1 By his appeal, the appellant seeks to have set aside the judgment of the General Court of the European Union of 6 September 2023, Timchenko v Council (T‑252/22, ‘the judgment under appeal’, EU:T:2023:496), by which the General Court dismissed his action seeking, first, annulment (i) of Council Decision (CFSP) 2022/337 of 28 February 2022 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 59, p. 1) and Council Implementing Regulation (EU) 2022/336 of 28 February 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 58, p. 1) (together, ‘the initial acts at issue’) and (ii) of Council Decision (CFSP) 2022/1530 of 14 September 2022 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 239, p. 149) and Council Implementing Regulation (EU) 2022/1529 of 14 September 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 239, p. 1) (together, ‘the maintaining acts at issue’), in so far as the initial acts at issue and the maintaining acts at issue (together, ‘the acts at issue’) concern him, and, second, compensation for the non-material harm which he claims to have suffered as a result of the adoption of the acts at issue.
2 The factual and legal background of the present case is set out in paragraphs 2 to 18 of the judgment under appeal. For the purposes of the present proceedings, it can be summarised and supplemented as follows.
3 Following the invasion of Ukraine by the armed forces of the Russian Federation on 24 February 2022, on 25 February 2022, the Council of the European Union adopted Decision (CFSP) 2022/329 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 50, p. 1).
4 Article 1(1) of Council Decision 2014/145/CFSP of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 16), as amended by Decision 2022/329, (‘Decision 2014/145’) prohibits the entry into, or transit through, the territories of the Member States of natural persons meeting the criteria laid down, in particular, in paragraphs (a) and (b) of that article, while Article 2(1) of Decision 2014/145 provides for the freezing of the funds of natural persons meeting the criteria laid down, inter alia, in paragraphs (a) and (d) of that article, which are, in essence, identical to those laid down in Article 1(1)(a) and (b) of Decision 2014/145.
5 Article 2(1) of Decision 2014/145 reads as follows: ‘1. All funds and economic resources belonging to …: … … shall be frozen.’
6 On 25 February 2022, the Council adopted Regulation (EU) 2022/330 amending Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L. 51, p. 1).
7 In that context, the Council included in Article 3(1)(a) and (d) of Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 6), as amended by Regulation 2022/330, (‘Regulation No 269/2014’) the same criteria as set out in paragraph 5 of the present judgment with a view to the funds and economic resources belonging to, inter alia, natural persons meeting those criteria being frozen in accordance with Article 2(1) of Regulation No 269/2014.
8 On 28 February 2022, in view of the gravity of the situation in Ukraine, the Council adopted the initial acts at issue. By those acts, the appellant’s name was added, under number 694, to the list annexed to Decision 2014/145 and, also under that number, to the list set out in Annex I to Regulation No 269/2014, for the following reasons: ‘[Mr] Gennady [Nikolayevich] Timchenko is a long-time acquaintance of the President of the Russian Federation [Mr] Vladimir Putin and is broadly described as one of his confidants. He is benefiting from his links with Russian decision-makers. He is founder and shareholder of the Volga Group, an investing group with a portfolio of investments in [key sectors] of the Russian economy. The Volga Group contributes significantly to the Russian economy and its development. He is also a shareholder of Bank Rossiya which is considered the personal bank of [s]enior [o]fficials of the Russian Federation. Since the illegal annexation of Crimea, Bank Rossiya has opened branches across Crimea and Sevastopol, thereby consolidating their integration into the Russian Federation. Furthermore, Bank Rossiya has important stakes in the National Media Group which in turn controls television stations which actively support the Russian [G]overnment’s policies of destabilisation of Ukraine. He is therefore responsible for supporting actions and policies which undermine the territorial integrity, sovereignty and independence of Ukraine. He is also responsible for providing financial and material support, and benefiting from Russian decision-makers responsible for the annexation of Crimea and the destabilisation of Ukraine.’
9 On 14 September 2022, the Council adopted the maintaining acts at issue, which maintained the inclusion of the appellant’s name on the lists at issue for the same reasons as reproduced in the preceding paragraph.
10 By application of 9 May 2022, supplemented by a statement of modification on 25 November 2022, the appellant applied to the General Court to annul the acts at issue, in so far as they include his name on the list of persons subject to restrictive measures, and to compensate him for the non-material harm which he claimed to have suffered as the result of the adoption of those acts. In his action for annulment, he disputed, inter alia, the Council’s finding that he satisfied the criterion relating to material or financial support for Russian decision-makers, laid down in Article 2(1)(d) of Decision 2014/145 (‘the (d) criterion’), and the criterion relating to support for actions or policies undermining the territorial integrity of Ukraine, set out in Article 2(1)(a) of that decision (‘the (a) criterion’). He claimed that, in the context of that finding, the Council had made manifest errors of assessment.
