article 263, fourth and sixth paragraphs, [TFEU]’.
11
The contested decision was amended by Council Decision (CFSP) 2015/143 of 29 January 2015 amending Decision 2014/119 (OJ 2015 L 24, p. 16), which entered into force on 31 January 2015. As to the criteria for the designation of persons covered by the restrictive measures at issue, according to Article 1 of that decision, Article 1(1) of the contested decision is replaced by the following:
‘1.   All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations in Ukraine, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.
For the purpose of this Decision, persons identified as responsible for the misappropriation of Ukrainian State funds include persons subject to investigation by the Ukrainian authorities:
(a)
for the misappropriation of Ukrainian public funds or assets, or being an accomplice thereto; or
(b)
for the abuse of office as a public office-holder in order to procure an unjustified advantage for him- or herself or for a third party, and thereby causing a loss to Ukrainian public funds or assets, or being an accomplice thereto.’
12
Council Regulation (EU) 2015/138 of 29 January 2015 amending Regulation No 208/2014 (OJ 2015 L 24, p. 1) amended the latter in accordance with Decision 2015/143.
13
The contested decision and regulation were subsequently amended by Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119 (OJ 2015 L 62, p. 25) and by Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation No 208/2014 (OJ 2015 L 62, p. 1). Decision 2015/364 amended Article 5 of the contested decision by extending the application of the restrictive measures in respect of the applicant until 6 March 2016. Implementing Regulation 2015/357 replaced Annex I to the contested regulation accordingly.
14
By those measures, the applicant’s name was maintained on the list, with the identifying information ‘former Prosecutor General of Ukraine’ and the following new statement of reasons:
‘Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets.’
15
The applicant did not bring any proceedings against those measures.
Procedure and forms of order sought
16
The applicant brought the present action by application lodged at the Court Registry on 30 May 2014.
17
By separate document, lodged at the Court Registry on 9 September 2014, the Council raised a plea of inadmissibility under Article 114(1) of the Rules of Procedure of the General Court of 2 May 1991.
18
By documents lodged at the Court Registry on 19 and 29 September 2014, the European Commission and Ukraine respectively sought leave to intervene in the present proceedings in support of the form of order sought by the Council.
19
By letter lodged at the Court Registry on 24 December 2014, Ukraine informed the Court that it was withdrawing its intervention.
20
By order of the General Court (Ninth Chamber) of 7 January 2015, a decision on the plea of inadmissibility was reserved for the final judgment, in accordance with Article 114(4) of the Rules of Procedure of 2 May 1991.
21
The Council lodged its defence on 24 February 2015. The applicant did not lodge a reply.
22
By order of 11 March 2015, the President of the Ninth Chamber of the General Court ordered that Ukraine be removed from the register as an intervener.
23
By order of 25 March 2015, the President of the Ninth Chamber of the General Court granted the Commission leave to intervene. The intervener lodged its statement in intervention, and the Council its observations on that statement, within the prescribed periods. By letter of 3 July 2015, the applicant waived his right to lodge observations.
24
By letter of 16 July 2015, the Court Registry informed the parties that the written part of the procedure had been closed.
25
By reasoned letter lodged at the Court Registry on 17 August 2015, the Council requested a hearing in the oral part of the procedure, pursuant to Article 106 of the Rules of Procedure of the General Court.
26
By letter of 20 November 2015, the Court Registry asked the parties to state their views on the applicability of Article 132 of the Rules of Procedure to the present case in view of the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806), by which the Court annulled the contested decision and the contested regulation in so far as they concerned the applicant in that case. The parties replied within the prescribed period.
27
The applicant claims, in essence, that the Court should:
—
reject the plea of inadmissibility;
—
annul the contested decision and regulation, in so far as they concern him;
—
order the Council to pay the costs.
28
The Council contends that the Court should:
—
principally, dismiss the action as inadmissible;
—
in the alternative, dismiss the action as unfounded;
—
order the applicant to pay the costs.
29
The Commission contends that the action should be dismissed.
Law
30
Under Article 132 of the Rules of Procedure, where the Court of Justice or the General Court has already ruled on one or more questions of law identical to those raised by the pleas in law of the action and the General Court finds that the facts have been established, it may, after the written part of the procedure has been closed, after hearing the parties, decide by reasoned order in which reference is made to the relevant case-law to declare the action manifestly well founded.
