1 By his appeal, Mr Mikail Safarbekovich Gutseriev asks the Court of Justice to set aside the judgment of the General Court of the European Union of 6 September 2023, Gutseriev v Council (T‑526/21, ‘the judgment under appeal’, EU:T:2023:512), by which the General Court dismissed his action for annulment, first, of Council Implementing Decision (CFSP) 2021/1002 of 21 June 2021 implementing Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus (OJ 2021 L 219I, p. 70) and Council Implementing Regulation (EU) 2021/997 of 21 June 2021 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2021 L 219I, p. 3) (together, ‘the initial acts’), and, secondly, of Council Decision (CFSP) 2022/307 of 24 February 2022 amending Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus (OJ 2022 L 46, p. 97) and Council Implementing Regulation (EU) 2022/300 of 24 February 2022 implementing Article 8a of Regulation (EC) No 765/2006 concerning restrictive measures in view of the situation in Belarus (OJ 2022 L 46, p. 3) (together, ‘the maintaining acts’), in so far as all of those acts (together, ‘the acts at issue’) concern the appellant.
2 Article 2 of Council Regulation (EC) No 765/2006 of 18 May 2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2006 L 134, p. 1), as amended by Implementing Regulation 2021/997 (‘Regulation No 765/2006’) provides: ‘1. All funds and economic resources belonging to, or owned, held or controlled by the natural or legal persons, entities and bodies listed in Annex I shall be frozen. … 5. Annex I shall also consist of a list of the natural or legal persons, entities and bodies who, in accordance with point (b) of Article 4(1) of [Council] Decision 2012/642/CFSP [of 15 October 2012 concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1), as amended by Implementing Decision 2021/1002 (“Decision 2012/642”)], have been identified by the Council [of the European Union] as benefiting from or supporting the [Lukashenko] regime, as well as legal persons, entities and bodies owned or controlled by them. …’
3 Article 8a(4) of that regulation provides: ‘The lists in Annex I shall be reviewed in regular intervals and at least every 12 months.’
4 Recitals 1 to 6 and 8 of Decision 2012/642 state: …
5 Under Article 3(1)(b) of Decision 2012/642, Member States are to take the necessary measures to prevent the entry into, or transit through, their territories of, inter alia, persons listed in the annex benefiting from or supporting the Lukashenko regime.
6 According to Article 4(1)(b) of that decision, all funds and economic resources belonging to, owned, held or controlled by persons, entities or bodies listed in the annex, including natural or legal persons, entities or bodies benefiting from or supporting the Lukashenko regime, are to be frozen.
7 Article 8(2) of that decision provides: ‘This Decision shall be kept under constant review and shall be renewed or amended, as appropriate, if the Council deems that its objectives have not been met.’
8 Article 1 of Implementing Decision 2021/1002 provides: ‘The Annex to Decision 2012/642/CFSP is hereby amended as set out in the Annex to this Decision.’
9 Article 1 of Implementing Regulation 2021/997 is worded as follows: ‘Annex I to Regulation (EC) No 765/2006 is hereby amended as set out in the Annex to this Regulation.’
10 Point 1 of Annex I to Regulation No 765/2006 identifies the appellant as a ‘businessman, owner of Safmar, Slavkali and Slavneft companies’, and justifies the adoption of restrictive measures against the appellant on the following grounds: ‘[The appellant] is a prominent Russian businessman, with business interests in Belarus in the sectors of energy, potash, hospitality and others. He is a long-time friend of [President Lukashenko (‘Lukashenko’)] and thanks to this association has accumulated significant wealth and influence among the political elite in Belarus. “Safmar”, a company controlled by [the appellant], was the only Russian oil firm that carried on supplying oil to [Belarusian] refineries during the energy crisis between Belarus and Russia in early 2020. [The appellant] also supported [Lukashenko] in disputes with Russia over oil deliveries. [The appellant] owns the “Slavkali” company, which is building Nezhinsky potassium chloride mining and processing plant based on the Starobinsky potash salt deposit near Lyuban. It is the largest investment in Belarus, worth $2 billion. [Lukashenko] promised to rename the town of Lyuban to Gutserievsk in his [honour]. His other businesses in Belarus include [the] “Slavneft” [fuelling] stations and oil depots, a hotel, a business [centre] and an airport terminal in Minsk. [Lukashenko] came to [the appellant’s] defence after [a] criminal investigation was initiated against him in Russia. [Lukashenko] also thanked [the appellant] for his financial contributions to charity and investments of billions of dollars in Belarus. [The appellant] is reported to have gifted [Lukashenko] luxurious presents. He [is] also declared to be the owner of a residency, which de facto belongs to [Lukashenko], thus covering him up when journalists started to investigate [Lukashenko’s] assets. [The appellant] is reported to have attended [Lukashenko’s] secret inauguration on 23 September 2020. In October 2020 [Lukashenko] and [the appellant] both appeared at the opening of an orthodox church, which the latter sponsored. According to media reports, when the striking employees of Belarusian state-owned media were fired in August 2020, Russian media workers were flown to Belarus on board of aircraft belonging to [the appellant] in order to replace the fired workers, and lodged in hotel Minsk Renaissance belonging to [the appellant]. [The appellant] is therefore [benefiting] from and supporting the [Lukashenko] regime.’
11 Article 1 of Implementing Regulation 2022/300 provides: ‘Annex I to Regulation (EC) No 765/2006 is amended as set out in the Annex to this Regulation.’
