1 By their appeal, Grodno Azot AAT and Khimvolokno Plant seek to have set aside the judgment of the General Court of the European Union of 21 February 2024, Grodno Azot and Khimvolokno Plant v Council (T‑117/22, ‘the judgment under appeal’, EU:T:2024:112), by which the General Court dismissed their action for annulment, (i), of Council Implementing Decision (CFSP) 2021/2125 of 2 December 2021 implementing Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus (OJ 2021 L 430I, p. 16) and of Council Implementing Regulation (EU) 2021/2124 of 2 December 2021 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2021 L 430I, p. 1) (together, ‘the initial acts at issue’), and, (ii), of Council Decision (CFSP) 2023/421 of 24 February 2023 amending Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine (OJ 2023 L 61, p. 41) and of Council Implementing Regulation (EU) 2023/419 of 24 February 2023 implementing Article 8a of Regulation (EC) No 765/2006 concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine (OJ 2023 L 61, p. 20) (together, ‘the maintaining acts at issue’), in so far as those four acts (together, ‘the acts at issue’) concern the appellants.
2 For the purpose of the present appeal the factual and legal context of the case, as set out in paragraphs 2 to 17 of the judgment under appeal, may be summarised as follows.
3 The context of the present case is the restrictive measures adopted by the European Union since 2004 in view of the seriousness of the situation in Belarus with regard to democracy, the rule of law and human rights.
4 On 18 May 2006, the Council of the European Union adopted Regulation (EC) No 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2006 L 134, p. 1), the title of which was replaced, under Article 1(1) of Council Regulation (EU) No 588/2011 of 20 June 2011 (OJ 2011 L 161, p. 1), by that of ‘Council Regulation (EC) No 765/2006 of 18 May 2006 concerning restrictive measures in respect of Belarus’.
5 On 15 October 2012, the Council adopted Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1).
6 Article 4(1) of that decision reads as follows: ‘All funds and economic resources belonging to, owned, held or controlled by: (a) persons, entities or bodies responsible for serious violations of human rights or the repression of civil society and democratic opposition, or whose activities otherwise seriously undermine democracy or the rule of law in Belarus, or any natural or legal persons, entities or bodies associated with them, as well as legal persons, entities or bodies owned or controlled by them; (b) natural or legal persons, entities or bodies benefiting from or supporting the Lukashenk[o] regime, as well as legal persons, entities or bodies owned or controlled by them, as listed in the Annex shall be frozen.’
7 Article 2(4) and (5) of Regulation No 765/2006, as amended by Council Regulation (EU) No 1014/2012 of 6 November 2012 (OJ 2012 L 307, p. 1), refers to Article 4(1)(a) and (b) of Decision 2012/642 and lays down the same criteria for inclusion on the lists of persons, entities and bodies subject to the freezing of funds and economic resources as those laid down by that latter provision, including the criterion of ‘support’ to the ‘Lukashenko regime’ (‘the criterion of support to the Lukashenko regime’).
8 On 2 December 2021, the Council adopted the initial acts at issue. Recital 4 thereof states that ‘in view of the gravity of the situation in Belarus, 17 persons and 11 entities should be included in the list of natural and legal persons, entities and bodies subject to restrictive measures’.
9 By the initial acts at issue, the entry ‘Open Joint Stock Company “Grodno Azot” Including Branch “Khimvolokno Plant” JSC “Grodno Azot”’ was included in Table B of the list in the Annex to Decision 2012/642 and in Table B of the list in Annex I to Regulation No 765/2006 (together, ‘the lists at issue’) for the following reasons (‘the statement of reasons’): ‘Grodno Azot is a large State-owned producer of nitrogen compounds, based in Grodno. Lukashenk[o] described it as “a very important enterprise, a strategic one”. Grodno Azot also owns Khimvolokno Plant, which is a large manufacturer of polyamide and polyester and composite materials. Grodno Azot and its Khimvolokno Plant are a source of substantial revenue for the Lukashenk[o] regime. Grodno Azot is therefore supporting the Lukashenk[o] regime. Lukashenk[o] visited the company and met with its representatives, discussing the plant’s modernisation and various forms of State support. Lukashenk[o] also promised that a loan would be used for the construction of a new nitrogen plant in Grodno …. Grodno Azot is therefore benefiting from the Lukashenk[o] regime. The workers of Grodno Azot, including its employees at the Khimvolokno Plant, who participated in peaceful protests against the regime and went on strike, were dismissed, intimidated and threatened both by the Grodno Azot management and regime representatives. Grodno Azot is therefore responsible for the repression of civil society.’
