JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
8 November 2017 (*)
(Common foreign and security policy — Restrictive measures taken in view of the situation in Ukraine — Freezing of funds — List of persons, entities and bodies subject to the freezing of funds and economic resources — Maintenance of the applicant’s name on the list — Duty to state reasons — Legal basis — Manifest error of assessment — Rights of defence — Right to property — Right to reputation — Proportionality — Protection of fundamental rights equivalent to that guaranteed in the European Union — Plea of illegality)
In Case T‑245/15,
Oleksandr Viktorovych Klymenko, residing in Moscow (Russia), represented initially by B. Kennelly QC, J. Pobjoy, Barrister, and R. Gherson, Solicitor, subsequently by B. Kennelly, J. Pobjoy, R. Gherson and T. Garner, Solicitor, and lastly by M. Phelippeau, lawyer,
applicant,
v
Council of the European Union, represented by A. Vitro and J.-P. Hix, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU seeking the annulment of (i) Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2015, L 62, p. 25) and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2015, L 62, p. 1); (ii) Council Decision (CFSP) 2016/318 of 4 March 2016 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2016 L 60, p. 76) and Council Implementing Regulation (EU) 2016/311 of 4 March 2016 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2016 L 60, p. 1), and (iii) Council Decision (CFSP) 2017/381 of 3 March 2017 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2017 L 58, p. 34) and Council Implementing Regulation (EU) 2017/374 of 3 March 2017 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2017 L 58, p. 1), in so far as the applicant’s name was retained on the list of persons, entities and bodies subject to those restrictive measures,
THE GENERAL COURT (Sixth Chamber),
composed of G. Berardis (Rapporteur), D. Spielmann and Z. Csehi, Judges,
Registrar: L. Grzegorczyk, Administrator,
having regard to the written part of the procedure and further to the hearing on 6 April 2017,
gives the following
Judgment
Background to the dispute
1        The present case has been brought against the background of the restrictive measures adopted against certain persons, entities and bodies in view of the situation in Ukraine, following the suppression of demonstrations in Independence Square in Kiev (Ukraine).
2        The applicant, Mr Oleksandr Viktorovych Klymenko, held the post of Minister for Revenue and Duties 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). 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).
4        Recitals 1 and 2 of Decision 2014/119 read as follows:
‘(1)      On 20 February 2014, the Council condemned in the strongest terms all use of violence in Ukraine. It called for an immediate end to the violence in Ukraine, and full respect for human rights and fundamental freedoms. It called upon the Ukrainian Government to exercise maximum restraint and opposition leaders to distance themselves from those who resort to radical action, including violence.
(2)      On 3 March 2014, the Council agreed to focus restrictive measures on the freezing and recovery of assets of persons identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations, with a view to consolidating and supporting the rule of law and respect for human rights in Ukraine.’
5        Article 1(1) and (2) of Decision 2014/119 provides as follows:
‘1. All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for 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.’
6        The detailed rules for the implementation of the restrictive measures at issue are laid down in Article 1(3) to (6) of Decision 2014/119.
7        In accordance with Decision 2014/119, Regulation No 208/2014 requires the adoption of the restrictive measures at issue and lays down the detailed rules for the 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 Decision 2014/119 and by Regulation No 208/2014 appear on the list in the annex to that decision and in Annex I to that regulation (‘the list at issue’) along with, in particular, a statement of the reasons for their listing. Initially, the applicant’s name did not appear on the list at issue.
9        Decision 2014/119 and Regulation No 208/2014 were amended by Council Implementing Decision 2014/216/CFSP of 14 April 2014 implementing Decision 2014/119 (OJ 2014 L 111, p. 91) and by Council Implementing Regulation (EU) No 381/2014 of 14 April 2014 implementing Regulation No 208/2014 (OJ 2014 L 111, p. 33).
10      By Implementing Decision 2014/216 and Implementing Regulation No 381/2014 the applicant’s name was added to the list at issue with the identifying information ‘former Minister of Revenues and Charges’ and the following statement of reasons:
‘Person subject to investigation in Ukraine for involvement in crimes in connection with the embezzlement of Ukrainian State funds and their illegal transfer outside Ukraine.’
11      Decision 2014/119 was also amended by Council Decision (CFSP) 2015/143 of 29 January 2015 (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 Decision 2015/143, Article 1(1) of Decision 2014/119 was 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      By application lodged at the Court Registry on 30 June 2014, the applicant brought an action, registered as Case T‑494/14, seeking, inter alia, the annulment of Implementing Decision 2014/216 and Implementing Regulation No 381/2014 in so far as they related to him.
14      By letter of 2 February 2015, the Council informed the applicant of its intention to maintain the restrictive measures directed against him, telling him that the designation criteria had been amended by Decision 2015/143 and Regulation 2015/138 and that the statement of reasons concerning him was to be amended to read as follows:
‘Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets and for the abuse of office by a public office-holder in order to procure an unjustified advantage for himself or for a third party and thereby causing a loss to Ukrainian public funds or assets.’
15      In addition, the Council granted the applicant privileged access to the letter from the [confidential] (1) of 30 December 2014. By letters of 13 and 16 February 2015, the applicant submitted his observations in that respect.
16      Decision 2014/119 and Regulation No 208/2014 were subsequently amended by, respectively, Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119 (OJ 2015 L 62, p. 25) and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation No 208/2014 (OJ 2015 L 62, p. 1) (together, ‘the March 2015 acts’).
17      By the March 2015 acts, the application of the restrictive measures at issue was extended until 6 March 2016 and the statement of reasons concerning the applicant was amended to the wording indicated in paragraph 14 above.
18      By letter of 6 March 2015, the Council, inter alia, sent the applicant’s lawyers a copy of the March 2015 acts.
Events subsequent to the bringing of the action
19      Following an exchange of communications between the parties the Council agreed to the applicant’s request for access to a certain number of documents.
20      The Council sent the applicant, by letters of 6 November and 15 December 2015, a letter from [confidential] dated 8 September 2015 and another dated 30 November 2015. It also reminded the applicant of the time limit within which he might submit observations on the annual review of the restrictive measures at issue. The applicant submitted observations to the Council by letters of 30 November 2015 and 4 January and 23 February 2016.
21      By order of 10 June 2016, Klymenko v Council (T‑494/14, EU:T:2016:360), adopted on the basis of Article 132 of its Rules of Procedure, the General Court upheld the action mentioned in paragraph 13 above, declaring it manifestly well founded.
22      On 4 March 2016, the Council adopted Decision (CFSP) 2016/318, amending Decision 2014/119 (OJ 2016 L 60, p. 76), and Implementing Regulation (EU) 2016/311, implementing Regulation No 208/2014 (OJ 2016 L 60, p. 1) (together, ‘the March 2016 acts’).
23      By the March 2016 acts, the application of the restrictive measures at issue was extended until 6 March 2017, without the statement of reasons concerning the applicant having been amended.
24      By letter of 7 March 2016, the Council informed the applicant that the restrictive measures against him were being maintained. It also responded to the observations which the applicant had made in his earlier letters, sent him copies of the March 2016 acts and a letter from [confidential] dated 1 March 2016 containing updated information.
25      On 3 March 2017, the Council adopted Decision (CFSP) 2017/381, amending Decision 2014/119 (OJ 2017 L 58, p. 34), and Implementing Regulation (EU) 2017/374, implementing Regulation No 208/2014 (OJ 2017 L 58, p. 1) (together, ‘the March 2017 acts’).
26      By the March 2017 acts, the application of the restrictive measures at issue was extended until 6 March 2018, without the statement of reasons concerning the applicant having been amended.
Procedure and forms of order sought
27      By application lodged at the Court Registry on 15 May 2015, the applicant brought the present action for, inter alia, annulment of the March 2015 acts.
28      On 14 August 2015, the Council lodged its defence, along with a reasoned request, in accordance with Article 66 of the Rules of Procedure, for the content of certain documents annexed to the application not to be cited in documents relating to the case to which the public might have access.
29      The reply and the rejoinder were lodged on 16 October 2015 and 11 February 2016 respectively. On the latter date, the Council submitted a request analogous to that referred to in paragraph 28 above, but concerning an annex to the rejoinder.
30      The written part of the procedure was closed on 11 February 2016.
31      By a statement lodged at the Court Registry on 28 April 2016 (‘the first statement of modification’), the applicant modified the application, in accordance with Article 86 of the Rules of Procedure, so as to request also the annulment of the March 2016 acts, in so far as they applied to him.
32      On 14 June 2016, the Council submitted its observations on the first statement of modification, followed, on 17 June 2016, by a similar request to that referred to in paragraph 28 above, but concerning an annex to that statement and an annex to its observations.
33      The written part of the procedure was again closed on that date.
34      By document lodged at the Court Registry on 29 June 2016, the applicant requested that a hearing be held. That document was placed on the file by decision of the President of the Ninth Chamber of the General Court of 8 July 2016.
35      Upon the alteration of the composition of the chambers of the General Court, the Judge-Rapporteur was assigned to the Sixth Chamber, to which this case was consequently allocated.
36      On a proposal of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral part of the procedure and adopted measures of organisation of the procedure, on the basis of Article 89 of the Rules of Procedure.
37      The parties complied with those measures within the prescribed period.
38      By letter lodged at the Court Registry on 16 February 2017, the applicant submitted a request, on the basis of Article 45(1)(c) of the Rules of Procedure, seeking, in essence, that his new representative be authorised to use French at the hearing, even though the language of the case chosen when the application was lodged was English. In the absence of any objections from the Council, the President of the Sixth Chamber of the General Court granted that request, by decision of 28 March 2017.
39      By statement lodged at the Court Registry on 27 March 2017 (‘the second statement of modification’), the applicant again modified the application, so as to request also the annulment of the March 2017 acts, in so far as they applied to him.
40      The parties presented oral argument and answered questions put to them by the Court at the hearing on 6 April 2017.
41      At that hearing, the Council presented its observations on the second statement of modification, submitting that the applicant had not explained how the pleas that he had raised in his previous written submissions could be simply transposed to the March 2017 acts, and the parties discussed certain documents that they had exchanged before the adoption of those acts. The Court asked the Council to produce the documents in question (‘the new documents’). The new documents were lodged at the Court Registry on 7 April 2017, and the President of the Sixth Chamber of the General Court closed the oral part of the procedure by decision of 11 April 2017.
42      By letter of 25 April 2017, the Council submitted a request analogous to that referred to in paragraph 28 above as regards certain documents referred to in paragraph 41 above.
43      Following the first and second statements of modification, the applicant claims that the Court should:
–        annul the March 2015 acts, the March 2016 acts and the March 2017 acts (‘the contested acts’), in so far as they concern him;
–        order the Council to pay the costs.