12 Point 1 of Annex I to Regulation No 765/2006, in the version resulting from Implementing Regulation 2022/300, identifies the appellant as a ‘businessman, shareholder and chairman of the board of executives of Safmar and Slavkali companies’, and justifies the adoption of restrictive measures against the appellant on the following grounds: ‘[The appellant] is a prominent Russian businessman, with business interests in Belarus in the sectors of energy, potash, hospitality and others. He is a long-time acquaintance of [Lukashenko] and thanks to that association has accumulated significant wealth and influence among the political elite in Belarus. Safmar, a company which has been controlled by [the appellant], was the only Russian oil firm that carried on supplying oil to Belarusian refineries during the energy crisis between Belarus and Russia in early 2020. [The appellant] also supported [Lukashenko] in disputes with Russia over oil deliveries. [The appellant] also supported [Lukashenko] in disputes with Russia over oil deliveries. [The appellant] has been the chairman of the board of directors of, and a shareholder in, the Slavkali company, which is building the Nezhinsky potassium chloride mining and processing plant based on the Starobinsky potash salt deposit near Lyuban. It is the largest investment in Belarus, worth USD 2 billion. [Lukashenko] promised to rename the town of Lyuban “Gutserievsk” in his honour. His other businesses in Belarus have included fuelling stations and oil depots, a hotel, a business centre and an airport terminal in Minsk. [Lukashenko] came to [the appellant’s] defence after a criminal investigation was initiated against him in Russia. [Lukashenko] also thanked [the appellant] for his financial contributions to charity and investments worth billions of dollars in Belarus. [The appellant] is reported to have gifted [Lukashenko] luxurious presents. [The appellant] also declared himself to be the owner of a residency which de facto belongs to [Lukashenko], thus covering him up when journalists started to investigate [Lukashenko’s] assets. [The appellant] attended [Lukashenko’s] secret inauguration on 23 September 2020. In October 2020 [Lukashenko] and [the appellant] both appeared at the opening of an orthodox church, which [the appellant] sponsored. According to media reports, when the striking employees of Belarusian state-owned media were fired in August 2020, Russian media workers were flown to Belarus on board [of] aircraft belonging to [the appellant] in order to replace the fired workers, and lodged in the Minsk Renaissance Hotel belonging to [the appellant]. [The appellant] assisted with the acquisition of CT scanners for Belarus during the COVID-19 crisis. [The appellant] is therefore [benefiting] from and supporting the [Lukashenko] regime.’
13 Article 1 of Decision 2022/307 provides as follows: ‘[Decision 2012/642] is amended as follows: … (2) Annex I is amended as set out in the Annex to this Decision.’
14 Point 1 of the annex to Decision 2022/307 identifies the appellant as ‘a prominent Russian businessman, with business interests in Belarus in the sectors of energy, potash, hospitality and others. He is a long-time acquaintance of [Lukashenko] and thanks to that association has accumulated significant wealth and influence among the political elite in Belarus. Safmar, a company which has been controlled by [the appellant], was the only Russian oil firm that carried on supplying oil to Belarusian refineries during the energy crisis between Belarus and Russia in early 2020.’
15 The background to the dispute is set out in paragraphs 2 to 20 of the judgment under appeal. For the purposes of the present proceedings, it may be summarised as follows.
16 On 18 May 2006, the Council adopted, on the basis of Articles 60 and 301 EC (now Articles 75 and 215 TFEU), Regulation No 765/2006 and, on 15 October 2012, on the basis of Article 29 TEU, Decision 2012/642.
17 The restrictive measures taken against the appellant, who is a businessman in Belarus, were adopted by the Council pursuant to the criterion of benefiting from or supporting the Lukashenko regime (‘the general criterion at issue’), laid down, first, in Article 3(1)(b) of Decision 2012/642 and, secondly, in Article 4(1)(b) of that decision and Article 2(5) of Regulation No 765/2006.
18 By way of the initial acts, the appellant’s name was included on the lists of persons, entities and bodies subject to the restrictive measures set out in the annex to Decision 2012/642 and in Annex I to Regulation No 765/2006 (together, ‘the lists at issue’).
19 On 13 September 2021, the appellant asked to be provided with the evidence supporting the inclusion of his name on the lists at issue.
20 On 20 September 2021, the Council sent the appellant several documents containing the evidence concerning him.
21 On 30 November 2021, the appellant challenged the inclusion of his name on the lists at issue and requested that the Council reconsider that listing.
22 On 17 January 2022, the Council responded to the appellant’s request for reconsideration, informing him that it intended to maintain his name on the lists at issue with an amended statement of reasons, and also sending him several documents. Furthermore, the Council gave the appellant the opportunity to submit observations by 2 February 2022, and asked him to provide any relevant information regarding his role in the companies Safmar and Slavkali, together with an independent overview of his current interests ‘in any of the entities operating under the Safmar brand, as well as his interests in Slavkali and the entities linked to it’.
23 On 11 February 2022, the appellant challenged the validity of the inclusion of his name on the lists at issue and submitted a number of documents to the Council.
24 By the maintaining acts, the Council decided to extend the restrictive measures against the appellant until 28 February 2023. The Council justified that extension by reproducing all the reasons contained in the initial acts, while providing some clarification. It thus indicated that the appellant is a ‘businessman, shareholder and chairman of the board of executives of Safmar and Slavkali companies’ and is ‘a long-time acquaintance of [Lukashenko]’, that Safmar is ‘a company which has been controlled by [the appellant]’, that he ‘has been the chairman of the board of directors of, and a shareholder in, the Slavkali company’ and that ‘his other businesses in Belarus have included fuelling stations and oil depots, a hotel, a business centre and an airport terminal in Minsk’. The Council also added the following reason: ‘[The appellant] assisted with the acquisition of CT scanners for Belarus during the COVID-19 crisis’.
25 On 3 March 2022, the appellant asked to be provided with the documents and evidence on which the Council had relied in maintaining his name on the lists at issue.
26 On 28 March 2022, the Council informed the appellant that all the relevant materials on which it had based its decision had already been provided to him, on 17 January 2022 and earlier.
27 By application lodged at the Registry of the General Court on 27 August 2021, the appellant brought an action for annulment of the initial acts, in so far as they concern him. By way of a procedural document lodged at the Court Registry on 4 May 2022, the appellant amended the form of order sought so that it also covered the maintaining acts in so far as those acts concern him.