10 On 24 February 2023, the Council adopted the maintaining acts at issue by which it maintained the appellants’ names on the lists at issue for reasons that were in substance identical to those given in the initial acts at issue.
11 By application of 2 March 2022, as subsequently modified, the appellants applied to the General Court for annulment of the acts at issue, in so far as those acts concerned them, relying, as regards each of those acts, on two pleas in law, alleging, in essence, an error in the assessment of the facts and infringement of Article 4(1)(a) and (b) of Decision 2012/642.
12 By the judgment under appeal, the General Court dismissed the action brought by the appellants.
13 In that regard, as concerns, in the first place, the application for the annulment in part of the initial acts at issue, the General Court first, in paragraph 38 of the judgment under appeal, inferred from various facts put forward by the appellants and by the Council during the proceedings before the General Court, or from information published on a website, referred to in paragraphs 33 to 37 of that judgment, that the Council had not erred in its assessment of the facts in finding that Grodno Azot was a large State-owned enterprise that had been described by President Lukashenko as a ‘very important enterprise, a strategic one’, that Grodno Azot owned Khimvolokno Plant, and that Grodno Azot and Khimvolokno Plant were a source of substantial revenue for the Lukashenko regime.
14 Second, the General Court examined in turn, in paragraphs 44 to 63 of the judgment under appeal, the arguments raised by the appellants to contest the characterisation of the factors set out in paragraph 38 of that judgment as support to the Lukashenko regime, concluding, in paragraph 64 thereof, that the Council had not erred in law in finding that the appellants’ position in the Belarusian economy, the fact that they belonged to the State and the fact that they represented a source of substantial revenue for the Lukashenko regime, taken together, constituted a sufficient basis for the view to be taken that the appellants supported that regime for the purposes of Article 4(1)(b) of Decision 2012/642.
15 In particular, the General Court held, first, in paragraphs 47 and 48 of the judgment under appeal, that, contrary to the appellants’ claims, it was apparent from the grounds of the initial acts at issue that the Council had not relied solely on the fact that the appellants belonged to the Belarusian State in order to consider that they supported the Lukashenko regime, but had also taken a number of factors into account for that purpose, including the fact that they were a source of substantial revenue for that regime and, in addition, that the Council had not taken the view that any State-owned undertaking was automatically a source of revenue for the regime in question, but had considered that the fact that the appellants were a source of revenue for that regime was additional to the fact that they belonged to the State.
16 In that context, in paragraphs 49 and 50 of the judgment under appeal, the General Court referred, inter alia, to its case-law relating to the clear and precise wording of Article 4(1)(b) of Decision 2012/642, which refers to persons and entities ‘supporting the Lukashenk[o] regime’, and to the objective pursued by that provision.
17 Furthermore, in paragraphs 51 and 52 of the judgment under appeal, the General Court, referring to the wording of recital 6 of Decision 2012/642, observed that Article 4(1)(b) thereof covers not only political support for that regime, but also financial or material support to it.
18 Second, in paragraphs 54 to 56 of the judgment under appeal, the General Court rejected the appellants’ argument related to their not having any control over the use of the resources paid to the Belarusian State and that those resources were not employed in financing President Lukashenko’s personal expenses, concluding in paragraph 57 of that judgment that since the Council had found that the appellants represented a source of revenue for the Lukashenko regime, in order to apply the criterion of support to the regime, it did not have to demonstrate, for that purpose, that the appellants, by reason of their financial contributions, were responsible for breaches of human rights, democracy and the rule of law or the repression of civil society and democratic opposition.
19 Third, in paragraphs 59 to 63 of the judgment under appeal, the General Court rejected the appellants’ argument that the dividends - which they were required to pay to the Belarusian State under the Edict of the President of the Republic of Belarus No 637 of 28 December 2005 on the procedure for entry in the budget of part of the profits of State enterprises, State associations which are commercial organisations, as well as income from shares (stakes in the share capital) of business entities owned by the State or municipalities, and on the formation of a State special-purpose budget fund for national development (National Register of Legal Acts of the Republic of Belarus No 1/7075 of 29 December 2005) (‘Edict No 637/2005’)), when they made a profit - should be treated as ‘taxes’, and could not therefore, in accordance with its case-law, resulting in particular from the judgment of 6 October 2015, Chyzh and Others v Council (T‑276/12, EU:T:2015:748, paragraph 169), constitute support to the Lukashenko regime for the purposes of Article 4(1)(b) of Decision 2012/642.
