Judgment of the General Court (Sixth Chamber) of 11 July 2018 –

Klyuyev v Council

(Case T‑240/16)

(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 — Legal basis — Manifest error of assessment — Rights of defence — Right to effective judicial protection — Right to property — Right to reputation — Plea of illegality)

1. 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 62, 63)

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—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 Decision 2014/119/CFSP, Art. 1(1)(a), as amended by Decision 2015/143/CFSP; Council Regulation No 208/2014, Art. 3(1), as amended by Regulation 2015/138) (see paras 61, 64-67, 209)

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—None (Charter of Fundamental Rights of the European Union, Arts 41 and 47; Council Decisions (CFSP) 2016/318 and 2017/381; Council Regulations 2016/311 and 2017/374) (see paras 73, 113-117, 122-126, 133, 212, 213, 234, 236)

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 (Council Decision (CFAP) 2016/318; Council Regulation 2016/311) (see paras 120, 121)

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—Adoption of a restrictive measure subject to the imposition of a criminal penalty—None (Council Decision 2014/119/CFSP, Art. 1(1)(a), as amended by Decision 2015/143/CFSP; Council Regulation No 208/2014, Art. 3(1), as amended by Regulation 2015/138) (see para. 132)

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—Assessment of the legality by reference to the information available at the time of adoption of the decision (see para. 137)

7. 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) and 47; Council Decision (CFSP) 2016/318; Council Regulation 2016/311) (see paras 151-153)

8. 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 the right to reputation—None (Charter of Fundamental Rights of the European Union, Art. 17(1); Council Decision (CFSP) 2016/318; Council Regulation 2016/311) (see paras 168-183)

Re:

APPLICATION under Article 263 TFEU seeking the annulment, first, of 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, second, 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 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. Annuls 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 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 in so far as Mr Andriy Klyuyev’s name was retained on the list of persons, entities and bodies subject to those restrictive measures;

2. Dismisses the action as to the remainder;

3. Orders Mr Klyuyev to bear his own costs and to pay those incurred by the Council of the European Union in relation to the claim for annulment made in the application;