11 In relation to the (d) criterion, concerning, in particular, natural persons supporting, materially or financially, or benefiting from Russian decision-makers responsible for the annexation of Crimea or the destabilisation of Ukraine, the General Court found, in paragraphs 97, 106 and 108 of the judgment under appeal, that it was clear from the information in the case file, first, that the appellant, a friend of Mr Putin, was the second largest shareholder of Bank Rossiya and formed part of a stable core of majority shareholders of that bank who were known to be close to Mr Putin, with the effect that he undeniably had a very substantial influence over decision-making in that bank, and, second, that there was precise, specific and consistent evidence establishing that Bank Rossiya is the personal bank of senior officials of the Russian Federation, including its president, Mr Putin.
12 The General Court also held, in paragraphs 109 and 110 of the judgment under appeal, that, because, inter alia, restrictive measures are not criminal penalties, a natural person can be subject to restrictive measures for acts committed by a company in which that person is a shareholder, where he or she exerts a very substantial or even decisive influence over that company, in particular where the positions taken by that shareholder are capable of influencing the direction of decisions taken by the company. It then held, in essence, in paragraphs 111 and 114 of the judgment under appeal, that the Council had not made an error of assessment when it found that, through Bank Rossiya, which is the personal bank of senior officials of the Russian Federation, the appellant, who, first, could not have been unaware that that bank financially supported Mr Putin and who, second, allowed that state of affairs to continue even though he had power to influence the bank’s decisions and even though, as is apparent from paragraph 112 of the judgment under appeal, he could have publicly distanced himself from the policy pursued by that bank or could have divested his shareholding in it, had himself financially supported Russian decision-makers responsible for the annexation of Crimea and the destabilisation of Ukraine, in the event, Mr Putin.
13 In respect of the (a) criterion, relating, in particular, to natural persons responsible for, supporting or implementing actions or policies against Ukraine, the General Court recalled, first of all, in paragraph 117 of the judgment under appeal, that that criterion implied that a direct or indirect link had to be established between the activities or actions of the person or entity targeted and the situation in Ukraine underpinning the adoption of the restrictive measures concerned. The General Court added that the (a) criterion therefore involved demonstrating that the person concerned, by his or her conduct, was responsible for actions or policies which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine. It then held, in paragraph 118 of that judgment, that, in the light of the evidence submitted, Bank Rossiya had supported the policy of the annexation of Crimea within the meaning of that criterion. In paragraph 120 of that judgment, it ultimately held, in the light in particular of the reasons indicated in the analysis relating to the (d) criterion, that the Council had been entitled to find that the appellant, by adopting a passive attitude to Bank Rossiya’s support for the policy of annexing Crimea, had himself supported the actions and policies undermining the sovereignty and independence of Ukraine.
14 Since the General Court rejected the appellant’s other pleas in law and his claim for compensation, it dismissed the action in its entirety.
15 The appellant claims that the Court should: - set aside the judgment under appeal; - annul the acts at issue in so far as they include and maintain his name on the lists annexed to those acts; and - order the Council to pay the costs at first instance and on appeal.
16 The Council claims that the Court should: - dismiss the appeal; and - order the appellant to pay the costs.
17 The appellant submits two grounds in support of his appeal, the first alleging that the General Court erred in law in its interpretation of the (d) criterion, by holding that the material or financial support to which that criterion refers could be demonstrated where the person subject to the restrictive measures did not object to decisions made by the entity regarded as being directly responsible for that support, and the second ground alleging that the General Court erred in law when interpreting the (a) criterion, by holding that the support to which that criterion refers could be demonstrated where such a person failed to distance him or herself from the policy and decisions of such an entity.
18 By his first ground of appeal, the appellant submits, first, that the General Court erred in law by interpreting the concept of ‘supporting, materially or financially’ within the meaning of the (d) criterion too broadly, contrary to the applicable case-law. In particular, in paragraph 111 of the judgment under appeal, the General Court found, as the sole factor that enabled it to conclude that the appellant had himself financially supported Russian decision-makers, that the appellant’s failure to distance himself from Bank Rossiya’s policy of materially or financially supporting those decision-makers constituted at least tacit approval of that policy and, therefore, supported it within the meaning of the (d) criterion.
19 In that regard, the General Court also disregarded the appellant’s rights of the defence by substituting its own grounds for those set out by the Council in the acts at issue.
