Judgment of the General Court (Sixth Chamber) of 13 December 2018 –

Azarov v Council

(Case T‑247/17)

(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 of economic resources — Maintenance of the applicant’s name on the list — Right to property — Right to pursue an economic activity — Manifest error of assessment)

1. Common foreign and security policy — Restrictive measures taken having regard to the situation in Ukraine — Freezing of funds of persons involved in the misappropriation of public funds belonging to the Ukrainian State — Infringement of the right to property and of the freedom to conduct a business — Breach of principle of proportionality — None (Art. 21(2)(b) TEU; Charter of Fundamental Rights of the European Union, Arts 16, 17(1) and 52(1); Council Decisions 2014/119/CFSP and (CFSP) 2017/381; Council Regulation 2017/374) (see paras 49-72, 75-82, 85-90)

2. Common foreign and security policy — Restrictive measures taken having regard to 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 — Concept — Acts of misappropriation of public funds or assets capable of undermining the respect for the rule of law in that country — Measure consisting of the unlawful use of public authorities’ resources, having the consequence of harming their financial interests (Council Decision 2014/119/CFSP) (see paras 104, 132)

3. 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 — Absence (Charter of Fundamental Rights of the European Union, Art. 47; Council Decision (CFSP) 2017/381; Council Regulation 2017/374) (see paras 108, 109, 111-113, 117-121, 144)

4. Common foreign and security policy — Restrictive measures taken having regard to the situation in Ukraine — Freezing of funds of persons involved in the misappropriation of public funds belonging to the Ukrainian State — Nature of those measures — Purely protective measures — No criminal character (Arts 21 and 29 TEU; Council Decision (CFSP) 2017/381; Council Regulation 2017/374) (see paras 115, 116)

5. Common foreign and security policy — Restrictive measures taken having regard to the situation in Ukraine — Freezing of funds of persons involved in the misappropriation of public funds belonging to the Ukrainian State — Assessment of the legality by reference to the information available at the time of adoption of the decision (Council Decision (CFSP) 2017/381; Council Regulation 2017/374) (see para. 122)

6. Common foreign and security policy — Restrictive measures taken having regard to the situation in Ukraine — Freezing of funds of persons involved in the misappropriation of public funds belonging to the Ukrainian State — Adoption of a restrictive measure subject to the imposition of a criminal penalty — Absence (Council Decision (CFSP) 2017/381; Council Regulation 2017/374) (see paras 133, 150)

Re:

Action under Article 263 TFEU seeking annulment of 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 of 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 has been maintained on the list of persons, entities and bodies covered by those restrictive measures.

Operative part

The Court:

1. Dismisses the action;