Judgment of the General Court (Sixth Chamber) of 7 July 2017 – Arbuzov v Council

(Case T-221/15)

(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 — Retention of the applicant’s name on the list — Principle of sound administration — Rights of defence — Duty to state reasons — Manifest error of assessment — Right to property)

1. Judicial proceedings–Application initiating proceedings–Formal requirements–Brief summary of the pleas in law on which the application is based–Analogous requirements with regard to grounds in support of a plea–Grounds not set out in the application–Matters of fact and law sufficiently precise and clear–Admissibility (Rules of Procedure of the General Court, Art. 76(d)) (see paras 42, 43, 50)

2. Acts of the institutions–Statement of reasons–Obligation–Scope–Restrictive measures against certain persons and entities in view of the situation in Ukraine–Freezing of funds of persons involved in the misappropriation of public 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) 2015/143 and (CFSP) 2015/364; Council Regulations 2015/138 and 2015/357) (see paras 63-65)

3. Common foreign and security policy–Restrictive measures against certain persons and entities in view of the situation in Ukraine–Decision to freeze funds–Rights of defence–Notification of inculpatory evidence–Subsequent decision maintaining the name of the applicant on the list of persons covered by those measures–That decision based on new factors not appearing in the initial decision–Infringement of the right to be heard–None (Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Council Decision 2014/119/CFSP, as amended by decisions (CFSP) 2015/143 and (CFSP) 2015/364; Council Regulation No 208/2014, as amended by Regulations 2015/138 and 2015/357) (see paras 68, 69, 72, 74)

4. Actions for annulment–Natural or legal persons–Measures of direct and individual concern to them–Restrictive measures taken having regard to the situation in Ukraine–Act adopting or maintaining such measures–No communication to the applicant–Irrelevant unless established that the applicant’s rights thereby infringed (Art. 263, fourth para, TFEU) (see para 90)

5. Common foreign and security policy–Restrictive measures against certain persons and entities in view of the situation in Ukraine–Freezing of funds of persons involved in the misappropriation of public funds–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 (Council Decisions (CFSP) 2015/364 and (CFSP) 2016/318; Council Regulations 2015/357 and 2016/311) (see para 97)

6. 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 competent EU authority to establish, in the event of challenge, that the grounds held against the persons or entities concerned well-founded (Charter of Fundamental Rights of the European Union, Arts 41 and 47; Council Decisions (CFSP) 2015/364 and (CFSP) 2016/318; Council Regulations 2015/357 and 2016/311) (see paras 100-102)

7. Common foreign and security policy–Restrictive measures against certain persons and entities in view of the situation in Ukraine–Freezing of funds of persons involved in the misappropriation of public funds–Nature of those measures–Purely protective measures–No criminal character (Art. 21(2)(b), TEU; Council Decision 2014/119/CFSP, first and second recitals) (see paras 103-106)

8. European Union–Judicial review of the legality of the acts of the institutions–Restrictive measures against certain persons and entities in view of the situation in Ukraine–Freezing of funds of persons involved in the misappropriation of public funds–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 carry out additional checks in the event of insufficient or unclear evidence provided by the authorities of a country (Art. 6(1), first para, TEU; Charter of Fundamental Rights of the European Union, Art. 51(1); Council Decisions (CFSP) 2015/364 and (CFSP) 2016/318; Council Regulations 2015/357 and 2016/311) (see paras 107-112, 132)

9. Common foreign and security policy–Restrictive measures against certain persons and entities in view of the situation in Ukraine–Freezing of funds of persons involved in the misappropriation of public funds–Assessment of the legality by reference to the information available at the time of adoption of the decision (Art. 263 TFEU; Council Decisions (CFSP) 2015/364 and (CFSP) 2016/318; Council Regulations 2015/357 and 2016/311) (see para 141)

10. European Union–Common foreign and security policy–Specific restrictive measures directed against certain persons and entities in view of the situation in Ukraine–Freezing of funds of persons involved in the misappropriation of public funds–Decision to freeze funds of a member of the former Ukranian regime–Council not adopting fund-freezing measures against other persons in an identical situations–Breach of the principle of equal treatment–None (Council Decisions (CFSP) 2015/364 and (CFSP) 2016/318; Council Regulations 2015/357 and 2016/311) (see para 145)

11. Common foreign and security policy–Restrictive measures 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 of the right to property–Breach of principle of proportionality–None (Art. 21(2) TEU; Charter of Fundamental Rights of the European Union, Arts 17(1) and 52(1); Council Decisions (CFSP) 2015/364 and (CFSP) 2016/318; Council Regulations 2015/357 and 2016/311) (see paras 167-169, 174, 175)

Re:

APPLICATION under Article 263 TFEU for 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), (ii) 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), (iii) 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 (iv) 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), in so far as those acts concern the applicant.

Operative part

The Court:

1. Dismisses the action;