Judgments nº T-258/20 of Tribunal General de la Unión Europea, February 03, 2021

• Resolution Date: February 03, 2021
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-258/20

(Common foreign and security policy - Restrictive measures taken having regard to the situation in Ukraine - Freezing of funds - List of the persons, entities and bodies covered by the freezing of funds and economic resources - Maintenance of the applicant’s name on the list - Obligation of the Council of the European Union to verify that that decision was taken in accordance with the rights of defence and the right to effective judicial protection)

In Case T-258/20,

Oleksandr Viktorovych Klymenko, residing in Moscow (Russia), represented by M. Phelippeau, lawyer,

applicant,

v

Council of the European Union, represented by A. Vitro and P. Mahnič, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU seeking the annulment of Council Decision (CFSP) 2020/373 of 5 March 2020 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2020 L 71, p. 10) and Council Implementing Regulation (EU) 2020/370 of 5 March 2020 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2020 L 71, p. 1), in so far as those acts maintain the applicant’s name on the list of persons, entities and bodies subject to those restrictive measures,

THE GENERAL COURT (Fifth Chamber),

composed of D. Spielmann, President, O. Spineanu-Matei and R. Mastroianni (Rapporteur), Judges,

Registrar: E. Coulon,

gives the following

Judgment

Background to the dispute

1 The present case has arisen in the context of proceedings relating to 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 Oleksandr Viktorovych Klymenko, held the post of Minister for Revenue and Duties 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 date, 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 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.’

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 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.

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 the adoption of the restrictive measures at issue and lays down detailed rules governing them, in terms which are identical, in essence, 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’) together with, inter alia, the reasons for their listing. Initially, the applicant’s name did not appear on the list.

   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 Council Implementing Regulation (EU) No 381/2014 of 14 April 2014 implementing Regulation No 208/2014 (OJ 2014 L 111, p. 33) (‘the April 2014 acts’).

   10 By the April 2014 acts, the applicant’s name was added to the list, with the identifying information ‘former Minister of Revenues and Charges’ 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 30 June 2014, the applicant brought an action, registered as Case T-494/14, seeking, inter alia, the annulment of the April 2014 acts, in so far as they concerned him.

   12 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).

   13 Decision 2015/143 specified the criteria, effective from 31 January 2015, for selecting the persons covered by the freezing of funds. 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.’

   14 Regulation 2015/138 amended Regulation No 208/2014 in accordance with Decision 2015/143.

   15 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, 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.

   16 By the March 2015 acts, the applicant’s name was maintained on the list, with the identifying information ‘former Minister of Revenues and Charges’ and the following new statement of reasons:

   ‘Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets and for the abuse of office by a public office-holder in order to procure an unjustified advantage for himself or for a third party and thereby causing a loss to Ukrainian public funds or assets.’

   17 By application lodged at the Registry of the General Court on 15 May 2015, the applicant brought an action, registered as Case T-245/15, seeking, inter alia, the annulment of the March 2015 acts, in so far as they concerned him.

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

   19 By the March 2016 acts, the application of the restrictive measures concerning the applicant, among others, 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.

   20 By a statement lodged at the Court Registry on 28 April 2016, the applicant modified the application in Case T-245/15, in accordance with Article 86 of the Rules of Procedure of the General Court, so as also to request the annulment of the March 2016 acts, in so far as they applied to him.

   21 By order of 10 June 2016, Klymenko v Council (T-494/14, EU:T:2016:360), adopted on the basis of Article 132 of the Rules of Procedure, the Court upheld the action referred to in paragraph 11 above, declaring it manifestly well founded, and therefore annulled the April 2014 acts, in so far as they related to the applicant.

   22 On 3 March 2017, the Council adopted Decision (CFSP) 2017/381 amending Decision 2014/119 (OJ 2017 L 58, p. 34) and Implementing Regulation (EU) 2017/374 implementing Regulation No 208/2014 (OJ 2017 L 58, p. 1) (together, ‘the March 2017 acts’).

   23 By the March 2017 acts, the application of the restrictive measures was extended to 6 March 2018. The statement of reasons for the applicant’s designation, as set out in the March 2015 acts, was not amended.

   24 By a statement lodged at the Court Registry on 27 March 2017, the applicant again modified the application in relation to Case T-245/15, so as also to request the annulment of the March 2017 acts, in so far as they concerned him.

   25 By judgment of 8 November 2017, Klymenko v Council (T-245/15, not published, EU:T:2017:792)...