CELEX: 62014TO0494(01)
Language: en
Date: 2016-06-10 00:00:00
Title: Order of the General Court (Ninth Chamber) of 10 June 2016.#Oleksandr Klymenko v Council of the European Union.#Action for annulment — Common foreign and security policy — Restrictive measures adopted in view of the situation in Ukraine — Freezing of funds — List of persons, entities and bodies covered by the freezing of funds and economic resources — Inclusion of the applicant’s name — Period allowed for commencing proceedings — Admissibility — Proof that inclusion on the list is justified — Manifestly well-founded action.#Case T-494/14.

ORDER OF THE GENERAL COURT (Ninth Chamber)
10 June 2016 (*)
(Action for annulment — Common foreign and security policy — Restrictive measures adopted in view of the situation in Ukraine — Freezing of funds — List of persons, entities and bodies covered by the freezing of funds and economic resources — Inclusion of the applicant’s name — Period allowed for commencing proceedings — Admissibility — Proof that inclusion on the list is justified — Manifestly well-founded action)
In Case T‑494/14,

Oleksandr Klymenko, residing in Kyiv (Ukraine), represented by M. Shaw QC, and I. Quirk, Barrister,
applicant,
v

Council of the European Union, represented by A. Vitro and J.-P. Hix, acting as Agents,
defendant,
APPLICATION for annulment of Council Implementing Decision 2014/216/CFSP of 14 April 2014 implementing Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 111, p. 91) and of Council Implementing Regulation (EU) No 381/2014 of 14 April 2014 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 111, p. 33), in so far as they relate to the applicant,
THE GENERAL COURT (Ninth Chamber),
composed of G. Berardis (Rapporteur), President, O. Czúcz and A. Popescu, Judges, 
Registrar: E. Coulon,
makes the following

Order

 Background to the dispute

1        The present case has been brought in connection with the restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine.

2        The applicant, Mr Oleksandr Klymenko, held the post of Minister for Revenue and Duties of Ukraine.

3        On 5 March 2014, the Council of the European Union adopted, on the basis of Article 29 TEU, Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26).

4        Article 1(1) and (2) of Decision 2014/119 provides as follows: 
‘1. All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations in Ukraine, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen. 
2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in the Annex.’

5        The detailed rules for implementation of the restrictive measures at issue are defined in the subsequent paragraphs of that article. 

6        On the same date, the Council adopted, on the basis of Article 215(2) TFEU, Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 1).

7        In accordance with Decision 2014/119, Regulation No 208/2014 requires the adoption of the restrictive measures at issue and lays down the detailed rules for implementation of those restrictive measures in terms which are essentially identical to those used in that decision.

8        The names of the persons covered by Decision 2014/119 and Regulation No 208/2014 appear on the list in the annex to that decision and in Annex I to that regulation (‘the list’) together with, inter alia, the reasons for their listing. Initially, the applicant’s name did not appear on that list.

9        On 6 March 2014, the Council published in the Official Journal of the European Union a notice for the attention of the persons subject to the restrictive measures provided for in Decision 2014/119 and Regulation No 208/2014 (OJ 2014 C 66, p. 1). According to that notice, ‘the persons concerned may submit a request to the Council, together with supporting documentation, that the decision to include them on the ... list should be reconsidered ...’. The notice also draws the attention of the persons concerned ‘to the possibility of challenging the Council’s decision before the [General Court], in accordance with the conditions laid down in Article 275, second paragraph, [TFEU], and Article 263, fourth and sixth paragraphs, [TFEU]’.

10      Decision 2014/119 and Regulation No 208/2014 were amended by Council Implementing Decision 2014/216/CFSP of 14 April 2014 implementing Decision 2014/119 (OJ 2014 L 111, p. 91) and by Council Implementing Regulation (EU) No 381/2014 of 14 April 2014 implementing Regulation No 208/2014 (OJ 2014 L 111, p. 33).

11      By Implementing Decision 2014/216 and Implementing Regulation No 381/2014 the applicant’s name was added to the list with the identifying information ‘former Minister of Revenues and Charges’ and the following statement of reasons: 
‘Person subject to investigation in Ukraine for involvement in crimes in connection with the embezzlement of Ukrainian State funds and their illegal transfer outside Ukraine.’

12      On 15 April 2014, the Council published in the Official Journal of the European Union a notice that was essentially identical to the notice it had published on 6 March 2014 (see paragraph 9 above) and which was addressed to persons subject to the restrictive measures provided for in Decision 2014/119, as implemented by Implementing Decision 2014/216, and in Regulation No 208/2014, as implemented by Implementing Regulation No 381/2014, concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine. 