28 In support of his action before the General Court, the appellant raised, in essence, four pleas in law, the first three concerning both the initial acts and the maintaining acts and the fourth relating exclusively to the maintaining acts. The first plea in law comprised two parts. Under the first part of that plea, the appellant claimed that the Council had misinterpreted the concepts of ‘support’ and ‘benefit’, within the meaning of the general criterion at issue. By the second part of that plea, the appellant submitted that the Council had made manifest errors of assessment in considering that there was a sufficient factual basis to justify the inclusion and maintenance of his name on the lists at issue on the basis of the general criterion at issue. The second plea alleged infringement of fundamental rights. The third plea, which was raised in the alternative, is an objection of illegality relating to Article 4(1) of Decision 2012/642 and Article 2(5) of Regulation No 765/2006. The fourth plea alleged infringement of the rights of the defence.
29 By the judgment under appeal, the General Court dismissed the action in its entirety and ordered the appellant to bear his own costs and to pay those incurred by the Council.
30 The appellant claims that the Court of Justice should: - set aside the judgment under appeal; - itself give final judgment in the case, (i) annulling the acts at issue in so far as they concern him; and/or (ii) declaring that Article 4(1) of Decision 2012/642 and Article 2(5) of Regulation No 765/2006 are inapplicable in so far as they concern him; - in the alternative, refer the case back to the General Court; and - order the Council to pay the costs of the appellant relating to the present appeal and the action at first instance.
31 The Council contends that the Court of Justice should: - dismiss the appeal; - alternatively, 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; - order the appellant to pay the costs relating to the present appeal and the action at first instance.
32 In support of his appeal, the appellant relies on three grounds of appeal, alleging that the General Court erred in law in finding that the Council, first, was not required to verify that the appellant was benefiting from or supporting the Lukashenko regime in a financial or material way, secondly, was not required to verify that the appellant continued, at the time of the inclusion and maintenance of his name on the lists at issue, to benefit from or support that regime, and, thirdly, had not made a manifest error of assessment in finding that the appellant was benefiting from or supporting that regime.
33 By the first part of the first ground of appeal, the appellant submits that the General Court, in paragraphs 47 to 57 of the judgment under appeal, erred in law in interpreting the objective of Decision 2012/642 and Regulation No 765/2006 as seeking to ‘apply greater pressure on [the Lukashenko regime] in order for it to change and cease its policies and activities the result of which is the continued lack of respect for human rights, democracy and the rule of law in Belarus’ and in considering that it was therefore necessary and proportionate to interpret the general criterion at issue broadly, encompassing ‘forms of benefit from and support for the [Lukashenko] regime other than those of a financial or material nature’.
34 In that regard, first, the appellant submits that acts adopted within the common foreign and security policy framework must be interpreted by reference to the wording and context of the acts in question, as well as the objectives pursued by the rules of which they form part. In the present case, the evidence taken into account by the General Court in support of the interpretation referred to in the preceding paragraph, namely (i) the wording of recitals 1 to 5 of Decision 2012/642, (ii) the expansion of the list of persons designated pursuant to that decision, and (iii) the fact that that decision was adopted in response to the illegitimate Belarusian presidential elections of 23 September 2012, disregard the objectives of Decision 2012/642 and Regulation No 765/2006.
35 The appellant maintains that it is clear from recitals 1 to 5 that the objective of Decision 2012/642 is much narrower and targeted than the General Court considered. Thus, the restrictive measures at issue are targeted at those responsible for the erosion of human rights, democracy and the rule of law (recital 1), unresolved disappearances (recital 3), fraudulent elections and severe human rights violations (recital 4) and the dissemination of falsified information and the implementation of politically motivated sanctions (recital 5). There is no assertion, express or implied, in recitals 1 to 5 that the aim of Decision 2012/642 is more broadly to encourage persons who indirectly benefit from or support the Lukashenko regime to apply greater pressure on that regime.
36 Secondly, the appellant maintains that Article 4(1) of Decision 2012/642 and Article 2(5) of Regulation No 765/2006 were drafted in terms which differ from those used in the acts relating to other sanctions regimes, which are based on a similar criterion of benefit or support, in so far as it is apparent from those acts, unlike Article 4(1) of Decision 2012/642 and Article 2(5) of Regulation No 765/2006, that their objective is to apply indirect economic pressure on the government concerned in so far as they are aimed at, as a separate designation criterion, ‘leading businesspersons’, ‘other natural persons, [benefiting] from them’ and businesspersons ‘providing a substantial source of revenue to the … Government’.
37 Thirdly, the appellant submits, in the alternative, that an interpretation of the general criterion at issue, such as that given by the General Court in paragraphs 47 to 57 of the judgment under appeal, to the effect that that criterion encompasses any form of support or any form of benefit, irrespective of the materiality of that support and/or benefit and irrespective of any link between the support and/or benefit and the Lukashenko regime, is disproportionate with regard to the objectives of Decision 2012/642 and Regulation No 765/2006 and is, therefore, unlawful.
38 The Council considers that the first part of the first ground of appeal should be rejected.
39 In paragraph 48 of the judgment under appeal, the General Court considered that it follows from recitals 1 to 5 of Decision 2012/642 that the objective pursued by the restrictive measures adopted pursuant to the general criterion at issue against the persons and entities benefiting from or supporting the Lukashenko regime is to apply greater pressure on that regime in order for it to change and cease its policies and activities the result of which is the continued lack of respect for human rights, democracy and the rule of law in Belarus.