31
In the present case, the Council put forward, by separate document, a plea of inadmissibility which, notwithstanding that a decision on it was reserved for the final judgment, remains subject to determination by the Court. The Court, considering that it has sufficient information available to it from the material in the file, has decided to give a ruling without taking further steps in the proceedings.
The plea of inadmissibility raised by the Council
32
The Council claims that the present action against the contested decision and regulation is inadmissible because it was brought out of time. More particularly, recalling the terms of the sixth paragraph of Article 263 TFEU and referring to the judgment of 23 April 2013 in Gbagbo and Others v Council (C‑478/11 P to C‑482/11 P, EU:C:2013:258), the Council claims that the two-month period allowed for bringing proceedings started to run from the communication to the applicant of the decision to enter his name on the list, which took place through the publication of a notice in the Official Journal of the European Union (see paragraph 10 above), since the Council did not know the applicant’s address.
33
In that regard, it maintains that Article 102(1) of the Rules of Procedure of 2 May 1991, according to which the period allowed for bringing proceedings runs from the end of the 14th day after publication of the measure, applies only where the period allowed for commencing proceedings against a measure starts to run from the publication of that measure, which is not the case here. Furthermore, it claims that it is apparent from the judgment of 23 April 2013 in Gbagbo and Others v Council (C‑478/11 P to C‑482/11 P, EU:C:2013:258) that where a measure has been communicated to the persons and entities concerned through the publication of a notice in the Official Journal of the European Union, those persons or entities cannot rely on such publication in order to defer the starting point of the period for bringing proceedings.
34
Accordingly, in this case, the two-month period for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU, extended on account of distance by a single period of 10 days as provided in Article 102(2) of the Rules of Procedure of 2 May 1991, expired, according to the Council, on 16 May 2014. The Council claims that this action, brought on 30 May 2014, is therefore inadmissible.
35
The applicant contests the Council’s arguments and contends that the action was not brought out of time.
36
First of all, it must be borne in mind that, as provided in the sixth paragraph of Article 263 TFEU, an action for annulment must be instituted within two months of the publication of the contested measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.
37
According to the case-law, the principle of effective judicial protection means that the European Union authority which adopts an act imposing restrictive measures against a person or entity is bound to communicate to the person or entity concerned the grounds on which it is based, so far as possible, either when that act is adopted or, at the very least, as swiftly as possible after it has been adopted in order to enable that person or entity to exercise its right to bring an action (see judgment of 16 November 2011 in Bank Melli Iran v Council, C‑548/09 P, EU:C:2011:735, paragraph 47 and the case-law cited).
38
That situation is a consequence of the particular nature of the acts imposing restrictive measures on a person or entity, which at the same time resemble both acts of general application, in that they impose on a category of addressees determined in a general and abstract manner a prohibition on, inter alia, making available funds and economic resources to persons and entities named in the lists contained in their annexes, and also a bundle of individual decisions affecting those persons and entities (see judgment of 23 April 2013 in Gbagbo and Others v Council, C‑478/11 P to C‑482/11 P, EU:C:2013:258, paragraph 56 and the case-law cited).
39
In the present case, the principle of effective judicial protection is given specific effect in Article 2(2) of the contested decision and Article 14(2) of the contested regulation, which provide that the Council is to communicate its decision, including the grounds for the inclusion of their name in the list of persons and entities covered by the restrictive measures, to the person or entity concerned, either directly, if the address is known, or through the publication of a notice, providing such person or entity with an opportunity to present observations.
40
Thus, the period for bringing an action for the annulment of an act imposing restrictive measures on a person or entity only begins to run either from the date of the individual communication of that act to the party concerned, if his address is known, or, if it is not, from the date of publication of a notice in the Official Journal of the European Union (see, to that effect, judgment of 23 April 2013 in Gbagbo and Others v Council, C‑478/11 P to C‑482/11 P, EU:C:2013:258, paragraphs 59 to 62).