44      Following clarifications provided at the hearing in reply to questions from the Court, the Council claims that the Court should:
–        dismiss the application;
–        order the applicant to pay the costs;
–        in the alternative, if the March 2017 acts must be annulled in so far as they concern the applicant, order that the effects of Decision 2017/381 be maintained until the partial annulment of Implementing Regulation 2017/374 takes effect.
Law
45      In view of the objections raised by the Council as regards the second statement of modification (see paragraph 41 above), it is appropriate to examine, first, the pleas raised in support of the application for annulment of the March 2015 acts and the March 2016 acts and, secondly, the pleas raised in support of the application for annulment of the March 2017 acts. Lastly, the Court will rule on the plea of illegality for the purpose of Article 277 TFEU, which is raised in support of the application for annulment of all of the contested acts.
The pleas raised in support of the application for annulment of the March 2015 acts and the March 2016 acts
46      In support of his action for annulment, the applicant puts forward in his application five pleas in law alleging, first, the lack of a legal basis, secondly, a manifest error of assessment, thirdly, infringement of the rights of the defence and of the right to effective judicial protection, fourthly, a failure to provide adequate reasons, and fifthly, infringement of the right to property and of the right to reputation. By the first statement of modification, the applicant also put forward, with reference to the March 2016 acts, a plea which he described as a new plea and by which he alleges infringement of his rights under Article 6 TEU, read together with Articles 2 and 3 TEU, and under Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
47      First of all, it is necessary to examine the fourth plea, then, the first plea and the other pleas in the order set out in the application and, lastly, the plea raised in the first statement of modification.
The fourth plea in law, alleging the absence of an adequate statement of reasons
48      The applicant argues that the statement of reasons concerning him set out in the March 2015 acts and the March 2016 acts fails to identify the actual and specific reasons justifying the imposition of restrictive measures on him. That statement of reasons merely replicates the language of the criterion designating the persons subject to the restrictive measures at issue, mentioned in paragraph 11 above (‘the relevant criterion’), and is therefore general and stereotypical. The defects in the statement of reasons were not cured by the letters [confidential] of 30 December 2014 and 30 November 2015, which reiterate that criterion or are vague and imprecise. Those defects are particularly striking given the significant period of time that the Council had in which to formulate a fuller statement of reasons after the applicant’s initial designation and in the light of the complaints raised by the applicant before the Council and before the Court.
49      The Council disputes the applicant’s arguments.
50      As provided in the second paragraph of Article 296 TFEU, ‘legal acts shall state the reasons on which they are based …’.
51      Under Article 41(2)(c) of the Charter, which Article 6(1) TEU recognises as having the same legal value as the Treaties, the right to good administration includes, in particular, ‘the obligation of the administration to give reasons for its decisions’.
52      It has consistently been held that the statement of reasons required by Article 296 TFEU and Article 41(2)(c) of the Charter must be appropriate to the contested act and to the context in which it was adopted. It must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the person concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case (see judgment of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraph 94 and the case-law cited).
53      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 meets the requirements of Article 296 TFEU and Article 41(2)(c) of the Charter 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. Accordingly, 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 to understand the scope of the measure concerning him. Moreover, the degree of precision of the statement of the reasons for a measure must be weighed against practical realities and the time and technical facilities available for taking the measure (see judgment of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraph 95 and the case-law cited).
54      In particular, the statement of reasons for an asset-freezing measure cannot, in principle, consist merely of a general, stereotypical formulation. Subject to the qualifications stated in paragraph 53 above, such a measure must, on the contrary, indicate the actual and specific reasons why the Council considers that the relevant legislation is applicable to the person concerned (see judgment of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraph 96 and the case-law cited).
55      Lastly, it must be borne in mind that the obligation to state reasons for a measure is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue. The statement of reasons in a measure consists in a formal statement of the grounds on which that measure is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the act, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect (judgment of 22 March 2001, France v Commission, C‑17/99, EU:C:2001:178, paragraph 35; see also, to that effect, judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraphs 60 and 61).
56      In the present case, it must be noted that the statement of reasons given for maintaining the applicant’s name on the list at issue (see paragraphs 14 and 17 above) is specific and concrete and sets out the factors which constitute the basis for that decision, namely that he was subject to criminal proceedings brought by the Ukrainian authorities for misappropriation of public funds or assets and for abuse of office by a public office-holder in order to procure an unjustified advantage for himself or for a third party and thereby causing a loss to Ukrainian public funds or assets.
57      In addition, the decision to maintain the restrictive measures at issue occurred in a context known to the applicant, who had been informed, during the exchanges with the Council, inter alia of the letters [confidential] of 10 October and 30 December 2014, 30 November 2015 and 1 March 2016, on which the Council based its decision to maintain those measures (see, to that effect, judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 54 and the case-law cited; see also, by analogy, judgment of 6 September 2013, Bank Melli Iran v Council, T‑35/10 and T‑7/11, EU:T:2013:397, paragraph 88). Those letters specify the name of the authority responsible for the investigation, the case numbers of the criminal proceedings brought against the applicant, amongst others, the dates on which those proceedings were opened, the offences which he is alleged to have committed, including the relevant period, the other persons and bodies concerned and the amount of public funds allegedly misappropriated, the relevant articles of the Ukrainian penal code and the fact that the applicant was informed in writing that he was a suspect. Furthermore, the context surrounding the restrictive measures at issue also includes the exchanges between the applicant and the Council in the context of the case that gave rise to the order of 10 June 2016, Klymenko v Council (T‑494/14, EU:T:2016:360).
58      In the light of the foregoing, it must be concluded that the March 2015 acts and the March 2016 acts state to the requisite legal standard the matters of fact and law on which, according to the Council, those acts are based. Moreover, it must be noted that the statement of reasons provided by the Council is sufficient, irrespective of the amount of time it had to adopt the acts at issue.
59      That conclusion cannot be called into question by the applicant’s argument concerning the allegedly stereotypical nature of the statement of reasons concerning him.
60      In that respect, it must be observed that, while the considerations within that statement of reasons are the same as those on the basis of which restrictive measures were imposed on the other natural persons who are included in the list at issue, they are nonetheless designed to describe the particular situation of the applicant, who, no less than other individuals, has been, according to the Council, subject to judicial proceedings linked to investigations concerning the misappropriation of Ukrainian public funds (see, by analogy, judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 115).
61      The applicant’s other arguments relate to the merits of the reasons as set out in paragraph 14 above and therefore, in accordance with the case-law cited in paragraph 55 above, they should not be examined in the context of the present plea, but rather in that of the first and second pleas.
62      In view of the foregoing considerations, the fourth plea in law must be rejected.
The first plea in law, alleging the absence of a legal basis
63      The applicant argues that Article 29 TEU cannot constitute a valid legal basis for the maintenance of restrictive measures against him by the contested decisions falling within the scope of the common foreign and security policy (CFSP). Since Article 215(2) TFEU presupposes the existence of a valid CFSP decision if regulations are to be adopted on the basis of that provision, the contested regulations are equally devoid of a legal basis.
64      In essence, the applicant submits, first, that the restrictive measures at issue are not such as to consolidate the rule of law in Ukraine and, secondly, that the Council did not take account of the fact that the new Ukrainian Government is itself undermining the rule of law.
–       The complaint that the restrictive measures at issue are not such as to consolidate the rule of law in Ukraine
65      The applicant emphasises that the restrictive measures at issue were adopted with the stated aim of consolidating and supporting the rule of law and respect for human rights in Ukraine, whereas the reasons relied on against him, even if they were valid, are unconnected with that aim, since he has never been subject to criminal proceedings concerning conduct liable to undermine the rule of law in Ukraine or to violate human rights in that country.
66      The applicant maintains in that regard that the restrictive measures directed against him cannot be founded on the legal bases relied on by the Council unless the Council has demonstrated that the infringements which the Ukrainian authorities allege against him constitute a threat to the rule of law in that country.
67      Furthermore, the Council has not explained how the case referred to in point (b) of the second subparagraph of Article 1(1) of Decision 2014/119, as amended by Decision 2015/143 (see paragraph 11 above), which permits the adoption of restrictive measures against persons under investigation for an abuse of office committed in order to procure an unjustified advantage for themselves or for a third party, falls within the scope of the misappropriation of Ukrainian State funds and could further the attainment of the objective of consolidating the rule of law.
68      The Council disputes the applicant’s arguments.
69      As a preliminary point, it must be recalled that the objectives of the EU Treaty concerning the CFSP are stated, in particular, in Article 21(2)(b) TEU, as follows:
‘2. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to:
…
(b)      consolidate and support democracy, the rule of law, human rights and the principles of international law ...’
70      That objective was mentioned in recital 2 of Decision 2014/119, as set out in paragraph 4 above.
71      It must be verified whether the relevant criterion (see paragraph 11 above), as it is applied to the applicant, corresponds to the objective, referred to in recital 2 of Decision 2014/119, of consolidating and supporting the rule of law in Ukraine.
72      In that respect, it must be noted that the case-law has established that objectives such as those mentioned in Article 21(2)(b) TEU were intended to be achieved by an asset-freeze, the scope of which was, as in this case, restricted to the persons identified as being responsible for misappropriation of public funds and to persons, entities or bodies associated with them, that is to say, to the persons whose actions are liable to have jeopardised the proper functioning of public institutions and bodies linked to them (judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 85; see also, to that effect, judgments of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 44, and of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraph 68).
73      In that context, it must be observed that respect for the rule of law is one of the primary values on which the European Union is founded, as is stated in Article 2 TEU, and in the preambles to the EU Treaty and to the Charter. Respect for the rule of law constitutes, moreover, a prerequisite of accession to the European Union, pursuant to Article 49 TEU. The concept of the rule of law is also enshrined in the preamble of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’) (judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 87).
74      The case-law of the Court of Justice and of the European Court of Human Rights (‘the ECtHR’), and the work of the Council of Europe, by means of the European Commission for Democracy through Law (‘the Venice Commission’), provide a non-exhaustive list of principles and standards which may fall within the concept of the rule of law. Those include the principles of legality, legal certainty and the prohibition of arbitrary exercise of power by the executive, independent and impartial courts, effective judicial review including respect for fundamental rights, and equality before the law (see, in that respect, the Rule of Law Checklist adopted by the Venice Commission at its 106th Plenary Session (11-12 March 2016)). Further, in the context of European Union external action, a number of legal instruments include reference to the fight against corruption as a principle that is within the scope of the concept of the rule of law (see, for example, Regulation (EC) No 1638/2006 of the European Parliament and of the Council of 24 October 2006 laying down general provisions establishing a European Neighbourhood and Partnership Instrument (OJ 2006 L 310, p. 1)) (judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 88).