20 Furthermore, the General Court’s finding in paragraph 112 of the judgment under appeal conflicts with the case-law of the General Court according to which the material or financial support must be of a degree of quantitative or qualitative significance such that it effectively enables the Russian Federation to pursue its military operations in Ukraine, which is moreover a corollary of the objectives pursued by the (d) criterion. No such degree of significance exists in the present case, since the support for which the appellant is criticised is merely indirect support based not on actions but on a failure to act or a failure to distance himself publicly after the event.
21 Second, the appellant submits that the General Court failed to satisfy itself that the acts at issue were taken on a sufficiently solid factual basis, since it disregarded the fact that the Council had not provided any evidence supporting the claim that, as is apparent from paragraphs 106 and 110 of the judgment under appeal, he had sufficient power to be able, together with the other shareholders of Bank Rossiya, to influence the decisions taken by the bank, the General Court having in that way based its reasoning on presumptions. He therefore criticises the General Court for failing to respond to his claim that he did not have power to influence the bank’s decisions and for rejecting his arguments purely on the ground that he should have distanced himself from the policy pursued by that bank.
22 In short, the accordingly broad interpretation of the (d) criterion adopted by the General Court led it to confirm that the Council can adopt disproportionate restrictive measures against a natural person who has only a very indirect and remote link with the alleged acts of material or financial support, although the appellant clarifies in his reply that he is not seeking to raise a complaint alleging breach of the principle of proportionality.
23 The Council disputes the appellant’s arguments. In particular, it submits that the General Court did not treat the appellant’s failure to distance himself as a constituent element of the (d) criterion, but instead addressed that aspect as an element of fact, as is clear in particular from paragraph 115 of the judgment under appeal. The Council notes that, unless there is distortion, which the appellant has not invoked in the present case, the assessment of the facts and evidence is not a question of law subject to review by the Court of Justice on appeal. Those considerations apply equally to the claims by which the appellant seeks to question the General Court’s assessment of certain facts and evidence. To that extent, the appellant’s arguments should be found to be inadmissible.
24 It should be recalled that, under Article 256 TFEU and Article 58 of the Statute of the Court of Justice of the European Union, an appeal is limited to points of law. The General Court alone has jurisdiction to establish and assess the relevant facts and to evaluate the evidence. The assessment of those facts and evidence does not therefore constitute, save in the case of their distortion, a question of law subject, as such, to review by the Court of Justice in the context of an appeal (judgment of 4 October 2024, Ferriere Nord v Commission, C‑31/23 P, EU:C:2024:851, paragraph 89 and the case-law cited).
25 However, the jurisdiction of the Court of Justice to review findings of fact by the General Court extends, inter alia, to the question of whether the rules relating to the burden of proof and the taking of evidence have been observed (judgment of 29 November 2018, Bank Tejarat v Council, C‑248/17 P, EU:C:2018:967, paragraph 37 and the case-law cited). In addition, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions which it has drawn from them (judgment of 1 October 2014, Council v Alumina, C‑393/13 P, EU:C:2014:2245, paragraph 16 and the case-law cited).
26 In the present case, first, the Council claims, in essence, that, by criticising the General Court for drawing the conclusion that he had financially supported Russian decision-makers within the meaning of the (d) criterion solely from his failure to distance himself from the policy that Bank Rossiya should provide support to those decision-makers, the appellant is not relying in his first ground of appeal on matters of law, but is seeking to question the General Court’s factual assessment of his failure to distance himself.
27 That ground of inadmissibility cannot succeed. It is clearly apparent from the appeal that, by that criticism, the appellant is not seeking to question the factual findings and assessments relating to his failure to distance himself from the policy pursued by Bank Rossiya, but is taking issue with the General Court for drawing the conclusion merely from that fact alone that he provided support within the meaning of the (d) criterion, a matter that falls within the jurisdiction of the Court of Justice to review on appeal, in accordance with the case-law summarised in paragraph 25 of the present judgment.
28 Second, the Council claims that the appellant is seeking to question the General Court’s assessment of certain facts and evidence, but without alleging that they were distorted, thereby rendering the first ground of appeal inadmissible.
29 That further ground of inadmissibility likewise cannot succeed. While admittedly the appellant disputes certain facts, under his first ground of appeal, that is because he is arguing that the General Court established and assessed those facts despite the absence of any evidence submitted by the Council. The complaint that the General Court established or assessed facts without satisfying itself that they are substantiated by evidence is effectively asking the Court of Justice to review a potential breach by the General Court of the rules relating to the burden of proof and the taking of evidence, which the Court of Justice has jurisdiction to do in accordance with the case-law summarised in paragraph 25 of the present judgment.