13      Decision 2014/119 was also amended by Council Decision (CFSP) 2015/143 of 29 January 2015 amending Decision 2014/119 (OJ 2015 L 24, p. 16), which entered into force on 31 January 2015. As to the criteria for the designation of persons covered by the restrictive measures at issue, according to Article 1 of that decision, Article 1(1) of Decision 2014/119 is replaced by the following: 
‘1. All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations in Ukraine, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen. 
For the purpose of this Decision, persons identified as responsible for the misappropriation of Ukrainian State funds include persons subject to investigation by the Ukrainian authorities: 
(a)       for the misappropriation of Ukrainian public funds or assets, or being an accomplice thereto; or 
(b)       for the abuse of office as a public office-holder in order to procure an unjustified advantage for him- or herself or for a third party, and thereby causing a loss to Ukrainian public funds or assets, or being an accomplice thereto.’

14      Council Regulation (EU) 2015/138 of 29 January 2015 amending Regulation No 208/2014 (OJ 2015 L 24, p. 1) amended the latter in accordance with Decision 2015/143.

15      Decision 2014/119 and Regulation No 208/2014 were subsequently amended by Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119 (OJ 2015 L 62, p. 25) and by Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation No 208/2014 (OJ 2015 L 62, p. 1). Decision 2015/364 amended Article 5 of Decision 2014/119 by extending the application of the restrictive measures in respect of the applicant until 6 March 2016. Implementing Regulation 2015/357 replaced Annex I to Regulation No 208/2014 accordingly.

16      By those measures, the applicant’s name was maintained on the list, with the identifying information ‘former Minister of Revenues and Charges’ and the following new statement of reasons:
‘Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets and for the abuse of office by a public office-holder in order to procure an unjustified advantage for himself or for a third party and thereby causing a loss to Ukrainian public funds or assets.’

17      Decision 2015/364 and Implementing Regulation 2015/357 are the subject matter of a further action, brought before the General Court by the applicant on 15 May 2015 (Case T‑245/15 Klymenko v Council).
 Procedure and forms of order sought

18      The applicant brought the present action by application lodged at the Court Registry on 30 June 2014. 

19      By separate document lodged at the Court Registry on the same day, the applicant applied for the present action to be decided under an expedited procedure pursuant to Article 76a of the Rules of Procedure of the General Court of 2 May 1991. The Council lodged its observations on that application. By decision of 11 August 2014, the Court (Ninth Chamber) refused the application for an expedited procedure. 

20      By separate document, lodged at the Court Registry on 29 September 2014, the Council raised a plea of inadmissibility under Article 114(1) of the Rules of Procedure of 2 May 1991.

21      By order of the General Court (Ninth Chamber) of 7 January 2015, a decision on the plea of inadmissibility was reserved for the final judgment, in accordance with Article 114(4) of the Rules of Procedure of 2 May 1991.

22      On 24 February 2015, the Council submitted a reasoned application in accordance with Article 18(4) of the Instructions to the Registrar of the General Court for the contents of certain annexes to the defence not to be cited in the documents relating to the present case to which the public had access.

23      By letter of 15 April 2015, the applicant applied for a measure of organisation of procedure in order to obtain documents that the Council had not yet placed on the file. On 4 May 2015, the Council placed the documents requested by the applicant on the file and submitted a reasoned application in accordance with Article 18(4) of the Instructions to the Registrar of the General Court for the contents of those documents not to be cited in the documents relating to the present case to which the public had access.

24      By letter of 25 November 2015, the Court Registry asked the parties to state their views on the applicability of Article 132 of the Rules of Procedure of the General Court to the present case in view of the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806), by which the Court annulled Decision 2014/119 and Regulation No 208/2014 in so far as they concerned the applicant in that case. The parties replied within the prescribed period.

25      The applicant claims, in essence, that the Court should:
–        reject the plea of inadmissibility;
–        annul Implementing Decision 2014/216 and Implementing Regulation No 381/2014 in so far as they relate to him; 
–        order the Council to pay the costs.

26      The Council contends that the Court should:
–        principally, dismiss the action as inadmissible;
–        in the alternative, dismiss the action as unfounded;
–        in the alternative, in the event of annulment, declare that the effects of Decision 2014/119, as amended by Implementing Decision 2014/216, are to be maintained with regard to the applicant until the annulment in part of Regulation No 208/2014, as amended by Implementing Regulation No 381/2014, takes effect;
–        order the applicant to pay the costs. 
 Law

27      Under Article 132 of the Rules of Procedure, where the Court of Justice or the General Court has already ruled on one or more questions of law identical to those raised by the pleas in law of the action and the General Court finds that the facts have been established, it may, after the written part of the procedure has been closed, after hearing the parties, decide by reasoned order in which reference is made to the relevant case-law to declare the action manifestly well founded. 

