Judgments nº T-244/16 of Tribunal General de la Unión Europea, July 11, 2019

• Resolution Date: July 11, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-244/16

(Common foreign and security policy - Restrictive measures taken 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 - Council’s obligation to verify that the decision of an authority of a third State was taken in accordance with the rights of the defence and the right to effective judicial protection)

In Joined Cases T-244/16 and T-285/17,

Viktor Fedorovych Yanukovych, residing in Kiev (Ukraine), represented by T. Beazley QC, E. Dean and J. Marjason-Stamp, Barristers,

applicant,

v

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

defendant,

APPLICATION under Article 263 TFEU seeking the annulment, first, of Council Decision (CFSP) 2016/318 of 4 March 2016 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2016 L 60, p. 76), and Council Implementing Regulation (EU) 2016/311 of 4 March 2016 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2016 L 60, p. 1) and, second, 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 3 October 2018,

gives the following

Judgment

Background to the dispute

1 The present cases have been brought in the context of the restrictive measures adopted against certain persons, entities and bodies in view of the situation in Ukraine following the suppression of the demonstrations in Independence Square in Kiev (Ukraine) in February 2014.

2 The applicant, Mr Viktor Fedorovych Yanukovych, is the former President of Ukraine.

3 On 5 March 2014, the Council of the European Union adopted 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). On the same day, the Council adopted 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).

4 Recitals 1 and 2 of Decision 2014/119 state:

‘(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.’

5 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.’

   6 The detailed rules governing that freezing of funds are laid down in Article 1(3) to (6) of Decision 2014/119.

   7 In accordance with Decision 2014/119, Regulation No 208/2014 requires measures for the freezing of funds to be adopted and lays down the detailed rules governing that freezing of funds in terms which are identical, in essence, to those used in the decision.

   8 The names of the persons covered by those acts appear on the identical list contained in the Annex to Decision 2014/119 and in Annex I to Regulation No 208/2014 (‘the list’) together with, inter alia, the reasons for their listing.

   9 The applicant’s name was on the list along with the identifying information ‘former President of Ukraine’ and the following statement of reasons:

   ‘Person subject to criminal proceedings in Ukraine to investigate crimes in connection with the embezzlement of Ukrainian State funds and their illegal transfer outside Ukraine.’

   10 By application lodged at the Court Registry on 14 May 2014, the applicant brought an action, registered as Case T-346/14, seeking, inter alia, the annulment of Decision 2014/119 and Regulation No 208/2014 in so far as they concerned him.

   11 On 29 January 2015, the Council adopted Decision (CFSP) 2015/143 amending Decision 2014/119 (OJ 2015 L 24, p. 16) and Regulation (EU) 2015/138 amending Regulation No 208/2014 (OJ 2015 L 24, p. 1).

   12 Decision 2015/143 clarified, with effect from 31 January 2015, the listing criteria for persons against whom the freezing of funds is directed. In particular, Article 1(1) of Decision 2014/119 was 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 Regulation 2015/138 amended Regulation No 208/2014 in accordance with Decision 2015/143.

   14 On 5 March 2015, the Council adopted Decision (CFSP) 2015/364 amending Decision 2014/119 (OJ 2015 L 62, p. 25) and Implementing Regulation (EU) 2015/357 implementing Regulation No 208/2014 (OJ 2015 L 62, p. 1) (together, ‘the March 2015 acts’). Decision 2015/364, first, replaced Article 5 of Decision 2014/119, by extending the application of the restrictive measures, in so far as the applicant was concerned, until 6 March 2016, and, second, amended the Annex to that decision. Implementing Regulation 2015/357 consequently amended Annex I to Regulation No 208/2014.

   15 By the March 2015 acts, the applicant’s name was maintained on the list with the identifying information ‘former President of Ukraine’ and the following new statement of reasons:

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

   16 On 8 April 2015, the applicant modified his forms of order in Case T-346/14 so that they would also cover the annulment of Decision 2015/143, Regulation 2015/138 and the March 2015 acts, in so far as those acts concerned him.

   17 By letter of 6 November 2015, the Council sent the applicant a letter dated 3 September 2015 from the Prosecutor General’s Office of Ukraine (‘the PGO’) addressed to the High Representative of the European Union for Foreign Affairs and Security Policy. By letter of 26 November 2015, the applicant submitted his observations.

   18 By letter of 15 December 2015, the Council sent to the applicant a letter from the PGO dated 30 November 2015. In that letter, the Council notified the applicant of its intention to maintain the restrictive measures against him and informed him of the time limit for submitting observations for the purpose of the annual review. By letter of 4 January 2016, the applicant submitted his observations.

   19 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) (together, ‘the March 2016 acts’).

   20 By the March 2016 acts, the application of the restrictive measures was extended to 6 March 2017. The statement of reasons for the applicant’s designation, as set out in the March 2015 acts, was not amended.

   21 By letter of 7 March 2016, the Council informed the applicant that the restrictive measures against him were to be maintained and it then replied to the observations which the applicant had made in previous correspondence and sent him the March 2016 acts. Furthermore, it notified the applicant of the time limit for submitting observations prior to a decision being taken regarding the possible maintenance of his name on the list.

   22 By judgment of 15 September 2016, Yanukovych v Council (T-346/14, EU:T:2016:497), the General Court annulled Decision 2014/119 and Regulation No 208/2014, in so far as they concerned the applicant, and dismissed the application for annulment, contained in the amendment to...