Vadzim Ipatau v Council of the European Union.
Date: 2015-06-18
26. In paragraphs 75 and 76 of the judgment under appeal, the General Court — without erring in law — recalled the case-law pursuant to which, in the context of the adoption of a decision to maintain the name of a person or an entity in a list of persons or entities subject to restrictive measures, the Council must respect the right of that person or entity to be heard beforehand where that institution is including in that decision new evidence against that person or entity, namely evidence which was not included in the initial listing decision (see, to that effect, in particular, judgment in France  v People’s Mojahedin Organization of Iran , C‑27/09 P, EU:C:2011:853, paragraphs 62 and 63).
31. Mr Ipatau makes reference to the judgment in Commission and Others  v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 119 and 121), pursuant to which it is for the Council to adduce evidence that the grounds which are the basis of the decision to include or to continue to include a person in a list of persons subject to sanctions are well founded, and the judgment in Tay Za  v Council  (C‑376/10 P, EU:C:2012:138, paragraph 71), by which the Court condemned the making of any assumptions about a person, or the inclusion of that person in such a list purely on the basis of their links with other persons. He submits that the General Court erred in law in ruling that the grounds of the disputed acts were sufficient to establish his responsibility for the violations of international electoral standards which occurred during the Presidential elections of 19 December 2010. In that regard, Mr Ipatau argues, first, that there was no reason for him to dissociate himself from the work of the CEC.
36. The Council emphasises that the Belarussian electoral system is able to function only as a result of sincere cooperation between high-level national officials such as Mr Ipatau. It is of the view that, as a high-level government official, Mr Ipatau was associated, within the meaning accepted by the Court in its judgment in Tay Za  v Council (C‑376/10 P, EU:C:2012:138), with the Belarussian government. It follows that the Council was entitled to confine itself to mentioning that link between Mr Ipatau and the government in its statement of reasons for the decisions which it adopted.
Findings of the Court
37. It should be borne in mind that the duty to state reasons established by Article 296 TFEU is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue (see, to that effect, judgment in Commission  v Sytraval and Brink’s France , C‑367/95 P, EU:C:1998:154, paragraph 67). The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect (see judgment in Bertelsmann and Sony Corporation of America  v Impala , C‑413/06 P, EU:C:2008:392, paragraph 181). It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a ground of appeal alleging an inadequate statement of reasons or a lack of such a statement.
39. In the context of ascertaining whether Mr Ipatau’s inclusion in the lists of persons subject to restrictive measures was well founded, it is necessary to examine, first, the general criteria for inclusion in those lists, second, the grounds stated for including Mr Ipatau in such a list and, third, the evidence that his listing was well founded (judgments in Anbouba  v Council , C‑605/13 P, EU:C:2015:247, paragraph 40, and Anbouba  v Council , C‑630/13 P, EU:C:2015:248, paragraph 41).
40. It should be borne in mind that the Council has a broad discretion when defining the general criteria to be adopted for the purpose of applying restrictive measures (see, to that effect, judgments in Council  v Manufacturing Support & Procurement Kala Naft , C‑348/12 P, EU:C:2013:776, paragraph 120 and the case-law cited; Anbouba  v Council , C‑605/13 P, EU:C:2015:247, paragraph 41; and Anbouba  v Council , C‑630/13 P, EU:C:2015:248, paragraph 42).
42. Regarding the evidence that Mr Ipatau’s listing was well founded, it should be borne in mind that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to include a person’s name in 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, in this instance, 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, is substantiated (see, to that effect, judgments in Commission and Others  v Kadi , C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119; Council v Manufacturing Support & Procurement Kala Naft , C‑348/12 P, EU:C:2013:776, paragraph 73; Anbouba  v Council , C‑605/13 P, EU:C:2015:247, paragraph 45; and Anbouba  v Council , C‑630/13 P, EU:C:2015:248, paragraph 46).
46. Those are the factual findings — which it is not for the Court to review on appeal — which enabled the General Court to conclude, in essence, that the CEC was responsible for violations of international electoral standards in the context of the Presidential elections of 19 December 2010 and that those violations could also be imputed to Mr Ipatau personally as the Deputy Chairperson of that institution. Contrary to Mr Ipatau’s assertions, the General Court did not make any assumptions in his regard and, consequently, did not act contrary to the judgment in Tay Za  v Council  (C‑376/10 P, EU:C:2012:138) in including his name in the list of persons subject to restrictive measures solely by referring to his links to other persons.
48. In that regard, it should be borne in mind that, in some situations, the Courts of the European Union may take into account reports from international non-governmental organisations (see, to that effect, judgment in N.S. and Others , C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 90 and 91). A fortiori , it may take into account a report from an international organisation like the OSCE.
56. Pursuant to Article 169(2) of the Rules of Procedure of the Court of Justice, the pleas in law and legal arguments relied on in the context of an appeal must identify precisely those points in the grounds of the decision of the General Court which are contested (see order in Thesing and Bloomberg Finance  v ECB , C‑28/13 P, EU:C:2014:230, paragraph 25, and judgment in Klein  v Commission , C‑120/14 P, EU:C:2015:252, paragraph 85).
57. Accordingly, that requirement is not satisfied by an appeal which, without even specifically identifying the error of law vitiating the judgment which is the subject of that appeal, confines itself to reproducing the pleas in law and arguments previously submitted to the General Court. Such an appeal amounts in reality to nothing more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (see judgment in Klein  v Commission , C‑120/14 P, EU:C:2015:252, paragraph 86).