Chyzh and Others v Council (Judgment) [2015] EUECJ T-276/12 (06 October 2015)

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(Common foreign and security policy — Restrictive measures adopted against Belarus — Freezing of funds — Action for annulment — Period allowed for modifying the form of order sought — Partial inadmissibility — Entity owned or controlled by a person or entity subject to the restrictive measures — Obligation to state reasons — Error of assessment)

represented by D. O’Keeffe, Solicitor, B. Evtimov, lawyer, and M. Lester, Barrister,

Council of the European Union, represented by F. Naert and E. Finnegan, acting as Agents,

APPLICATION for the annulment of Council Implementing Decision 2012/171/CFSP of 23 March 2012 implementing Decision 2010/639/CFSP concerning restrictive measures against Belarus (OJ 2012 L 87, p. 95), of Council Implementing Decision (EU) No 265/2012 of 23 March 2012 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2012 L 87, p. 37), Council Decision 2012/642/CFSP of 15 October 2012 concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1), Council Implementing Regulation (EU) No 1017/2012 of 6 November 2012 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2012 L 307, p. 7), Council Decision 2013/534/CFSP of 29 October 2013 amending Decision 2012/642 (OJ 2013 L 288, p. 69), Council Implementing Regulation (EU) No 1054/2013 of 29 October 2013 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2013 L 288, p. 1), Council Decision 2014/750/CFSP of 30 October 2014 amending Council Decision 2012/642 (OJ 2014 L 311, p. 39) and Council Implementing Regulation (EU) No 1159/2014 of 30 October 2014 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2014 L 311, p. 2), in so far as those acts apply to the applicants,

composed of H. Kanninen (Rapporteur), President, I. Pelikánová and E. Buttigieg, Judges,

having regard to the written procedure and further to the hearing on 11 April 2014,

1 On 24 September 2004, the Council of the European Union, in view of the deterioration of democracy, the rule of law and human rights in Belarus, associated in particular with the fact that no independent, full and credible investigation of the crimes examined by the Parliamentary Assembly of the Council of Europe in its report adopted on 28 April 2004 had been carried out, adopted Council Common Position 2004/661/CFSP concerning restrictive measures against certain officials of Belarus (OJ 2004 L 301, p. 67), by which their entry into, or transit through, the territories of the Member States were to be prevented.

2 On 13 December 2004, the Council adopted Common Position 2004/848/CFSP amending Common Position 2004/661 (OJ 2004 L 367, p. 35) in order to expand the scope of the restrictive measures provided for by that latter position to persons directly responsible for the fraudulent elections and referendum which had taken place in Belarus on 17 October 2004 and severe human rights violations committed in the repression of peaceful demonstrators following those elections and that referendum.

3 On 24 March 2006, the European Council deplored the failure of the Belarus authorities to meet Organisation for Security and Cooperation in Europe (OSCE) commitments to democratic elections, considered that the Presidential elections of 19 March 2006 were fundamentally flawed and condemned the action of the Belarus authorities of that day in arresting demonstrators protesting peacefully at the conduct of the Presidential elections.

4 The Council decided that the European Union should adopt restrictive measures against President Lukashenko, the Belarusian leadership and officials responsible for the violations of international electoral standards and the crackdown on civil society and democratic opposition and, on 10 April 2006, adopted Common Position 2006/276/CFSP concerning restrictive measures against certain officials of Belarus and repealing Common Position 2004/661 (OJ 2006 L 101, p. 5), by which the entry into, or transit through, the territories of the Member States of President Lukashenko, the Belarusian leadership and certain officials were to be prevented.

5 By means of Common Position 2006/362/CFSP of 18 May 2006 amending Common Position 2006/276 (OJ 2006 L 134, p. 45), the Council also provided that the funds and economic resources of President Lukashenko and certain officials of Belarus should be frozen.

6 On the same date, considering that a regulation was necessary in order to implement at Community level the measures described in Common Position 2006/362, the Council adopted, on the basis of, inter alia, Articles 60 EC and 301 EC, Council Regulation (EC) No 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2006 L 134, p. 1).

7 On 25 October 2010, by means of Decision 2010/639/CFSP concerning restrictive measures against certain officials of Belarus (OJ 2010 L 280, p. 18), the Council renewed certain restrictive measures until 31 October 2011 and repealed Common Position 2006/276.

8 On 31 January 2011, the Council adopted Decision 2011/69/CFSP amending Decision 2010/639 (OJ 2011 L 28, p. 40) and also Regulation (EU) No 84/2011 amending Regulation No 765/2006 (OJ 2011 L 28, p.17) so as to extend the restrictive measures to the persons responsible for the violations of international electoral standards in the presidential elections in Belarus on 19 December 2010, and for the crackdown on civil society and democratic opposition, and those natural or legal persons, entities or bodies associated with them.

9 By Council Decision 2012/36/CFSP of 23 January 2012 amending Decision 2010/639/CFSP (OJ 2102 L 19, p. 31), the Council considered that, in view of the gravity of the situation in Belarus, additional restrictive measures against Belarus should be adopted.

10 According to Article 2(1)(c) and (d) of Decision 2010/639, as amended by Decision 2012/36, all funds and economic resources belonging to persons who are responsible:

– ‘for serious violations of human rights or the repression of civil society and democratic opposition in Belarus, as listed in Annex V [(c)];

– and persons or entities benefiting from or supporting the [Lukashenko] regime, as listed in Annex V [(d)];

11 Considering that a regulation was necessary in order to implement at Union level the measures described in Decision 2012/36, the Council adopted Regulation (EU) No 114/2012 of 10 February 2012 amending Regulation No 765/2006 (OJ 2012 L 38, p. 3).

12 Article 2(1) of Regulation No 765/2006, as amended by Regulation No 114/2012, provides that ‘All funds and economic resources belonging to … the natural or legal persons, entities or bodies listed in Annexes I, IA and IB shall be frozen’.

13 According to Article 2(6) of Regulation No 765/2006, as amended by Regulation No 114/2012, ‘Annex IB shall consist of a list of the natural or legal persons, entities and bodies who, in accordance with points (c) and (d) of Article 2(1) of Decision [2010/639], have been identified by the Council as being either (i) responsible for serious violations of human rights or the repression of civil society and democratic opposition in Belarus, or (ii) persons or entities benefiting from or supporting the Lukashenko regime’.

14 By Council Implementing Decision 2012/171/CFSP of 23 March 2012 implementing Decision 2010/639 (OJ 2012 L 87, p. 95), the applicants’ names were added to Annex V to Decision 2010/639 on the following grounds:

– Mr Yury Aleksandrovich Chyzh was identified as ‘provid[ing] financial support to the [Lukashenko] regime through his holding company [Triple TAA] which is active in numerous sectors of the Belarusian economy, including [in] activities resulting from public awards and concessions from the regime. The sporting positions he retains, notably being Chair of the Board of the football club FC Dynamo Minsk and Chair of the Belarusian Federation of wrestling, confirm his association to the regime’;

– Triple was identified as being a ‘[h]olding company of [Yury] Chyzh. [Yury] Chyzh provides financial support to the [Lukashenko] regime, notably through his holding company [Triple]’;

– NefteKhimTrading STAA, Askargoterminal ZAT, Bereza Silicate Products Plant AAT, Variant TAA, Triple-Dekor STAA, KvartsMelProm SZAT, Altersolutions SZAT, Prostoremarket SZAT, AquaTriple STAA, Rakovsky brovar TAA, TriplePharm STAA and Triple-Veles TAA were identified as being ‘[s]ubsidiar[ies] of Triple [TAA]’.

15 By Council Implementing Regulation No 265/2012 of 23 March 2012 implementing Article 8a(1) of Regulation (EC) No 765/2006 (OJ 2012 L 87, p. 37), the applicants’ names were added to Annex IB to Regulation No 765/2006 on the same grounds as those referred to in Annex V of Decision 2010/639, cited in paragraph 14 above.

16 On 24 March 2012, the Council published a notice for the attention of the persons and entities to which the restrictive measures provided for in Decision 2010/639, as implemented by Implementing Decision 2012/171, and in Regulation No 765/2006, as implemented by Implementing Regulation No 265/2012 (OJ 2012 C 88, p. 10), apply.