75      Moreover, it must be observed that the prosecution of economic crimes, such as misappropriation of public funds, is an important means of combating corruption, and that the fight against corruption constitutes, in the context of the external action of the European Union, a principle that is within the scope of the rule of law (judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 116).
76      However, while it is conceivable that certain conduct pertaining to acts classifiable as misappropriation of public funds may be capable of undermining the rule of law, it cannot be accepted that any act classifiable as misappropriation of public funds, committed in a third country, justifies European Union action with the objective of consolidating and supporting the rule of law in that country, using the powers of the Union under the CFSP. Before it can be established that a misappropriation of public funds is capable of justifying European Union action under the CFSP, based on the objective of consolidating and supporting the rule of law, it is, at the very least, necessary that the disputed acts should be such as to undermine the legal and institutional foundations of the country concerned (judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 89).
77      It follows that the relevant criterion can be considered to be compatible with the European Union legal order only to the extent that it is possible to attribute to it a meaning that is compatible with the requirements of the higher rules with which it must comply, and more specifically with the objective of consolidating and supporting the rule of law in Ukraine. Furthermore, a consequence of that interpretation is that the broad discretion enjoyed by the Council in relation to the definition of the general listing criteria can be respected, while review, in principle full review, of the lawfulness of European Union acts in the light of fundamental rights is ensured (see judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 90 and the case-law cited).
78      Consequently, the relevant criterion must be interpreted as not concerning, in abstract terms, any act classifiable as misappropriation of public funds, but rather as concerning acts classifiable as misappropriation of public funds or assets which, having regard to the amount or the type of funds or assets misappropriated or to the context in which the offence took place, are, at the very least, such as to undermine the legal and institutional foundations of Ukraine, and in particular the principles of legality, prohibition of arbitrary exercise of power by the executive, effective judicial review and equality before the law and, ultimately, to undermine respect for the rule of law in that country. As thus interpreted, that criterion is compatible with and proportionate to the relevant objectives of the EU Treaty (judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 91).
79      It must be noted that, contrary to the applicant’s assertions, it is clear that the case referred to in point (b) of the second subparagraph of Article 1(1) of Decision 2014/119, as amended by Decision 2015/143, concerns circumstances which fall within the scope of the misappropriation of funds. A public office holder who abuses his power in order to procure an unjustified advantage for himself or for a third party and who thereby causes a loss to Ukrainian public funds or assets necessarily misappropriates funds which should have belonged to the Ukrainian State.
80      In that respect, it follows from the case-law that the concept of misappropriation of public funds covers any act consisting in the unlawful use of resources belonging to public authorities, or which are placed under their control, for purposes which run counter to those planned for the resources, in particular for private purposes. To fall within the scope of that concept, that use must have been prejudicial to the financial interests of these authorities, and therefore have caused damage which can be assessed in financial terms (see, to that effect, judgment of 30 June 2016, CW v Council, T‑224/14, not published, EU:T:2016:375, paragraph 89).
81      Moreover, it should be pointed out that this interpretation of the concept in question leads to a definition analogous to that of the concept of misappropriation of European Union funds referred to in Article 4(3) of Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union's financial interests by means of criminal law (OJ 2017 L 198, p. 29). In accordance with that article, ‘“misappropriation” means the action of a public official who is directly or indirectly entrusted with the management of funds or assets to commit or disburse funds or appropriate or use assets contrary to the purpose for which they were intended in any way which damages the Union's financial interests’ (see, to that effect and by analogy, judgment of 30 June 2016, CW v Council, T‑224/14, not published, EU:T:2016:375, paragraph 90).
82      That broad interpretation of the concept at issue is necessary in order to ensure the full effectiveness of Decision 2014/19 with a view to achieving its objectives of consolidating the rule of law in Ukraine. Taking into account, moreover, the purely precautionary nature of the measure at issue, the general principle of European Union law of the legality of offences and penalties, enshrined in the first sentence of Article 49(1) of the Charter and that of the presumption of innocence, enshrined in Article 48(1) of the Charter, are not applicable in the present case and cannot, therefore, preclude such an interpretation (see, to that effect, judgment of 30 June 2016, CW v Council, T‑224/14, not published, EU:T:2016:375, paragraph 91 and the case-law cited).
83      In the present case, as the Council rightly submitted, the acts for which the applicant is being prosecuted by the Ukrainian authorities concern the misappropriation of significant funds, amounting to 616 million Ukrainian hryvnias (UAH) in one set of proceedings mentioned in the letters of [confidential] on which the Council relied and UAH 6.1 billion in another set of proceedings mentioned in those letters. Furthermore, those offences form part of a larger context in which a significant part of the former Ukrainian leadership, which includes the applicant as a former minister in the Ukrainian Government, is suspected of having committed serious crimes in the management of public resources, thereby seriously threatening the legal and institutional foundations of the country and undermining, inter alia, the principles of legality, prohibition of arbitrary exercise of power by the executive, effective judicial review and equality before the law (see, by analogy, judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 117).
84      Facilitating the recovery of the funds allegedly misappropriated by the applicant, as well as the recovery of other funds allegedly misappropriated by other persons designated by the restrictive measures at issue, falls within the objective of consolidating the rule of law. In that respect, it should be noted that, as the Council submits, in essence, the restrictive measures at issue facilitate and complement the efforts made by the Ukrainian authorities to recover the misappropriated public funds. On that point, it is apparent from the [confidential] letter of 30 November 2015 that, on 30 April 2015, the Pecherskyi District Court in Kiev adopted interim measures in order to freeze, inter alia, the applicant’s accounts in Ukraine. Accordingly, the Council’s decision to freeze the applicant’s funds enhances the effectiveness of the initiative taken at the national level.
85      It follows that, in accordance with the case-law cited in paragraph 72 above, taken as a whole and taking into consideration the role occupied by the applicant within the former Ukrainian leadership, the restrictive measures in question contribute, in an effective manner, to facilitating the prosecution of crimes of misappropriation of public funds that were to the detriment of the Ukrainian institutions and ensure that the Ukrainian authorities can more easily secure restitution of the profits of such misappropriation. That facilitates, in the event that the prosecutions are successful, the punishment, through the courts of law, of alleged acts of corruption committed by members of the former regime, thereby contributing to the support of the rule of law in that country (see, by analogy, judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 118).
86      In those circumstances, the first complaint relied on by the applicant must be rejected.
–       The complaint that the Council did not take account of the allegation that the new Ukrainian Government is itself undermining the rule of law
87      According to the applicant, the Council failed to take account of the fact that the new Ukrainian Government is itself undermining the rule of law and human rights, both in general and as regards the applicant in particular. In that respect, he submits that the mere fact that Ukraine is a signatory to the ECHR is not sufficient to ensure the observance of fundamental rights in that country.
88      As regards the general situation in Ukraine, the applicant submits that the new government took specific measures to impede the proper functioning of the criminal justice system in that country and to undermine the rule of law.
89      In particular, a law passed in October 2014 made it possible to dismiss from public office certain persons, including judges and prosecutors, on the grounds of their past conduct, especially where it was favourable to the former President, Mr Viktor Yanukovych. The serious shortcomings of that law were recognised by the Venice Commission in an interim opinion of 16 December 2014.
90      In an opinion of 23 March 2015, published jointly with the Directorate-General of Human Rights of the Council of Europe, the Venice Commission also raised concerns as to the independence of the judiciary in Ukraine. [confidential] is also not independent and is susceptible to political pressure from the current government.
91      In the applicant’s submission, the existence of systemic problems at [confidential] is confirmed by the resignation, on 19 February 2016, of the Prosecutor General, Mr Viktor Shokin, following pressure from the President, Mr Petro Poroshenko, amid allegations of corruption; a development which was commended by the Vice President of the United States of America. The High Commissioner of the United Nations in charge of a Human Rights Monitoring Mission in Ukraine (‘the High Commissioner’) recognised, in a report covering the period from 16 February to 15 May 2015, that the Ukrainian judiciary lacked independence and suffered intimidation and threats which impaired its impartiality, in particular with regard to the prosecution of officials of the former government. Similar findings were made in the United States of America State Department Report into Ukraine in 2015.
92      Moreover, the applicant maintains that the Ukrainian Government is undermining the principle of the presumption of innocence, the right to property and freedom of expression, and emphasises that the country suffers endemic corruption.
93      As regards his own situation more specifically, the applicant submits that the Ukrainian authorities have opened unjustified and malicious investigations against him as part of his political persecution, that those authorities have violated the principle of the presumption of innocence, by stating publicly that he had committed criminal activities_and that he has been repeatedly denied fundamental rights such as the right to an effective remedy and to a fair trial, in particular by the absence of any valid notification of suspicion concerning him.
94      The Council disputes the applicant’s arguments.
95      As a preliminary point, it must be observed that Ukraine has been a Member State of the Council of Europe since 1995 and has ratified the ECHR. In response to a question put to it by the Court at the hearing, the applicant was not able to refer to any proceedings before the ECtHR which found that the current Ukrainian judicial system, including [confidential], is systematically deficient.
96      In addition, the new Ukrainian regime has been recognised as legitimate by both the European Union and the international community.
97      It is true that those circumstances are not sufficient, by themselves, to ensure that the new Ukrainian regime respects the rule of law in all situations.
98      However, it must be noted that, in accordance with the case-law, the Courts of the European Union, in their judicial review of restrictive measures, must allow the Council a broad discretion for defining the general criteria delineating the category of persons liable to be the subject of such measures (see, to that effect, judgments of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 120, and of 21 April 2015, Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 41).
99      It follows that, in principle, the applicant cannot call into question the Council’s political choice to provide support for the new Ukrainian regime (see, by analogy, judgments of 25 April 2013, Gbagbo v Council, T‑119/11, not published, EU:T:2013:216, paragraph 75, and of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 97), without adducing irrefutable evidence of violations of fundamental rights by the new Ukrainian authorities.
100    Moreover, first, not all of the evidence adduced by the applicant concerns the period after the regime change in Ukraine. That is the case, inter alia, of the judgment of the ECtHR of 9 January 2013, Oleksandr Volkov v. Ukraine (CE:ECHR:2013:0109JUD002172211), which, since it concerns circumstances prior to 2010, cannot be validly relied on in support of the applicant’s arguments criticising the current Ukrainian regime, as the Council rightly submitted.
101    Secondly, although that evidence contains criticisms and highlights certain deficiencies affecting the Ukrainian institutions, particularly judicial institutions, it does not justify the conclusion that the new regime of that country cannot be supported by the European Union.
102    Thirdly, the deficiencies referred to in the documents cited by the applicant appear significantly reduced in the light of the documents cited by the Council in its written submissions and adduced before the Court, which show several improvements that the new regime has introduced.