20 In that regard, first, the General Court observed, in paragraph 61 of the judgment under appeal, that it was apparent from subparagraph 1.1 of Edict No 637/2005 that the obligation to pay a part of their profits to the State or to infra-State bodies concerned only a defined category of economic operators and not all Belarusian taxpayers.
21 Second, in paragraph 62 of the judgment under appeal, the General Court stated that it was apparent from the wording of subparagraph 1.2 of Edict No 637/2005 that the payment in question was formally separate from taxes and additional thereto.
22 The General Court inferred therefrom, in paragraph 63 of the judgment under appeal, that the fact that the appellants were required to pay part of their profits to the State under Edict No 637/2005 did not contradict the finding that they provided financial support to the Lukashenko regime, rather it confirmed that assessment since, by that edict, the regime increased the control which it already exercised, as the sole shareholder, over the appellants’ resources by ensuring that it regularly had a share of their profits.
23 As regards, in the second place, the application for annulment in part of the maintaining acts at issue, the General Court stated, in paragraph 74 of the judgment under appeal, that two articles published on the internet had been added to the file compiled by the Council when those acts had been adopted. According to the first article, published on 18 April 2022, Grodno Azot, after recording a loss in 2020, had made a net profit of almost 530000000 Belarusian roubles (BYN) (approximately EUR 175000000) in 2021 and had announced the payment of more than BYN 100000000 (approximately EUR 33195000) in dividends. According to the second article, published on 20 October 2022, the Belarusian Economy Minister had stated that Grodno Azot’s earnings had increased by almost 20% between January and August 2022. According to the General Court, the appellants had not disputed the validity of that information. It thus concluded, in paragraph 75 of the judgment under appeal, that the Council had not erred in its assessment when it found, following a review of the appellants’ situation, that they were a source of substantial revenue for the Lukashenko regime.
24 The appellants claim that the Court should: - set aside the judgment under appeal; - give final judgment in the matter, where the state of the proceedings so permits; - in the alternative, refer the case for reconsideration to the General Court; and - order the Council to pay the costs of the proceedings before the Court of Justice and before the General Court.
25 The Council contends that the Court should: - dismiss the appeal; - in the alternative, if the Court decides to set aside the judgment under appeal and give final judgment itself, dismiss the application for annulment of the acts at issue; and - order the appellants to pay the costs of the proceedings at first instance and of the present appeal.
26 The appellants put forward four grounds in support of their appeal. The first ground of appeal alleges breach of the principles and legal rules relating to the burden of proof. The second concerns misinterpretation of the nature and function of dividends in the present case and under any tax regime. The third ground of appeal alleges manifest error of assessment owing to a failure to analyse whether the alleged economic support was ‘substantial’. By their fourth ground of appeal, the appellants allege infringement of Article 4(1)(b) of Decision 2012/642.
27 By their first ground of appeal, relating to paragraphs 32, 36 to 39, 42, 47, 48, 52, 55 and 57 of the judgment under appeal, the appellants submit that the General Court erred in law in that, in order to reach the conclusion that the Council did not make an error of assessment when it found that they were a source of substantial revenue for the Lukashenko regime, the Court relied exclusively on information relating to dividends, even though that information was neither included nor referred to in the Council’s first evidence file. In so doing, the General Court retroactively justified the reason for designation put forward by the Council under the criterion of support to the regime, which constitutes a reversal of the burden of proof and an infringement of other principles and rules of evidence. When the Council decides to impose a restrictive measure it must have all the relevant information for that purpose in the initial evidence file, which is evidently not the case in this instance with regard to the abovementioned information.
28 The Council’s first evidence file merely contains, as evidence purporting to demonstrate that the appellants are a ‘source of substantial revenue for the Lukashenko regime’, an extract from the appellants’ website, giving the appellants’ size, information on their net profits in 2018 and on their turnover in 2020. However, none of those items even remotely explains how the appellants provided substantial economic support to that regime.