17 On 26 March 2012, the Council sent to Triple an individual notification of the inclusion of its name on the list in Annex V to Decision 2010/639 and Annex IB to Regulation No 765/2006.

18 By letter of 21 May 2012, Mr Chyzh asked the Council to notify him of the precise grounds for the inclusion of his name on the list in Annex V to Decision 2010/639 and Annex IB to Regulation No 765/2006 and for access to his file and to that of the other applicants. On 21 May 2012, the Council acknowledged receipt of the letter from Mr Chyzh and notified him that his request was being considered.

19 On 25 May 2012, Variant and TriplePharm also asked the Council to notify them of the precise grounds for their inclusion on the list in Annex V to Decision 2010/639 and Annex IB to Regulation No 765/2006 and to send them the evidence relating thereto. On 29 May 2012, the Council acknowledged receipt of the letter from Variant and notified it that its request was being considered.

20 On 8 June 2012, the applicants asked the Council to organise a meeting and repeated their request for information as to the reasons for including their name on the list in Annex V to Decision 2010/639 and Annex IB to Regulation No 765/2006.

21 On 4 July 2012, Mr Chyzh repeated his request for information and for access to his file and again requested a meeting with the Council.

22 By Council Decision 2012/642/CFSP of 15 October 2012 concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1), the Council extended the restrictive measures laid down in Decision 2010/639 until 31 October 2013 and updated the information concerning the persons and entities who are listed therein. Further, the measures imposed by Decision 2010/639 were integrated into Decision 2012/642, which brought together in a single annex the names of the persons and entities who were subject to restrictive measures.

(a) persons, entities or bodies responsible for serious violations of human rights or the repression of civil society and democratic opposition, or whose activities otherwise seriously undermine democracy or the rule of law in Belarus, or any natural or legal persons, entities or bodies associated with them, as well as legal persons, entities or bodies owned or controlled by them;

(b) natural or legal persons, entities or bodies benefiting from or supporting the [Lukashenko] regime, as well as legal persons, entities or bodies owned or controlled by them,

24 The Annex to Decision 2012/642 contains the applicants’ names with identical grounds to those used in Annex V to Decision 2010/639 as amended by Implementing Decision 2012/171, cited in paragraph 14 above, or similar to those relating to Mr Chyzh.

25 By Council Regulation (EU) No 1014/2012 of 6 November 2012 amending Regulation No 765/2006 (OJ 2012 L 307, p. 1), the Council consolidated in a single annex, namely Annex I (‘Annex I’), the texts of Annexes I, IA and IB to Regulation No 765/2006.

26 Article 2 of Regulation No 765/2006 was amended by Regulation No 1014/2012 as follows:

‘ 1. All funds and economic resources belonging to, or owned, held or controlled by the natural or legal persons, entities and bodies listed in Annex I shall be frozen.

4. Annex I shall consist of a list of the natural or legal persons, entities and bodies who, in accordance with point (a) of Article 4(1) of Council Decision 2012/642 … have been identified by the Council as being responsible for serious violations of human rights or the repression of civil society and democratic opposition, or whose activities otherwise seriously undermine democracy or the rule of law in Belarus, or any natural or legal persons, entities and bodies associated with them, as well as legal persons, entities or bodies owned or controlled by them.

5. Annex I shall also consist of a list of the natural or legal persons, entities and bodies who, in accordance with point (b) of Article 4(1) of Decision 2012/642 …, have been identified by the Council as benefiting from or supporting the [Lukashenko] regime, as well as legal persons, entities and bodies owned or controlled by them’.

27 By Council Implementing Regulation No 1017/2012 of 6 November 2012 implementing Article 8a(1) of Regulation (EC) No 765/2006 (OJ 2012 L 307, p. 7), the Council included the applicants’ names on the list in Annex I to Regulation No 765/2006 on grounds identical to those set out in the Annex to Decision 2012/642 (see paragraph 24 above).

28 By letter of 7 November 2012, sent to the applicants’ lawyers, the Council stated, inter alia, that the applicants’ names had been retained on the lists of the persons and entities subject to restrictive measures (‘the lists’) by Decision 2012/642 and Implementing Regulation No 1017/2012 and that the grounds for inclusion of their names on those lists were set out in the annexes to those measures.

29 On 11 February 2013, Mr Chyzh sent the Council a further letter in which he asked, in essence, that he be given specific reasons for the inclusion on the lists of his name and also those of Triple and a number of entities designated as subsidiaries of Triple and that he be provided with the information and evidence which had formed the basis for those listings.

30 On 11 July 2013, the Council replied to the letters from Mr Chyzh, Variant and TriplePharm, referred to in paragraphs 18, 19, 21 and 29 above. The Council set out the grounds for including the applicants’ names on the lists and provided supporting information. It also explained the changes which it intended to make in the future to the grounds for the inclusion of Mr Chyzh’s and Triple’s names on those lists. Moreover, it sent Mr Chyzh, Variant and TriplePharm several documents from their file whose ‘declassification’ it had secured.

31 By letter of 2 September 2013, Mr Chyzh asked the Council, following the letter from the Council of 11 July 2013, to reconsider the inclusion of his name on the lists.

32 By Council Decision 2013/534/CFSP of 29 October 2013 amending Decision 2012/642 (OJ 2013 L 288, p. 69), the Council extended the restrictive measures provided for in Decision 2012/642 until 31 October 2014 and, inter alia, updated the information relating to certain persons and entities whose names were included on the list in the Annex to Decision 2012/642.

33 The Annex to Decision 2012/642, as amended by Decision 2013/534, lists the applicants’ names. The grounds for retaining Mr Chyzh’s name on the lists were amended to read as follows, while those relating to the retention of the names of the other applicants, for their part, remain unchanged:

‘[Yury] Chyzh is associated with President [Lukashenko] and his sons and benefits from and supports the [Lukashenko] regime, especially through his holding company LLC Triple. The activities of LLC Triple include activities resulting from public awards and concessions from the regime. In June 2013 he was awarded by President [Lukashenko] the highest state distinction for his services. The sporting positions which [Yury] Chyzh retains, notably his membership of the Central Council of the President’s Sports Club and being Chair of the Board of the football club FC Dynamo Minsk and Chair of the Belarusian Federation of wrestling, confirm his association to the regime.’

34 By Council Implementing Regulation (EU) No 1054/2013 of 29 October 2013 implementing Article 8a(1) of Regulation No 765/2006 (OJ 2013 L 288, p. 1), the Council, inter alia, updated information relating to certain persons and entities whose names are included on the list in Annex I to Regulation No 765/2006.

35 Annex I to Regulation No 765/2006, as amended by Implementing Regulation No 1054/2013, contains the names of the applicants. The reasons for the applicants’ names being retained on the lists are identical to those set out in the Annex to Decision 2012/642, as amended by Decision 2013/534, as mentioned in paragraph 33 above.

36 On 30 October 2013, the Council published a notice for the attention of the persons and entities to which the restrictive measures provided for in Decision 2012/642 and in Regulation No 765/2006, as amended by Decision 2013/534 and implemented by Implementing Regulation No 1054/2013, (OJ 2013 C 316, p. 9) apply.

37 By letter of 30 October 2013, received 11 November 2013 by Mr Chyzh, Triple, Variant and TriplePharm, the Council notified them of the retention of their names on the lists, by Decision 2013/534 and Implementing Regulation No 1054/2013.

38 By letter dated 30 October 2013, sent by post, the Council informed the applicants’ lawyer of the retention of the applicants’ names on the lists by Decision 2013/534 and Implementing Regulation No 1054/2013. That letter was received by that lawyer on 4 November 2013. On 31October 2013, the same letter was sent to the lawyer electronically.

39 By Council Decision 2014/750/CFSP of 30 October 2014 amending Decision 2012/642 (OJ L 311, p. 39), the Council, first, extended the restrictive measures provided for in Decision 2012/642 until 31 October 2015, second, removed the names of certain persons and entities from the annex to that decision and, third, updated certain information relating to certain persons and entities whose names were included in that annex. As regards the applicants, the Council, by Decision 2014/750, removed the names of NefteKhimTrading, TriplePharm and Triple-Veles from the Annex to Decision 2012/642. The names of the other applicants were retained in that annex and the grounds for their retention were not changed.

