Judgment of the General Court Fifth Chamber of 21 December 2021, Klymenko v Council, T-195/21

• Date: 21 December 2021
• Year: 2021

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3. COMMON FOREIGN AND SECURITY POLICY: RESTRICTIVE

MEASURES

Judgment of the General Court (Fifth Chamber) of 21 December 2021, Klymenko v Council,

T-195/21

Common foreign and sec urity policy – Restrictive measures taken having r egard to the situati on 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 lis t – Council’s obligation to verify that

the decision of an authorit y of a third State was taken in accordance with the rights of the defence an d

the right to effective judicial protection

Following the suppression of demonstrations in Independence Square in Kiev (Ukraine) in February

2014, the Council of the European Union adopted, on 5 March 2014, Decision 2014/119/CFSP

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and

Regulation No 208/2014.

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The purpose of those acts is, inter alia, to freeze the funds of persons

identified as responsible for the misappropriation of public funds. The applicant had been included

on the list of persons and entities covered by those measures on 14 April 2014, on the ground that he

was the subject of preliminary investigations in Ukraine for offences related to the misappropriation

of public funds and their illegal transfer outside Ukraine. The Council had subsequently extended that

listing on several occasions,

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on the ground that the applicant was the subject of criminal

proceedings by the Ukrainian authorities for the misappropriation of public funds or assets.

Following the adoption of Decision 2021/394

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and Regulation 2021/391,

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by which the Council had

extended the inclusion of his name on the list at issue on the same grounds against him, the applicant

brought an action for annulment of those acts.

By its judgment, the Gene ral Court annuls those two acts in so far as they concern the applicant and

recalls that it is for the Council, when it bases restrictive measures on decisions of a non-Member

State, to satisfy itself that, when those decisions by the authorities of the non-Member State in

question were adopted, the fundamental rights recognised by the Charter of Fundamental Rights of

the European Union (‘the Charter’) and, more particularly, the rights of the defence and the right to

effective judicial protection of the person concerned by those measures, were observed.

Findings of the Court

The Court notes, first of all, that the Courts of the European Union must review the lawfulness of all

Union acts in the light of those fundamental rights. The EU courts must ensure, in particular, that the

contested act has a sufficiently solid factual basis. In that regard, although the Council may base the

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Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and b odies in

view of the situation in Ukraine (OJ 2014 L 66, p. 26).

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Regulation (EU) No 208/2014 of 5 March 2014 concerning restric tive measures directed against certain persons, entities and bodies in view of

the situation in Ukraine (OJ 2014 L 66, p. 1).

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See order of 10 June 2016, Klymenko v Council (T- 494/14, EU:T:2016:360) ; judgments of 8 November 2017, Klymenko v Council (T-245/15, not

published, EU:T:2017:792) ; of 11 July 2 019, Klymenko v Council (T-274/18, EU:T:2019:509) ; of 26 Sep tember 2019, Klymenko v Council

(C-11/18 P, not published, EU:C:2019:786) ; of 25 June 2020, Klymenko v Council (T-295/19, EU:T:2020:287) ; and of 3 February 2021, Klyme nko

v Council (T-258/20, EU:T:2021:52).

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Council Decision (CFSP) 2021/394 of 4 March 2021 amending Decision 2014/119/CFSP conc erning restric tive measures directed against

certain persons, entities and bodies in view of the situation in Ukraine (OJ 2021 L 77, p. 29).

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Council Implementing Regulation (EU) 2021/391 of 4 March 2021 implementing Regulation (EU) No 208/2014 concerning restri ctive measures

directed against certain persons, entities and bodies in view of the situation in Ukraine (O J 2021 L 77, p. 2).