40 Contrary to what the appellant claims, such an assessment is not vitiated by errors of law.
41 First, as the General Court pointed out in paragraphs 49 and 50 of the judgment under appeal, it follows from recitals 1 to 5 and 8 of Decision 2012/642 that, in view of the lack of improvement in the situation in Belarus as regards democracy, human rights and the rule of law, the Council considered, in essence, that new measures should be introduced in order to increase pressure on the Lukashenko regime and force it to change its behaviour. Thus, the inclusion of the names of persons on the lists at issue has gradually been extended to cover not only the persons identified as bearing particular responsibility for the fraudulent nature of the presidential elections and breaches of international electoral standards or those responsible for severe human rights violations and the repression of peaceful demonstrators following those elections, but also persons and entities who benefit from or support the regime in Belarus or the entities owned or controlled by those persons or entities.
42 Secondly, the General Court was correct in adding, in paragraph 52 of the judgment under appeal, that that objective, which was intended to apply greater pressure on the Lukashenko regime, could mean that forms of support for the Lukashenko regime or forms of benefit from that regime other than those of a financial or material nature may be made subject to the restrictive measures adopted pursuant to the general criterion at issue.
43 Thirdly, the General Court correctly recalled, in paragraph 54 of the judgment under appeal, that it is apparent from recital 6 of Decision 2012/642 that, in so far as concerns the persons and entities supporting that regime, the aim was to target ‘any person or entity supporting that regime, in particular, but not exclusively, persons and entities who support it financially or materially’.
44 In those circumstances, the General Court was also entitled, without erring in law, to reject, in paragraphs 52 and 53 of the judgment under appeal, the appellant’s argument that the Council’s interpretation of the general criterion at issue exceeded the limits of what is appropriate and necessary in order to achieve those objectives.
45 That assessment cannot be called into question by the appellant’s argument that the general criterion at issue should be interpreted in a more targeted manner, since the Council did not include, in Decision 2012/642 and Regulation No 765/2006, leading businesspersons operating in Belarus and their immediate family members or other natural persons, who benefit from it, or bodies involved in economic sectors providing a substantial source of revenue to the government, as was provided for in the context of other sanctions regimes. The fact that listing criteria for other sanctions regimes have been drafted differently does not mean, as such and in so far as they are not included in the present regime, that the general criterion at issue must be interpreted in the light of those other criteria.
46 As regards the argument raised by the appellant in the alternative, it is sufficient to note that that argument is not independent of the other arguments put forward by the appellant in the first part of the first ground of appeal. Since those arguments must be rejected, the present argument cannot succeed either.
47 Consequently, the first part of the first ground of appeal must be rejected as unfounded.
48 By the second part of the first ground of appeal, the appellant submits that the General Court erred in law, in paragraph 52 of the judgment under appeal, in interpreting the general criterion at issue as meaning that it could not be ruled out that forms of benefit from and support for the Lukashenko regime other than those of a financial or material nature may be made subject to the restrictive measures adopted pursuant to that criterion. In so doing, the General Court departed from its case-law arising from the judgment of 6 October 2015, Chyzh and Others v Council (T‑276/12, EU:T:2015:748, paragraphs 167 to 180), from which it is apparent that that criterion must be interpreted as referring exclusively to direct financial or material support provided to that regime.
49 According to that judgment, the concepts of ‘benefit’ and ‘support’ in Article 4(1) of Decision 2012/642 and Article 2(5) of Regulation No 765/2006 should be interpreted strictly. First, a person will only support the Lukashenko regime where the individual provides direct financial or material support to that regime. Secondly, a person will only benefit from that regime where that benefit is material and provided directly by that regime.
50 In that regard, the appellant argues that the grounds for differentiation between the present case and that which gave rise to the judgment of 6 October 2015, Chyzh and Others v Council (T‑276/12, EU:T:2015:748), set out in paragraphs 55 and 56 of the judgment under appeal, are incorrect. First, the General Court wrongly held, in the judgment under appeal, that that court did not rely solely, in the judgment of 6 October 2015, Chyzh and Others v Council (T‑276/12, EU:T:2015:748), on the financial support provided by the person concerned to the Lukashenko regime, but also on his promotion of Belarusian interests in Russia, on his association with that regime and on his personal acquaintance with Lukashenko through various sporting positions. Secondly, the General Court was wrong to seek to distinguish the present case from the case which gave rise to that judgment on the ground that, in that judgment, the General Court confined itself to finding that there was no evidence in the Council’s file to substantiate that allegation of financial support. In the same judgment, the General Court held that the benefit or support was required by way of direct financial or material gain, which the Council had not established. It is that approach which the General Court should have adopted in the present case.
51 The Council submits that the second part of the first ground of appeal should be rejected.
52 It should be noted at the outset that the General Court was fully entitled, in paragraphs 55 and 56 of the judgment under appeal, to find that the appellant’s argument that support for the regime must necessarily be financial or material in nature is based on a misreading of the judgment of 6 October 2015, Chyzh and Others v Council (T‑276/12, EU:T:2015:748). Admittedly, it is apparent from paragraphs 166 to 177 of that judgment, first, that the reasons justifying the restrictive measures adopted against Mr Chyzh expressly referred to the financial support which he provided to the Lukashenko regime. However, in those paragraphs, the General Court confined itself to finding that there was no evidence, in the Council’s file, to substantiate that allegation of financial support without, however, considering that the general criterion at issue was to be interpreted as referring exclusively to financial or material support provided to the Lukashenko regime. Similarly, while it is true that, in paragraphs 178 and 179 of that judgment, the General Court also analysed Mr Chyzh’s role in the field of sport, the sole purpose of that examination was to ascertain whether, as the Council claimed, the appellant in that case was associated with the regime.
53 Furthermore, and in any event, as is apparent from the examination of the first part of the first ground of appeal, the General Court’s interpretation of the general criterion at issue, in particular in paragraph 52 of the judgment under appeal, is not vitiated by an error of law. That interpretation is also consistent with the objective pursued by Decision 2012/642, which is to apply greater pressure on the Lukashenko regime in order for it to change and cease its policies and activities the result of which is the continued lack of respect for human rights, democracy and the rule of law in Belarus.
54 It follows that the second part of the first ground of appeal must be rejected and that that ground of appeal must therefore be rejected in its entirety.