40 By Council Implementing Regulation (EU) No 1159/2014 of 30 October 2014 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2014 L 311, p. 2), the Council, first, removed from Annex I to Regulation No 765/2006 the names of certain persons and entities and, second, updated the information relating to certain persons and entities whose names were included in that annex. The names of NefteKhimTrading, TriplePharm and Triple-Veles were removed from Annex I to Regulation No 765/2006. The names of the other applicants were retained in that annex and the grounds for their retention were not changed.

41 By application lodged at the Court Registry on 15 June 2012, the applicants brought the present action seeking annulment of Implementing Decision 2012/171 and Implementing Regulation No 265/2012, in so far as those measures concern them.

42 On 30 July 2012, the Court Registry informed the parties that the case had been assigned to the Sixth Chamber of the Court.

43 In the reply, lodged at the Court Registry on 15 November 2012, the applicants requested, first, the modification of the form of order sought so that the action would also seek annulment of Decision 2012/642 and Implementing Regulation No 1017/2012 and, second, the disclosure to the Court by the Council of the entire file so that the Court may, should it be regarded as appropriate, decide to send to the applicants all or part of their file. The Council submitted its observations on those requests in the rejoinder. It stated, in particular, first, that it did not oppose the modification of the form of order sought and, second, that the documents sought were being examined with a view to their ‘declassification’. Furthermore, the Council included with the rejoinder two partially ‘declassified’ documents.

44 By letter of 7 August 2013, the Council sent to the Court the documents whose partial ‘declassification’ it had secured. The applicants submitted their observations on those documents by letter lodged at the Court Registry on 12 September 2013.

45 Following changes to the composition of the Chambers of the General Court, the Judge-Rapporteur was assigned to the First Chamber, to which this case was consequently allocated.

46 Upon hearing the report of the Judge-Rapporteur, the Court (First Chamber) decided to open the oral procedure.

47 On 28 January 2014, pursuant to Article 64 of the Rules of Procedure of the General Court of 2 May 1991, the Court asked the Council to submit certain documents and to produce information or evidence to enable it, first, to corroborate the Council’s claim that public awards and concessions were obtained by Triple not on its own merits but due to Mr Chyzh’s alleged links with the regime and, second, to establish the existence of a link between Mr Chyzh’s sporting activities and his alleged support for the regime. The Council responded to that request on 19 February 2014.

48 By document lodged at the Court Registry on 25 February 2014, the applicants modified the form of order sought so that the action also seeks annulment of Decision 2013/534 and Implementing Regulation No 1054/2013. In its observations of 25 March 2014, the Council argues in particular that that modification of the form of order sought was lodged out of time and therefore ought to be rejected as inadmissible.

49 The parties presented oral arguments and replied to the questions put by the Court at the hearing on 11 April 2014. At that hearing, as is clear from the minutes of the hearing, the applicants’ representative, in response to a question from the Court, indicated that she no longer sought full disclosure of the applicants’ file since the Council had, in the rejoinder, submitted partially declassified documents. At the hearing, the applicants’ representative also presented to the Court and the Council a document setting out the shares held by the shareholders in the capital of the applicant companies. After the hearing, the President of the First Chamber did not close the oral procedure and asked, first, the representative of the applicants to specify the time in respect of which that document was applicable and, second, the Council to submit its observations on that document. The applicants’ representative and the Council complied with the Court’s requests respectively on 14 April and 14 May 2014.

50 On 3 October 2014, the President of the First Chamber closed the oral procedure.

51 By letter lodged at the Court Registry on 27 October 2014, the applicants’ representative informed the Court that, in its observations cited in paragraph 49 above, the Council wrongly stated that Mr Chyzh held a majority of Variant’s shares.

52 By document lodged at the Court Registry on 7 November 2014, the applicants, with the exception of NefteKhimTrading, TriplePharm and Triple-Veles, requested that the form of order sought be modified so as the action also seeks annulment of Decision 2014/750 and Implementing Regulation No 1159/2014. They also indicated that, despite the withdrawal of the names of the three abovementioned applicants from the lists, they maintained their action, in respect of all applicants, regarding the measures prior to Decision 2014/750 and Implementing Regulation No 1159/2014.

53 Following the reopening of the oral procedure on 25 November 2014, the Court, on 1 December 2014, asked, on the one hand, the Council to submit its observations on the letter cited in paragraph 51 above and also on the request to modify the form of order sought mentioned in paragraph 52 above, and, on the other hand, the parties to lodge observations on the admissibility of the request to modify the form of order sought so as to apply also to Decision 2013/534 and Implementing Regulation No 1054/2013 in the light of paragraphs 73 to 78 of the judgment of 5 November 2014 in Mayaleh v Council (T‑307/12 and T‑408/13, ECR, EU:T:2014:926).

54 In their observations lodged at the Court Registry on 17 December 2014, the applicants submit, in essence, that the judgment in Mayaleh v Council, cited in paragraph 53 above (EU:T:2014:926) and the judgment of 26 October 2012 in CF Sharp Shipping Agencies v Council (T‑53/12, ECR, EU:T:2012:578) confirm the admissibility of the request that the form of order sought be modified so that the action also seeks annulment of Decision 2013/534 and Implementing Regulation No 1054/2013.

55 In its observations lodged at the Court Registry on 22 December 2014, the Council states, first, in essence, that it does not object to the request of the applicants, with the exception of NefteKhimTrading, TriplePharm and Triple-Veles, to extend the subject-matter of the action to include Decision 2014/750 and Implementing Regulation No 1159/2014. However, it maintains that, since the applicants did not specify whether they rely on the same pleas and grounds of annulment as those directed against the earlier measures, and in particular the pleas concerning the observance of procedural rights, those pleas, if also directed against Decision 2014/750 and Implementing Regulation No 1159/2014 should be declared inadmissible on the ground that they are not substantiated. Next, the Council acknowledges that, as the applicants’ representative asserts in the letter cited in paragraph 51 above, the claim, contained in its observations of 14 May 2014 cited in paragraph 49 above, according to which Mr Chyzh holds the majority of the shares of Variant was incorrect. It notes, however, that although Mr Chyzh did not personally hold any shares in Variant’s capital, nevertheless he is General Director of Triple of which Variant is a subsidiary. Finally, it recalls that Decision 2013/534 and Implementing Regulation No 1054/2013 were notified to Mr Chyzh, Triple, Variant and TriplePharm TAA by letter dated 30 October 2013 and received by them on 11 November 2013 and, therefore, the request that the form of order sought be modified so as to apply to those measures was out of time. As regards the other applicants, it confirms that Decision 2013/534 and Implementing Regulation No 1054/2013 were sent to their representative by letter of 30 October 2013, received by that representative on 31 October 2013 by e-mail and 4 November 2013 by post. However, it argues, in essence, that the correspondence between those applicants and itself has consistently taken place through their representative and, to some extent, through Mr Chyzh and therefore, it must be considered that these applicants have accepted service of the measures in question to their representative.

56 The applicants, with the exception of NefteKhimTrading, TriplePharm and Triple-Veles, claim that the Court should:

– Annul Implementing Decision 2012/171, Implementing Regulation No 265/2012, Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2013/534, Implementing Regulation No 1054/2013, Decision 2014/750 and Implementing Regulation No 1159/2014 in so far as those measures concern them;

– annul any measure subsequent to Decision 2012/642 and Implementing Regulation No 1017/2012, having the same subject-matter and affecting the applicants;

– annul Implementing Decision 2012/171, Implementing Regulation No 265/2012, Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2013/534 and Implementing Regulation No 1054/2013, in so far as those measures concern them;

– annul any measure subsequent to Decision 2012/642 and to Implementing Regulation No 1017/2012 having the same subject-matter and affecting the applicants;

– reject as inadmissible the applicants’ request seeking the extension of the action to any measure subsequent to Decision 2012/642 and to Implementing Regulation No 1017/2012 having the same subject-matter and concerning the applicants;

– reject the request seeking the extension of the action to Decision 2013/534 and to Implementing Regulation No 1054/2013 as inadmissible or, in the alternative, as unfounded;

Admissibility of the form of order seeking annulment of any measure subsequent to Decision 2012/642 and to Implementing Regulation No 1017/2012 having the same subject-matter and concerning the applicants

59 The Council contends that the head of claim seeking the annulment of any measure subsequent to Decision 2012/642 and to Implementing Regulation No 1017/2012 is inadmissible, arguing that the Court cannot review the legality of hypothetical acts which have not yet been adopted.