28      In the present case, the Council put forward, by separate document, a plea of inadmissibility which, notwithstanding that a decision on it was reserved for the final judgment, remains subject to determination by the Court. The Court, considering that it has sufficient information available to it from the material in the file, has decided to give a ruling without taking further steps in the proceedings.
 The plea of inadmissibility raised by the Council

29      The Council claims that the present action against Implementing Decision 2014/216 and Implementing Regulation No 381/2014 is inadmissible because it was brought out of time. More particularly, recalling the terms of the sixth paragraph of Article 263 TFEU and referring to the judgment of 23 April 2013 in Gbagbo and Others v Council (C‑478/11 P to C‑482/11 P, EU:C:2013:258), the Council claims that the two-month period allowed for bringing proceedings started to run from the communication to the applicant of the decision to enter his name on the list, which took place through the publication of a notice in the Official Journal of the European Union (see paragraph 12 above), since the Council did not know the applicant’s address. 

30      In that regard, it maintains that Article 102(1) of the Rules of Procedure of 2 May 1991, according to which the period allowed for bringing proceedings runs from the end of the 14th day after publication of the measure, applies only where the period allowed for commencing proceedings against a measure starts to run from the publication of that measure, which is not the case here. Furthermore, it claims that it is apparent from the judgment of 23 April 2013 in Gbagbo and Others v Council (C‑478/11 P to C‑482/11 P, EU:C:2013:258) that where a measure has been communicated to the persons and entities concerned through the publication of a notice in the Official Journal of the European Union, those persons or entities cannot rely on such publication in order to defer the starting point of the period for bringing proceedings.

31      Accordingly, in this case, the two-month period for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU, extended on account of distance by a single period of 10 days as provided in Article 102(2) of the Rules of Procedure of 2 May 1991, expired, according to the Council, on 25 June 2014. The Council claims that this action, brought on 30 June 2014, is therefore inadmissible.

32      The applicant contests the Council’s arguments and contends that the action was not brought out of time. 

33      First of all, it must be borne in mind that, as provided in the sixth paragraph of Article 263 TFEU, an action for annulment must be instituted within two months of the publication of the contested measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.

34      According to the case-law, the principle of effective judicial protection means that the European Union authority which adopts an act imposing restrictive measures against a person or entity is bound to communicate to the person or entity concerned the grounds on which it is based, so far as possible, either when that act is adopted or, at the very least, as swiftly as possible after it has been adopted in order to enable that person or entity to exercise its right to bring an action (see judgment of 16 November 2011 in Bank Melli Iran v Council, C‑548/09 P, EU:C:2011:735, paragraph 47 and the case-law cited).

35      That situation is a consequence of the particular nature of the acts imposing restrictive measures on a person or entity, which at the same time resemble both acts of general application, in that they impose on a category of addressees determined in a general and abstract manner a prohibition on, inter alia, making available funds and economic resources to persons and entities named in the lists contained in their annexes, and also a bundle of individual decisions affecting those persons and entities (see judgment of 23 April 2013 in Gbagbo and Others v Council, C‑478/11 P to C‑482/11 P, EU:C:2013:258, paragraph 56 and the case-law cited).

36      In the present case, the principle of effective judicial protection is given specific effect in Article 2(2) of Decision 2014/119 and Article 14(2) of Regulation No 208/2014, which provide that the Council is to communicate its decision, including the grounds for the inclusion of their name in the list of persons and entities covered by the restrictive measures, to the person or entity concerned, either directly, if the address is known, or through the publication of a notice, providing such person or entity with an opportunity to present observations.

37      Thus, the period for bringing an action for the annulment of an act imposing restrictive measures on a person or entity only begins to run either from the date of the individual communication of that act to the party concerned, if his address is known, or, if it is not, from the date of publication of a notice in the Official Journal of the European Union (see, to that effect, judgment of 23 April 2013 in Gbagbo and Others v Council, C‑478/11 P to C‑482/11 P, EU:C:2013:258, paragraphs 59 to 62).

38      It must be stated in that regard that the Council is not free to choose arbitrarily the means of communication of its decisions to the persons concerned. It is clear from paragraph 61 of the judgment of 23 April 2013 in Gbagbo and Others v Council (C‑478/11 P to C‑482/11 P, EU:C:2013:258) that the Court of Justice intended that indirect communication of acts imposing restrictive measures by means of the publication of a notice in the Official Journal of the European Union should be permissible solely in cases where it was impossible for the Council to undertake individual communication. To conclude otherwise would allow the Council a convenient means of evading its obligation to effect individual communication (judgments of 3 July 2014 in Zanjani v Council, T‑155/13, not published, EU:T:2014:605, paragraph 36; Sorinet Commercial Trust Bankers v Council, T‑157/13, not published, EU:T:2014:606, paragraph 38; and Sharif University of Technology v Council, T‑181/13, not published, EU:T:2014:607, paragraph 31). 

39      Moreover, the Council may be considered to be unable to communicate individually to a natural or legal person or to an entity an act incorporating restrictive measures relating to that person or entity either when the latter’s address is not published and has not been supplied to the Council or when the communication sent to the address which the Council has fails, in spite of the steps which it has taken, with all necessary diligence, in order to effect such communication (judgment of 5 November 2014 in Mayaleh v Council, T‑307/12 and T‑408/13, EU:T:2014:926, paragraph 61). 