30 It follows that the grounds of inadmissibility on which the Council relies in relation to the first ground of appeal must be rejected and that that ground of appeal is admissible in its entirety.
31 In the first place, in support of his first ground of appeal, the appellant claims that the General Court adopted an overly broad interpretation of the (d) criterion in so far as, in paragraphs 111 and 112 of the judgment under appeal, it relied solely on his failure to distance himself from the policy pursued by Bank Rossiya in order to hold that the Council was entitled to find that, through that bank, he financially supported Russian decision-makers responsible for the annexation of Crimea or the destabilisation of Ukraine within the meaning of that criterion, even though such a failure to distance oneself is not an active and direct act of support having sufficient quantitative or qualitative significance.
32 In that regard, it should be noted that the appellant is misreading the judgment under appeal. The General Court did not treat any such failure to distance himself as a constituent element of the act of ‘supporting, materially or financially, … Russian decision-makers’ referred to in the (d) criterion.
33 On the contrary, the General Court set out, in paragraphs 99 to 111 of that judgment, the facts and evidence that led it to find that the appellant, a friend of Mr Putin and the second largest shareholder of Bank Rossiya, formed, together with three other friends of Mr Putin, the stable majority core of the partners of that bank and that he was therefore a very influential shareholder of the bank, with the effect that, on the date of the initial inclusion or of the maintenance of his name, he could not have been unaware that Bank Rossiya financially supported Russian decision-makers such as Mr Putin within the meaning of that criterion.
34 On the basis of the foregoing facts and evidence, in paragraph 114 of the judgment under appeal, the General Court held, without thereby erring in law, that, in this particular instance, which, as indicated in paragraph 110 of the judgment under appeal, is a matter of the ‘specific circumstances of the case’, there was sufficiently specific, precise and consistent evidence to establish that, through Bank Rossiya, which is the personal bank of senior officials of the Russian Federation, the appellant financially supported Russian decision-makers responsible for the annexation of Crimea and the destabilisation of Ukraine within the meaning of the (d) criterion.
35 In that context, the General Court did indeed take into account the appellant’s failure to distance himself from Bank Rossiya’s financing policy. However, it must be found that by finding, in the last part, beginning with ‘second’, of the sentence comprising paragraph 111 of the judgment under appeal, and in paragraphs 112 and 115 of that judgment, that the appellant had not distanced himself from the policy followed by that bank in relation to Russian decision-makers, whether before or after the initial inclusion of his name, the General Court, far from adding a component element to the (d) criterion, in essence examined whether there was exculpatory evidence in favour of the appellant.
36 Consequently, contrary to the appellant’s claim, the reference to a failure to distance himself represents only one item of evidence among others on the basis of which, as stated in paragraph 34 of the present judgment, the General Court - without, as the Advocate General emphasised in points 43 and 44 of her Opinion, substituting its grounds for those of the Council - held that the restrictive measures to which the appellant is subject on the basis of the (d) criterion were well founded.
37 In the second place, under his first ground of appeal, the appellant criticises the General Court for a breach of the rules relating to the burden of proof and the taking of evidence by failing to determine whether there was evidence substantiating the fact that he had sufficient power to be able, together with the other shareholders of Bank Rossiya, to influence the decisions taken by that bank, as paragraphs 106 and 110 of the judgment under appeal show, the General Court having based its reasoning on presumptions.
38 It should be recalled that, as part of the review of the lawfulness of the reasons which are the basis of the decision to include or to maintain a person’s name on the list of persons subject to restrictive measures, the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires, in particular, that the Courts of the European Union are to ensure that that decision, which affects the person concerned individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, are substantiated (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119, and of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 22).
39 As the General Court also recalled in paragraphs 63 and 64 of the judgment under appeal, such an appraisal must be carried out by examining the evidence not in isolation but in the context in which it fits, and the Council discharges the burden of proof borne by it if it presents to the Courts of the European Union a sufficiently specific, precise and consistent body of evidence to establish that there is a sufficient link between the person subject to a measure freezing his or her funds and the regime being combated (judgment of 21 April 2015, Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraphs 50 and 52). Furthermore, it is the task of 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. Although there is no requirement that that authority produce before the Courts of the European Union all the information and evidence underlying the reasons alleged, it is, however, necessary that the information or evidence produced should support the reasons relied on against the person concerned (see, to that effect, 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 121 and 122.