41
It must be stated in that regard that the Council is not free to choose arbitrarily the means of communication of its decisions to the persons concerned. It is clear from paragraph 61 of the judgment of 23 April 2013 in Gbagbo and Others v Council (C‑478/11 P to C‑482/11 P, EU:C:2013:258) that the Court of Justice intended that indirect communication of acts imposing restrictive measures by means of the publication of a notice in the Official Journal of the European Union should be permissible solely in cases where it was impossible for the Council to undertake individual communication. To conclude otherwise would allow the Council a convenient means of evading its obligation to effect individual communication (judgments of 3 July 2014 in Zanjani v Council, T‑155/13, not published, EU:T:2014:605, paragraph 36; Sorinet Commercial Trust Bankers v Council, T‑157/13, not published, EU:T:2014:606, paragraph 38; and Sharif University of Technology v Council, T‑181/13, not published, EU:T:2014:607, paragraph 31).
42
Moreover, 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 in Mayaleh v Council, T‑307/12 and T‑408/13, EU:T:2014:926, paragraph 61).
43
In the present case, the Council states that the applicant’s address was not known to it when the contested decision and regulation were adopted, which the applicant does not dispute.
44
Since the Council had no choice but to communicate the entry of the applicant’s name on the list through the publication of a notice in the Official Journal of the European Union, the date of publication of that notice is the starting point for the period allowed for bringing an action in the present case.
45
As regards the calculation of that period, it will be recalled that, under Article 102(1) of the Rules of Procedure of 2 May 1991, where the period of time allowed for commencing proceedings against a measure adopted by an institution runs from the publication of that measure, that period is to be calculated from the end of the 14th day after publication thereof in the Official Journal of the European Union. In accordance with the provisions of Article 102(2) of those rules, that period is also to be extended on account of distance by a single period of 10 days.
46
In that context, the Council’s argument that Article 102(1) of the Rules of Procedure of 2 May 1991 was not applicable in the present case cannot succeed.
47
First of all, it is clear from the wording of Article 102(1) of the Rules of Procedure of 2 May 1991 that the 14-day extension is applicable to measures in respect of which the period allowed for commencing proceedings runs from the date of their publication, which means that only measures which are notified are excluded from its scope. That provision draws no distinction according to the type of measure published in the Official Journal of the European Union. It may therefore be concluded that, provided that a measure has been published and that the date of publication of that measure constituted the starting point of the period allowed for commencing proceedings laid down in the sixth paragraph of Article 263 TFEU, Article 102(1) of the Rules of Procedure of 2 May 1991 is applicable (see, to that effect, judgments of 3 July 2014 in Zanjani v Council, T‑155/13, not published, EU:T:2014:605, paragraphs 40 and 41, and Sorinet Commercial Trust Bankers v Council, T‑157/13, not published, EU:T:2014:606, paragraphs 42 and 43).
48
Further, the objective of the 14-day period laid down in Article 102(1) of the Rules of Procedure of 2 May 1991 is to ensure that interested parties have sufficient time within which to bring an action against published measures and, consequently, to observe the right to effective judicial protection, as laid down in Article 47 of the Charter of Fundamental Rights of the European Union (judgment of 26 September 2013 in PPG and SNF v ECHA, C‑625/11 P, EU:C:2013:594, paragraph 35).
49
It must also be observed that the publication in the Official Journal of the European Union of a notice concerning the listing of persons and entities which are subject to restrictive measures cannot be treated as equivalent to notification of those measures to the persons and entities concerned. Where there is notification of an act, it may be presumed that it is available to the person to whom it is addressed on the date of notification. There can be no such presumption where acts of individual scope, such as restrictive measures, are communicated indirectly to the persons and entities concerned by means of the publication of a notice in the Official Journal of the European Union. Article 102(1) of the Rules of Procedure of 2 May 1991 provides for a period of 14 days on the expiry of which it may reasonably be presumed that the Official Journal of the European Union is in fact available in all Member States and in non-Member States. Consequently, the 14-day extension laid down in that provision must apply to all measures communicated by means of publication in the Official Journal of the European Union, including measures of individual scope communicated to the persons concerned by means of the publication of a notice in the Official Journal of the European Union (judgments of 3 July 2014 in Zanjani v Council, T‑155/13, not published, EU:T:2014:605, paragraphs 42 and 43, and Sorinet Commercial Trust Bankers v Council, T‑157/13, not published, EU:T:2014:606, paragraphs 44 and 45).
