Oleksandr Viktorovych Klymenko v Council of the European Union.
Date: 2019-09-26
The written observations submitted by the parties on the lessons to be drawn from the Court’s judgments of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583, paragraphs 24, 31, 33 and 37), and of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031, paragraphs 26, 29, 30 and 45), for the purpose of dealing with the present appeal, have been received.
According to the Court’s case-law, where restrictive measures, such as the measures freezing the appellant’s funds, are imposed, the Council must, before acting on the basis of a decision of an authority of a third State, verify whether that decision was adopted in accordance with the rights of the defence and the right to effective judicial protection (see, inter alia, judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 24, and of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 26).
The Council is obliged, when adopting restrictive measures, to respect the fundamental rights that form an integral part of the EU legal order, which include respect for the rights of the defence and the right to effective judicial protection (see, to that effect, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P,  C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 97 and 98; of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraphs 65 and 66; of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 25; and of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 27).
In that regard, the requirement for the Council to verify that the decisions of third States on which it bases the entry of a person or entity on a list of persons or entities whose assets are to be frozen have been taken in accordance with those rights is designed to ensure that they are included on that list only on a sufficiently solid factual basis and, thus, to protect the persons or entities concerned (see, to that effect, judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 26, and of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 28).
The Court has also held that the Council must refer, if only briefly, in the statement of reasons relating to a decision to include a person or entity on a list of persons or entities whose assets are to be frozen and to subsequent decisions, to the reasons why it considers the decision of the third State on which it intends to rely to have been adopted in accordance with the rights of the defence and the right to effective judicial protection (see, to that effect, judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 31 and 33, and of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 29).
Thus, it is for the Council, in order to fulfil its obligation to state reasons, to show, in the decision imposing the restrictive measures, that it has verified that the decision of the third State on which those measures are based was taken in accordance with those rights (see, to that effect, judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 37, and of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 30).
The General Court thus stated, in paragraph 223 of the judgment under appeal, that the approach taken in the judgment of 16 October 2014, LTTE v Council (T‑208/11 and T‑508/11, EU:T:2014:885), then subject to an appeal, could not be applied to the present case. The General Court further indicated, in paragraph 231 of the judgment under appeal, that ‘only if the Council’s political choice to support the new Ukrainian regime ... proved to be manifestly incorrect ... could any mismatch between the protection of fundamental rights in Ukraine and that in the European Union affect the lawfulness of [the contested acts]’. The General Court reiterated that reasoning in paragraph 256 of the judgment under appeal. In order to reach that conclusion, the General Court relied, as is apparent from paragraphs 229 and 230 of the judgment under appeal, on the case-law stemming from the judgment of 21 April 2015, Anbouba v Council (C‑605/13 P, EU:C:2015:248, paragraph 41), in which the Court of Justice acknowledges that the EU legislature has a broad discretion when it comes to defining the general listing criteria which must be taken into account when applying restrictive measures.
Such reasoning is vitiated by an error of law, as established by the Court in the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031, paragraphs 31 to 33).
The Council cannot conclude that a listing decision is taken on a sufficiently solid factual basis before having itself verified that the rights of the defence and the right to effective judicial protection were respected at the time of the adoption of the decision by the third State in question on which it intends to base the adoption of restrictive measures (judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 34).
In addition, while it is true that the listing criterion set out in paragraph 27 above allows the Council to base restrictive measures on a decision of a third State, such as that referred to in the letters, inter alia, of 30 December 2014, 30 November 2015 and 1 March 2016, mentioned in paragraph 26 above, the fact remains that the obligation, on that institution, to respect the rights of the defence and the right to effective judicial protection means that it must satisfy itself that those rights were respected by the authorities of the third State which adopted that decision (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 35).
The fact that Ukraine is among those States that have acceded to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which entails review, by the European Court of Human Rights, of the fundamental rights guaranteed by that convention, which, in accordance with Article 6(3) TEU, form part of EU law as general principles, does not absolve the Council of the requirement to verify that the decision of a third State on which it bases its restrictive measures has been taken in compliance with fundamental rights, in particular the rights of the defence and the right to effective judicial protection (judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 36).
The Court has also stated that that conclusion cannot be called into question on the ground that the case-law stemming from the judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583) arose in the context of restrictive measures based on Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93) (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 37).
It should be added, with regard to the General Court’s reasoning set out in paragraph 231 of the judgment under appeal and summarised in paragraph 31 above, that the definition of general listing criteria permitting the adoption of restrictive measures is not at issue in the present case. On the other hand, what is at issue is the decision to maintain, by the contested acts, the freezing of the appellant’s assets, which affects him individually. In their review of the legality of the grounds on which such a decision is based, the Courts of the European Union must satisfy themselves that, at the very least, one of those reasons is sufficiently detailed and specific, that it is substantiated and that it constitutes in itself a sufficient basis to support that decision (see, to that effect, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P,  C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119, and of 28 November 2013  Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 72).
Moreover, it is for the competent European Union 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 is to say, that those reasons are not well founded (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P,  C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 121, and of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 66).
As regards the judgments of 19 October 2017, Yanukovych v Council (C‑598/16 P, not published, EU:C:2017:786), and of 19 October 2017, Yanukovych v Council (C‑599/16 P, not published, EU:C:2017:785), referred to by the Council, it should be noted that, in the appeals leading to those judgments, the question whether the case-law established by the judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583) covered the case of restrictive measures adopted in view of the situation in Ukraine was not put before the Court. Furthermore, the Court held, having regard to the settled case-law cited in paragraphs 22, 23 and 38 above, that it cannot be inferred from those judgments that the Council is not required to verify that the decision of a third State on which it intends to base the adoption of restrictive measures was taken in accordance with the rights of the defence and the right to effective judicial protection (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 40). It cannot a fortiori be inferred from those judgments that the Council was not obliged to show, in the statement of reasons for the contested acts, that it undertook such a verification. Thus, the conclusions drawn in those judgments have no bearing on the present appeal.