103    Thus, in the first place, in a report covering the period from 16 February to 15 May 2015, the High Commissioner noted the progress made by the Ukrainian Government in the implementation of some recommendations contained in previous reports of the Human Rights Monitoring Mission in Ukraine, in particular, the adoption of the legislation on the judiciary and [confidential], some progress on law-enforcement reform, combating corruption and the development of the National Human Rights Strategy.
104    In the second place, in a report covering the period from 16 May to 15 August 2015, the High Commissioner observed that the constitutional changes proposed by the new Ukrainian Government were, in general, positive from a human rights perspective and welcomed them.
105    In the third place, in a report of the High Commissioner covering the period from 16 August to 15 November 2015, note was taken of the progress made by the Ukrainian Government in implementing some recommendations contained in previous reports of the Human Rights Monitoring Mission in Ukraine, including its declaration to extend the jurisdiction of the International Criminal Court beyond the events in Independence Square in Kiev, the adoption of the country’s first human rights strategy, and the adoption of various laws.
106    In the fourth place, according to a report of the High Commissioner covering the period from 16 February to 16 May 2016, on 29 February 2016, the Ukrainian Government formally established the State Bureau of Investigation, which is mandated to investigate crimes committed by high-ranking officials, members of law enforcement, judges and members of the National Anti-Corruption Bureau and the Special Anti-Corruption Office of [confidential].
107    Although that progress does not mean that the Ukrainian system no longer has any deficiencies as regards the observance of fundamental rights, nevertheless, the Courts of the European Union, in view of the broad discretion enjoyed by the Council (see paragraph 98 above), cannot in those circumstances regard as manifestly incorrect the Council’s political choice to support the new Ukrainian regime by adopting restrictive measures which apply to, amongst others, members of the former regime who are subject to criminal proceedings for misappropriation of public funds.
108    Those considerations do not call into question the possibility, for the applicant, of requesting the Court to verify whether the Council made a manifest error of assessment or whether it infringed his rights of defence when it maintained the application of the restrictive measures as regards the applicant on the basis of information, relating to the existence of criminal proceedings against him, received from the Ukrainian authorities, whereas the applicant accuses those authorities of infringing, in those proceedings, fundamental rights, normally guaranteed in a State governed by the rule of law.
109    It follows that the applicant’s arguments concerning the political persecution to which he is subject, the infringement of the principle of the presumption of innocence and the irregularities in the notification of suspicions sent to him (see paragraph 93 above) are ineffective in the context of the present plea in law and must be examined, in so far as they are relevant, in the context of the second and third pleas in law.
110    In the light of the foregoing considerations, the first plea in law must be rejected.
The second plea in law, alleging a manifest error of assessment
111    The applicant argues that the Council made a manifest error of assessment in concluding that the relevant criterion was met in his case. The [confidential] statements, which the Council accepted unquestioningly and without taking account of the inaccuracies he had pointed out, did not constitute a sufficiently solid factual basis for his designation. While accepting that the Council is not required to produce evidence of his guilt, the applicant maintains that the Council must nevertheless verify that the accusations made by [confidential] are founded on a sufficiently solid factual basis. According to the applicant, while the existence of an investigation into the misappropriation of funds conducted by the national authorities may be sufficient in order for the relevant criterion to be met, it is still necessary for that investigation to be conducted in a ‘judicial context’. The need for a judicial decision is confirmed in the case-law. In the applicant’s opinion, if it were otherwise, the person in question would be deprived of the critical safeguards resulting from judicial oversight and the Council would have handed over to the national authorities of a third country the power to select the persons to be targeted by the restrictive measures at issue.
112    The Council disputes the applicant’s arguments.
–       Judicial review and the Council’s obligations
113    It should be noted that, although the Council has a broad discretion as regards the general criteria to be taken into consideration for the purpose of adopting restrictive measures (see paragraph 99 above), the effectiveness of the judicial review guaranteed by Article 47 of the Charter requires that, as part of the review of the lawfulness of the grounds which form 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 must 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 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 36 and the case-law cited).
114    The case-law does not require the Council to carry out, systematically and on its own initiative, its own investigations or checks for the purpose of obtaining additional information, when it already has information provided by the authorities of a third country in taking restrictive measures against nationals of that country who are subject to judicial proceedings in that country (judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 57).
115    In that regard, it must be noted that [confidential] is one of the highest Ukrainian judicial authorities (see, by analogy, judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraphs 41 and 93).
116    It may indeed be inferred, by analogy, from the case-law on restrictive measures adopted with a view to combating terrorism that, in the present case, it is for the Council to examine carefully and impartially the evidence submitted to it by the Ukrainian authorities, in particular the letters of [confidential] of 30 December 2014 and 30 November 2015, having regard, in particular, to the observations and any exculpatory evidence submitted by the applicant. Furthermore, in the context of the adoption of restrictive measures, the Council is under an obligation to observe the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights, which, according to settled case-law, entails the obligation for the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see, by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 58 and the case-law cited).
117    However, it is also apparent from the case-law that, in order to assess the nature, form and degree of the proof that the Council may be required to provide, it is necessary to take account of the specific nature and scope of the restrictive measures, as well as of their objective (see, by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 59 and the case-law cited).
118    In that respect, it is apparent from recitals 1 and 2 of Decision 2014/119 that that decision forms part of a more general European Union policy of supporting the Ukrainian authorities, intended to promote the political stability of Ukraine. It therefore satisfies the objectives of the CFSP, which are defined, in particular, in Article 21(2)(b) TEU, pursuant to which the European Union is to engage in international cooperation with a view to consolidating and supporting democracy, the rule of law, human rights and the principles of international law (see, by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 60 and the case-law cited).
119    It is against that background that the restrictive measures at issue provide for the freezing of funds and economic resources of, amongst others, persons who have been identified as being responsible for the misappropriation of Ukrainian State funds. Facilitating the recovery of those funds consolidates and supports the rule of law in Ukraine (see paragraphs 74 to 78 above).
120    It follows that the restrictive measures at issue are not intended to penalise any misconduct in which the persons concerned may have engaged, or to deter them, by coercion, from engaging in such conduct. The sole purpose of those measures is to facilitate the Ukrainian authorities’ identification of any misappropriation of public funds that has taken place and to protect the possibility of the authorities recovering those funds. They are, therefore, purely precautionary (see, by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 62 and the case-law cited).
121    Thus, the restrictive measures at issue, imposed by the Council on the basis of the powers conferred on it by Articles 21 and 29 TEU, have no criminal-law aspect. They cannot therefore be treated in the same way as a decision to freeze assets adopted by a national judicial authority of a Member State in the relevant criminal proceedings, respecting the safeguards provided by those proceedings. Consequently, the requirements the Council must fulfil with regard to the evidence underpinning a person’s entry on the list of persons whose assets are to be frozen cannot be exactly the same as those which apply to the national judicial authority in the abovementioned case (see, by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 64 and the case-law cited).
122    In the present case, what the Council must verify is, first, the extent to which the letters of [confidential] on which it relied prove that, as indicated by the grounds for the inclusion of the applicant’s name on the list at issue, referred to in paragraph 14 above, the applicant is subject to criminal proceedings brought by the Ukrainian authorities in respect of actions that may be characterised as misappropriation of public funds, and, secondly, that those proceedings are such that the applicant’s actions can be characterised as satisfying the relevant criterion. Only if those verifications were not successful would it, in the light of the case-law referred to in paragraph 116 above, be incumbent on the Council to investigate further (see, by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 65 and the case-law cited).
123    Moreover, in the context of the cooperation governed by the contested acts (see paragraph 118 above), it is not, in principle, for the Council itself to examine and assess the accuracy and relevance of the information relied on by the Ukrainian authorities in conducting criminal proceedings in respect of the applicant for conduct that could be characterised as misappropriation of public funds. As explained in paragraph 120 above, by adopting the contested acts, the Council does not seek itself to punish the misappropriation of public funds being investigated by the Ukrainian authorities, but rather to protect the possibility of the authorities identifying such misappropriation and recovering the funds thus misappropriated. It is therefore for those authorities, in the context of those proceedings, to verify the information on which they are relying and, where appropriate, to draw the appropriate conclusions as regards the outcome of those proceedings. Furthermore, as is apparent from paragraph 121 above, the Council’s obligations under the contested acts cannot be treated in the same way as those of a national judicial authority of a Member State in the context of asset-freezing criminal proceedings initiated, in particular, in the context of international cooperation in criminal matters (see, by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 66).
124    That interpretation is confirmed by the judgment of 5 March 2015, Ezz and Others v Council (C‑220/14 P, EU:C:2015:147), in which the Court of Justice held, in circumstances similar to those of the present case, that it was for the Council or the General Court to verify not whether the investigations to which the appellants were subject were well founded, but only whether that was the case as regards the decision to freeze funds in the light of the Egyptian authorities’ request for assistance (judgment of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraph 77).
125    Admittedly, the Council cannot, in all circumstances, adopt the findings of the Ukrainian judicial authorities contained in the documents provided by them. Such conduct would not be consistent with the principle of good administration nor, generally, with the obligation on the part of the EU institutions to respect fundamental rights in the application of EU law, under the combined provisions of the first subparagraph of Article 6(1) TEU and Article 51(1) of the Charter of Fundamental Rights (see, by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 67).
126    However, it is for the Council to assess, on the basis of the circumstances of the case, whether it is necessary to investigate further, in particular to seek the disclosure of additional evidence from the Ukrainian authorities if it transpires that the evidence already supplied is insufficient. Information communicated to the Council, either by the Ukrainian authorities themselves or in some other way, might conceivably lead that institution to doubt the adequacy of the evidence already supplied by those authorities. Furthermore, when availing themselves of the opportunity which the persons concerned must be given to submit their comments on the reasons which the Council intends to use in order to maintain their names in the annexes to the contested acts, those persons may submit such information, or even exculpatory evidence, which would require the Council to investigate further. In particular, while it is not for the Council to take the place of the Ukrainian judicial authorities in assessing whether the criminal proceedings referred to in the letters of [confidential] are well founded, it is not inconceivable that, in the light, in particular, of the applicant’s observations, the Council might be obliged to seek clarification from those Ukrainian authorities with regard to the material on which those investigations are based (see, by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 68).
127    In the present case, as a preliminary point, it must be noted that the applicant acknowledges that the letters on which the Council relied [confidential] refer to criminal proceedings concerning him.
128    The applicant’s complaints allege that (i) the letters of [confidential] of 30 December 2014, of 30 November 2015 and of 1 March 2016 do not contain sufficient or sufficiently concrete information, (ii) one set of proceedings concerning him was ‘temporarily terminated’ on several occasions, (iii) his case was upheld in two actions for libel and for disinformation, (iv) the notifications of suspicion were not validly served, (v) the principle of the presumption of innocence was breached and (vi) he is the subject of political persecution.