40 In that regard, in paragraphs 103 to 105 and 107 of the judgment under appeal, the General Court relied on evidence in order to find, in paragraph 106 of that judgment, that the appellant, as the second largest shareholder of Bank Rossiya, which is described as the personal bank of Mr Putin and of senior officials of the Russian Federation, formed part of a ‘stable core of majority shareholders known to be close to Mr Putin’ and, on the basis of their shareholdings at the very least, for their ties of solidarity. In paragraph 106 of the judgment under appeal, read in conjunction with paragraph 110, the General Court found that, in such circumstances, which are substantiated by the evidence referred to above, having regard in particular to the shareholder structure and capitalisation of the company concerned, the appellant undeniably had a very significant influence over that bank’s decision-making, a finding of fact which, as noted in paragraph 24 of the present judgment and since the appellant has not claimed that it was in any way distorted, is not subject to review by the Court of Justice on appeal.
41 As regards the fact that the General Court did not ascertain whether the various shareholders acted jointly and therefore together controlled the decision-making of Bank Rossiya, that fact must be found to be irrelevant, since the General Court held in essence that, since there was no evidence that he distanced himself, and in view of the specific circumstances set out in paragraph 34 of the present judgment, the appellant necessarily supported decisions by Bank Rossiya aimed at financially supporting Russian decision-makers. In any event, that fact is implicitly but necessarily clear from the circumstance that, as the General Court stated in paragraphs 103 to 106 and 111 of the judgment under appeal in the light of a number of items of evidence, the majority shareholder group of that bank, comprising the appellant and three other people, was stable and its members maintained ties of friendship or of solidarity both among each other and with Mr Putin. The General Court therefore cannot be criticised for basing its reasoning on presumptions in that regard.
42 Taking into consideration also the fact that, in his appeal, the appellant does not dispute paragraphs 70 to 87 of the judgment under appeal, by which the General Court confirmed the probative value of the evidence on which it relied in paragraphs 99 to 107 of that judgment, the appellant’s complaint alleging that the General Court failed to observe the rules relating to the burden of proof and the taking of evidence must be rejected.
43 In the light of the foregoing, the first ground of appeal must be rejected as unfounded.
44 Under his second ground of appeal, the appellant claims that, by finding that he supported actions or policies within the meaning of the (a) criterion solely as a result of his passive attitude in relation to the policy pursued by Bank Rossiya in Crimea, the General Court, in paragraphs 118 and 120 of the judgment under appeal, interpreted the concept of support in a manner incompatible with the case-law summarised in paragraph 117 of the present judgment and thereby erred in law.
45 Even assuming that Bank Rossiya can be found to have behaved in a way rendering it responsible for actions or policies which undermine or threaten the territorial integrity of Ukraine within the meaning of the (a) criterion, that reasoning cannot be transposed unaltered to the appellant in order to apply that criterion to him. In particular, it is not by including within the scope of that criterion individuals who do not, by an active and direct act, support the actions and policies pursued that it is possible to identify specific support and to establish a sufficient link between the person designated and the situation being combated. In any event, the concept of an action or activity within the meaning of the case-law cited in paragraph 117 of the judgment under appeal cannot include a passive attitude or failure to act such as the passive attitude relied upon by the General Court in paragraph 120 of that judgment.
46 In that way, the General Court confirmed an overly broad interpretation of the (a) criterion as a result of which it is impossible to adopt restrictive measures that are targeted and, therefore, proportionate and appropriate.
47 The Council disputes the appellant’s arguments whilst also asserting that, in so far as the appellant is seeking to question facts without claiming any form of distortion, his arguments should to that extent, on grounds identical to those set out in paragraph 23 of the present judgment, be found to be inadmissible.
48 Since, as is apparent from paragraph 36 of the present judgment, the operative part of the judgment under appeal must be held to be well founded since the acts at issue imposed and maintained restrictive measures against the appellant on the ground that he financially supports Russian decision-makers within the meaning of the (d) criterion, an error by the General Court in respect of the ground relating to support by the appellant for actions or policies referred to in the (a) criterion, were such an error to be established, could not lead to that operative part being set aside, and therefore, and without any requirement to rule on the ground of inadmissibility raised by the Council, the second ground of appeal must be rejected as ineffective (see, to that effect, judgment of 9 June 2011, Comitato ‘Venezia vuole vivere’ and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 65 and the case-law cited).
49 It follows that the appeal must be dismissed in its entirety.
50 Pursuant to 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 of Procedure, 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.
51 Since the Council has applied for costs and the appellant has been unsuccessful, the appellant must be ordered to pay the costs. 1. Dismisses the appeal; 2. Orders Mr Gennady Nikolayevich Timchenko to pay the costs.