55 By the first part of the second ground of appeal, the appellant complains that the General Court erred in law by rejecting, in paragraph 142 of the judgment under appeal, his argument that his past actions could not, on their own, demonstrate that, at the time when the acts at issue were adopted, he was benefiting from or supporting the Lukashenko regime, within the meaning of the general criterion at issue, and by holding, in paragraphs 143 and 144 of the judgment under appeal, that facts and matters which had ceased by that time were nevertheless capable of justifying the inclusion and maintenance of his name on the lists at issue.
56 In so doing, according to the appellant, the General Court ignored the use of the present indicative in the wording of Article 4(1) of Decision 2012/642 and Article 2(5) of Regulation No 765/2006, which refers not to past but to current or ongoing benefit or support. The General Court thus infringed the principle of legal certainty, which requires the general criterion at issue to be clear and precise and predictable in its effect. The General Court also failed to have regard to the deterrent objective of Decision 2012/642 and Regulation No 765/2006, in that such an objective could be achieved only by penalising persons who satisfy that criterion at the time when their names were included or maintained on the list and not those who no longer satisfy it at that time.
57 The main reasons on which the Council relied in order to justify the inclusion and maintenance of the appellant’s name on the lists at issue relate to past events, namely, first, the fact that the appellant held a majority shareholding in Slavkali, secondly, the fact that he also held a majority shareholding in the companies Russneft and Neftisa and, thirdly, the fact that the appellant had various interactions with Lukashenko.
58 By the second part of the second ground of appeal, the appellant submits that the General Court disregarded its settled case-law, in particular the judgments of 27 September 2017, BelTechExport v Council (T‑765/15, EU:T:2017:669); of 26 October 2022, Ovsyannikov v Council (T‑714/20, EU:T:2022:674, paragraph 87); and of 20 March 2024, Mazepin v Council (T‑743/22, EU:T:2024:180, paragraph 58), according to which the Council is required to demonstrate that, at the time of the adoption of the restrictive measures against the person concerned, the criterion justifying such adoption was satisfied, or to verify whether the acts alleged against that person remained current when the restrictive measures were extended.
59 By the third part of his second ground of appeal, the appellant complains that the General Court erred in law, first, by relying on the judgment of 12 February 2020, Boshab v Council (T‑171/18, EU:T:2020:55), in order to conclude that the Council was not required to verify that the appellant continued to benefit from the Lukashenko regime or to support it at the time when his name was included and maintained on the lists at issue and, secondly, by holding, in paragraphs 144 and 145 of the judgment under appeal, that facts which occurred before that date and which had ended on that date are not necessarily irrelevant, since the assessment of their relevance falls within the discretion conferred on the Council.
60 The appellant submits, in that regard, that the present case differs from that giving rise to the judgment of 12 February 2020, Boshab v Council (T‑171/18, EU:T:2020:55), cited by analogy in paragraph 145 of the judgment under appeal, since, in that judgment, the acts of which the appellant was accused, namely human rights violations, were, by their nature, discrete, irreversible and extremely grave acts, in respect of which it was appropriate to rely on facts which occurred before the adoption of the acts at issue and which had ended on that date.
61 The Council submits that the second ground of appeal must be rejected in its entirety.
62 By the three parts of the second ground of appeal, the appellant submits that the General Court erred in law in finding that the Council was not required to verify that the appellant continued, at the time of the inclusion and maintenance of his name on the lists at issue, to benefit from or support the Lukashenko regime.
63 According to settled case-law, where the General Court has established or assessed the facts, the Court of Justice has jurisdiction, under Article 256 TFEU, solely to review the legal characterisation of those facts and the legal conclusions which have been drawn from them. The appraisal of the facts by the General Court does not therefore constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (judgment of 11 December 2019, Mytilinaios Anonymos Etairia - Omilos Epicheiriseon, C‑332/18 P, EU:C:2019:1065, paragraph 149 and the case-law cited).
64 In paragraph 143 of the judgment under appeal, the General Court recalled that it was established that, when both the initial and the maintaining acts were adopted, the appellant remained a shareholder in Slavkali, Russneft and Neftisa and that those companies were owned by the Safmar Group, which is a Russian multi-sector conglomerate of which the appellant is the founder, principal shareholder and chair of the board of directors.
65 It follows that the factual premiss on which the appellant’s argument is based, to the effect that the Council relied on facts which took place before the adoption of the acts at issue and which had ended on that date, is incorrect. Since the appellant does not claim that that premiss is vitiated by distortion, that argument is inadmissible, in accordance with the case-law cited in paragraph 63 of the present judgment. In those circumstances, the second ground of appeal must be rejected, without there being any need to rule on the errors of law allegedly committed in paragraphs 144 and 145 of the judgment under appeal, since those paragraphs contain grounds set out for the sake of completeness by the General Court. According to settled case-law of the Court of Justice, arguments directed against grounds included in a decision of the General Court purely for the sake of completeness cannot lead to the decision being set aside and are therefore ineffective (judgment of 21 December 2023, United Parcel Service v Commission, C‑297/22 P, EU:C:2023:1027, paragraph 55 and the case-law cited).
66 It follows that the second ground of appeal must be rejected.
67 By the second part of the third ground of appeal, which it is appropriate to examine first, the appellant complains that the General Court erred in law in the assessment of his business interests in Belarus.
68 The appellant submits, as a preliminary point, that the evidence referred to in paragraphs 78 to 80, 83, 84, 87, 91, 94, 95, 99 and 100 of the judgment under appeal, which he does not dispute, is not sufficient to justify the inclusion and maintenance of his name on the lists at issue, since, first, being a leading businessperson with business interests in Belarus in the potash and energy sector does not demonstrate that he benefits from or supports the Lukashenko regime. Secondly, the majority of the evidence relied on by the Council is historic.
69 As regards the only three factors capable of establishing a financial or material link between the Lukashenko regime and the appellant, the appellant submits that their analysis is vitiated by errors of law.