–       The complaint that the letters of [confidential] of 30 December 2014, 30 November 2015 and 1 March 2016 do not contain sufficient or sufficiently concrete information
129    The applicant disputes that the letter of [confidential] of 30 December 2014, which is the only evidence relied on by the Council in so far as the March 2015 acts are concerned, contains sufficient and sufficiently substantiated information to support the conclusion that it has been established that he was subject to criminal proceedings for the misappropriation of Ukrainian public funds.
130    The applicant acknowledges that this letter refers to two sets of criminal proceedings and that it contains some information about the offences which he is suspected of having committed, but he maintains that its sole purpose is to make good the deficiencies which the Court had identified in the earlier letters [confidential], which contained less information. [confidential].
131    [confidential].
132    [confidential].
133    [confidential].
134    The Council disputes the applicant’s arguments.
135    In that respect, in the first place, it must be noted that the letter of 30 December 2014, which is the principle piece of evidence on which the Council relied in order to maintain the applicant’s name on the list at issue when adopting the March 2015 acts, contains, inter alia, the following information:
–        [confidential];
–        [confidential];
–        [confidential];
–        [confidential];
–        [confidential].
136    In the second place, it must be observed that the letter of 30 November 2015, which is the principal piece of evidence on which the Council relied in order to retain the applicant’s name on the list in question when adopting the March 2016 acts, contains similar information, such as the following details:
–        [confidential];
–        [confidential]:
–        [confidential];
–        [confidential];
–        [confidential];
–        [confidential];
–        [confidential];
–        [confidential].
137    In the third place, the letter from [confidential] of 1 March 2016, in addition to confirming the information set out in the letter of 30 November 2015, indicates inter alia that:
–        [confidential];
–        [confidential];
–        [confidential].
138    It follows that the letters [confidential] in question contain information clearly showing that the applicant is subject to, inter alia, [confidential] criminal proceedings, concerning [confidential]. Such conduct is liable to have caused losses of funds for the Ukrainian State and therefore corresponds to the concept of the misappropriation of funds belonging to that State, referred to in the relevant criterion.
139    Furthermore, the few differences between the facts described in the letter of [confidential] of 30 December 2014 and the subsequent letters do not give rise to inconsistencies or contradictions which could have caused the Council to doubt the existence of ongoing criminal proceedings concerning the applicant in relation to offences classifiable as misappropriation of Ukrainian public funds for the purpose of the relevant criterion. [confidential].
140    As regards the argument that, in view of the applicant’s duties, he could not have carried out the offences in question, it is for the Ukrainian courts to assess whether that is the case.
141    As regards the applicant’s argument that the letters from [confidential] were contrived, with the purpose of providing the Council with evidence capable of supporting the decision to maintain the applicant’s name on the list at issue, it must be noted that the applicant merely makes assertions, which cannot suffice to call into question the credibility of the information provided to the Council by one of the highest Ukrainian judicial authorities (see paragraph 113 above). Furthermore, it must be noted that the information contained in the [confidential] letters of 8 July and 10 October 2014 does not contradict the information in the subsequent letters. [confidential].
142    [confidential].
143    Consequently, the present complaint must be rejected.
–       The complaint that one set of proceedings concerning the applicant was ‘temporarily terminated’ on several occasions
144    The applicant submits that the proceedings in Case No [confidential] were ‘temporarily terminated’ on several occasions, [confidential] and that they had not been taken up again at the time when the March 2016 acts were adopted, with the result that he could not be regarded as having been subject to those proceedings at that date.
145    The Council disputes the applicant’s arguments.
146    It must be noted that, as the Council rightly submits, it can be seen from the information provided by the Ukrainian authorities that those ‘temporary terminations’ were actually suspensions, under Article 280(1)(2) of the Ukrainian Criminal Procedure Code, due to the applicant evading the investigation.
147    Questioned at the hearing as to whether he disputed that conclusion, the applicant merely stated that he had repeated the terms used by the Ukrainian authorities.
148    In those circumstances, it must be borne in mind that such suspensions in no way change the fact that the applicant was subject to criminal proceedings.
149    Moreover, it must be noted that Case No [confidential] was not suspended.
150    The present complaint must therefore be rejected.
–       The complaint concerning the fact that the applicant was successful in two actions for libel and for disinformation
151    The applicant invokes the fact that he was successful in two libel actions brought in Ukraine concerning statements made by the Head of the Security Service of Ukraine and by the Head of the State Fiscal Service, who had accused him, without basis, of conduct of the type at issue in Case No [confidential].
152    The Council disputes the applicant’s arguments.
153    In that respect, as the Council rightly pointed out, the mere fact that the persons held liable for libel and disinformation were not able to provide evidence supporting their allegations, assuming that those allegations concerned the same conduct as that to which the ongoing criminal proceedings relate, does not mean that [confidential] will not be able to adduce evidence in those criminal proceedings.
154    Accordingly, the present complaint must be rejected.
–       The complaint that the notifications of suspicion were not validly served
155    The applicant submits that, contrary to the Council’s submission, the notifications of suspicion concerning the offences which he was alleged to have committed were not validly served on him by [confidential]. Accordingly, he cannot be regarded as a person subject to criminal proceedings. Under Ukrainian law, a person is not a suspect and therefore is not subject to criminal proceedings if he has not been validly served with the relevant notifications of suspicion. In particular, the applicant refers to two [confidential] decisions [confidential] concerning irregularities in those notifications, and submits that he had informed the Council of those decisions, before the adoption of the March 2016 acts. In the applicant’s submission, the Council’s response on that issue, which refers to [confidential] appeal against one of those decisions, does not take account of the fact that that appeal was dismissed [confidential].
156    The Council disputes the applicant’s arguments.
157    In that respect, it must be noted that, according to the abovementioned [confidential] decisions, the motions submitted by [confidential] for an in absentia investigation procedure and the placement of the applicant in pre-trial detention were rejected on the ground that the notification of suspicion had not been served at the applicant’s exact address. However, [confidential] clearly stated that the rejection of those motions in no way implied an evaluation on the part of the investigating judge of the presence or absence of sufficient evidence to suspect the applicant of having committed the offences of which he was accused [confidential].
158    The fact that [confidential] motions were rejected because of purely formal defects vitiating the service of the notification of suspicion — although it means that [confidential] must validly serve a new notification before again submitting such motions — does not imply that the criminal proceedings to which that notification relates are no longer ongoing.
159    Even if, because of a formal defect affecting the service of the notification of suspicion, the applicant could not be regarded as a suspect within the meaning of Article 42 of the Ukrainian Criminal Code, it would not follow that the applicant was not the subject of an investigation by the Ukrainian authorities for the purpose of the relevant criterion. The circumstance that, as a result of an irregular notification, [confidential] must serve a new notification does not alter the fact that it considers that it has sufficient evidence to suspect the applicant of having committed certain offences.
160    Thus, [confidential], the applicant’s complaint concerning formal defects affecting the service of the notification of suspicion to him must be rejected as ineffective.
–       The complaint alleging a breach of the principle of the presumption of innocence
161    The applicant submits that several Ukrainian authorities, such as the Minister for Internal Affairs and the First Deputy Attorney General of Ukraine publicly declared that he had carried out criminal activities, which constitutes a breach of the principle of the presumption of innocence. The letters of [confidential] on which the Council relied are further evidence of the breach of that principle.
162    The Council disputes the applicant’s arguments.
163    It must be observed that, despite a few clumsy expressions, the [confidential] letters always refer to ongoing criminal proceedings against the applicant, which leads to the conclusion that [confidential] is entirely aware of the fact that the applicant is only suspected of having committed the offences in question and that he could be found guilty only if the criminal proceedings at issue result in a conviction, delivered by a court.
164    As regards the other statements referred to by the applicant, even if they constituted breaches of the principle of the presumption of innocence, it suffices to note that they do not call into question the lawfulness, let alone the existence, of the criminal proceedings which enabled the Council to consider that the applicant’s situation corresponded to the relevant criterion, nor do they demonstrate that the Council should have sought to obtain further information from [confidential].
165    Accordingly, the present complaint must be rejected.
–       The complaint that the applicant is the subject of political persecution
166    The applicant submits that the Ukrainian authorities have opened unjustified and malicious investigations against him as part of his political persecution due to the central role he played, when he held the post of Minister for Revenue and Duties of Ukraine, in pursuing ‘high profile tax evaders’ who have since come to power.
167    The Council disputes the applicant’s arguments.
168    It must be pointed out that the present complaint is not capable of calling into question the cogency of the charges brought with respect to the applicant in relation to very specific cases of misappropriation of public funds (see, by analogy, judgment of 15 September 2016, Yanukovych v Council, T‑346/14, EU:T:2016:497, paragraphs 113 and 114). Accordingly, that argument does not affect the possibility of the Council targeting the applicant, on the basis of the relevant criterion, by relying on Case No [confidential], Case No [confidential] and Case No [confidential].
169    It follows that the present complaint is ineffective.
170    In the light of the foregoing considerations, the second plea in law must be rejected in its entirety.
The third plea in law, alleging infringement of the rights of the defence and of the right to effective judicial protection
171    The applicant argues that, by adopting the March 2015 acts and the March 2016 acts, the Council failed in its procedural obligations, the importance of which has been consistently emphasised in the case-law, that is to say, the duty to disclose to the person concerned the reasons for which he has been designated, to enable him effectively to put forward his observations prior to his being maintained on the list in question and, where the person concerned has submitted observations, to examine carefully and impartially whether the reasons for his designation are well founded in light of those observations and any exculpatory evidence provided with them.
172    More specifically, first, the applicant maintains that at no stage was he provided with serious, credible or concrete evidence that would justify the imposition of restrictive measures against him.
173    Secondly, there is no indication that the Council took into account the observations which the applicant formulated, in particular those of 13 and 16 February 2015 concerning the adoption of the March 2015 acts and those contained in the letters of 30 November 2015, 4 January, 23 February and 1 March 2016 concerning the adoption of the March 2016 acts. The Council merely dismissed, summarily, the arguments which the applicant made in his letter of 7 March 2016, that is to say, after the adoption of the March 2016 acts.
174    Thirdly, the applicant argues that the Council was wrong to conclude that he had been properly served with the notifications of suspicion relating to the criminal proceedings concerning him. In particular, the Council did not send him the letter of [confidential] of 1 March 2016 which forms the basis for the Council’s erroneous view that the decision [confidential] — in which [confidential] found that the notification of suspicion had not been validly served — was open to appeal. According to the applicant, if he had been provided with a copy of that document and had been afforded an opportunity to comment on it, the Council’s error could have been corrected.