29 In particular, the first file made no reference, even indirectly, to the dividends paid by the appellants to the Belarusian State. Evidence relating to the dividends was provided by the appellants in their application. Although the General Court presented that information as supplementary evidence, it is apparent from paragraphs 52 and 55 of the judgment under appeal that it based its finding that the appellants provide support to the regime by being a source of substantial revenue for the regime solely on that evidence.
30 Accordingly, in disregard of the principles relating to the burden of proof referred to in the judgment 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 120 and 121), the General Court relied on evidence of which the Council was not aware before 2 March 2022, the date on which the appellants submitted it, whereas the designation took place on 2 December 2021.
31 If the case-law of the General Court means that the latter may rely on evidence submitted by an applicant not only for exculpatory purposes but also as inculpatory evidence, in order to corroborate or reinforce the evidence relied on by the Council to justify the restrictive measures at issue, then in the present case there was no evidence to be corroborated or substantiated. The General Court in fact simply relied on evidence which was not even hinted at in the Council’s evidence file and it thus effectively rewrote the latter’s statement of reasons.
32 Accordingly, the General Court failed to respect the principles and rules relating to the burden of proof by concluding, first, that the facts described in the statement of reasons to support the claim that the appellants are ‘a source of substantial revenue for the Lukashenk[o] regime’ are proved, and, second, that they fall within the scope of Article 4(1)(b) of Decision 2012/642.
33 The Council disputes the arguments put forward by the appellants.
34 In order to determine whether the General Court failed to comply with the rules relating to the burden of proof in respect of restrictive measures, it should be recalled that, during the review of such measures, the EU Courts must, in accordance with the powers conferred on them by the Treaties, ensure the review, in principle the full review, of the legality of all EU acts (judgment of 29 November 2018, Bank Tejarat v Council, C‑248/17 P, EU:C:2018:967, paragraph 38 and the case-law cited).
35 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 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, in this instance, a verification of the factual allegations in the summary of reasons underpinning the contested acts, 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 those acts, is substantiated. 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 those reasons are not well founded (judgment of 29 November 2018, Bank Tejarat v Council, C‑248/17 P, EU:C:2018:967, paragraph 39 and the case-law cited).
36 In the present case, it must be pointed out that, as stated in paragraph 37 of the judgment under appeal, the appellants acknowledged in their written pleadings submitted to the General Court that they paid a part of their profits to the Belarusian State during the period from 2018 to 2020 and produced documents relating to those payments. The appellants thus confirmed the fundamental fact that they represented a source of revenue for the Lukashenko regime.
37 In those circumstances, the Council was not required to adduce evidence to substantiate that fundamental fact, which established that the statement of reasons was well founded, as is apparent from the case-law cited in paragraph 35 above.
38 The fact that the appellants submitted the information relating to those payments as ‘exculpatory’ evidence is irrelevant, as the General Court rightly observed in paragraph 37 of the judgment under appeal.
39 Consequently, it cannot be held that, by taking account, inter alia, of that information, produced during the proceedings by the appellants and related to payments of part of their profits to the Belarusian State, in order to determine whether those payments constituted support to the Lukashenko regime, such as to justify their inclusion on the list of persons and entities subject to restrictive measures in the form of a freezing of funds and economic resources, the General Court reversed the burden of proof borne by the Council (see, to that effect, judgment of 29 November 2018, Bank Tejarat v Council, C‑248/17 P, EU:C:2018:967, paragraph 41).
40 Inasmuch as the appellants emphasise the importance of the data relating to the payment of part of their profits being referred to by the Council in the statement of reasons or included in the file lodged in support of that statement, and therefore explicitly taken into account by that institution when adopting the restrictive measure concerned, meaning that that information cannot be communicated ex post facto, they appear in fact to be arguing that the General Court erred in failing to find an infringement by the Council of the requirement to state reasons laid down in Article 296 TFEU.
41 In that regard, it should be observed that, according to consistent case-law of the Court of Justice, the purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the European Union judicature and, second, to enable that judicature to review the legality of that act (judgment of 15 November 2012, Council v Bamba, C‑417/11 P, ECR, EU:C:2012:718, paragraph 49 and the case-law cited).