70 In the first place, in paragraphs 121 and 122 of the judgment under appeal, the General Court held that the public contract for the development of the Nezhinsky potassium chloride mining and processing plant (‘the Nezhinsky project’) was obtained improperly, which the Council, however, never claimed, with the result that the General Court retroactively amended the grounds justifying the inclusion and maintenance of the appellant’s name on the lists at issue. Furthermore, the Council has not demonstrated that the Nezhinsky project was unlawfully allocated. Therefore, by imposing on the appellant the burden of proving that he had obtained the right to develop that project in a proper manner, the General Court also erred in law. In any event, the General Court manifestly distorted the evidence adduced before it.
71 In the second place, in paragraph 125 of the judgment under appeal, the General Court held that a financial advantage had been granted to the English public limited company GCM Global Energy Plc (‘GCM’), which created Slavkali, in the form of a guarantee of the Belarusian Government against a loan provided by the China Development Bank. According to the appellant, the reference by the General Court to such a factor is based on errors of law. The Council never claimed, in the reasons for the inclusion and maintenance of the appellant’s name on the lists at issue, that he was in receipt of any special advantage from the Belarusian Government. Thus, the General Court raised that matter of its own motion, inter alia, during the hearing. In that regard, the appellant, requested by the General Court to specify any benefits obtained by GCM, produced a legal opinion drafted by a Belarusian lawyer stating that the benefits contained in the agreement concluded with that company were standard practice for investment agreements concluded by the Republic of Belarus with large investors. The General Court did not take that into account and assumed, in the absence of any evidence, that the guarantee at issue constituted an advantage granted by the Lukashenko regime.
72 In the third place, in paragraph 126 of the judgment under appeal, the General Court found that the fact that the companies Russneft and Neftisa were the only Russian oil companies to continue supplying oil to Belarus when, in early 2020, the Russian Federation temporarily halted its oil deliveries to Belarus constituted evidence of the appellant’s closeness to the Lukashenko regime. In so doing, the General Court disregarded the appellant’s argument that the Council had not established the reasons why the supply of oil to Belarus, by those undertakings, at a time when other oil companies established in third countries also contributed to such a supply, constituted support for that regime.
73 The Council contends that the second part of the third ground of appeal must be rejected.
74 It should be noted, as a preliminary point, that the appellant’s line of argument set out in paragraph 68 of the present judgment overlaps, as the appellant notes in his written pleadings, with that put forward in the first and second grounds of appeal, which have been rejected, with the result that it cannot succeed.
75 As to the remainder, as regards, in the first place, the appellant’s argument relating to paragraphs 121 and 122 of the judgment under appeal, it must be held that that argument is based on a misreading of the judgment under appeal, since it is not apparent from those paragraphs either that the Nezhinsky project was obtained improperly or that the General Court placed the burden of proof on the appellant, since that court merely found that he had not succeeded in effectively calling into question the evidence provided by the Council in that regard. Furthermore, it must be borne in mind that, according to the case-law, the appellant must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in the appellant’s view, led to that distortion (see, inter alia, judgment of 16 January 2025, Região Autónoma da Madeira v Commission (Madeira Free Zone), C‑547/23 P, EU:C:2025:22, paragraph 37 and the case-law cited). In the present case, the appellant has failed to provide such information.
76 As regards, in the second place, the appellant’s argument relating to paragraph 125 of the judgment under appeal, it should be noted that it is apparent from the file before the General Court that the Council, in order to substantiate the ground for the acts at issue relating to the Nezhinsky project, communicated to the appellant in its letter of 20 September 2021, as is apparent from paragraph 20 of the present judgment, evidence relating to the guarantee made by the Belarusian Government for a loan granted to GCM by the China Development Bank. Therefore, the General Court cannot legitimately be criticised for having raised that point of its own motion.
77 As regards the argument that the grounds for including and maintaining the appellant’s name on the lists at issue did not refer to the question of that special advantage, it must be borne in mind that, in accordance with Article 170(1) of the Rules of Procedure of the Court of Justice, the subject matter of the proceedings before the General Court may not be changed in the appeal. The jurisdiction of the Court of Justice in an appeal is confined to a review of the findings of law on the pleas argued before the General Court. A party cannot therefore put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court, since that would amount to allowing that party to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court (judgment of 4 October 2024, thyssenkrupp v Commission, C‑581/22 P, EU:C:2024:821, paragraph 123 and the case-law cited). In the present case, it is not apparent from the judgment under appeal that the appellant relied on that argument before the General Court. Consequently, the Court of Justice cannot, in the context of the present appeal, examine that argument and it must be rejected as inadmissible.
78 As regards the appellant’s argument that the General Court did not take account of a legal opinion drawn up by a Belarusian lawyer stating that the advantages contained in the agreement concluded with that company were standard practice for investment agreements concluded by the Republic of Belarus with large investors, it is sufficient to note that, by that argument, the appellant is in fact asking the Court of Justice to carry out a new assessment of the facts, which, according to the case-law recalled in paragraph 63 of the present judgment, does not fall within the jurisdiction of the Court of Justice in the context of the appeal.
79 In the third place, as regards the appellant’s argument relating to paragraph 126 of the judgment under appeal, it is clear from that judgment, and in particular from paragraphs 117 and 126 thereof, that the Council demonstrated to the requisite legal standard the reasons why the fact that the companies Russneft and Neftisa were the only Russian oil companies to continue supplying oil to Belarus during the early 2020 crisis constitutes evidence of the appellant’s closeness to the Lukashenko regime. In paragraph 117 of the judgment under appeal, the General Court noted that it was apparent from the evidence submitted by the Council that the Republic of Belarus’s oil relations with the Russian Federation, including the purchase of Russian oil, constitute one of the pillars of the Belarusian economy, with the result that the interruption, by the Russian Federation, in the supply of oil at the beginning of 2020 had caused a large-scale crisis in Belarus which had led to a halt in the export of petroleum products from that country. In addition, in paragraph 126 of the judgment under appeal, the General Court found that, contrary to what the appellant claimed, the fact that the companies Russneft and Neftisa were the only Russian oil companies to continue supplying oil to Belarus when, in that period, the Russian Federation had temporarily halted its oil deliveries to that State, in order to incite Lukashenko to move towards greater integration in the context of the Union State of Russia and Belarus, constitutes evidence of the appellant’s closeness to the Lukashenko regime.