175    The Council disputes the applicant’s arguments.
176    First of all, it must be borne in mind that respect for the rights of the defence, which is affirmed in Article 41(2)(a) of the Charter, includes the right to be heard and the right to have access to the file, whereas the right to effective judicial protection, which is affirmed in Article 47 of the Charter, requires that the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 98 to 100).
177    In addition, it must be noted that, in the case of a subsequent decision to freeze funds by which the inclusion of the name of a person or entity already appearing in the list of persons or entities whose funds are frozen is maintained, the adoption of such a decision must, in principle, be preceded by notification of the incriminating evidence and by allowing the person or entity concerned an opportunity of being heard (see, to that effect, judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 62).
178    That right to a prior hearing applies where the Council has admitted new evidence against the person who is subject to the restrictive measures and who is maintained on the list at issue (judgment of 28 July 2016, Tomana and Others v Council and Commission, C‑330/15 P, not published, EU:C:2016:601, paragraph 67).
179    In the present case, it must be noted that Article 2(2) and (3) of Decision 2014/119 and Article 14(2) and (3) of Regulation No 208/2014 provide that the Council is to communicate its decision, including the grounds for listing, to the natural or legal person, entity or body concerned, either directly, if the address is known, or by the publication of a notice, providing the opportunity to present observations. Where observations are submitted, or where substantial new evidence is presented, the Council is to review its decision and inform the natural or legal person, entity or body accordingly. In addition, it follows from the third paragraph of Article 5 of Decision 2014/119 that that decision is to be kept under constant review and, according to Article 14(4) of Regulation No 208/2014, the list is to be reviewed at regular intervals and at least every 12 months. The March 2015 acts and the March 2016 acts are based on those initial acts, namely Decision 2014/119 and Regulation No 208/2014, and extend the freezing of funds following the aforementioned review by the Council of the list in question.
180    As regards the right to be heard, it must be noted, in view of the principle of case-law referred to in paragraph 178 above, that the Council, when it maintained the applicant’s name on the list at issue, relied on new evidence, which had not already been notified to the applicant following his initial designation.
181    It must be observed that the reasons stated for the subsequent acts are not the same as those given for the initial inclusion of the applicant’s name (see paragraphs 10 and 14 above). In addition, the Council relied on new evidence, namely letters from [confidential] of 30 December 2014, 8 September and 30 November 2015 and 1 March 2016. Accordingly, the Council was required to hear the applicant before adopting the March 2015 acts and the March 2016 acts.
182    As regards the March 2015 acts, it can be seen from the case file that, by letter of 2 February 2015, the Council — after having drawn the applicant’s attention to the fact that the relevant criterion had been changed by the January 2015 acts (see paragraph 11 above), attached to that letter — informed the applicant that it intended to maintain the restrictive measures against him, specifying that the grounds for his designation would be changed. In that letter, the Council, while asserting that it had taken account of the observations submitted to it by the applicant on 3 August 2014, considered it appropriate to maintain the restrictive measures against him, in view of the fact that [confidential] had confirmed the existence of ongoing criminal proceedings concerning him. The Council thus referred to the letter of 30 December 2014 as a piece of evidence justifying maintaining the applicant’s name on the list at issue, which it communicated to the applicant in that letter. It also gave the applicant the opportunity to submit observations.
183    By letters of 13 and 16 February 2015, the applicant wrote to the Council, submitting additional observations arguing that the envisaged decision to maintain his name on the list in question was not well founded.
184    After adopting the March 2015 acts, the Council, by letter of 6 March 2015, responded to the applicant’s observations made in the letters of 13 and 16 February 2015. In that respect, it essentially maintained that it could rely on the information set out in the [confidential] letter of 30 December 2014, which referred to ongoing criminal proceedings concerning the applicant in relation to conduct constituting the misappropriation of public funds referred to in the relevant criterion. The Council also stated that [confidential] had confirmed the proper service of a notification of suspicion to the applicant in accordance with the Ukrainian Code of Criminal Procedure. Furthermore, the Council sent the applicant the March 2015 acts and gave him the opportunity to submit observations, by 1 December 2015 at the latest.
185    In the light of those circumstances, it must be held that the Council discharged its obligations concerning observance of the applicant’s rights of defence during the procedure culminating in the adoption of the March 2015 acts. The applicant had access to the information and the evidence used to support the decision to maintain the restrictive measures against him prior to their adoption and he was able to submit observations to the Council in a timely manner. In addition, contrary to his assertions, it is clear from the file that the Council took account of those observations, by providing a reply which, although lacking in detail, contained substantive information and was not merely a formal reply, thus demonstrating that it had examined those observations. It must also be noted that the applicant was able to bring the present action by invoking relevant matters in the file in support of his arguments, so his complaint alleging a breach of his right to effective judicial protection may also be rejected.
186    A similar conclusion may be arrived at as regards the March 2016 acts. It can be seen from the file that, before it adopted the March 2016 acts, the Council sent the applicant, by letters of 6 November and 15 December 2015, respectively, the [confidential] letters of 14 September and 30 November 2015. In those letters, the Council reminded the applicant of the time limit within which he could submit observations for the purposes of the annual review of the restrictive measures.
187    The applicant submitted such observations to the Council by letters of 30 November 2015 and 4 January 2016. It is true that the Council did not respond to those letters before the adoption of the March 2016 acts. However, it should be noted that, since the grounds for maintaining the restrictive measures concerning the applicant are the same as those in the March 2015 act and the new evidence, namely the letters of [confidential] of 8 September and 30 November 2015 were submitted to him prior to the adoption of the decision to maintain his name on the list at issue, the applicant was able to submit relevant observations on those grounds.
188    In addition, it must be noted that the Council, by letter of 7 March 2016, that is to say, almost immediately after the adoption of the decision to maintain the applicant’s name on the list at issue, not only informed him of that decision, but also responded to the applicant’s observations set out in his letters of 4 January and 23 February 2016. In that respect, it rejected certain of the applicant’s arguments by confirming that, as it had previously stated, it could rely on the [confidential] letters and that those letters provided sufficient details concerning the grounds for maintaining his name on the list at issue, contrary to the applicant’s assertions. As regards the applicant’s argument concerning the defects affecting the service of the notifications of suspicion, set out inter alia in his letter of 23 February 2016 [confidential], the Council indicated that [confidential] had informed it that it had appealed against that decision. Lastly, the Council also sent the applicant the March 2016 acts as well as the [confidential] letter of 1 March 2016 and gave him the opportunity to submit further observations.
189    The applicant submits the Council did not send him that last-mentioned letter in a timely manner. While it is true that that letter was not sent to the applicant before the adoption of the March 2016 acts, it must be noted, however, that it was drafted only a few days before the adoption of those acts and that the Council sent it to the applicant almost immediately after receiving it. Above all, it must be observed that that letter concerns the same criminal proceedings open against the applicant as those referred to in the [confidential] previous letters. Accordingly, the [confidential] letter of 1 March 2016 did not have a novel character entitling the applicant to be heard before the adoption of the March 2016 acts (see paragraph 178 above), with the result that no infringement of the rights of defence may be found in that respect.
190    Even if it could be considered that the reference, in that letter, to the appeal brought by [confidential] against the [confidential] decision [confidential] was a new element triggering the obligation for the Council to hear the applicant before deciding to maintain the restrictive measures concerning him, it must be borne in mind that, before an infringement of the rights of the defence can result in the annulment of an act, it must be demonstrated that, had it not been for that irregularity, the outcome of the procedure might have been different (see, to that effect, judgment of 18 September 2014, Georgias and Others v Council and Commission, T‑168/12, EU:T:2014:781, paragraph 106). In the present case, the applicant argues that, if the Council had submitted that information to him in a timely manner, he would have been able to inform it that that appeal had been rejected [confidential]. In that respect, it should be noted that, as is apparent from the examination of the second plea in law (see paragraphs 155 to 160 above), any defects affecting the service of the notification of suspicion to which that decision relates do not call into question the existence of criminal proceedings concerning the applicant for offences falling within the scope of the relevant criterion. Accordingly, the applicant has not demonstrated that, if he had received the letter of 1 March 2016 before the adoption of the March 2016 acts, the content of those acts might have been different.
191    Lastly, the argument that the Council did not identify the specific matters in the [confidential] letter of 30 November 2015 on which it relied in deciding to maintain the restrictive measures as regards the applicant is not well founded. It is clear and understandable that the various criminal proceedings open against the applicant, mentioned in the [confidential] letters, in so far as they relate to a misappropriation of public funds, constitute matters which justify, in the Council’s view, maintaining the restrictive measures as regards the applicant. Moreover, in so far as that argument must be understood as concerning, in essence, a manifest error of assessment by the Council or an error as regards the statement of reasons, it suffices to note that those questions have been dealt with in the context of the second and fourth pleas in law, which have been held to be unfounded.
192    In the light of all of the foregoing the third plea in law must be rejected.
The fifth plea in law, alleging infringement of the right to property and the right to reputation
193    The applicant submits that the restrictive measures taken against him constitute an unjustified and disproportionate restriction of his fundamental rights to property and reputation.
194    First of all, he maintains that the restrictive measures were imposed without any procedural safeguards enabling him to put his case effectively to the Council.
195    Next, those measures have had a far-reaching impact on the applicant.
196    Lastly, the applicant alleges that the Council has failed to demonstrate that the freezing of his assets was justified by any legitimate aim, still less that it is proportionate to any such aim. The applicant emphasises in this connection that the allegations concerning him no longer mention any illegal transfer of funds outside Ukraine. Accordingly, the restrictive measures therefore serve no purpose and are disproportionate, since they cannot assist in the recovery of any misappropriated funds, there being no indication in the case file that funds have been transferred outside Ukraine. The applicant adds that there is nothing to suggest that the freezing of all his assets in the European Union was necessary or was the least onerous option available to the Council, which did not examine whether a more limited asset freeze might be sufficient to satisfy any claims for the recovery of misappropriated funds, particularly since the evidence specified the particular sums claimed and the Council had a considerable amount of time to verify those specific amounts.
197    The Council, as a preliminary point, submits that the applicant’s allegation of damage to his reputation is not expanded upon and, as to the substance, disputes the applicant’s arguments.
198    Article 17(1) of the Charter provides:
‘Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.’
199    Article 52(1) of the Charter states that any limitation on the exercise of the rights and freedoms recognised by that Charter must be provided for by law and respect the essence of those rights and freedoms and that, 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.
200    It follows from the case-law that a freezing measure undeniably entails a restriction of the exercise of the right to property (see, to that effect, judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 358).
