Judgments nº T-798/14 of Tribunal General de la Unión Europea, September 13, 2018

• Resolution Date: September 13, 2018
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-798/14

(Common foreign and security policy - Restrictive measures adopted in view of Russia’s actions destabilising the situation in Ukraine - Inclusion of the name of the entity owning the applicant in the list of entities to which the restrictive measures apply - Obligation to state reasons - Rights of the defence - Right to effective judicial protection - EU-Turkey Association Agreement - Fundamental rights - Proportionality)

In Case T-798/14,

DenizBank A.Ş., established in Istanbul (Turkey), represented by O. Jones, D. Heaton, Barristers, R. Mattick, S. Utku, Solicitors, and M. Lester QC,

applicant,

v

Council of the European Union, represented initially by S. Boelaert and A. de Elera-San Miguel Hurtado, and subsequently by S. Boelaert and P. Mahnič Bruni, acting as Agents,

defendant,

supported by

European Commission, represented by D. Gauci, L. Havas and F. Ronkes Agerbeek, acting as Agents,

intervener,

APPLICATION under Article 263 TFEU seeking annulment, first, of Council Decision 2014/512/CFSP of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 229, p. 13), as amended by Council Decision 2014/659/CFSP of 8 September 2014 (OJ 2014 L 271, p. 54), by Council Decision 2014/872/CFSP of 4 December 2014 (OJ 2014 L 349, p. 58), by Council Decision (CFSP) 2015/2431 of 21 December 2015 (OJ 2015 L 334, p. 22), by Council Decision (CFSP) 2016/1071 of 1 July 2016 (OJ 2016 L 178, p. 21) and by Council Decision (CFSP) 2016/2315 of 19 December 2016 (OJ 2016 L 345, p. 65) and, secondly, of Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 229, p. 1), as amended by Council Regulation (EU) No 960/2014 of 8 September 2014 (OJ 2014 L 271, p. 3) and by Council Regulation (EU) No 1290/2014 of 4 December 2014 (OJ 2014 L 349, p. 20), in so far as those acts concern the applicant,

THE GENERAL COURT (Sixth Chamber),

composed of G. Berardis (Rapporteur), President, D. Spielmann and Z. Csehi, Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written part of the procedure and further to the hearing on 16 November 2017,

gives the following

Judgment

Background to the dispute

1 The applicant, DenizBank A.Ş., is a Turkish commercial bank established in Istanbul (Turkey), which is more than 50% owned by Sberbank of Russia OAO (‘Sberbank’), a Russian retail bank established in Moscow (Russia).

2 On 20 February 2014, the Council of the European Union condemned in the strongest terms the use of violence in Ukraine. It called for an immediate end to the violence, and full respect for human rights and fundamental freedoms in Ukraine. The Council also envisaged the introduction of restrictive measures against those responsible for human rights violations, violence and use of excessive force.

3 On 3 March 2014, an extraordinary meeting of the Council condemned acts of aggression by the Russian armed forces, which constituted a clear violation of Ukrainian sovereignty and territorial integrity, as well as the authorisation given by the Soviet Federatsii Federal’nogo Sobrania Rossikoï Federatsii (Federation Council of the Federal Assembly of the Russian Federation) on 1 March 2014 for the use of the armed forces on the territory of Ukraine. The European Union called on the Russian Federation to immediately withdraw its armed forces to the areas of their permanent stationing, in accordance with its international obligations.

4 On 5 March 2014, the Council adopted restrictive measures focused on the freezing and recovery of misappropriated Ukrainian State funds.

5 On 6 March 2014, the Heads of State or Government of the European Union endorsed the Council conclusions adopted on 3 March 2014. They strongly condemned the unprovoked violation of Ukrainian sovereignty and territorial integrity by the Russian Federation and called on the Russian Federation to immediately withdraw its armed forces to the areas of their permanent stationing, in accordance with the relevant agreements. The Heads of State or Government of the European Union stated that any further steps by the Russian Federation to destabilise the situation in Ukraine would lead to additional and far-reaching consequences for relations in a broad range of economic areas between the European Union and its Member States, on the one hand, and the Russian Federation, on the other hand. They called on the Russian Federation to enable immediate access for international monitors, emphasising that the solution to the crisis in Ukraine had to be based on the territorial integrity, sovereignty and independence of Ukraine, as well as the strict adherence to international standards.