80 Accordingly, the second part of the third ground of appeal must be rejected as, in part, inadmissible and, in part, unfounded.
81 By the third part of the third ground of appeal, which it is appropriate to examine in the second place, the appellant complains that the General Court erred in law in holding that, in the light of the factors set out in paragraphs 99, 104, 106 to 109, 127 and 131 to 133 of the judgment under appeal, relating to his personal acquaintance with Lukashenko, the statements in praise of or favourable to the appellant, Lukashenko’s approval, alongside the President of the Russian Federation, of the appellant’s appointment as chair of Slavneft in 2000, Lukashenko’s statement by which he declared that he had personally contacted the President of the Russian Federation in support of the appellant in the context of two criminal investigations initiated against him in Russia in 2020, and the appellant’s attendance at Lukashenko’s inauguration ceremony in September 2020, the Council had demonstrated that the fact that the appellant was a long-standing acquaintance of Lukashenko made it possible to establish that he benefited from or supported the Lukashenko regime and that, therefore, the general criterion at issue was satisfied.
82 The appellant maintains, in that regard, first, that it is impossible that the fact that he knows Lukashenko personally can constitute a benefit derived from his regime or support for that regime. Likewise, statements made in praise of or favourable to the appellant and birthday greetings sent by Lukashenko to him do not demonstrate such a benefit or support. Secondly, as regards the fact that the appellant’s appointment as chair of Slavneft in 2000 was approved by Lukashenko and by the President of the Russian Federation, the appellant maintains that he did not benefit from it when the acts at issue were adopted 18 years later and that, in any event, that was, at the time, a formality given that that company was owned by the Russian and Belarusian Governments. Thirdly, as regards the fact that Lukashenko stated that he had contacted the President of the Russian Federation personally to support the appellant in criminal investigations initiated against him in Russia, the Council did not rely on those investigations in the acts at issue. Fourthly, as regards the appellant’s attendance at Lukashenko’s inauguration in September 2020, the appellant submits that it cannot demonstrate support for the Lukashenko regime, especially since, as the General Court acknowledged in paragraph 138 of the judgment under appeal, the appellant had no choice but to attend it.
83 The Council contends that the third part of the third ground of appeal should be rejected.
84 By the third part of the third ground of appeal, the appellant disputes the General Court’s legal classification of the facts set out in paragraphs 99, 104, 106 to 109, 127 and 131 to 133 of the judgment under appeal. The appellant claims that the General Court erred in law in finding, on the basis of those facts, that the fact that the appellant was a long-standing acquaintance of Lukashenko made it possible to establish that he benefited from or supported the Lukashenko regime and that, therefore, the general criterion at issue was satisfied.
85 According to settled case-law, where the General Court has established or assessed the facts, the Court of Justice has jurisdiction, under Article 256 TFEU, to review the legal characterisation of those facts and the conclusions in law drawn from them (judgment of 11 December 2019, Mytilinaios Anonymos Etairia - Omilos Epicheiriseon, C‑332/18 P, EU:C:2019:1065, paragraph 149 and the case-law cited).
86 It should be noted, first, that the appellant does not dispute either the facts set out in paragraphs 99, 104, 106 to 109, 127 and 131 to 133 of the judgment under appeal, or that that evidence shows that he was a long-standing acquaintance of Lukashenko. Moreover, such a factual assessment could be legitimately challenged at the appeal stage only if it were vitiated by distortion, which the appellant does not invoke.
87 It should be noted, secondly, that the General Court did not infer from the existence of that personal relationship alone that the appellant benefited from the Lukashenko regime or supported it, or even more so from certain facts set out in paragraphs 99, 104, 106 to 109, 127 and 131 to 133 of the judgment under appeal attesting to that relationship, taken in isolation. It is apparent from paragraphs 134, 139 and 140 of the judgment under appeal that those facts were taken into consideration in their context. Thus, taking into account the circumstances in which business activities are carried out in Belarus, the Court held that the appellant’s personal relationship with Lukashenko, taken together with the magnitude and diversity of the appellant’s business interests, which have been sustained over time, specifically in the strategic regulated oil and potash sectors, demonstrated the closeness of the appellant’s activities to the Lukashenko regime and constituted a sufficiently concrete, precise and consistent body of evidence to establish that the appellant benefited from or supported that regime and that, therefore, the general criterion at issue was satisfied.
88 The third part of the third ground of appeal must therefore be rejected.
89 By the fourth part of the third ground of appeal, which it is appropriate to examine in the third place, the appellant complains that the General Court erred in law, in paragraph 138 of the judgment under appeal, in presuming that prominent businesspersons in Belarus are highly dependent on the Lukashenko regime and that, in order to attain such a position, it is necessary to belong to a restricted group of persons who enjoy the confidence of Lukashenko.
90 First, according to the appellant, the presumption established in the present case by the General Court is contrary to the wording and objective of the general criterion at issue, since the Council, in contrast to other sanctions regimes, failed to establish an express presumption of the existence of a link with the regime in Decision 2012/642 or Regulation No 765/2006.
91 Secondly, the appellant asserts that, as is apparent from paragraph 137 of the judgment under appeal, that presumption is based exclusively on disputed and untested opinion articles published by third parties online, the reliability and probative value of which the General Court did not seek to assess. It is apparent from the case-law of the General Court arising from its judgment of 30 November 2016, Rotenberg v Council (T‑720/14, EU:T:2016:689, paragraph 80), that indirect, unverified evidence is not a sufficient basis on which to conclude that the Council has satisfied the burden of proof it bears.