201    In this case, the applicant’s right to property is restricted, since he cannot, inter alia, make use of his funds situated within the European Union, unless he obtains specific authorisation, and no funds or other economic resources can be made available, directly or indirectly, to him.
202    However, the right to property, as protected by Article 17(1) of the Charter, does not constitute an unfettered prerogative and may therefore be limited, under the conditions laid down in Article 52(1) of the Charter (see judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 195 and the case-law cited).
203    Consequently, in order to comply with EU law, a limitation on the exercise of the right to property must satisfy three conditions.
204    First, the limitation must be ‘provided for by law’. In other words, the measure must have a legal basis. Secondly, it must refer to an objective of general interest, recognised as such by the European Union. Those objectives include those pursued under the CFSP and referred to in Article 21(2) TEU. Thirdly, the limitation may not be excessive. It must be necessary and proportional to the aim sought. In addition, the ‘essence’, that is, the substance, of the right or freedom at issue, must not be impaired (see judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraphs 197 to 200 and the case-law cited).
205    As regards the first condition, the Court observes that the limitation is ‘provided for by law’, since maintaining the applicant’s name on the list corresponds to the relevant criterion, which the March 2015 acts and the March 2016 acts do not change.
206    As regards the second condition, it must be noted that, as is apparent from the examination of the first plea in law (see paragraphs 74 to 83 above), the contested acts comply with the objective, referred to in Article 21(2)(b) TEU, of ‘consolidat[ing] and support[ing] the rule of law’. In so doing, those acts form part of a policy of supporting the Ukrainian authorities, intended to promote both the economic and political stability of Ukraine and, in particular, to assist the authorities of that country in their fight against the misappropriation of public funds.
207    As regards the third condition, it must be recalled that the principle of proportionality, as one of the general principles of EU law, requires that measures adopted by the EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued by the legislation in question. Consequently, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 205 and the case-law cited).
208    In accordance with the case-law, the disadvantages caused by the restrictive measures are not disproportionate to the objectives pursued, taking into consideration, first, that those measures are inherently temporary and reversible and do not therefore infringe the ‘essence’ of the right to property, and, secondly, that they may be derogated from in order to cover basic needs, legal costs or even the extraordinary expenses of the persons concerned (see judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 209).
209    Moreover, the restrictive measures effectively assist in establishing the misappropriation of public funds, in addition to facilitating the recovery of those funds, and the applicant has not put forward any argument capable of demonstrating that those measures are not appropriate or that there are other less onerous measures capable of achieving the aim pursued.
210    In that respect, as regards the applicant’s argument that a freezing of funds is justified only up to the value of the assets allegedly misappropriated, as that value emerges from the information available to, or which should have been available to, the Council, it must be noted that, first, the amounts mentioned in the letters of 30 November 2014 and 30 December 2015 are merely indicative of the value of the assets alleged to have been misappropriated and, secondly, any attempt to circumscribe the amount of the funds frozen would be extremely difficult, if not impossible, to implement in practice (see, by analogy, judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 133).
211    The applicant’s argument concerning the fact that the grounds for maintaining his name on the list do not refer — as the grounds for his initial designation on that list did — to the illegal transfer of Ukrainian public funds outside of Ukraine must also be rejected. Even though the illegal transfer of public funds outside Ukraine is no longer mentioned, it is nevertheless the case that the reference to the misappropriation of public funds, if it is well founded, is sufficient to justify the restrictive measures against the applicant (see, to that effect, judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 129).
212    Lastly, as regards the reference made by the applicant to the unjustified and disproportionate harm to his reputation, even if that argument were admissible, notwithstanding the fact that it is underdeveloped in the written pleadings, it must be pointed out that it is an unfounded argument.
213    It must be borne in mind that, according to settled case-law, like the right to property, the right to reputation is not an absolute right and its exercise may be subject to restrictions justified by objectives of general interest pursued by the European Union. Thus, the importance of the aims pursued by the restrictive measures at issue is such as to justify negative consequences, even of a substantial nature, for the reputation of the persons or entities concerned (see judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 168 and the case-law cited).
214    In the present case, it has been established, in the context of the examination of the second plea in law, that the applicant was subject to criminal proceedings for offences concerning the misappropriation of funds and that his situation corresponded to the relevant criterion, as interpreted in the context of the examination of the first plea in law.
215    In addition, the grounds for the applicant’s designation do not mention the specific circumstances of the conduct to which those proceedings relate, but merely mention the classification of that conduct as criminal by the Ukrainian authorities and it must be noted, in that respect, that the letters of [confidential] specifying that conduct remain confidential. Furthermore, the Council took care to mention, in those grounds, that criminal proceedings were open as regards the applicant, with the result that it was clear from those grounds that the applicant’s guilt had not yet been formally established.
216    In any event, in so far as the maintenance of those measures as regards the applicant may affect his reputation, it must be stated that such effects are not clearly disproportionate in comparison with the objectives pursued (see paragraphs 206 to 210 above).
217    Consequently, the fifth plea in law must be rejected in its entirety.
The sixth plea in law, alleging infringement of rights under Article 6 TEU, read together with Articles 2 and 3 TEU, and under Articles 47 and 48 of the Charter
218    By the sixth plea in law, which he describes as a new plea, the applicant argues that the Council should have verified that, when the Ukrainian authorities adopted the decisions which formed the basis for the maintenance of the restrictive measures against him by means of the March 2016 acts, they ensured protection of his fundamental rights equivalent to that guaranteed under European Union law, in particular, Article 6 TEU, read together with Articles 2 and 3 TEU, and Articles 47 and 48 of the Charter. However, the Council wrongly relied on an irrebuttable presumption that Ukraine observes fundamental rights, even though such a presumption cannot even be applied with regard to the Member States. In that context, the applicant refers to the judgments of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865), and of 16 October 2014, LTTE v Council (T‑208/11 and T‑508/11, EU:T:2014:885).
219    The Council disputes the applicant’s arguments.
220    It must be noted that the applicant’s arguments are based on erroneous assumptions.
221    In the first place, as regards the argument concerning the judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865), it must be noted that, inter alia in paragraphs 104 to 106 of that judgment, the Court of Justice held, in essence, that European Union law precludes the application, by the Member States, of a presumption that the Member State responsible for examining an asylum application for the purpose of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ 2003 L 50, p. 1), observes the fundamental rights of the European Union. Thus, according to the Court of Justice, that presumption may be rebutted if it is established that, because of systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State, an asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter.
222    However, it must be noted that the principles set out in the judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865), are not applicable in the present case, since the applicant has not demonstrated the existence of systemic deficiencies affecting the Ukrainian institutions, in particular the judicial institutions.
223    In the second place, it must be observed that the approach adopted by the General Court in the case that gave rise to the judgment of 16 October 2014, LTTE v Council (T‑208/11 and T‑508/11, EU:T:2014:885), cannot be applied in the present case.
224    In particular, in the case that gave rise to the judgment of 16 October 2014, LTTE v Council (T‑208/11 and T‑508/11, EU:T:2014:885), Council Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93), which established a mechanism allowing the Council to include a person on a list of those whose funds are to be frozen on the basis of a decision taken by a national authority, where appropriate, of a third country, laid down a criterion for the designation of the persons targeted by the restrictive measures adopted by the Council which read as follows:
‘The list ... shall be drawn up on the basis of precise information or material in the relevant file which indicates that a decision has been taken by a competent authority in respect of the persons, groups and entities concerned, irrespective of whether it concerns the instigation of investigations or prosecution for a terrorist act, an attempt to perpetrate, participate in or facilitate such an act based on serious and credible evidence or clues, or condemnation for such deeds. Persons, groups and entities identified by the Security Council of the United Nations as being related to terrorism and against whom it has ordered sanctions may be included in the list.’
225    In the present case, the existence of a prior decision by the Ukrainian authorities is not a legal condition required by the relevant criterion in order for restrictive measures to be adopted, since the legal proceedings opened by those authorities constitute only the factual basis on which those measures are based. The relevant criterion merely refers to persons ‘identified as responsible for the misappropriation of Ukrainian State funds’.
226    In that respect, it must be noted that the wording of the relevant criterion is closer to that of the criterion at issue in the case that gave rise to the judgment of 27 February 2014, Ezz and Others v Council, (T‑256/11, EU:T:2014:93). In particular, in paragraph 66 of that judgment, the Court held that that criterion included persons being prosecuted for the ‘misappropriation of … State funds’, without examining whether the legal system of the State in question, namely the Arab Republic of Egypt, offered legal protection comparable to that offered in the European Union.
227    In any event, it must be noted that there is a major difference between the restrictive measures, such as those at issue in the case that gave rise to the judgment of 16 October 2014, LTTE v Council (T‑208/11 and T‑508/11, EU:T:2014:885), which concerned the fight against terrorism and those which, as in the present case, formed part of the cooperation between the European Union and the new authorities of a third State, namely Ukraine.
228    The fight against terrorism, to which the Council contributes by adopting restrictive measures targeting certain persons or entities, does not necessarily form part of the cooperation between the authorities of a third State in which a regime change has taken place and which the Council has decided to support. By contrast, the measures at issue in the present case do form part of such cooperation, as was also the case of the measures at issue in the case that gave rise to the judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93), upheld on appeal by the judgment of 5 March 2015, Ezz and Others v Council (C‑220/14 P, EU:C:2015:147).
229    Thus, if the Council’s highly political choice to cooperate with the new Ukrainian authorities — which it considers to be trustworthy — in order to allow them, inter alia, to recover possibly misappropriated public funds ‘with a view to consolidating and supporting the rule of law’ in Ukraine, was subject to the condition that, despite that the fact that that country was a member of the Council of Europe and had ratified the ECHR, the Ukrainian State had to ensure, immediately after the regime change, a level of protection of fundamental rights equivalent to that offered by the European Union and its Member States, the broad discretion enjoyed by the Council in defining the general criteria delineating the category of persons liable to be the subject of restrictive measures intended to support those new authorities would be essentially undermined (see paragraph 98 above).
230    In exercising that broad discretion, the Council must therefore be free to take the view that, following the regime change, the Ukrainian authorities should be supported in so far as they improve democracy and respect for the rule of law in Ukraine as compared with the situation that previously prevailed in that country and that one of the means of consolidating and supporting the rule of law consists in freezing the assets of persons identified as being responsible for the misappropriation of Ukrainian State funds, including — in accordance with the relevant criterion — persons who are the subject of an investigation by the Ukrainian authorities for misappropriation of public funds, or being an accomplice thereto, or for abuse of office, or being an accomplice thereto.