50
Lastly, it is evident from the case-law that the application of Article 102(1) of the Rules of Procedure of 2 May 1991 serves the objective of safeguarding the right of the persons concerned to have communicated to them restrictive measures imposed on them, where appropriate by means of the publication of a notice in the Official Journal of the European Union (judgments of 3 July 2014 in Zanjani v Council, T‑155/13, not published, EU:T:2014:605, paragraph 44, and Sorinet Commercial Trust Bankers v Council, T‑157/13, not published, EU:T:2014:606, paragraph 46).
51
Where the addresses of the persons or entities subject to restrictive measures are not known, or where it is impossible to communicate those measures directly, if indirect communication of such measures, by means of the publication of a notice in the Official Journal of the European Union, were subject to the rules relating to the calculation of time limits applicable to individual notification, that would deprive the persons concerned of the 14-day extension of time for commencing proceedings that runs from the date of publication of the measure, laid down in Article 102(1) of the Rules of Procedure of 2 May 1991, although they would not be in a position to benefit from the safeguards deriving from direct communication. In such circumstances, the obligation to communicate the restrictive measures indirectly, by means of the publication of a notice, the purpose of which is in principle to confer additional safeguards on the persons concerned, would have the paradoxical effect of placing them in a less favourable situation than that which would arise from the mere publication of the contested acts in the Official Journal of the European Union (see, to that effect, judgments of 4 February 2014 inSyrian Lebanese Commercial Bank v Council, T‑174/12 and T‑80/13, EU:T:2014:52, paragraphs 65 and 66; of 3 July 2014 in Zanjani v Council, T‑155/13, not published, EU:T:2014:605, paragraph 45; and Sorinet Commercial Trust Bankers v Council, T‑157/13, not published, EU:T:2014:606, paragraph 47).
52
It follows from the foregoing that the Council cannot reasonably base its argument on the judgment of 23 April 2013 in Gbagbo and Others v Council (C‑478/11 P to C‑482/11 P, EU:C:2013:258), in which the Court of Justice specifically stressed the fact that the obligation to communicate individually was intended primarily to protect individuals. Consequently, that judgment cannot be invoked in order to subject individuals to treatment that would be less favourable to them than that which would result from mere publication of the acts containing the restrictive measures against them (see, to that effect, judgment of 4 February 2014 in Syrian Lebanese Commercial Bank v Council, T‑174/12 and T‑80/13, EU:T:2014:52, paragraph 67).
53
It must, moreover, also be held that the Council erred in basing its argument on the judgment of 9 July 2014 in Al-Tabbaa v Council (T‑329/12 and T‑74/13, not published, EU:T:2014:622), referring as it does in particular to paragraph 59 of that judgment. In that paragraph, it is noted, first of all, that the acts at issue had been communicated to the applicant, on the one hand, by means of a letter notified to the applicant’s representatives and, on the other, by means of the publication of a notice in the Official Journal of the European Union, both of which happened on the same day. Next, the Court found that the action brought against those acts was not out of time since it was brought before the expiry of the shortest possible period for bringing an action, namely the period calculated from the date of notification to the applicant’s representative. It follows from this that it was not necessary, in that case, to set out the calculation of the period for bringing an action that ran from publication of the notice, to which Article 102(1) of the Rules of Procedure of 2 May 1991 applied.
54
That last finding is not affected by the fact that paragraph 59 of the judgment of 9 July 2014 in Al-Tabbaa v Council (T‑329/12 and T‑74/13, not published, EU:T:2014:622) makes clear that, in both cases, the periods for bringing proceedings are extended on account of distance by a single period of 10 days pursuant to Article 102(2) of the Rules of Procedure of 2 May 1991. First, that provision applies irrespective of the nature of the event that triggers the period for bringing an action and, secondly, the application of that provision does not preclude the application of Article 102(1) of the Rules of Procedure of 2 May 1991.
55
In the present case, the Council published a notice in the Official Journal of the European Union of 6 March 2014 concerning the inclusion of the applicant’s name on the list. The period of two months, extended by the period of 14 days laid down in Article 102(1) of the Rules of Procedure of 2 May 1991 and, on account of distance, by the single period of 10 days laid down in Article 102(2) of those rules, therefore expired on 30 May 2014.
56
Since the present action was lodged at the Court Registry on that date, it was brought within the legal time limit, and accordingly the Council’s plea of inadmissibility must be rejected.