42 Furthermore, as regards, in particular, acts imposing restrictive measures, the Court has already held that it is irrelevant that those acts have not referred explicitly to certain payments in defining the methods and extent of the financial support provided to the government of the third State which is the subject of such measures. According to the Court’s case-law, the question whether the statement of reasons for an act is sufficient must be assessed with regard to its context and to all the legal rules governing the matter in question, such that the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables the latter to understand the scope of the measure concerning that person (see, to that effect, judgment of 12 May 2016, Bank of Industry and Mine v Council, C‑358/15 P, EU:C:2016:338, paragraph 63 and the case-law cited).
43 In the light of the information provided to them in the statement of reasons and in the Council’s file, namely, in essence, information relating to the fact that, as State enterprises, they were to be regarded as providing financial support to the Lukashenko regime on account of the evident payment of part of their profits to the Belarusian State, the acts at issue provided sufficient reasoning since, first, the appellants were in a position to challenge before the General Court, and have in fact done so, the relevance of those payments for applying the criterion of support to the Lukashenko regime, which payments, as the Court observes, had been referred to by the appellants themselves, and, second, that statement of reasons enabled the General Court to review the lawfulness of those acts.
44 In the light of the foregoing, the first ground of appeal must be rejected.
45 By their second ground of appeal, relating to paragraphs 60 to 67 of the judgment under appeal, the appellants submit that the General Court erred in law in rejecting their argument that the dividends paid to the Belarusian State under Edict No 637/2005 should be treated, having regard to their nature and function, in the same way as taxes, such that, according to the case-law of the General Court, they cannot, as a matter of principle, constitute support to the Lukashenko regime, for the purposes of Article 4(1)(b) of Decision 2012/642. The General Court thereby misinterpreted the nature and function not only of the dividends in the present case, which are mandatory, but also of any tax regime, irrespective of the State concerned, in that it declined to treat those dividends as taxes on the ground that taxes apply to all Belarusian taxpayers, while the calculation of the dividends in question corresponds to a particular tax basis, defined by Edict No 637/2005, and the payment thereof concerns only a selected category of entities.
46 In the first place, contrary to the General Court’s finding, not all Belarus taxpayers pay the same taxes. All tax regimes worldwide define the object of the tax concerned and those liable to pay it and, in the present case, it is Belarusian State-owned enterprises which are required to pay mandatory dividends. Moreover, Edict No 637/2005 applies to different categories of State-owned enterprises, namely to enterprises that are fully owned by the State and those where the State owns at least 50% of the shares. Many taxes in Belarus, like the mandatory dividends, are aimed at defined categories of persons. The fact that State enterprises are required to pay mandatory dividends is no different from the selective application of other taxes.
47 In the second place, in paragraph 62 of the judgment under appeal, the General Court failed to consider the fact that, like any other tax in Belarus, and anywhere else in the world, mandatory dividends in Belarus are calculated with regard to a particular basis of assessment, that being, in the present case, in accordance with the second subparagraph of paragraph 1.2 of Edict No 637/2005.
48 In the third place, the General Court’s finding in paragraph 63 of the judgment under appeal that the Belarusian State, ‘as the sole shareholder’, merely increased its control over companies such as the appellants by imposing a mandatory distribution of profits, contradicts paragraph 33 of that judgment, according to which that State held only ‘99.96% of [the appellants’ share] capital’.
49 The finding in question is illogical because as the sole or even majority shareholder of enterprises, a State already has control of those enterprises and cannot increase it. Accordingly, the State can unilaterally decide on the distribution of dividends.
50 In the fourth place, there are other factors, disregarded by the General Court, confirming that the Belarus mandatory dividends are taxes.
51 First, the collection of the Belarus mandatory dividends is in the competence of the tax authorities, in accordance with the relevant tax procedures. Second, the approach that dividends are collected after corporate income tax is based on the principle of windfall taxation. Third, several Belarusian taxes originate in other legal acts than the Tax Code. Fourth, the non-payment or late payment of mandatory dividends is penalised in the same manner as the non-payment or the late payment of taxes. Fifth, mandatory dividends and corporate income tax are paid to the same recipient and into the same bank account. Sixth, like any other tax, a liability in respect of the payment of mandatory dividends may be set off against a claim arising from overpayment in respect of another tax, such as corporate income tax. Seventh, unlike ordinary dividends, where the distributing company acts as tax agent and retains taxes on the dividends paid out, which it pays into the State treasury, there is no tax on Belarus’s mandatory dividends, in accordance with the principle that it is not possible to levy a tax on a tax, as laid down in Article 166 of the Belarus Tax Code.