60 It must be recalled that only actions for annulment of an act in existence adversely affecting the applicant may be brought before the Court. Accordingly, even if an applicant may be permitted to reformulate the form of order sought so as to seek annulment of acts which have, during the proceedings, replaced the acts initially challenged, that solution cannot authorise the speculative review of the lawfulness of hypothetical acts which have not yet been adopted (see, to that effect, judgments of 12 December 2006 in Organisation des Modjahedines du peuple d’Iran v Council, T‑228/02, ECR, EU:T:2006:384, paragraphs 32 and 33, and 6 September 2013 in Bank Refah Kargaran v Council, T‑24/11, ECR, EU:T:2013:403, paragraph 31).

61 Furthermore, under Article 44(1)(c) of the Rules of Procedure of 2 May 1991, every application must state the subject-matter of the dispute, and that statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the action, if necessary without any other supporting information. In order to guarantee legal certainty and the sound administration of justice it is thus necessary, in order for an action to be admissible, that the application indicate with a certain degree of precision which measures the applicant seeks to have annulled (see, to that effect, judgment of 28 May 1970 in Lacroix v Commission, 30/68, ECR, EU:C:1970:46, paragraphs 20 to 27).

62 In the present case, the Court’s review can therefore relate only to the measures already adopted by the Council, identified with sufficient precision by the applicants, and challenged by the date of closure of the oral procedure (see, to that effect, judgment in Organisation des Modjahedines du peuple d’Iran v Council, cited in paragraph 60 above, EU:T:2006:384, paragraphs 34 and 35). In that regard, it must also be observed that the applicants, during the procedure, modified the form of order sought in such a way as to include specific measures adopted after the action was brought.

63 The general and unspecific head of claim, seeking annulment of any measure subsequent to Decision 2012/642 and Implementing Regulation No 1017/2012 must therefore be rejected as inadmissible.

64 As is apparent from paragraphs 43, 48 and 52 above, after the initiating application was lodged, the applicants modified the form of order sought in the action such that the action seeks annulment not only of Implementing Decision 2012/171 and Implementing Regulation No 265/2012, but also Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2013/534 and Implementing Regulation No 1054/2013. In addition, the applicants, with the exception of de NefteKhimTrading, TriplePharm and Triple-Veles, modified the form of order sought in the action such that the action seeks annulment of Decision 2014/750 and Implementing Regulation No 1159/2014.

65 It is to be borne in mind in this connection that, when a decision or a regulation is replaced, during the proceedings, by another measure with the same subject-matter, this is to be considered a new factor allowing the applicant to modify the form of order sought and the pleas in law. It would be contrary to the principle of the sound administration of justice and to the requirements of procedural economy to oblige the applicant to make a fresh application. Moreover, it would be inequitable if the institution in question were able, in order to counter criticisms of a measure that are, contained in an application to the Court, to amend the contested measure or to substitute another for it and to rely in the proceedings on such an amendment or substitution in order to deprive the other party of the opportunity of extending his original pleadings to the later measure or of submitting supplementary pleadings directed against that measure (see, to that effect, judgments of 23 October 2008 in People’s Mojahedin Organization of Iran v Council, T‑256/07, ECR, EU:T:2008:461, paragraph 46, and 6 September 2013 in Iranian Offshore Engineering & Construction v Council, T‑110/12, ECR (Extracts), EU:T:2013:411, paragraph 16).

66 By Decision 2012/642, the Council extended until 31 October 2013 the restrictive measures to which the applicants were subject as a result of the inclusion of their names on the list in Annex V to Decision 2010/639, by Implementing Decision 2012/171.

67 Furthermore, as mentioned in paragraph 27 above, by Implementing Regulation No 1017/2012, the Council included the applicants’ names on the list in Annex I to Regulation No 765/2006.

68 It must be recalled that, in order to be admissible, a request to modify the form of order sought must be lodged within the period for bringing proceedings provided for in the sixth paragraph of Article 263 TFEU. It has consistently been held that that time-limit for bringing proceedings is mandatory and must be applied by the Courts of the European Union, where necessary of their own motion, in such a way as to safeguard legal certainty and equality of persons before the law (see, to that effect, judgment in Iranian Offshore Engineering & Construction v Council, cited in paragraph 65 above, EU:T:2013:411, paragraph 17, and of 16 September 2013 in Bank Kargoshaei and Others v Council, T‑8/11, EU:T:2013:470, paragraph 40).

69 With regard to the dates of adoption of Decision 2012/642 and Implementing Regulation No 1017/2012, the form of order directed against those measures, lodged at the Court Registry on 15 November 2012, were lodged within the period for bringing proceedings laid down by the sixth paragraph of Article 263 TFEU.

70 The modification of the form of order sought so as to extend its subject-matter to include Decision 2012/642 and Implementing Regulation No 1017/2012 should therefore be considered admissible. It must be recalled moreover that the Council did not object to that modification of the form of order sought by the applicants (see paragraph 43 above).

71 As mentioned in paragraph 68 above, in order to be admissible, a request to modify the form of order sought must be lodged within the period for bringing proceedings provided for in the sixth paragraph of Article 263 TFEU.

72 As regards the calculation of the period for bringing proceedings, it should be borne in mind that, under the sixth paragraph of Article 263 TFEU, an action for annulment must be brought within two months of the publication of the contested measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.

73 According to the case-law, the principle of effective judicial protection means that the European Union authority which adopts individual restrictive measures against a person or entity, as in the present case, is bound to communicate the grounds on which those measures are based, either when those measures are adopted or, at the very least, as swiftly as possible after they have been adopted, in order to enable those persons or entities to exercise their right to bring an action (see, to that effect, judgments of 16 November 2011 in Bank Melli Iran v Council, C‑548/09 P, ECR, EU:C:2011:735, paragraph 47, and Iranian Offshore Engineering & Construction v Council, cited in paragraph 65 above, EU:T:2013:411, paragraph 19).

74 In this case, that principle is given effect in Article 6(2) of Decision 2012/642 and in Article 8a(2) of Regulation No 765/2006, in the version applicable at the material time, which provide that the Council is to communicate its decision, including the grounds for listing as one of the persons or entities subject to restrictive measures, to the person concerned, either directly, if the address is known, or through the publication of a notice, providing such person with an opportunity to present observations.

75 It follows from this that the period for bringing an action for annulment of an act imposing restrictive measures on a person or entity starts to run only from the date of the individual communication of that act to the party concerned, if the address is known, or from the date of the publication of a notice in the Official Journal, if not. Similarly, the period for the submission of an application seeking to extend the form of order sought and pleas in law to an act which repeals and replaces the contested act imposing the restrictive measures, and which maintains those measures, begins to run only from the date of the individual communication of that new act to the person or the entity concerned, if the address is known, or from the date of the publication of a notice in the Official Journal, if individual communication is impossible (see, to that effect, judgments in Iranian Offshore Engineering & Construction v Council, cited in paragraph 65 above, EU:T:2013:411, paragraph 21, and of 4 February 2014 in Syrian Lebanese Commercial Bank v Council, T‑174/12 and T‑80/13, ECR, EU:T:2014:52, paragraph 59; see also, to that effect and by analogy, judgment of 23 April 2013 in Gbagbo and Others v Council, C‑478/11 P to C‑482/11 P, ECR, EU:C:2013:258, paragraph 61).

