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

(Case T‑246/15)

(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 — Manifest error of assessment)

1. Actions for annulment—Interest in bringing proceedings—Action brought against an act imposing restrictive measures on the applicant—Repeal of the contested act in the course of the proceedings—Declaration that no need to adjudicate—Not permissible—Applicant maintaining an interest in obtaining recognition that the contested act unlawful (Art. 263 TFEU; Council Decisions 2014/119/CFSP, (CFSP) 2015/364 and (CFSP) 2016/318; Council Regulations No 208/2014, No 2015/357 and No 2016/311) (see paras 45-50)

2. 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 2014/119/CFSP, (CFSP) 2015/364 and (CFSP) 2016/318; Council Regulations No 208/2014, No 2015/357 and No 2016/311) (see paras 65-74)

3. 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—Measure consisting of the unlawful use of public authorities’ resources, having the consequence of harming their financial interests (Council Decisions 2014/119/CFSP, Art. 1(1), and (CFSP) 2015/143) (see paras 91-95)

4. European Union—Judicial review of the legality of the acts of the institutions—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—Ambit of the review—Assessment of the legality by reference to the information available at the time of adoption of the decision (Art. 263 TFEU; Council Decisions 2014/119/CFSP, (CFSP) 2015/364 and (CFSP) 2016/318; Council Regulations No 208/2014, No 2015/357 and No 2016/311) (see para. 143)

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), and (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), in so far as the applicant’s name was maintained on the list of persons, entities and bodies subject to those restrictive measures.

Operative part

The Court:

1. Annuls 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 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 in so far as they apply to the applicant;

2. Annuls 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 and Council Implementing Regulation (EU) 2015/311 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 in so far as they apply to the applicant;