52 The Council contends primarily that the appellants’ arguments are in part inadmissible, as regards the claims directed against paragraphs 61 and 62 of the judgment under appeal, since those paragraphs contain findings of fact, and are in part unfounded. In the alternative, the Council submits that such a line of argument is unfounded.
53 It should be observed, as did the General Court in paragraph 37 of the judgment under appeal, that, in their written pleadings, the appellants ‘acknowledge … that [they have] paid out dividends’ to the Belarusian State, which holds almost all of the capital in Grodno Azot and that they also produced a document which shows that that company paid dividends into the budget of the Republic of Belarus that amounted to BYN 8481000 (approximately EUR 3526000) in 2018, BYN 34200000 (approximately EUR 14604000) in 2019 and BYN 6835000 (approximately EUR 2462000) in 2020.
54 The General Court therefore correctly held, in paragraph 64 of the judgment under appeal, that the Council had not erred in law in finding that the appellants represented ‘a source of substantial revenue for the Lukashenko regime’ and that that fact, taken together with the appellants’ position in the Belarusian economy, and the fact that they belonged to the State as to 99.96% of their capital, constituted a sufficient basis for the view to be taken that the appellants provided support to that regime for the purposes of Article 4(1)(b) of Decision 2012/642, that provision referring in particular to persons and entities providing financial support to that regime (see, to that effect, judgment of 12 May 2016, Bank of Industry and Mine v Council, C‑358/15 P, EU:C:2016:338, paragraph 81).
55 Such an interpretation of the criterion of support to the Lukashenko regime, in that it focuses on the financial support provided to that regime, is, moreover, consistent with the main objective pursued by that provision, namely to increase the pressure put on that regime so that it brings an end to the serious and persistent violation in Belarus of human rights, democracy and the rule of law and the repression of civil society and democratic opposition.
56 In those circumstances, it must be held that classification as a tax or dividend on the basis of which the sums are paid to the Belarusian State is not decisive for identifying ‘support to the Lukashenko regime’, under Article 4(1)(b) of Decision 2012/642. Both cases involve sums paid to the State by an entity in which the State holds almost all of the capital, pursuant to State legislation imposing that payment. To exclude such payments from that concept of ‘support to the Lukashenko regime’, solely on the ground that the sums due are classified as taxes, could enable the circumvention of EU rules by increasing the rate of tax on the profits of such entities, in return for a reduction in the amount of the dividends which must be paid to the State under Belarusian law where an enterprise belonging to the Belarusian State makes profits (see, by analogy, judgment of 12 May 2016, Bank of Industry and Mine v Council, C‑358/15 P, EU:C:2016:338, paragraph 80).
57 It follows that, in so far as the appellants complain that the General Court, in paragraph 59 of the judgment under appeal, unduly restricted the concept of ‘tax’ in that context and, consequently, in paragraphs 60 to 62 of that judgment, erred in finding that their payments to the Belarusian State could not be treated in the same way as such taxes, their line of argument is ineffective, since it cannot, in any event, call into question the General Court’s finding, in paragraph 64 of that judgment and referred to in paragraph 54 above, that there existed a sufficient basis for the view to be taken in the present case that the appellants provided ‘support to the Lukashenko regime’, for the purposes of Article 4(1)(b) of Decision 2012/642.
58 The same is true of the appellants’ arguments relating to paragraph 63 of the judgment under appeal. In particular, the General Court held in that paragraph that the obligation on the appellants, under Belarusian law, to pay part of their profits to the State ‘confirms’ the assessment that they provided financial support to the Lukashenko regime, since, by imposing that obligation, the regime increased the control which it exercised. It is apparent from the word ‘confirm’ and, more generally, from an overall reading of paragraphs 58 to 64 of the judgment under appeal that the finding in paragraph 63 thereof is not at all necessary in order to reach the conclusion referred to in the preceding paragraph.
59 According to settled case-law, complaints directed against grounds included in a decision of the General Court for the sake of completeness are ineffective since they cannot lead to the decision being set aside (see, to that effect, judgments of 7 November 2002, Hirschfeldt v EEA, C‑184/01 P, EU:C:2002:645, paragraph 48, and of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 63 and the case-law cited).