76 In that regard, it must be observed that, while, in the case which gave rise to the judgment of 26 October 2012 in CF Sharp Shipping Agencies v Council (T‑53/12, ECR, EU:T:2012:578), relied on by the applicants at the hearing and in their observations cited at paragraph 54 above, the Court accepted, in the circumstances of that case, modifications of the form of order sought which were lodged out of time, a number of judgments of the Court, subsequent to that judgment have clearly stated that requests to modify the form of order sought must be submitted within the period for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU (see, to that effect, judgments of 6 September 2013 in Bank Melli Iran v Council, T‑35/10 and T‑7/11, ECR, EU:T:2013:397, paragraph 55, and Bank Kargoshaei and Others v Council, cited in paragraph 53 above, EU:T:2013:470, paragraph 40).

77 In the present case, it is undisputed that Decision 2013/534 and Implementing Regulation No 1054/2013 were notified to Mr Chyzh, Triple, Variant and TriplePharm by letter of 30 October 2013, received by them on 11 November 2013. The two-month period for bringing proceedings, under the sixth paragraph of Article 263 TFEU, against those measures therefore expired on 23 January 2014, pursuant to Article 101 and Article 102(2) of the Rules of Procedure of 2 May 1991.

78 However, the modification of the form of order sought such that the action also seeks annulment of Decision 2013/534 and Implementing Regulation No 1054/2013 was lodged at the Court Registry on 25 February 2014, that is, more than 2 months and 10 days after Mr Chyzh, Triple, Variant and TriplePharm were notified of the measures at issue. That modification must therefore be rejected as inadmissible in respect of those applicants, as the Council argued moreover in its pleadings.

79 As regards NefteKhimTrading, Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Rakovsky brovar and Triple-Veles, it should be noted that the Council did not personally notify them of Decision 2013/534 or Implementing Regulation No 1054/2013. In its observations mentioned in paragraphs 48 and 55 above, the Council argues that those measures were sent to the applicants’ lawyer by letter dated 30 October 2013, received by him on 4 November 2013, and by e-mail on 31 October 2013. The applicants do not dispute the Council’s arguments.

80 It should first be noted that the sixth paragraph of Article 263 TFEU refers to the ‘notification [of the measures] to the plaintiff’, not the notification of the measure to its representative.

81 It follows that where an act must be notified in order for the period for bringing proceedings to begin to run, it must in principle be sent to the addressee of the act, and not to the lawyers representing him. According to the case-law, notification to an applicant’s representative amounts to notification to the addressee only where such a form of notification is expressly provided for in the legislation or by agreement between the parties (see, to that effect, order of 8 July 2009 in Thoss v Court of Auditors, T‑545/08, EU:T:2009:260, paragraphs 41 and 42; judgments of 11 July 2013 in BVGD v Commission, T‑104/07 and T‑339/08, EU:T:2013:366, paragraph 146, and Mayaleh v Council, cited in paragraph 53 above, EU:T:2014:926, paragraph 74).

82 In the present case, neither Article 6(2) of Decision 2012/642 nor Article 8a(2) of Regulation No 765/2006, in the version applicable to the facts of the present case, makes an explicit reference to the possibility that the notification takes the form of the communication of a measure to a lawyer representing a person covered by that measure.

83 It follows that, by communicating Decision 2013/534 and Implementing Regulation No 1054/2013 to the applicants’ representative, the Council did not comply with the letter of the regulation, which it has imposed on itself.

84 In its observations cited in paragraph 55 above, the Council contends that, in the case which gave rise to the judgment in Mayaleh v Council, cited in paragraph 53 above (EU:T:2014:926, paragraph 77), unlike the present case, nothing in the file supported the existence of an agreement between the parties allowing the Council to communicate the measures at issue to the applicant’s representative. The Council further states that it is apparent from that judgment that the applicant had never addressed the Council, either directly or through his lawyers. The Council concludes from this that the communication to the applicants’ representative of Decision 2013/534 and Implementing Regulation No 1054/2013 was sufficient and should be the starting point for calculating the period for bringing proceedings.

85 It should be noted that nothing in the file supports the view that there was an agreement between the parties, within the meaning of the case-law cited in paragraph 81 above, allowing the Council to communicate Decision 2013/534 and Implementing Regulation No 1054/2013 to the applicants’ representative. On the contrary, as shown by the correspondence between the applicants and the Council, cited in paragraphs 18, 19, 21, 30, 31 and 37 above, they communicated mainly with each other directly and not through the applicants’ lawyer. It should also be noted that the measures subsequent to Decision 2013/534 and Implementing Regulation No 1054/2013, namely Decision 2014/750 and Implementing Regulation No 1159/2014, were notified personally to the applicants, as is clear from the Council’s observations cited in paragraph 55 above, which shows that there was no agreement between the parties to communicate the measures to the applicants’ representative.

86 In those circumstances, it must be held that since the Council did not properly notify Decision 2013/534 and Implementing Regulation No 1054/2013 to NefteKhimTrading, Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Rakovsky brovar and Triple-Veles, they were not time-barred, as of 23 January 2014, from introducing the request that the action also apply to those measures.

87 It must therefore be concluded that the modification of the form of order sought so as to extend the subject-matter of the action to include Decision 2013/534 and Implementing Regulation No 1054/2013 is admissible in so far as those measures apply to NefteKhimTrading, Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Rakovsky Brovar and Triple-Veles and is rejected as inadmissible in so far as those measures apply to Mr Chyzh, Triple, Variant and TriplePharm.

88 It should be recalled first that, by decision 2014/750, since the Council removed the names of NefteKhimTrading, TriplePharm and Triple-Veles from the lists, those applicants did not request the modification of the form of order sought in the action so as to extend its subject-matter to that decision.

89 In addition, by Decision 2014/750, the Council extended, until 31 October 2015, the restrictive measures to which Mr Chyzh, Triple, Askargoterminal, Bereza Silicate Products Plant, Variant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple and Rakovsky brovar have been subject since the inclusion of their names on the list in Annex V to Decision 2010/639 by Decision 2012/171.

90 Given the date when Decision 2014/750 was adopted, namely 30 October 2014, the form of order directed against that decision, lodged at the Court Registry on 7 November 2014 by the applicants cited in paragraph 89 above, was introduced within the period for bringing proceedings provided for in the sixth paragraph of Article 263 TFEU. Furthermore, the Council does not contest the admissibility of the modification of the form of order sought.

91 The modification of the form of order sought so as to extend its subject-matter to include Decision 2014/750, in so far as it applies to the applicants referred to in paragraph 89 above, is therefore admissible.

92 By Implementing Regulation No 1159/2014, the Council removed the names of certain persons and entities from Annex I to Regulation No 765/2006 and amended certain information relating to persons and entities whose names were included in that annex.

93 The names of NefteKhimTrading, TriplePharm and Triple-Veles were removed from the lists. Those applicants are not concerned by the request for a modification of the form of order sought.

94 The applicants other than NefteKhimTrading, TriplePharm and Triple-Veles, namely Mr Chyzh, Triple, Askargoterminal, Bereza Silicate Products Plant, Variant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple and Rakovsky brovar, are not concerned by the amendments made by Regulation No 1159/2014, or even mentioned in that regulation.

95 That said, it should be noted that the applicants mentioned in paragraph 94 above are nevertheless directly and individually concerned by Implementing Regulation No 1159/2014, and, as such, they are entitled to seek its annulment under the fourth paragraph of Article 263 TFEU. It must be recalled moreover that the Council did not object to that modification of the form of order sought.

96 In that regard, according to settled case-law, persons other than the addressees of an act can claim to be individually concerned, within the meaning of the fourth paragraph of Article 263 TFEU, only if the act affects them by reason of certain attributes peculiar to them or by reason of a factual situation which differentiates them from all other persons and thereby distinguishes them individually in the same way as the addressee (judgment of 15 July 1963 in Plaumann v Commission, 25/62, ECR, EU:C:1963:17, paragraph 223; order of 26 November 2009 in Região autónoma dos Açores v Council, C‑444/08 P, EU:C:2009:733, paragraph 36, and judgment of 7 December 2010 in Fahas v Council, T‑49/07, ECR, EU:T:2010:499, paragraph 33).