231    Accordingly, only if the Council’s political choice to support the new Ukrainian regime, including through the cooperation resulting from the restrictive measures at issue, proved to be manifestly incorrect, inter alia because, after the regime change, fundamental rights were systematically infringed in that country, could any mismatch between the protection of fundamental rights in Ukraine and that in the European Union affect the lawfulness of maintaining those measures as regards the applicant. It follows from the examination of the first and second pleas in law that that is not the case here.
232    Accordingly, the present plea in law must be rejected.
The pleas raised in support of the application for annulment of the March 2017 acts
233    By the second statement of modification, concerning the March 2017 acts, the applicant merely referred to the pleas he had raised in his previous written pleadings as regards the March 2015 acts and the March 2016 acts.
234    At the hearing, the Council submitted that the applicant had not explained how the pleas that he had raised previously could simply be transposed to the March 2017 acts.
235    It must be borne in mind that, according to the case-law, it follows from Article 76(d) of the Rules of Procedure, pursuant to which the application must contain, inter alia, the pleas in law and arguments relied on and a summary of those pleas in law, that, if they are not to be inadmissible, the pleas in law and arguments relied on in support of a request to modify the application must be set out in that request in sufficiently clear and precise terms to enable the defendant to prepare its defence and the Court to rule on that request, with the result that the applicant must explain why the arguments previously relied on are transposable to the acts referred to in his statement of modification (see, to that effect, judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraphs 138 and 139 and the case-law cited). Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the statement of modification to be based, since the annexes have a purely evidential and ancillary purpose (see, to that effect and by analogy, judgment of 2 February 2012, Greece v Commission, T‑469/09, not published, EU:T:2012:50, paragraph 47 and the case-law cited).
236    Consequently, the pleas that the applicant put forward in the application, in the reply and in the first statement of modification are admissible as regards the March 2017 acts, referred to in the second statement of modification, only in so far as they may be transposed to the specific context of those acts without any explanation being needed.
237    In assessing whether it is possible merely to transpose to the March 2017 acts the six pleas already invoked by the applicant and examined above, it is appropriate to deal with those pleas in the same order as followed above.
The fourth plea in law
238    When it adopted the March 2017 acts, the Council did not alter the grounds on the basis of which the applicant’s name continued to be included on the list at issue.
239    Thus, the applicant’s fourth plea in law, alleging a breach of the duty to state reasons, can simply be transposed to the context of the March 2017 acts, with the result that it is admissible.
240    However, in the absence of any new argument raised by the applicant in the second statement of modification, that plea in law, in so far as it concerns the March 2017 acts, must be rejected for the same reasons as set out in paragraphs 50 to 60 above.
The first plea in law
241    The March 2017 acts are based on the same legal bases as the March 2015 acts and the March 2016 acts.
242    Accordingly, the applicant’s first plea in law, alleging the absence of a legal basis, can simply be transposed to the context of the March 2017 acts. It follows that that plea is admissible.
243    Nevertheless, that plea in law is not well founded, for the reasons set out in paragraphs 65 to 110 above.
The second plea in law
244    As observed in paragraph 128 above, in the context of the second plea in law, the applicant’s complaints allege that, first, the letters [confidential] of 30 December 2014, of 30 November 2015 and of 1 March 2016 do not contain sufficient or sufficiently concrete information, secondly, one of the sets of proceedings was ‘temporarily terminated’ on several occasions, thirdly, his case was upheld in two actions for libel and for disinformation, fourthly, the notifications of suspicion were not validly served, fifthly, the principle of the presumption of innocence was breached and, sixthly, he is the subject of political persecution.
245    As regards the second, third, fifth and sixth complaints, the arguments that the applicant had already put forward can simply be transposed to the context of the March 2017 acts and are therefore admissible. However, they are not well founded, for the reasons set out:
–        in paragraphs 144 to 150 above, as regards the second complaint;
–        in paragraphs 151 to 154 above, as regards the third complaint;
–        in paragraphs 161 to 165 above, as regards the fifth complaint;
–        in paragraphs 166 to 169 above, as regards the sixth complaint.
246    As regards the first complaint, in so far as the applicant wishes to challenge the sufficient or sufficiently concrete nature of the information contained in the letters [confidential] of 30 December 2014, of 30 November 2015 and of 1 March 2016, those arguments are admissible, but unfounded, for the reasons explained in paragraphs 129 to 143 above. In so far as the applicant seeks to dispute that the information contained in the new documents (see paragraph 41 above), on which the Council also relied in order to adopt the March 2017 acts, is sufficient or sufficiently concrete, it must be noted that the applicant, in the second statement of modification, did not set out any reasoning concerning those documents, which, moreover, were not annexed to his statement. At the hearing, he merely referred to the new documents, without developing a line of argument concerning the content of those documents in sufficiently clear and precise terms. Thus, in accordance with the case-law cited in paragraph 235 above, the present complaint must be rejected as inadmissible, in so far as concerns the new documents. In addition, it must be noted that matters put forward for the first time at the hearing cannot compensate for the failure to indicate coherently and intelligibly, in the statement of modification, the essential matters of law and of fact on which a complaint raised in support of that statement is based (see, to that effect and by analogy, judgment of 18 July 2006, Rossi v OHIM, C‑214/05 P, EU:C:2006:494, paragraph 37).
247    As regards the fourth complaint, in so far as the applicant seeks to contest the validity of notifications of suspicion sent to him, his arguments are admissible, but they must be rejected for the reasons stated in paragraphs 155 to 160 above. In so far as the applicant seeks to dispute that he has been properly served with notifications of suspicion in the meantime, it must be pointed out that he has not put forward any specific line of reasoning concerning those notifications in the second statement of modification. Accordingly, that complaint must be rejected as inadmissible in so far as it concerns the new notifications, in accordance with the case-law cited in paragraphs 235 and 246 above.
248    It follows that the second plea in law must be rejected in its entirety, including as regards the March 2017 acts.
The third plea in law
249    In his written pleadings prior to the adoption of the March 2017 acts, the applicant focused the third plea in law, concerning the infringement of the rights of the defence and the right to effective judicial protection, on the circumstances surrounding the adoption of the March 2015 acts and the March 2016 acts, in particular the manner in which the Council had reacted to the arguments that he had put forward in his correspondence with it.
250    It must be noted that, in the course of the procedure that led to the adoption of the March 2017 acts, the Council and the applicant exchanged correspondence other than that which they had exchanged previously. It is therefore not possible simply to transpose the arguments previously put forward in the context of the third plea in law to the procedure leading to the adoption of those acts.
251    Given that, in the second statement of modification, the applicant did not explain why the correspondence exchanged between the Council and himself during the procedure that led to the adoption of the March 2017 acts was not sufficient to ensure that the rights of the defence and the right to effective judicial protection were observed, the present plea in law must be rejected as inadmissible as regards those acts, in accordance with the case-law cited in paragraph 235 above.
The fifth plea in law
252    The March 2017 acts affect the applicant’s property rights and right to reputation in the same manner as the March 2015 acts and the March 2016 acts.
253    Accordingly, the applicant’s fifth plea in law, which concerns the breach of those rights, can simply be transposed to the context of the March 2017 acts. It follows that that plea is admissible.
254    However, that plea is not well founded, for the reasons stated in paragraphs 193 to 217 above.
The sixth plea in law
255    The arguments put forward by the applicant in the sixth plea in law, which concern, in essence, the fact that the Council did not verify whether the Ukrainian authorities had protected his fundamental rights to an extent equivalent to that guaranteed by European Union law when they took the decisions that formed the basis for maintaining the restrictive measures against him, can simply be transposed to the context of the adoption of the March 2017 acts. Consequently, the present plea in law is admissible.
256    However, that plea is also unfounded as regards those acts, for the same reasons as those set out in paragraphs 220 to 232 above.
257    In the light of the foregoing considerations, none of the six pleas in law raised by the applicant are capable of bringing about the annulment of the March 2017 acts.
The plea of illegality
258    In the alternative, the applicant raises a plea of illegality, under Article 277 TFEU, concerning the relevant criterion. He maintains that that criterion would lack a proper legal basis if it were to be interpreted as covering a person who is under investigation by the Ukrainian authorities, irrespective of whether there is a judicial decision or whether there are judicial proceedings, or any holder of public office who has committed an abuse of office, irrespective of whether there is an allegation of misappropriation of public funds.
259    The Council disputes the applicant’s arguments.
260    As a preliminary point, it must be observed that, in accordance with the conclusions as regards the first plea in law, the contested acts do not lack a proper legal basis.
261    In addition, it has been noted in paragraph 78 above that the relevant criterion must be interpreted as not concerning, in abstract terms, any act classifiable as misappropriation of public funds, but rather as concerning acts classifiable as misappropriation of public funds or assets which, having regard to the amount or the type of funds or assets misappropriated or to the context in which the offence took place, are, at the very least, such as to undermine the legal and institutional foundations of Ukraine, and in particular the principles of legality, prohibition of arbitrary exercise of power by the executive, effective judicial review and equality before the law and, ultimately, to undermine respect for the rule of law in that country. As thus interpreted, that criterion is compatible with and proportionate to the relevant objectives of the EU Treaty.
262    Furthermore, it must be borne in mind that the Courts of the European Union have determined that the identification of a person as being responsible for an offence does not necessarily require that person to be convicted of the offence (see, to that effect, judgment of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraphs 71 and 72), and that it is for the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 121, and of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 66).
263    In this case, the relevant criterion simply enables the Council, in accordance with the judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93), to take into account an investigation with respect to acts classifiable as misappropriation of public funds as a factor which may justify, in some cases, the adoption of restrictive measures, without prejudice to the fact that, in the light of the case-law cited in paragraph 260 above and the interpretation of the listing criterion set out inter alia in paragraph 261 above, the mere fact that a person is subject to an investigation relating to offences consisting of misappropriation of funds cannot, in itself, justify action by the Council under Articles 21 and 29 TEU (see, to that effect, judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 100).
264    In view of the foregoing, it must be concluded that the relevant criterion is compatible with the objectives of the CFSP, as stated in Article 21 TEU, in so far as it covers persons identified as being responsible for a misappropriation of Ukrainian public funds that is capable of undermining the rule of law in Ukraine (see, to that effect, judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 101).
265    The applicant’s plea of illegality must therefore be rejected.
266    In the light of all the foregoing considerations, the present action must be dismissed in its entirety, and it is not necessary to rule on the Council’s third head of claim, submitted in the alternative.
Costs
267    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 pay the costs in accordance with the form of order sought by the Council.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Mr Oleksandr Viktorovych Klymenko to pay the costs.
Berardis
Spielmann
Csehi
Delivered in open court in Luxembourg on 8 November 2017.
E. Coulon
G. Berardis
Registrar
President
* Language of the case: English.
1      Confidential information omitted.