Judgment of the General Court (Sixth Chamber) of 8 November 2017 — Klymenko v Council

(Case T‑245/15)

(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)

1. Acts of the institutions—Statement of reasons—Obligation—Scope—Restrictive measures taken having regard to the situation in Ukraine—Freezing of funds—Decision falling within a context known to the person concerned, enabling him to understand the scope of the measure taken against him—Whether summary statement of reasons sufficient—Limits—Statement of reasons not capable of consisting of a general and stereotyped formulation (Art. 296 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(c); Council Decisions (CFSP) 2015/364 and (CFSP) 2016/318; Council Regulations No 2015/357 and No 2016/311) (see paras 52-54)

2. Actions for annulment—Pleas in law—Lack of or inadequate statement of reasons—Separate ground from the one concerning substantive legality (Art. 263 TFEU and 296 TFEU) (see para. 55)

3. EU law—Values and objectives of the Union—Values—Respect for the rule of law—Rule of law—Meaning (Arts 2 TEU and 49 TEU) (see paras 73-75)

4. Common foreign and security policy—Restrictive measures taken against certain persons and entities in view of the situation in Ukraine—Freezing of funds of persons involved in the misappropriation of public funds belonging to the Ukrainian State—Misappropriation of public funds—Meaning—Acts of misappropriation of public funds or assets capable of undermining the institutional and legal foundations of Ukraine and respect for the rule of law in that country—Broad interpretation (Council Decisions 2014/119/CFSP, Art. 1(1)(a), and (CFSP) 2015/143) (see paras 76-78, 80-82)

5. European Union—Judicial review of the legality of the acts of the institutions—Restrictive measures taken having regard to the situation in Ukraine—Ambit of the review—Proof the measure well-founded—Obligation on the Council systematically to verify evidence submitted by the authorities of a non-Member country—None—Obligation, for the Council, to assess whether it is necessary to seek disclosure of further information or evidence from the national authorities—Scope (Charter of Fundamental Rights of the European Union, Arts 41 and 47; Council Decisions (CFSP) 2015/364 and (CFSP) 2016/318; Council Regulations No 2015/357 and No 2016/311) (see paras 98, 99, 113, 114, 116, 117, 125, 126, 262)

6. Fundamental rights—Rights of defence—Right to effective judicial protection—Restrictive measures taken having regard to the situation in Ukraine—Obligation to disclose individual and specific grounds for the decisions adopted—Obligation to disclose incriminating evidence—Scope (Charter of Fundamental Rights of the European Union, Arts 41(2)(a) and 47; Council Decisions (CFSP) 2015/364 and (CFSP) 2016/318; Council Regulations No 2015/357 and No 2016/311) (see paras 176-178)

7. Common foreign and security policy—Restrictive measures taken against certain persons and entities in view of the situation in Ukraine—Freezing of funds of persons involved in the misappropriation of public funds—Restriction on the right to property and reputation—Breach of principle of proportionality—None (Charter of Fundamental Rights of the European Union, Art. 17; Council Decisions (CFSP) 2015/364 and (CFSP) 2016/318; Council Regulations No 2015/357 and No 2016/311) (see paras 199-216)

8. Judicial proceedings—Modification of the pleas in the course of proceedings—Formal requirements—Brief summary of the pleas in law on which the application is based—Transposition of the initial pleas in law—Conditions—Reference to the whole of the annexes—Inadmissibility (Rules of Procedure of the General Court, Art. 7(d)) (see paras 235, 236, 246)

Re:

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.

Operative part

The Court:

1. Dismisses the action;