40      In the present case, the Council states that the applicant’s address was not known to it when Implementing Decision 2014/216 and Implementing Regulation No 381/2014 were adopted, which the party concerned does not dispute.

41      Since the Council had no choice but to communicate the entry of the applicant’s name on the list through the publication of a notice in the Official Journal of the European Union, the date of publication of that notice is the starting point for the period allowed for bringing an action in the present case. 

42      As regards the calculation of that period, it will be recalled that, under Article 102(1) of the Rules of Procedure of 2 May 1991, where the period of time allowed for commencing proceedings against a measure adopted by an institution runs from the publication of that measure, that period is to be calculated from the end of the 14th day after publication thereof in the Official Journal of the European Union. In accordance with the provisions of Article 102(2) of those rules, that period is also to be extended on account of distance by a single period of 10 days.

43      In that context, the Council’s argument that Article 102(1) of the Rules of Procedure of 2 May 1991 was not applicable in the present case cannot succeed. 

44      First of all, it is clear from the wording of Article 102(1) of the Rules of Procedure of 2 May 1991 that the 14-day extension is applicable to measures in respect of which the period allowed for commencing proceedings runs from the date of their publication, which means that only measures which are notified are excluded from its scope. That provision draws no distinction according to the type of measure published in the Official Journal of the European Union. It may therefore be concluded that, provided that a measure has been published and that the date of publication of that measure constituted the starting point of the period allowed for commencing proceedings laid down in the sixth paragraph of Article 263 TFEU, Article 102(1) of the Rules of Procedure of 2 May 1991 is applicable (see, to that effect, judgments of 3 July 2014 in Zanjani v Council, T‑155/13, not published, EU:T:2014:605, paragraphs 40 and 41, and Sorinet Commercial Trust Bankers v Council, T‑157/13, not published, EU:T:2014:606, paragraphs 42 and 43). 

45      Further, the objective of the 14-day period laid down in Article 102(1) of the Rules of Procedure of 2 May 1991 is to ensure that interested parties have sufficient time within which to bring an action against published measures and, consequently, to observe the right to effective judicial protection, as laid down in Article 47 of the Charter of Fundamental Rights of the European Union (judgment of 26 September 2013 in PPG and SNF v ECHA, C‑625/11 P, EU:C:2013:594, paragraph 35). 

46      It must also be observed that the publication in the Official Journal of the European Union of a notice concerning the listing of persons and entities which are subject to restrictive measures cannot be treated as equivalent to notification of those measures to the persons and entities concerned. Where there is notification of an act, it may be presumed that it is available to the person to whom it is addressed on the date of notification. There can be no such presumption where acts of individual scope, such as restrictive measures, are communicated indirectly to the persons and entities concerned by means of the publication of a notice in the Official Journal of the European Union. Article 102(1) of the Rules of Procedure of 2 May 1991 provides for a period of 14 days on the expiry of which it may reasonably be presumed that the Official Journal of the European Union is in fact available in all Member States and in non-Member States. Consequently, the 14-day extension laid down in that provision must apply to all measures communicated by means of publication in the Official Journal of the European Union, including measures of individual scope communicated to the persons concerned by means of the publication of a notice in the Official Journal of the European Union (judgments of 3 July 2014 in Zanjani v Council, T‑155/13, not published, EU:T:2014:605, paragraphs 42 and 43, and Sorinet Commercial Trust Bankers v Council, T‑157/13, not published, EU:T:2014:606, paragraphs 44 and 45).

47      Lastly, it is evident from the case-law that the application of Article 102(1) of the Rules of Procedure of 2 May 1991 serves the objective of safeguarding the right of the persons concerned to have communicated to them restrictive measures imposed on them, where appropriate by means of the publication of a notice in the Official Journal of the European Union (judgments of 3 July 2014 in Zanjani v Council, T‑155/13, not published, EU:T:2014:605, paragraph 44, and Sorinet Commercial Trust Bankers v Council, T‑157/13, not published, EU:T:2014:606, paragraph 46).

48      Where the addresses of the persons or entities subject to restrictive measures are not known, or where it is impossible to communicate those measures directly, if indirect communication of such measures, by means of the publication of a notice in the Official Journal of the European Union, were subject to the rules relating to the calculation of time limits applicable to individual notification, that would deprive the persons concerned of the 14-day extension of time for commencing proceedings that runs from the date of publication of the measure, laid down in Article 102(1) of the Rules of Procedure of 2 May 1991, although they would not be in a position to benefit from the safeguards deriving from direct communication. In such circumstances, the obligation to communicate the restrictive measures indirectly, by means of the publication of a notice, the purpose of which is in principle to confer additional safeguards on the persons concerned, would have the paradoxical effect of placing them in a less favourable situation than that which would arise from the mere publication of the contested acts in the Official Journal of the European Union (see, to that effect, judgments of 4 February 2014 in Syrian Lebanese Commercial Bank v Council, T‑174/12 and T‑80/13, EU:T:2014:52, paragraphs 65 and 66; of 3 July 2014 in Zanjani v Council, T‑155/13, not published, EU:T:2014:605, paragraph 45; and Sorinet Commercial Trust Bankers v Council, T‑157/13, not published, EU:T:2014:606, paragraph 47). 

