Judgments nº T-290/17 of Tribunal General de la Unión Europea, January 30, 2019

• Resolution Date: January 30, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-290/17

(Common foreign and security policy - Restrictive measures adopted in view of the situation in Ukraine - Freezing of funds - List of persons, entities and bodies subject to the freezing of funds and economic resources - Maintenance of the applicant’s name on the list - Obligation to state reasons - Plea of illegality - Principle of proportionality - Legal basis - Manifest error of assessment - Principle ne bis in idem)

In Case T-290/17,

Edward Stavytskyi, residing in Brussels (Belgium), represented by J. Grayston, Solicitor, P. Gjørtler, G. Pandey and D. Rovetta, lawyers,

applicant,

v

Council of the European Union, represented by V. Piessevaux and J.-P. Hix, acting as Agents,

defendant,

supported by

European Commission, represented by E. Paasivirta and L. Baumgart, acting as Agents,

intervener,

APPLICATION under Article 263 TFEU and seeking the annulment of Council Decision (CFSP) 2017/381 of 3 March 2017 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2017 L 58, p. 34), and Council Implementing Regulation (EU) 2017/374 of 3 March 2017 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2017 L 58, p. 1), in so far as the applicant’s name was maintained on the list of persons, entities and bodies subject to those restrictive measures,

THE GENERAL COURT (Sixth Chamber),

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

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 12 September 2018,

gives the following

Judgment

Background to the dispute

1 The applicant, Mr Edward Stavytskyi, is a former Minister for Energy and the Coal Industry of Ukraine.

2 On 5 March 2014, the Council of the European Union adopted, on the basis of Article 29 TEU, Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26).

3 Recitals 1 and 2 of Decision 2014/119 read as follows:

‘(1) On 20 February 2014, the Council condemned in the strongest terms all use of violence in Ukraine. It called for an immediate end to the violence in Ukraine, and full respect for human rights and fundamental freedoms. It called upon the Ukrainian Government to exercise maximum restraint and opposition leaders to distance themselves from those who resort to radical action, including violence.

(2) On 3 March 2014, the Council agreed to focus restrictive measures on the freezing and recovery of assets of persons identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations, with a view to consolidating and supporting the rule of law and respect for human rights in Ukraine.’

4 Article 1(1) and (2) of Decision 2014/119 provides as follows:

‘1. All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for misappropriation of Ukrainian State funds and persons responsible for human rights violations in Ukraine, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.

2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in the Annex.’

   5 The detailed rules for implementing the restrictive measures at issue are defined in the subsequent paragraphs of that article.

   6 On 5 March 2014, the Council also adopted, on the basis of Article 215(2) TFEU, Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 1).

   7 In accordance with Decision 2014/119, Regulation No 208/2014 requires the adoption of the restrictive measures at issue and lays down the detailed rules for implementation of those restrictive measures in terms which are essentially identical to those used in that decision.

   8 The names of the persons covered by Decision 2014/119 and Regulation No 208/2014 appear on the list in the Annex to that decision and in Annex I to that regulation (‘the list at issue’) along with, in particular, a statement of the reasons for their listing. The applicant’s name does not appear on the list at issue.

   9 Decision 2014/119 and Regulation No 208/2014 were amended by Council Implementing Decision 2014/216/CFSP of 14 April 2014 implementing Decision 2014/119 (OJ 2014 L 111, p. 91) and by Council Implementing Regulation (EU) No 381/2014 of 14 April 2014 implementing Regulation No 208/2014 (OJ 2014 L 111, p. 33) (‘the measures of April 2014’).

   10 By the measures of April 2014, the applicant’s name was added to the list at issue with the identifying information ‘former Minister for Fuel and Energy of Ukraine’ and the following statement of reasons:

   ‘Person subject to investigation in Ukraine for involvement in crimes in connection with the embezzlement of Ukrainian State funds and their illegal transfer outside Ukraine.’

   11 By application lodged at the Court Registry on 25 June 2014, the applicant brought an action for the annulment of the measures of April 2014, in so far as they related to him. That action was registered as Case T-486/16.

   12 Decision 2014/119 was also amended by Council Decision (CFSP) 2015/143 of 29 January 2015 (OJ 2015 L 24, p. 16), which entered into force on 31 January 2015. As to the criteria for the designation of persons covered by the restrictive measures at issue, according to Article 1 of Decision 2015/143, Article 1(1) of Decision 2014/119 is replaced by the following:

   ‘1. All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations in Ukraine, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.

   For the purpose of this Decision, persons identified as responsible for the misappropriation of Ukrainian State funds include persons subject to investigation by the Ukrainian authorities:

   (a) for the misappropriation of Ukrainian public funds or assets, or being an accomplice thereto; or

   (b) for the abuse of office as a public office-holder in order to procure an unjustified advantage for him- or herself or for a third party, and thereby causing a loss to Ukrainian public funds or assets, or being an accomplice thereto.’

   13 Council Regulation (EU) 2015/138 of 29 January 2015 amending Regulation No 208/2014 (OJ 2015 L 24, p. 1) amended the latter, in accordance with Decision 2015/143.

   14 Decision 2014/119 and Regulation No 208/2014 were subsequently amended by Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119 (OJ 2015 L 62, p. 25) and by Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation No 208/2014 (OJ 2015 L 62, p. 1). In Decision 2015/364, Article 5 of Decision 2014/119 was replaced by new wording, extending the application of the restrictive measures at issue until 6 March 2016. In Implementing Regulation 2015/357, Annex I to Regulation No 208/2014 was replaced by new wording, amending the entries for 18 persons.

   15 By Decision 2015/364 and Implementing Regulation 2015/357, the applicant’s name was maintained on the list at issue, with the identifying information ‘former Minister for Fuel and Energy’ and the following statement of reasons:

   ‘Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets.’

   16 The applicant did not bring an action against Decision 2015/364 or Implementing Regulation 2015/357.

   17 By judgment of 28 January 2016, Stavytskyi v Council (T-486/14, not published, EU:T:2016:45), the Court annulled the measures of April 2014, holding essentially that the Council had not had sufficient evidence to include the applicant’s name on the list at issue.

   18 On 4 March 2016, the Council adopted Decision (CFSP) 2016/318 amending Decision 2014/119 (OJ 2016 L 60, p. 76), and Implementing Regulation (EU) 2016/311 implementing Regulation No 208/2014 (OJ 2016 L 60, p. 1), by which it extended until 6 March 2017 the application of the restrictive measures at issue, without altering the reasons given with regard to the applicant, as set out in paragraph 15 above.

   19 By application lodged at the Court Registry on 17 May 2016, the applicant brought an action for the annulment of the measures of Decision 2016/318 and of Implementing Regulation 2016/311, in so far as they related to him. That action was registered as Case T-242/16.

   20 By letter of 21 October 2016, the applicant suggested to the Council that it had been misled by allegedly false information provided by the Prosecutor General’s Office of Ukraine (‘the PGO’) and requested access to a number of documents.

   21 In reply, by letter of 12 December 2016, first, the Council notified the applicant of its intention to maintain the restrictive measures against him. Secondly, the Council observed that the PGO, by letters of 25 July and 16 November 2016, had confirmed that the applicant was subject to criminal proceedings for the misappropriation of public funds. Thirdly, the Council attached those documents to its letter together with another document dated 18 November 2016 containing questions it had put to the PGO and the PGO’s answers (‘the PGO’s answers’). Fourthly, the Council invited the applicant to submit any observations he may have no later than 13 January 2017.

   22 By letter of 13 January 2017 to the Council, the applicant argued, in particular, that the PGO had interfered with the criminal proceedings at issue with the sole aim...