97 In the present case, it should be noted, first, that Implementing Regulation No 1159/2014 was adopted, in particular in the light of Article 8a(1) of Regulation No 765/2006, in the version applicable to the present case, which provides for the possibility of amending Annex I to Regulation No 765/2006. It is important to note, next, that the Council was under an obligation to review the list in Annex I to Regulation No 765/2006 at regular intervals and at least every 12 months, in accordance with Article 8a(4) of Regulation No 765/2006, in the version applicable to the present case. Furthermore, it should be noted that Implementing Regulation No 1159/2014 amends the list in Annex I to Regulation No 765/2006, without repealing it, so that after the adoption of Implementing Regulation No 1159/2014, the names of the applicants cited in paragraph 94 above are still listed in Annex I to Regulation No 765/2006. It follows that the reference, by Implementing Regulation No 1159/2014, to Annex I of Regulation No 765/2006 is a manifestation of the Council’s intention to retain those applicants’ names on the list in that annex and, consequently, to maintain the restrictive measures affecting the applicants.

98 Accordingly, the applicants cited in paragraph 94 above are also directly concerned by Implementing Regulation No 1159/2014. It is settled case-law that the condition of direct concern requires that the measure complained of must directly affect the legal situation of the person concerned (see, to that effect, judgments of 5 May 1998 in Dreyfus v Commission, C‑386/96 P, ECR, EU:C:1998:193, paragraph 43; 29 June 2004 in Front national v Parliament, C‑486/01 P, ECR, EU:C:2004:394, paragraph 34; and 10 September 2009 in Commission v Ente per le Ville vesuviane and Ente per le Ville vesuviane v Commission, C‑445/07 P and C‑455/07 P, ECR, EU:C:2009:529, paragraph 45).

99 In addition, the form of order sought which is directed against Implementing Regulation No 1159/2014 was lodged at the Court Registry within the period for bringing proceedings provided for in the sixth paragraph of Article 263 TFEU.

100 It follows from the foregoing considerations that the Court must hold as admissible the modification of the form of order sought in the action in so far as it seeks to extend its subject-matter to include, first, Decision 2012/642 and Implementing Regulation No 1017/2012, in so far as those measures apply to all the applicants, second, Decision 2013/534 and Implementing Regulation No 1054/2013, in so far as those measures apply to NefteKhimTrading, Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Rakovsky brovar et Triple-Veles and third, Decision 2014/750 and Implementing Regulation No 1159/2014, in so far as those measures apply to Mr Chyzh, Triple, Askargoterminal, Bereza Silicate Products Plant, Variant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple and Rakovsky brovar.

101 In support of their action, the applicants rely on three pleas in law, alleging, first, infringement of the obligation to state reasons, second, errors of assessment and, third, infringement of the rights of the defence, the right to a fair hearing and the right to an effective judicial remedy.

102 The applicants argue that the statement of reasons for the contested measures cannot be regarded as an actual and specific statement of reasons for the purposes of the case-law.

103 The Council does not show the existence of a sufficient link between them and the Belarusian authorities. In the applicants’ opinion, the Council should have indicated actual acts, course of conduct or omissions allowing them to understand how they support or benefit from the regime.

104 In that regard, the applicants claim that the reasoning of the contested measures is very similar to that which led to the annulment of the contested decision in the case which gave rise to the judgment of 8 June 2011 in Bamba v Council (T‑86/11, ECR, EU:T:2011:260).

105 The applicants further allege that the failure to states reasons cannot be remedied during the proceedings before the Court. The applicants cite in that respect individual notifications sent by the Council on 7 November 2012.

106 The Council’s response is that the statement of reasons in the contested acts indicates in a sufficiently clear and detailed manner, first, the reasons why it adopted restrictive measures against Belarus, second, the criteria used for the inclusion of the names of certain persons and entities on the lists and, third, the reasons why the Council considers, in the present case, that the applicants meet the relevant criteria.

107 As regards the criteria for the listing of Mr Chyzh and Triple, the Council contends that, as a result of Decision 2012/36 and Regulation No 114/2012, new persons and entities were included, namely the persons responsible for serious violations of human rights or acts of repression of civil society and the democratic opposition in Belarus and also the persons and entities benefiting from or supporting the regime of President Lukashenko. As for Triple’s subsidiaries, the Council maintains that it is sufficient to show that they are subsidiaries of a designated entity.

108 The Council adds that Mr Chyzh and Triple understood perfectly that they fell into the category of ‘persons and entities benefiting from or supporting the Lukashenko regime’. As for Triple’s subsidiaries, the Council claims that it is clear from the application that they understood that their names had been included in the lists on the ground that they were Triple’s subsidiaries.

109 According to the Council, the nature and structure of the reasons given to justify the inclusion of the applicants are similar to those at issue in the case which gave rise to the judgment of 15 November 2012 in Council v Bamba (C‑417/11 P, ECR, EU:C:2012:718).

110 Finally, the Council maintains that the notifications of 7 November 2012 do not include any additional or different reasoning from those resulting from the contested measures.

111 As a preliminary point, it is important to note that the question of the statement of reasons, which concerns an essential procedural requirement, is separate from that of the evidence of the alleged conduct, which concerns the substantive legality of the act in question and involves assessing the truth of the facts set out in that act and the characterisation of those facts as evidence justifying the use of restrictive measures against the person concerned (see, to that effect, judgments in Council v Bamba, cited in paragraph 109 above, EU:C:2012:718, paragraph 60, and Iranian Offshore Engineering & Construction v Council, cited in paragraph 65 above, EU:T:2013:411, paragraph 30).

112 It follows that the applicants’ arguments relating to the substantive legality of the contested measures, namely that the Council failed to demonstrate the existence of a sufficient link between the applicants and the Belarusian authorities (see paragraph 103 above), will be examined as part of the plea alleging errors of assessment.

113 According to settled case-law, the purpose of the obligation to state the reasons for an act adversely affecting a person, as set out in the second paragraph of Article 296 TFEU is, first, to provide the person concerned with sufficient information to make it possible to determine whether the act is well founded or whether it is vitiated by an error which may permit its validity to be contested before the Court and, second, to enable the Court to review the lawfulness of that act (see, to that effect, judgments of 2 October 2003 in Corus UK v Commission, C‑199/99 P, ECR, EU:C:2003:531, paragraph 145, and Council v Bamba, cited in paragraph 109 above, EU:C:2012:718, paragraph 49).

114 The statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the act in such a way as to enable the person concerned to ascertain the reasons for the measures and to enable the Court to exercise its power of review (see, to that effect, judgments of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, ECR, EU:C:2012:711, paragraph 138, and Council v Bamba, cited in paragraph 109 above, EU:C:2012:718, paragraph 50).

115 Where the person concerned is not afforded the opportunity to be heard before the adoption of an initial decision to freeze funds, compliance with the obligation to state reasons is all the more important because it constitutes the sole safeguard enabling the person concerned, at least after the adoption of that decision, to make effective use of the legal remedies available to him in order to challenge the lawfulness of that decision (judgment in Council v Bamba, cited in paragraph 109 above, EU:C:2012:718, paragraph 51).

116 Therefore, the statement of reasons for an act of the Council which imposes a restrictive measure must identify not only the legal basis of that measure but also the actual and specific reasons why the Council considers, in the exercise of its discretion, that that measure must be adopted in respect of the person concerned (see, to that effect, judgments in Council v Bamba, cited in paragraph 109 above, EU:C:2012:718, paragraph 52, and of 14 October 2009 in Bank Melli Iran v Council, T‑390/08, ECR, EU:T:2009:401, paragraph 83).

117 The statement of reasons required by Article 296 TFEU must, however, be appropriate to the act at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the statement of reasons to go into all the relevant facts and points of law, since the question whether it meets the requirements must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, to that effect, judgments in Al-Aqsa v Council and Netherlands v Al-Aqsa, cited in paragraph 109 above, EU:C:2012:711, paragraphs 139 and 140, and Council v Bamba, cited in paragraph 109 above, EU:C:2012:718, paragraph 53).

118 In particular, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him to understand the scope of the measure concerning him (see judgment in Council v Bamba, cited in paragraph 109 above, EU:C:2012:718, paragraph 54).