49      It follows from the foregoing that the Council cannot reasonably base its argument on the judgment of 23 April 2013 in Gbagbo and Others v Council (C‑478/11 P to C‑482/11 P, EU:C:2013:258), in which the Court of Justice specifically stressed the fact that the obligation to communicate individually was intended primarily to protect individuals. Consequently, that judgment cannot be invoked in order to subject individuals to treatment that would be less favourable to them than that which would result from mere publication of the acts containing the restrictive measures against them (see, to that effect, judgment of 4 February 2014 in Syrian Lebanese Commercial Bank v Council, T‑174/12 and T‑80/13, EU:T:2014:52, paragraph 67).

50      It must, moreover, also be held that the Council erred in basing its argument on the judgment of 9 July 2014 in Al-Tabbaa v Council (T‑329/12 and T‑74/13, not published, EU:T:2014:622), referring as it does in particular to paragraph 59 of that judgment. In that paragraph, it is noted, first of all, that the acts at issue had been communicated to the applicant, on the one hand, by means of a letter notified to the applicant’s representatives and, on the other, by means of the publication of a notice in the Official Journal of the European Union, both of which happened on the same day. Next, the Court found that the action brought against those acts was not out of time since it was brought before the expiry of the shortest possible period for bringing an action, namely the period calculated from the date of notification to the applicant’s representative. It follows from this that it was not necessary, in that case, to set out the calculation of the period for bringing an action that ran from publication of the notice, to which Article 102(1) of the Rules of Procedure of 2 May 1991 applied. 

51      That last finding is not affected by the fact that paragraph 59 of the judgment of 9 July 2014 in Al-Tabbaa v Council (T‑329/12 and T‑74/13, not published, EU:T:2014:622) makes clear that, in both cases, the periods for bringing proceedings are extended on account of distance by a single period of 10 days pursuant to Article 102(2) of the Rules of Procedure of 2 May 1991. First, that provision applies irrespective of the nature of the event that triggers the period for bringing an action and, secondly, the application of that provision does not preclude the application of Article 102(1) of the Rules of Procedure of 2 May 1991, as the Council submits.

52      In the present case, the Council published a notice in the Official Journal of the European Union of 15 April 2014 concerning the inclusion of the applicant’s name on the list. The period of two months, extended by the period of 14 days laid down in Article 102(1) of the Rules of Procedure of 2 May 1991 and, on account of distance, by the single period of 10 days laid down in Article 102(2) of those rules, therefore expired on 9 July 2014.

53      Since the present action was lodged at the Court Registry on 30 June 2014, it was brought within the legal time limit, and accordingly the Council’s plea of inadmissibility must be rejected.
 Substance

54      In support of the action, the applicant relies on four pleas in law. The first plea alleges infringement of the rights of the defence and of the right to effective judicial protection. The second plea alleges a manifest error in the assessment of the evidence. The third plea is in three parts, alleging, respectively, a failure to state reasons, non-fulfilment of the criteria laid down in Article 1(1) of Decision 2014/119, and misuse of powers. Lastly, the fourth plea alleges breach of the right to property and of the principle of proportionality

55      The Court considers it appropriate to begin by examining together the second plea and the second part of the third plea, in support of which the applicant submits, in essence, that the restrictive measures against him were adopted without a sufficiently solid factual basis. 

56      The second plea and the second part of the third plea raise a question of law identical to that on which the Court has already ruled in the judgments of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806); and of 28 January 2016 in Azarov v Council (T‑331/14, EU:T:2016:49); Azarov v Council (T‑332/14, not published, EU:T:2016:48); Klyuyev v Council (T‑341/14, EU:T:2016:47); Arbuzov v Council (T‑434/14, not published, EU:T:2016:46); and Stavytskyi v Council (T‑486/14, not published, EU:T:2016:45), which have become final and now have the absolute authority of res judicata. 

57      In the present case, the applicant submits that it has not been established that he is responsible for misappropriation of public funds or that he was linked to a person identified as such, or that he was under investigation. According to him, there is nothing in the file to indicate what relevant factual information the Council relied on. Furthermore, in view of the fact that, according to the case-law, rights of defence do not require communication of evidence in advance of asset-freezing measures, the existence or sufficiency of the evidence should be subject to strict verification by the Courts of the European Union. 