6 On 16 March 2014, the legislature of the Autonomous Republic of Crimea and the local government of Sevastopol, both subdivisions of Ukraine, held a referendum on the status of Crimea. The referendum asked the people of Crimea whether they wished to join the Russian Federation as a federal subject, or if they wished to restore the 1992 Constitution and Crimea’s status as a part of Ukraine. The reported result from the Autonomous Republic of Crimea was a 96.77% vote for integration of the region into the Russian Federation with an 83.1% voter turnout.

7 On 17 March 2014, the Council adopted further conclusions with regard to Ukraine. The Council strongly condemned the referendum in Crimea on joining the Russian Federation, held on 16 March 2014, which it found to be in clear breach of the Ukrainian Constitution. It urged the Russian Federation to take steps to de-escalate the crisis, immediately withdraw its forces back to their pre-crisis numbers and garrisons in line with its international commitments, begin direct discussions with the Ukrainian Government and avail itself of all relevant international mechanisms to find a peaceful and negotiated solution, in full respect of its bilateral and multilateral commitments to respect Ukraine’s sovereignty and territorial integrity. In this respect, the Council expressed regret that the United Nations Security Council was not able to adopt a resolution, owing to a veto by the Russian Federation. Furthermore, the Council urged the Russian Federation not to take steps to annex Crimea in breach of international law.

8 On the same day, the Council adopted, on the basis of Article 29 TEU, Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 16), and on the basis of Article 215 TFEU, 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. 16), whereby it imposed travel restrictions and asset freeze measures targeting persons responsible for actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine as well as persons or entities associated with them.

9 On 17 March 2014, the Russian Federation officially recognised the results of the Crimean referendum held on 16 March 2014. Following that referendum, the Supreme Council of Crimea and Sevastopol City Council declared independence of Crimea from Ukraine and requested to join the Russian Federation. On the same day, the Russian President signed a decree recognising the Republic of Crimea as a sovereign and independent State.

10 On 21 March 2014, the European Council recalled the statement of the Heads of State or Government of the European Union of 6 March 2014 and asked the European Commission and the Member States to prepare possible further targeted measures.

11 On 23 June 2014, the Council decided that the import into the European Union of goods originating in Crimea or Sevastopol should be prohibited, with the exception of goods originating in Crimea or Sevastopol having been granted a certificate of origin by the Ukrainian Government.

12 Following the crash and destruction of Malaysia Airlines flight MH17 at Donetsk (Ukraine) on 17 July 2014, the Council requested the Commission and the European External Action Service (EEAS) to finalise their preparatory work on possible targeted measures and to present, no later than 24 July 2014, proposals for taking action, including on access to capital markets, defence, dual-use goods, and sensitive technologies, including in the energy sector.

13 On 31 July 2014, in view of the gravity of the situation in Ukraine despite the adoption in March 2014 of travel restrictions and asset freezes against certain natural and legal persons, the Council adopted, on the basis of Article 29 TEU, Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 229, p. 13), in order to introduce targeted restrictive measures on access to capital markets, defence, dual-use goods, and sensitive technologies, including in the energy sector.

14 Considering that those measures fell within the scope of the FEU Treaty and that giving them effect required regulatory action at EU level, the Council adopted, on the same date and on the basis of Article 215(2) TFEU, Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 229, p. 1), containing more detailed provisions to give effect to the requirements in Decision 2014/512, at both EU level and Member State level.

15 The stated objective of those restrictive measures was to increase the costs of the actions of the Russian Federation designed to undermine Ukraine’s territorial integrity, sovereignty and independence, and to promote a peaceful settlement of the crisis. To that end, Decision 2014/512 established, in particular, prohibitions of the export of certain sensitive products and...