60 In light of all the above, the second ground of appeal must be rejected.
61 By their third ground of appeal, relating to paragraphs 36 to 38, 47 to 57 and 74 to 79 of the judgment under appeal, the appellants complain that the General Court made a manifest error of assessment by failing to rule on whether the economic support provided in the form of dividend payments for 2018, 2019 and 2020, the amounts of which they detailed in their written pleadings, was ‘substantial’, in accordance with the classification to that effect set out in the statement of reasons. That error is apparent as regards both the analysis of the initial and of the maintaining acts at issue.
62 Neither that statement of reasons nor the Council’s first evidence file contain data capable of justifying that classification.
63 On a subsidiary basis, the appellants submit that if the General Court had properly analysed whether they are a source of substantial revenue for the Lukashenko regime, which it did not do, it would have answered that question in the negative.
64 In that context, the appellants refer to the judgment of 29 April 2015, Bank of Industry and Mine v Council (T‑10/13, EU:T:2015:235), and, in particular, to paragraph 186 thereof, in which the General Court concluded that the State-owned undertaking at issue had paid ‘considerable’ amounts to the Iranian national treasury, which constituted financial support to the Iranian Government.
65 The appellants argue that the payment at issue in the case which gave rise to that judgment totalled at least EUR 76 million over a five-year reference period, therefore a sum that was much higher than the amounts paid by the appellants to the Belarusian State as mandatory dividends for 2018, 2019 and 2020. Accordingly, those latter amounts cannot be classified as a source of substantial revenue, which is confirmed when expressing those amounts as a percentage of the Republic of Belarus’s gross domestic product (GDP) for the years concerned, which is namely 0.0069%, 0.0253% and 0.0045% of GDP respectively.
66 That conclusion also applies as regards the payment in connection with the maintaining acts at issue. The Council’s second evidence file in fact shows that in 2022 the appellants paid EUR 33195000 in respect of mandatory dividends, representing 0.0471% of the GDP of the Republic of Belarus for that year. That amount is considerably less than the sum found by the General Court to be ‘substantial’ in the judgment of 29 April 2015, Bank of Industry and Mine v Council (T‑10/13, EU:T:2015:235).
67 Lastly, the mandatory dividends paid by the appellants, whether in connection with the initial or with the maintaining acts at issue, do not represent a source of revenue for the State, given that the total amount of those dividends is lower than the refunds for value added tax they received for the period from 2018 to 2022.
68 The Council disputes the arguments put forward by the appellants.
69 It should be observed that while the General Court held in paragraph 64 of the judgment under appeal that the Council did not err in law in finding, inter alia, that the appellants represented ‘a source of substantial revenue for the Lukashenko regime’, that finding of necessity takes into account the sums paid as specified in paragraph 37 of that judgment, and it therefore implies that the General Court accepted the substantial nature of that source of revenue, thus confirming the Council’s assessment to that effect and the validity of the initial acts at issue.
70 The same applies to the assessment of the maintaining acts at issue, as is apparent from a combined reading of paragraphs 74 and 76 of the judgment under appeal.
71 It must therefore be held that the third ground of appeal is based on a misreading of the judgment under appeal.
72 In so far as the appellants, by way of a subsidiary line of argument, call into question the General Court’s assessment of the significance of the source of revenue that they represented for the Lukashenko regime, in the light of the sums paid to the Belarusian State under Edict No 637/2005, it must be held that that is an assessment of facts which cannot, unless that evidence has been distorted, be subject to review by the Court of Justice at the appeal stage (see, to that effect, judgment of 28 April 2022, Yieh United Steel v Commission, C‑79/20 P, EU:C:2022:305, paragraph 52 and the case-law cited).
73 Accordingly, that subsidiary line of argument is inadmissible since the appellants have not demonstrated such distortion by the General Court (see, to that effect, judgment of 28 April 2022, Yieh United Steel v Commission, C‑79/20 P, EU:C:2022:305, paragraph 53 and the case-law cited).
74 That applies in particular to the appellants’ arguments that the sums paid on the basis of Edict No 637/2005 cannot be classified as substantial since the total amount of the payments is significantly lower than that held to be ‘considerable’ by the General Court in paragraph 186 of the judgment of 29 April 2015, Bank of Industry and Mine v Council (T‑10/13, EU:T:2015:235), or that their individual amounts do not appear to be significant if they are expressed as a percentage of the Republic of Belarus’s GDP.