58      In the reply, having had sight of the letter of 7 March 2014 from the Office of the Prosecutor General of Ukraine to the High Representative of the Union for Foreign Affairs and Security Policy (‘the letter of 7 March 2014’), the applicant submitted that that letter was the only evidence then in existence on which the Council could rely when it decided to enter his name on the list, and that that letter did not constitute a sufficiently solid factual basis. Furthermore, the criminal offence referred to in the letter of 7 March 2014, that is abuse of authority or office, did not support the reason given to justify the inclusion of the applicant’s name on the list, since embezzlement is a separate crime under the Ukrainian Criminal Code. According to the applicant, the Council had failed to show that there was any concrete evidence or that there was a sufficiently solid factual basis, as required by the case-law of the Courts of the European Union, to justify the inclusion of his name on the list. The fact that the letter of 7 March 2014 indicated in one line that the applicant was under investigation for ‘abuse of authority or office’ is not sufficient in that respect. The Council needs to show evidence that it was able to verify that the investigation being carried out by the Ukrainian authorities had some substance.

59      The Council contends that the grounds for the inclusion of the applicant’s name on the list have a solid factual basis. Those grounds are based on the letter of 7 March 2014 indicating that the applicant was under investigation for involvement in crimes in connection with the misappropriation of State funds and their illegal transfer out of Ukraine, which corresponds to the statement of reasons concerning the applicant set out in Implementing Decision 2014/216 and in Implementing Regulation No 381/2014. The Council states in that regard that the need to produce concrete evidence does not extend to proving the veracity of the crimes which the Ukrainian authorities suspect the applicant of having committed. It is sufficient that the Council produce evidence of the existence of investigations into alleged misappropriation of Ukrainian State funds; it is not necessary for it to produce evidence that the applicant is actually guilty, which it is for the Ukrainian judicial authorities to establish. The Council submits that a distinction must, moreover, be drawn between, on the one hand, the ongoing criminal proceedings (including investigations) in Ukraine, in which the applicant will be able to defend himself in accordance with the rules of Ukrainian criminal procedure and, on the other, the temporary and preventive measures freezing his assets at EU level, for the adoption of which the Council is not required to adduce proof of the offences for which the applicant is under investigation. Thus, the Council could rely on the mere existence of an ongoing investigation when deciding to impose restrictive measures.

60      In the rejoinder, the Council submits that, contrary to what is claimed by the applicant, at the time of the adoption of Implementing Decision 2014/216 and Implementing Regulation No 381/2014, it took into consideration three elements: the specific context represented by the situation in Ukraine; the justification represented by the letter of 7 March 2014; and [confidential]. (1) The Council submits that it thus provided sufficient details concerning the factual basis of those acts and did not therefore make an error of assessment. 

61      As was noted in paragraph 38 of the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806), although the Council has a broad discretion as regards the general criteria to be taken into consideration for the purpose of adopting restrictive measures, the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to include or to maintain a person’s name on the list of persons subject to restrictive measures, the Courts of the European Union are to ensure that that decision, which affects that person individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, are substantiated by sufficiently specific and concrete evidence (see judgment of 21 April 2015 in Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraphs 41 and 45 and the case-law cited). 

62      As in the case that gave rise to the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraph 39), in the present case, in accordance with the criterion laid down in Article 1(1) of Decision 2014/119, restrictive measures are to be adopted against persons having been identified as responsible for the misappropriation of State funds. Furthermore, it is evident from recital 2 of that decision that the Council adopted those measures ‘with a view to consolidating and supporting the rule of law ... in Ukraine’.

63      The applicant’s name was included on the list on the ground that he was a ‘person subject to investigation in Ukraine for involvement in crimes in connection with the embezzlement of Ukrainian State funds and their illegal transfer outside Ukraine’. It follows from this that the Council regarded the applicant as being the subject of a preliminary investigation or inquiry, which had not (or had not yet) culminated in the bringing of a formal charge, because of his alleged involvement in the misappropriation of public funds.

64      As in the case that gave rise to the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraph 41), the Council relied in support of the ground for the applicant’s listing on a letter from the Office of the Prosecutor General of Ukraine to the High Representative of the Union for Foreign Affairs and Security Policy, in this instance the letter of 7 March 2014 (see paragraph 58 above), as well as on other evidence that post-dated Implementing Decision 2014/216 and Implementing Regulation No 381/2014.

65      The letter of 7 March 2014 indicates that ‘the law-enforcement bodies of Ukraine have launched a number of criminal proceedings based on the facts of crimes committed by former high officials’. The applicant’s name is then listed, with an indication of the criminal offence which he is suspected of having committed under the Ukrainian Criminal Code (in this case, abuse of authority or office, which ‘caused grave consequences’). The letter also states that ‘the investigation of the above unlawful acts checks the facts related to the appropriation of large amounts of the State assets and their further unlawful transfer outside Ukraine’. 