119 It follows that, in order to determine whether the acts at issue satisfy the obligation to state reasons, it is necessary to ascertain whether, in the grounds stated in those acts, the Council set out, in a manner that is comprehensible and sufficiently precise, the reasons that led it to conclude that the inclusion, then the retention of the applicants’ names on the lists, were justified in the light of the applicable legal criteria.

120 First, it must be held that the background to the imposition of restrictive measures in respect of the applicants was known to them, a fact which, moreover, they do not dispute. Suffice it to note in that regard that, in the application, the applicants themselves set out, in a precise manner, the legislative history which led, first of all, to the sanctions in respect of the political leadership of Belarus and public officials responsible for repression and violations of human rights and, second, to the extension of the restrictive measures to other classes of persons and entities, including those who supported or benefited from the regime of President Lukashenko.

121 Next, as for the reasons for which restrictive measures specifically apply to the applicants, it is appropriate to distinguish between the cases, first, of Mr Chyzh, second, of Triple and, third, of NefteKhimTrading, Askargoterminal, Bereza Silicate Products Plant, Variant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Rakovsky brovar, TriplePharm and Triple-Veles (the ‘other applicants’), the inclusion and then retention of whose names on the lists are based on different reasons.

122 By Implementing Decision 2012/171 and Implementing Regulation No 265/2012, the Council included Mr Chyzh’s name in Annex V to Decision 2010/639 and Annexe IB to Regulation No 765/2006 respectively, on the following grounds:

‘[Mr Chyzh] provides financial support to the [Lukashenko] regime through his holding company … Triple which is active in numerous sectors of the Belarusian economy, including [in] activities resulting from public awards and concessions from the regime. The sporting positions he retains, notably being Chair of the Board of the football club FC Dynamo Minsk and Chair of the Belarusian Federation of wrestling, confirm his association to the regime.’

123 It should be recalled that, at the date of adoption of Implementing Decision 2012/171 and Implementing Regulation No 265/2012, it was clear from Article 2(1)(c) and (d) of Decision 2010/639, as amended by Decision 2012/36, and Article 2(1) and (6) of Regulation No 765/2006, as amended by Regulation No 114/2012, that the persons and entities subject to the restrictive measures the list of which was set out in Annex V to Decision 2010/639 and Annex IB to Regulation No 765/2006 respectively were, first, persons responsible for serious violations of human rights or acts of repression against civil society and the democratic opposition in Belarus and, second, persons or entities benefiting from or supporting the Lukashenko regime.

124 Given the listing criteria mentioned in paragraph 123 above, the Court must hold that the reasoning cited in paragraph 122 above enables Mr Chyzh to understand sufficiently that his name was included on the lists on the ground that he was a person supporting and benefiting from the regime of President Lukashenko. Moreover, it appears from the application that, according to Mr Chyzh, the reasons given for his inclusion relate to both business and sporting activities. As regards the business reasons, it appears from the application that Mr Chyzh understood what he was accused of, since he indicates himself that his name was included on the lists on the ground that he would use Triple, which has many activities in numerous sectors of the Belarusian economy, to provide financial support to and benefit from the regime of President Lukashenko. It also appears from the application that Mr Chyzh understood the grounds relating to his sporting activities, since he disputes specifically the fact that the Council may infer from his positions in sports clubs, his links with the regime of President Lukashenko.

125 By Decision 2012/642 and Implementing Regulation No 1017/2012, the name of Mr Chyzh was retained on the lists for the following reasons:

‘[Mr] Chyzh provides financial support to the [Lukashenko] regime through his holding company … Triple which is active in numerous sectors of the Belarusian economy, including activities resulting from public awards and concessions from the regime. The sporting positions he retains, notably being Chair of the Board of the football club FC Dynamo Minsk and Chair of the Belarusian Federation of wrestling, confirm his association to the regime.’

126 That reasoning is, in essence, the same as that in Annex V to Decision 2010/639 and Annex IB to Regulation No 765/2006, as amended, by Implementing Decision 2012/171 and Implementing Regulation No 265/2012 respectively (see paragraph 122 above).

127 At the date of adoption of Decision 2012/642 and Implementing Regulation No 1017/2012, it was clear from Article 4(1)(a) and (b) of Decision 2012/642 and of Article 2(4) and (5) of Regulation No 765/2006, as amended by Regulation No 1014/2012, that the persons and entities whose names were included on the lists were, first, the persons, entities or bodies responsible for serious violations of human rights or the repression of civil society and democratic opposition, or whose activities otherwise seriously undermined democracy or the rule of law in Belarus, or any natural or legal persons, entities or bodies associated with them, as well as legal persons, entities or bodies owned or controlled by them and, second, natural or legal persons, entities or bodies benefiting from or supporting the Lukashenko regime, as well as legal persons, entities or bodies owned or controlled by them.

128 In the light of the listing criteria defined above, it must be held that Mr Chyzh was able to understand, from reading the reasons set out in paragraph 125 above, that he was covered by Decision 2012/642 and Implementing Regulation No 1017/2012 as a natural person who supported and benefited from the regime of President Lukashenko, which is also reflected in his arguments set out in his pleadings before the Court.

129 It should also be recalled that by Decision 2014/750 and Implementing Regulation No 1159/2014, the name of Mr Chyzh was retained on the list on the same grounds as those resulting, respectively, from the Annex to Decision 2012/642, as amended by Decision 2013/534, and Annex I to Regulation No 765/2006, as amended by Implementing Regulation No 1054/2013, mentioned in paragraph 33 above.

130 It follows that, in view of the listing criteria applicable on the date of the adoption of Decision 2014/750 and Implementing Regulation No 1159/2014, as mentioned in paragraph 127 above, Mr Chyzh was also able to understand the reasons for the retention of his name on the list by Decision 2014/750 and Implementing Regulation No 1159/2014.

131 In those circumstances, it must be considered that sufficient reasons were provided for the inclusion of Mr Chyzh’s name on the lists by Implementing Decision 2012/171 and Implementing Regulation No 265/2012 and also for the retention of his name on those lists by Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2014/750 and Implementing Regulation No 1159/2014.

132 By Implementing Decision 2012/171 and Implementing Regulation No 265/2012, Triple’s name was included in Annex V to Decision 2010/639 and Annex IB to Regulation No 765/2006, respectively, on the ground that it was a ‘[h]olding company of [Yury] Chyzh [who] provides financial support to the [Lukashenko] regime, notably through his holding company … Triple’. That name was therefore included on the lists on the grounds, first, that that company was an entity owned by Mr Chyzh and, second, that that company supported the regime of President Lukashenko.

133 Concerning Mr Chyzh’s holding of Triple as a ground for inclusion, it is clear from the case-law that when the funds of a person or an entity already subject to restrictive measures are frozen, there is a not insignificant danger that that person or entity may exert pressure on the entities which it owns or controls or which belong to it in order to circumvent the effect of the measures applying to it. Consequently, the freezing of the funds of such entities is necessary and appropriate in order to ensure the effectiveness of the measures adopted and to ensure that those measures are not circumvented (see, to that effect, judgments of 20 February 2013 in Melli Bank v Council, T‑492/10, ECR, EU:T:2013:80, paragraph 55, and Syrian Lebanese Commercial Bank v Council, cited in paragraph 75 above, EU:T:2014:52, paragraph 101).

134 However, that case-law is applicable solely on the condition that the acts by means of which the restrictive measures at issue were adopted provide for the application of those measures to legal persons or entities owned or controlled by persons or entities already subject to those measures (see, to that effect, judgments of 13 March 2012 in Melli Bank v Council, C‑380/09 P, ECR, EU:C:2012:137, paragraphs 39 and 75 to 79; Melli Bank v Council, cited in paragraph 109 above, EU:T:2013:80, paragraphs 55 and 56; and Syrian Lebanese Commercial Bank v Council, cited in paragraph 75 above, EU:T:2014:52, paragraph 101).

135 As mentioned in paragraph 123 above, at the date of adoption of Implementing Decision 2012/171 and Implementing Regulation No 265/2012, it was clear from Article 2(1)(c) and (d) of Decision 2010/639, as amended by Decision 2012/36, and Article 2(1) and (6) of Regulation No 765/2006, as amended by Regulation No 114/2012, that the only persons or entities covered by Annex V to Decision 2010/639 and Annex IB to Regulation No 765/2006 were, first, ‘persons responsible for serious violations of human rights or acts of repression against civil society and the democratic opposition in Belarus’ and, second, ‘persons or entities benefiting from or supporting the [Lukashenko] regime’.