Substance
57
In support of the action, the applicant relies on three pleas in law. In the context of the first plea, which alleges a lack of competence on the part of the Council and encroachment on the competences of the ‘natural judge’, he raises a plea of illegality, under Article 277 TFEU, in respect of Article 3 of the contested regulation in so far as the text of that article was adopted contrary to Article 215(2) TFEU. The second plea alleges a manifest error of assessment of the facts. The third plea, which alleges infringement of fundamental rights, is in seven parts, alleging, respectively, failure to state reasons, infringement of fundamental rights, infringement of the right to a fair hearing, infringement of the right to the presumption of innocence, infringement of the right to effective judicial review, infringement of the right to property and serious harm to the applicant’s reputation.
58
The Court considers it appropriate to begin by examining the second plea, in support of which the applicant submits, in essence, that the restrictive measures against him were adopted without a sufficiently solid factual basis.
59
That plea raises a question of law identical to that on which the Court has already ruled in the judgments of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806); and of 28 January 2016 in Azarov v Council (T‑331/14, EU:T:2016:49); Azarov v Council (T‑332/14, not published, EU:T:2016:48); Klyuyev v Council (T‑341/14, EU:T:2016:47); Arbuzov v Council (T‑434/14, not published, EU:T:2016:46); and Stavytskyi v Council (T‑486/14, not published, EU:T:2016:45), which have become final and now have the absolute authority of res judicata.
60
In the present case, according to the applicant, the contested decision and regulation contain only very brief statements of reasons to justify the inclusion of his name on the list, merely indicating that he is subject to an investigation in Ukraine for involvement in crimes in connection with the embezzlement of State funds and their illegal transfer outside Ukraine. According to the applicant, the reasons on which the Council relied do not meet the conditions set by the contested decision and regulation and are not supported by any evidence whatsoever. Moreover, the applicant submits that no criminal investigation had been initiated against him in connection with the embezzlement of State funds or an illegal transfer outside Ukraine before or at the moment of the adoption of the contested decision and regulation. The Council, he claims, therefore made a manifest error of assessment of the facts of the case or assessed those facts in an arbitrary way.
61
The Council contends that the grounds for the inclusion of the applicant’s name on the list have a solid factual basis. Those grounds are based on a letter of 3 March 2014 from the Office of the Prosecutor General of Ukraine to the High Representative of the Union for Foreign Affairs and Security Policy (‘the letter of 3 March 2014’), informing the Council that investigations were being conducted into the involvement of, inter alia, the applicant in crimes in connection with the embezzlement of State funds and their illegal transfer outside Ukraine, which corresponds to the statement of reasons concerning the applicant contained in the contested decision and regulation. Furthermore, in subsequent letters, the Office of the Prosecutor General of Ukraine had provided additional information about the investigations concerning the applicant and the nature of the allegations against him. In that regard, the Council contends that the fact that no criminal proceedings had been started against the applicant did not prevent it, in the light of the principles established by the case-law, from validly identifying the applicant as being responsible for misappropriation of Ukrainian State funds.
62
As was noted in paragraph 38 of the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806), although the Council has a broad discretion as regards the general criteria to be taken into consideration for the purpose of adopting restrictive measures, the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to include or to maintain a person’s name on the list of persons subject to restrictive measures, the Courts of the European Union are to ensure that that decision, which affects that person 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, are substantiated by sufficiently specific and concrete evidence (see judgment of 21 April 2015 in Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraphs 41 and 45 and the case-law cited).
63
As in the case that gave rise to the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraph 39), in the present case, in accordance with the criterion laid down in Article 1(1) of the contested decision, restrictive measures are to be adopted against persons having been identified as responsible for the misappropriation of State funds. Furthermore, it is evident from recital 2 of that decision that the Council adopted those measures ‘with a view to consolidating and supporting the rule of law ... in Ukraine’.
64
The applicant’s name was included on the list on the ground that he was a ‘person subject to criminal proceedings in Ukraine to investigate crimes in connection with the embezzlement of Ukrainian State funds and their illegal transfer outside Ukraine’. It follows from this that the Council regarded the applicant as being the subject of a preliminary investigation or inquiry, which had not (or had not yet) culminated in the bringing of a formal charge, because of his alleged involvement in the misappropriation of public funds.