66      It is not disputed that the applicant was identified on that basis alone ‘as responsible for the misappropriation of Ukrainian State funds’ within the meaning of Article 1(1) of Decision 2014/119. 

67      As in the case that gave rise to the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraph 42), the letter from the Office of the Prosecutor General of Ukraine, in this instance the letter of 7 March 2014, is the only piece of evidence lodged by the Council during the course of these proceedings which pre-dates Implementing Decision 2014/216 and Implementing Regulation No 381/2014. 

68      By analogy with the Court’s ruling in its judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraphs 43 and 44), it must be held that, although that letter was sent by a high judicial body of a non-Member country, it contains only a general, generic statement linking the applicant’s name, along with those of other former senior officials, to an investigation which, in essence, sought to verify whether misappropriation of public funds had in fact occurred. Even though the letter of 7 March 2014 identifies the crime which the applicant is suspected of having committed under the Ukrainian Criminal Code, that is to say, the abuse of authority or office under Article 364(2) of the Code, it does not provide any details as to the establishment of the acts which the investigation conducted by the Ukrainian authorities was in the process of verifying and, still less, as to the applicant’s individual liability, even if presumed, in respect of those acts (see also, to that effect, judgments of 28 January 2016 in Arbuzov v Council, T‑434/14, not published, EU:T:2016:46, paragraph 39, and Stavytskyi v Council, T‑486/14, not published, EU:T:2016:45, paragraph 44). 

69      It should further be noted that, in contrast to the judgment of 27 February 2014 in Ezz and Others v Council (T‑256/11, EU:T:2014:93, paragraphs 57 to 61), upheld on appeal by the judgment of 5 March 2015 in Ezz and Others v Council (C‑220/14 P, EU:C:2015:147), invoked by the Council, in the present case the Council did not have any information regarding the acts or conduct specifically imputed to the applicant by the Ukrainian authorities and, moreover, even if it is examined in its context, the letter of 7 March 2014 cannot constitute a sufficiently solid factual basis, within the meaning of the case-law cited in paragraph 61 above, for including the applicant’s name on the list on the ground that he was identified ‘as responsible’ for the misappropriation of State funds (see, to that effect, judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraphs 46 to 48).

70      Irrespective of the stage of the proceedings to which the applicant was said to be subject, the Council could not adopt restrictive measures against him without knowing the acts of misappropriation of State funds which the Ukrainian authorities were specifically alleging against him. It is only by being aware of such acts that the Council would have been in a position to establish that they were capable, first, of being categorised as misappropriation of State funds and, secondly, of undermining the rule of law in Ukraine, the consolidation and support of which, as recalled in paragraph 62 above, constitute the objective of the adoption of the restrictive measures at issue (see, to that effect, judgments of 28 January 2016 in Arbuzov v Council, T‑434/14, not published, EU:T:2016:46, paragraph 55, and Stavytskyi v Council, T‑486/14, not published, EU:T:2016:45, paragraph 48).

71      Furthermore, it is for the competent EU authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded (see judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraph 45 and the case-law cited).

72      It must therefore be concluded that, as in the Court’s ruling in the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806, paragraph 50), the inclusion of the applicant’s name on the list does not comply with the criteria set by Implementing Decision 2014/216 for the designation of persons covered by the restrictive measures at issue. 

73      It follows from this that the present action must be declared manifestly well founded, in accordance with Article 132 of the Rules of Procedure.

74      That conclusion cannot be called into question by the Council’s arguments in reply to a question from the Court (see paragraph 24 above), which seek to challenge the application of that article to the present case. 

75      First, the Council submits that, in the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806), the Court ruled on the question whether the letter from the Office of the Prosecutor General of Ukraine constituted a sufficiently solid factual basis for including Mr Portnov’s name on the list on the ground that he was identified as responsible for the misappropriation of State funds, whereas, in the present case, the Council also relied on [confidential]. According to the Council, the facts and the question of law examined in the case giving rise to the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806) and in the present case are therefore different. Secondly, the Council observes that it raised a plea of inadmissibility and that the General Court reserved its decision on that for the final judgment. 

76      As regards the first objection, it must be noted, first of all, that, in its judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806), the Court did not cast doubt on the reliability or validity of the letter from the Office of the Prosecutor General of Ukraine, but on the fact that that piece of evidence alone could constitute a sufficiently solid factual basis, within the meaning of the case-law cited in paragraph 61 above, for including the applicant’s name on the list on the ground that he was identified ‘as responsible’ for the misappropriation of State funds (see paragraphs 66 to 70 above). 

77      Furthermore, it is evident from [confidential], and made no further reference whatsoever to the nature or to the stage of the investigation concerning the applicant or to the facts incriminating him. [confidential]. 