75 Those arguments must on any view be rejected since they have no factual basis. First, it is clear, as the Council has, moreover, correctly stated, that paragraph 186 of that judgment cannot be understood as indicating a limit below which financial support cannot be considered as substantial.
76 Second, in view also of the broad discretion enjoyed by the Council when adopting restrictive measures pursuant, inter alia, to the criterion of support to the Lukashenko regime referred to in Article 4(1)(b) of Decision 2012/642, there is nothing to prevent that institution from assessing the significance of such support on the basis of the payments at issue, expressed in absolute amounts, rather than as a percentage of the GDP of the Republic of Belarus.
77 In addition, while, in fact, the Council and the General Court did accept or even confirm the substantial nature of the sums paid by the appellants under Edict No 637/2005, that ground is, in any event, manifestly superfluous in the light of the clear and precise wording of Article 4(1)(b) of Decision 2012/642, which precludes the imposition of an additional condition not laid down in that provision, such as that of the significance of the support to the Lukashenko regime. The appellants’ subsidiary line of argument is therefore also ineffective, in accordance with the case-law resulting, inter alia, from the judgments of 7 November 2002, Hirschfeldt v EEA (C‑184/01 P, EU:C:2002:645, paragraph 48), and of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632, paragraph 63).
78 Lastly, in accordance with settled case-law of the Court of Justice, the argument claiming infringement of the principle of proportionality which the appellants put forward in support of their third ground of appeal, is inadmissible at the stage of the appeal since it is common ground that that argument was not raised before the General Court (see, to that effect, judgment of 6 October 2021, World Duty Free Group and Spain v Commission, C‑51/19 P and C‑64/19 P, EU:C:2021:793, paragraphs 54 and 55).
79 In the light of all the foregoing considerations, the third ground of appeal must be rejected.
80 By their fourth ground of appeal, contesting paragraphs 47 to 52 of the judgment under appeal, the appellants claim that the General Court erred in law in its interpretation of Article 4(1)(b) of Decision 2012/642 since it held that the criterion of support to the regime laid down therein is satisfied for any State-owned enterprise since they of necessity provide significant support to the regime simply because of their ownership structure; that thus leads to an excessively broad interpretation of that provision, bringing about an infringement of Article 21 TEU and, as they state in their reply, of the principles of proportionality, legal certainty and fairness enshrined in EU law.
81 The appellants infer from the various details set out in the first paragraph of the statement of reasons and from the fact that the Council never referred to any concrete payments they made to the Belarusian State that the General Court’s interpretation of Article 4(1)(b) of Decision 2012/642 confirms that any State-owned enterprise is automatically a source of revenue for the State and that a large, strategic and important State-owned enterprise is of necessity a source of substantial revenue for the latter.
82 Since, like any public official, State-owned enterprises will always provide an advantage to the State through their contribution in kind to the public sector, it follows that evidence for support provided to the regime must go beyond a mere finding that they are State-owned enterprises. In the present case, the Council failed to submit any evidence of payments or specific financial contributions carried out or provided by the appellants to the Belarusian State, rather it referred to their size, their net profit in 2018 and their revenue in 2020.
83 The General Court’s approach is tantamount to granting the Council unfettered discretion to decide whom to sanction, even if there is no sufficiently concrete, precise and consistent evidence of the support provided to the Lukashenko regime.
84 The Council disputes the arguments put forward by the appellants.
85 It is clear from paragraphs 47 and 64 of the judgment under appeal that, contrary to what is claimed by the appellants, the General Court did not rely solely on the fact that the appellants belonged to the Belarusian State in order to find that they supported the Lukashenko regime, but that it rightfully took other factors into account for that purpose, such as the fact that they represented a source of substantial revenue for that regime.
86 Furthermore, it is apparent from paragraph 55 of the judgment under appeal that the General Court found correctly that financial flows were the main factor on which the assessment of the criterion of support was based, namely the appellants’ payments of part of their profits to the Belarusian State, held to be financial support to the Lukashenko regime, and not the fact that they are owned by the State.
87 In view of all the foregoing, the fourth ground of appeal must be rejected and the appeal must be dismissed in its entirety.
88 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
89 Since the Council has applied for costs and the appellants have been unsuccessful, the latter must be ordered to bear their own costs and to pay those incurred by the Council.