65
As in the case that gave rise to the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraph 41), the Council relied in support of the ground for the applicant’s listing on the letter of 3 March 2014 as well as on other evidence that post-dated the contested decision and regulation.
66
The letter of 3 March 2014 can be divided into two parts. The first part states that the ‘law-enforcement agencies of Ukraine’ have launched a number of criminal proceedings to investigate crimes committed by (eight) former senior officials, with regard to whom the investigation into the abovementioned offences has made it possible to establish the embezzlement of State funds in sizeable amounts and the further illegal transfer of those funds outside the territory of Ukraine. The names of those senior officials, which include the applicant’s (the only one whose name has not been redacted), are then listed. The second part adds that ‘the investigation verifies the involvement of other senior officials representing former authorities in the same sort of crimes’, and that it is planned to notify them shortly of the launch of that investigation. The names of those other senior officials (of whom there are 10 and whose names have all been redacted) are also then listed.
67
It is not disputed that the applicant was identified on that basis alone ‘as responsible for the misappropriation of Ukrainian State funds’ within the meaning of Article 1(1) of the contested decision.
68
As in the case that gave rise to the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraph 42), the letter of 3 March 2014 is the only piece of evidence lodged by the Council during the course of these proceedings which pre-dates the contested decision and regulation.
69
By analogy with the Court’s ruling in its judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraphs 43 and 44), it must be held that, although that letter was sent by a high judicial body of a non-Member country, it contains only a general, generic statement linking the applicant’s name, along with those of other former senior officials, to an investigation which, in essence, is said to have established the embezzlement of public funds. The letter does not provide any details as to the establishment of the acts which the investigation conducted by the Ukrainian authorities was in the process of verifying and, still less, as to the applicant’s individual liability, even if presumed, in respect of those acts (see also, to that effect, judgment of 28 January 2016 in Azarov v Council, T‑332/14, not published, EU:T:2016:48, paragraph 46).
70
It should further be noted that, in contrast to the judgment of 27 February 2014 in Ezz and Others v Council (T‑256/11, EU:T:2014:93, paragraphs 57 to 61), upheld on appeal by the judgment of 5 March 2015 in Ezz and Others v Council (C‑220/14 P, EU:C:2015:147), invoked by the Council, in the present case the Council did not have any information regarding the acts or conduct specifically imputed to the applicant by the Ukrainian authorities and, moreover, even if it is examined in its context, the letter of 3 March 2014 cannot constitute a sufficiently solid factual basis, within the meaning of the case-law cited in paragraph 62 above, for including the applicant’s name on the list on the ground that he was identified ‘as responsible’ for the misappropriation of State funds (see, to that effect, judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraphs 46 to 48).
71
Irrespective of the stage of the proceedings to which the applicant was said to be subject, the Council could not adopt restrictive measures against him without knowing the acts of misappropriation of State funds which the Ukrainian authorities were specifically alleging against him. It is only by being aware of such acts that the Council would have been in a position to establish that they were capable, first, of being categorised as misappropriation of State funds and, secondly, of undermining the rule of law in Ukraine, the consolidation and support of which, as recalled in paragraph 63 above, constitute the objective of the adoption of the restrictive measures at issue (see, to that effect, judgment of 28 January 2016 in Azarov v Council, T‑331/14, EU:T:2016:49, paragraph 50).
72
Furthermore, it is for 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 (see judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraph 45 and the case-law cited).
73
It must therefore be concluded that, as in the Court’s ruling in the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraph 50), the inclusion of the applicant’s name on the list does not comply with the criteria set by the contested decision for the designation of persons covered by the restrictive measures at issue.
74
It follows from this that the present action must be declared manifestly well founded, in accordance with Article 132 of the Rules of Procedure.
75
The Council’s arguments in reply to a question from the Court (see paragraph 26 above), which seek to challenge the application of that article to the present case, cannot succeed.
76
As a preliminary point, the Council submits that the application of Article 132 of the Rules of Procedure, which provides for a derogation from provisions of EU primary law and limits the parties’ procedural rights, should be limited to exceptional cases, namely those where it is beyond any doubt that the action is well founded. In essence, the Council raises three objections in that regard. The first is that paragraphs 38 to 50 of the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806) do not relate to a question of law but only to matters of fact. The second is that the facts, within the meaning of that article, are not established. The third, also invoked by the Commission, relates to the fact that a decision on the Council’s plea of inadmissibility was reserved for the final judgment. The Council argues that, logically, the action brought by the applicant can be declared manifestly well founded only if the plea of inadmissibility raised by the Council is declared manifestly unfounded, which has not been the case in this instance.