78      However, those two elements are not capable of differentiating the question of law on which the Court has already ruled in its judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806) and in the judgments referred to in paragraph 56 above from that raised by the second plea in law and the second part of the third plea in law in the present case, since they have no bearing on the legal assessment of the conditions for the existence of a sufficiently solid factual basis. They merely confirm that the letter of 7 March 2014 is valid and that the adoption of restrictive measures against the applicant is allegedly appropriate. That letter thus remains the only evidence to justify including the names of the persons concerned on the list on the ground that they were identified ‘as responsible’ for misappropriation of State funds, which the Court has held to be insufficient for a finding that the Council has discharged its burden of proof (see, to that effect, judgments of 26 October 2015 in Portnov v Council, T‑290/14, EU:T:2015:806, paragraphs 43 to 48, and of 28 January 2016 in Stavytskyi v Council, T‑486/14, EU:T:2016:45, paragraphs 43 to 47). 

79      Furthermore, as regards the facts, it should be borne in mind that, according to Article 132 of the Rules of Procedure, it is for the Court to find that they have been established. In that regard, it must be observed that, contrary to what the Council appears to be claiming, the facts established do not have to be the same as those held to be relevant in the case that gave rise to the judgment of 26 October 2015 in Portnov v Council (T‑290/14, EU:T:2015:806). In the present case, the correctness of the facts on which the Council relied in listing the applicant — that is, in particular, the fact that, according to the letter of 7 March 2014, there was a preliminary investigation or inquiry by the Ukrainian authorities concerning the applicant for misappropriation of public funds — is not disputed by the parties and may therefore be regarded as established.

80      The fact that a letter such as the letter of 7 March 2014 referring to those inquiries or investigations cannot be regarded as sufficient, by itself, to substantiate the reasons for the applicant’s listing is, on the other hand, the key element of the legal assessment of the way in which the Council discharged its burden of proof (see paragraph 78 above), which does not amount to calling into question the facts described in that letter. 

81      As regards the second objection, it should be noted that, in accordance with the case-law, the possibility of dismissing an action as inadmissible by reasoned order, and therefore without holding a hearing, is not precluded by the fact that the Court may have previously made an order reserving for the final judgment a plea put forward on the basis of Article 114 of the Rules of Procedure of 2 May 1991 (see, to that effect, order of 19 February 2008 in Tokai Europe v Commission, C‑262/07 P, not published, EU:C:2008:95, paragraphs 26 to 28). That conclusion applies equally to the possibility of rejecting the plea of inadmissibility where the Court intends, as in the present case, to declare that the action is manifestly well founded as provided in Article 132 of the Rules of Procedure, which expressly provides that the Court may rule at the end of a written procedure alone.

82      In the light of all the foregoing considerations, the Court must therefore uphold the action, which is manifestly well founded within the meaning of Article 132 of the Rules of Procedure, inasmuch as it seeks annulment of Implementing Decision 2014/216 in so far as it concerns the applicant.

83      For the same reasons, Implementing Regulation No 381/2014 must be annulled in so far as it relates to the applicant.
 The temporal effects of the annulment in part of Decision 2014/119, as amended by Implementing Decision 2014/216

84      The Council submits that, if the Court annuls Decision 2014/119, as amended by Implementing Decision 2014/216, in so far as it concerns the applicant, it will be necessary for the effects of that decision as regards the applicant to be maintained pursuant to the second paragraph of Article 264 TFEU until the annulment in part of Regulation No 208/2014, as amended by Implementing Regulation No 381/2014, takes effect, in order to ensure legal certainty and preserve the coherence and consistency of the legal order. 

85      The applicant disputes that line of argument.

86      It must be recalled that Decision 2014/119, as amended by Implementing Decision 2014/216, was amended by Decision 2015/364, which replaced the list as from 7 March 2015 and extended the application of the restrictive measures concerning the applicant until 6 March 2016. Following those amendments the applicant’s name was maintained on the list with new reasons for his listing (see paragraphs 16 and 17 above). 

87      Therefore, as at today’s date, the applicant is subject to a new restrictive measure. It follows that annulment of Decision 2014/119, as amended by Implementing Decision 2014/216, in so far as it relates to the applicant, does not lead to the removal of his name from the list (see, to that effect, judgment of 28 January 2016 in Azarov v Council, T‑331/14, EU:T:2016:49, paragraph 71).

88      Consequently, it is not necessary to maintain the effects of Decision 2014/119, as amended by Implementing Decision 2014/216, in so far as it relates to the applicant.
 Costs

89      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby orders:
1.      Council Implementing Decision 2014/216/CFSP of 14 April 2014 implementing 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) No 381/2014 of 14 April 2014 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine are annulled in so far as they relate to Mr Oleksandr Klymenko.

2.      The Council of the European Union shall bear its own costs and pay those incurred by Mr Klymenko.

Luxembourg, 10 June 2016.

E. Coulon 
 
      G. Berardis

Registrar
 
       President

* Language of the case: English.

1 Confidential information redacted.