92 Thirdly, that presumption is contrary to the settled case-law of the General Court. By way of example, it is apparent in particular from the judgment of 9 December 2014, Peftiev v Council (T‑441/11, EU:T:2014:1041, paragraphs 186 to 197), that the control, by an individual, of one of the largest Belarusian companies operating in the defence sector, which was strategically important for the Belarusian economy, was not sufficient to establish that that individual benefited from or supported the Lukashenko regime, even though that individual had a long-standing personal relationship with Lukashenko.
93 The Council considers that the fourth part of the third ground of appeal should be rejected.
94 It should be borne in mind that, according to the case-law of the Court of Justice, if the competent EU authority provides relevant information or evidence, the Courts of the European Union must then determine whether the facts alleged are made out in the light of that information or evidence and assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person concerned (judgment of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 69 and the case-law cited).
95 In the present case, in paragraphs 136 to 138 of the judgment under appeal, the General Court found that (i) the Belarusian economy is characterised by the control exerted by the regime in both the public and private sectors and by a system which rewards loyalty to the regime, (ii) significant business activities may be carried on only with the endorsement of the Lukashenko regime and that the appellant is one of the businesspersons whose activities benefit from such an endorsement and (iii) the activities of prominent businesspersons in Belarus are highly dependent on that regime and, in order to attain such a position, it is necessary to belong to a restricted group of persons who enjoy the confidence of Lukashenko.
96 It follows that the General Court did not establish a presumption but held, after analysing all the evidence provided by the Council - the assessment of which, save where the clear sense of the evidence has been distorted, falls outside the jurisdiction of the Court of Justice at the appeal stage, as is apparent from the case-law referred to in paragraph 63 of the present judgment - that, in the present case, there is a link between prominent businesspersons in Belarus and the Lukashenko regime.
97 In the light of those considerations, the fourth part of the third ground of appeal must be rejected as unfounded.
98 By the first part of the third ground of appeal, which it is appropriate to examine in the fourth place, the appellant complains that the General Court erred in law in that, although it identified, in paragraph 58 of the judgment under appeal, four reasons on the basis of which the restrictive measures were adopted in respect of the appellant, relating to (i) the appellant’s business interests as a prominent businessperson in Belarus, (ii) his personal relationship with Lukashenko, (iii) Russian journalists flown to Belarus on board an aircraft belonging to the appellant and (iv) his contribution to the purchase of scanners during the ‘COVID‑19 pandemic’, the General Court, in paragraphs 66 to 147 of the judgment under appeal, examined only the first and second of those grounds, in concluding, incorrectly, that they were sufficient to demonstrate that the appellant benefited from or supported the Lukashenko regime. The General Court also erred in law in holding that, since any of the four reasons or their combination was in principle capable of justifying the restrictive measures adopted, it was not necessary to carry out such an examination for the third and fourth reasons. They were not capable of satisfying the general criterion at issue.
99 The appellant asserts that the General Court considered, in paragraph 65 of the judgment under appeal, that it was for it to examine (i) the accuracy of the facts alleged by the Council and (ii) whether those facts made it possible to establish that the appellant fell within the general criterion at issue. However, in examining whether the Council had committed a manifest error of assessment in including and maintaining the appellant’s name on the lists at issue, the General Court did not carry out that examination.
100 The Council contends, as regards the first part of the third ground of appeal, that the appellant does not clearly indicate which paragraphs of the judgment under appeal are contested and that, in any event, that part cannot be upheld.
101 It is apparent from the case-law of the Court of Justice that, having regard to the preventive nature of decisions adopting restrictive measures, if the Courts of the European Union consider that, at the very least, one of the reasons mentioned is sufficiently detailed and specific, that it is substantiated and that it constitutes in itself sufficient basis to support that decision, the fact that the same cannot be said of other such reasons cannot justify the annulment of that decision (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 130, and of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 72).
102 It must be pointed out that, in accordance with settled case-law, where one of the grounds adopted by the General Court is sufficient to sustain the operative part of its judgment, any defects that might vitiate other grounds given in the judgment concerned in any event have no bearing on that operative part and, accordingly, a plea relying on such defects is ineffective and must be dismissed (see, inter alia, judgments of 29 April 2004, Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 68; of 29 November 2012, United Kingdom v Commission, C‑416/11 P, EU:C:2012:761, paragraph 45; and of 14 June 2018, Makhlouf v Council, C‑458/17 P, EU:C:2018:441, paragraph 96).
103 In the present case, it must be stated that, by the first part of the third ground of appeal, the appellant disputes, in essence, the General Court’s assessment by which it found, in paragraphs 66 to 147 of the judgment under appeal, that the first and second reasons on the basis of which the restrictive measures were adopted against the appellant were sufficient to justify the acts at issue. However, since the complaints directed against those paragraphs of the judgment under appeal have been rejected and the grounds relied on by the General Court in those paragraphs justify the operative part of the judgment under appeal, the arguments put forward by the appellant seeking to demonstrate that the General Court wrongly failed to examine the legality of the third and fourth reasons for listing relied on by the Council, even if they were well founded, cannot lead to the judgment under appeal being set aside.
104 It follows that the first part of the third ground of appeal must be rejected as ineffective.
105 In the light of all of the foregoing considerations, the third ground of appeal must be rejected as in part inadmissible and in part unfounded.
106 As none of the grounds of appeal has been upheld, the appeal must be dismissed in its entirety.
107 Under Article 138(1) of the Rules of Procedure, which applies 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.
108 Since the Council has applied for costs and the appellant has been unsuccessful, the latter must be ordered to bear his own costs and to pay those of the Council. 1. Dismisses the appeal; 2. Orders Mr Mikail Safarbekovich Gutseriev to pay the costs.