77
As regards the first objection, it must be observed that paragraphs 38 to 50 of the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806) constitute the whole of the Court’s assessment. To claim, as the Council does, that those paragraphs relate only to matters of fact would be tantamount to saying that that judgment is a purely factual judgment. While it is true that the key part of that judgment consists of an examination of the only factual element capable of being examined, that is to say, the letter of 3 March 2014, the fact remains that that examination proceeded in the context of a reminder of the case-law and legal principles and is at the heart of the Court’s legal assessment of the way in which the Council discharged the burden of proof in relying on that letter. Furthermore, as is apparent from paragraph 41 of the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806), the Council used the letter in question to include not only Mr Portnov’s name on the list but also those of other former senior officials, including the applicant, and the Court considered that that letter did not constitute a sufficiently solid factual basis within the meaning of the case-law cited in paragraph 62 above. It follows from this that the question of law on which the Court ruled — that is whether the reasons for the listing, which were essentially the same for all the persons concerned, were substantiated by sufficiently specific and concrete evidence — is identical, taking into account the specific features of proceedings relating to restrictive measures, to that raised by the second plea in the present case.
78
As regards the second objection, the Council submits, in essence, that Article 132 of the Rules of Procedure could be applied in cases relating to restrictive measures only where the Court finds that the Council has shown that the facts on which it relied have been established, and not in cases where the Court finds that it has not.
79
It should be borne in mind that, according to Article 132 of the Rules of Procedure, it is for the Court to find that the facts have been established. In that regard, it must be observed that, contrary to what the Council appears to be claiming, the facts established do not have to be the same as those held to be relevant in the case that gave rise to the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806). In the present case, the correctness of the factual element on which the Council relied in listing the applicant — that is the fact that, according to the letter of 3 March 2014, there was a preliminary investigation or inquiry by the Ukrainian authorities concerning the applicant for misappropriation of public funds — is not disputed by the parties and may therefore be regarded as established.
80
The fact that a letter such as the letter of 3 March 2014 referring to those inquiries or investigations cannot be regarded as sufficient, by itself, to substantiate the reasons for the applicant’s listing is, on the other hand, the key element of the legal assessment of the way in which the Council discharged its burden of proof (see paragraph 77 above), which does not amount to calling into question the facts described in that letter.
81
As regards the third objection, it should be noted that, in accordance with the case-law, the possibility of dismissing an action as inadmissible by reasoned order, and therefore without holding a hearing, is not precluded by the fact that the Court may have previously made an order reserving for the final judgment a plea put forward on the basis of Article 114 of the Rules of Procedure of 2 May 1991 (see, to that effect, order of 19 February 2008 in Tokai Europe v Commission, C‑262/07 P, not published, EU:C:2008:95, paragraphs 26 to 28). That conclusion applies equally to the possibility of rejecting the plea of inadmissibility where the Court intends, as in the present case, to declare that the action is manifestly well founded as provided in Article 132 of the Rules of Procedure, which expressly provides that the Court may rule at the end of a written procedure alone.
82
In the light of all the foregoing considerations, the Court must therefore uphold the action, which is manifestly well founded within the meaning of Article 132 of the Rules of Procedure, inasmuch as it seeks annulment of the contested decision in so far as it concerns the applicant.
83
For the same reasons, the contested regulation must be annulled in so far as it relates to the applicant.
Costs
84
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 Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
85
Furthermore, under Article 138(1) of the Rules of Procedure, the institutions which have intervened in proceedings are to bear their own costs. The Commission must therefore bear its own costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby orders:
1.
Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, and Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine are annulled in so far as they relate to Mr Viktor Pavlovych Pshonka.
2.
The Council of the European Union shall bear its own costs and pay those incurred by Mr Pshonka.
3.
The European Commission shall bear its own costs.
Luxembourg, 10 June 2016.
E. Coulon
Registrar
G. Berardis
President
(
*1
)	Language of the case: English.