136 When Implementing Decision 2012/171 and Implementing Regulation No 265/2012 were adopted, neither Decision 2010/639 nor Regulation No 765/2006, in the versions applicable to this case, made any provision enabling the Council to include, on the lists, the names of legal persons, entities or bodies owned or controlled by other persons or entities whose names were included on those lists. As is clear from paragraphs 23 and 26 above, the Council made provision for that power in Article 4(1) of Decision 2012/642 and in Article 2 of Regulation No 765/2006, as amended by Regulation No 1014/2012, in other words after the adoption of Implementing Decision 2012/171 and Implementing Regulation No 265/2012.

137 In that regard, the Court must reject the Council’s argument, put forward at the hearing, that the criterion for listing the names of entities owned or controlled by persons or entities whose names were already on the lists, already existed implicitly before the adoption of Decision 2012/642 and Regulation No 1014/2012, in so far as it is always necessary, for sanctions to be effective, to designate entities controlled by persons or entities already designated. Suffice it to recall in that regard that, according to settled case-law, the principle of legal certainty, which is a general principle of EU law, requires, inter alia, that legal rules be clear, precise and predictable in their effects, in particular where they may have negative consequences for individuals and undertakings, so that those individuals and undertakings may know without ambiguity what rights and obligations flow from those rules and may take steps accordingly (see, to that effect, judgments of 18 November 2008 in Förster, C‑158/07, ECR, EU:C:2008:630, paragraph 67; 29 April 2010 in M and Others, C‑340/08, ECR, EU:C:2010:232, paragraphs 64 and 65; and 12 December 2013 in Nabipour and Others v Council, T‑58/12, EU:T:2013:640, paragraph 107).

138 In the present case, it must be held that the applicant cannot be included in either of the two categories defined in paragraph 135 above on the ground that it is ‘[h]olding company of [Yury] Chyzh’ as a result of Implementing Decision 2012/171 and Implementing Regulation No 265/2012. That reasoning relates to neither a person responsible for serious violations of human rights or the repression of civil society and democratic opposition in Belarus, nor a person or entity benefiting from or supporting the Lukashenko regime.

139 It follows that, in the light of the provisions in force at the date of adoption of Implementing Decision 2012/171 and Implementing Regulation No 265/2012, Triple was not able to understand the reason that it was ‘[h]olding company owned by Yury Chyzh’, since that reason did not make it possible to determine which criterion the Council had relied on to justify the adoption of restrictive measures.

140 However, as is apparent from paragraph 132 above, the inclusion of Triple’s name in Annex V to Decision 2010/639 and Annex IB to Regulation No 765/2006 respectively by Implementing Decision 2012/171 and Implementing Regulation No 265/2012, was not justified, solely on the ground that it was owned by Mr Chyzh. Mr Chyzh was considered by the Council as financially supporting the regime of President Lukashenko, through Triple, so that it must be considered that the Council also included Triple as an entity which financially supported that regime.

141 In the light of the provisions cited in paragraph 135 above, Triple was able to understand that its name had been included in Annex V to Decision 2010/639 and Annex IB to Regulation No 765/2006, by Implementing Decision 2012/171 and Implementing Regulation No 265/2012, on the grounds that it was considered by the Council as supporting the regime, which is also reflected in several passages of the application.

142 As regards the retention of Triple’s name on the lists, by Decision 2012/642 and Implementing Regulation No 1017/2012, it should be recalled, as mentioned in paragraphs 24 and 27 above, that the grounds for its retention were stated in the same terms as the inclusion of that name on the lists by Implementing Decision 2012/171 and Implementing Regulation No 265/2012. It should also be noted that, by Decision 2014/750 and Regulation No 1159/2014, that name was retained on the lists without the reasons for that retention having been amended.

143 As is clear from paragraph 127 above, at the date of adoption of Decision 2012/642 and Implementing Regulation No 1017/2012, and also Decision 2014/750 and Regulation No 1159/2014, it was clear from Article 4(1)(b) of Decision 2012/642 and of Article 2(5) of Regulation No 765/2006, as amended by Regulation No 1014/2012, that the names of persons and entities who were included on the lists were, inter alia, those of natural or legal persons, entities or bodies benefiting from or supporting the Lukashenko regime, as well as those of legal persons, entities or bodies owned or controlled by them.

144 In the light of those criteria, it must be held that sufficient reasons were provided for the retention of Triple’s name on the lists, by Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2014/750 and Implementing Regulation No 1159/2014 on the ground that that company was owned by Mr Chyzh and it supported the regime of President Lukashenko, as is confirmed, moreover, in the summary of the applicants’ arguments in their pleadings.

145 Consequently, it follows from the considerations set out in paragraphs 132 to 144 above that sufficient reasons are provided for the inclusion of Triple’s name in Annex V to Decision 2010/639 and Annex IB to Regulation No 765/2006, by Implementing Decision 2012/171 and Implementing Regulation No 265/2012 respectively, and also for the retention of that name on the lists by Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2014/750 and Implementing Regulation No 1159/2014.

146 Implementing Decision 2012/171 and Implementing Regulation No 265/2012 included the names of the other applicants on the list on the ground that they were ‘[s]ubsidiar[ies] of Triple’.

147 As mentioned in paragraph 133 above, when the funds of a person or an entity already subject to restrictive measures are frozen, there is a not insignificant danger that that person or entity may exert pressure on the entities it owns or controls or which belong to it in order to circumvent the effect of the measures applying to it. Consequently, the freezing of the funds of those entities is necessary and appropriate in order to ensure the effectiveness of the measures adopted and to guarantee that those measures are not circumvented.

148 However, as is clear from paragraph 134 above, restrictive measures can be applied to legal persons or entities owned or controlled by those already subject to those measures only on condition that the acts by means of which the restrictive measures at issue are adopted provide for the application of those measures.

149 As is clear from paragraphs 135 and 136 above, when Implementing Decision 2012/171 and Implementing Regulation No 265/2012 were adopted, neither Decision 2010/639 nor Regulation No 765/2006, in the versions applicable to this case, made any provision for the Council enabling the Council to include, on the lists, the names of legal persons, entities or bodies owned or controlled by other persons or entities whose names were included on those lists.

150 It follows that, in the light of the provisions in force at the date of adoption of Implementing Decision 2012/171 and Implementing Regulation No 265/2012, the other applicants were not able to understand the reason for their inclusion on the lists since that reason did not make it possible to determine which criterion the Council had relied on to justify the adoption of restrictive measures.

151 However, regarding the reasoning for the retention of the names of the other applicants on the lists, by Decision 2012/642 and Implementing Regulation No 1017/2012, which is identical to that set out in paragraph 146 above, it must be considered that, under the provisions cited in paragraph 127 above, that reasoning was sufficient. It must also be held that the other applicants merely assert that the Council failed to provide reasons as to how Triple’s subsidiaries benefit from or support the authorities, without explaining why, in the light of the provisions cited in paragraph 127 above, the fact that they are Triple’s subsidiaries is not a sufficient reason for the inclusion of their names.

152 As regards the retention of the names of NefteKhimTrading, Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Rakovsky brovar and Triple-Veles on the lists, by Decision 2013/534 and by Regulation No 1054/2013, it should be recalled that, at the date of adoption of those measures, the applicable listing criteria were those referred to in paragraph 127 above. It follows that since the reasons for that retention are identical to those on which Decision 2012/642 and Implementing Regulation No 1017/2012 based their retention on the lists, it must also be held that sufficient reasons were provided for Decision 2013/534 and Implementing Regulation No 1054/2013.

153 Finally, as regards the retention, on the lists, of the names of Askargoterminal, Bereza Silicate Products Plant, Variant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple and Rakovsky brovar by Decision 2014/750 and Implementing Regulation No 1159/2014, it must also be held, for the same reasons as those stated in paragraph 152 above, that sufficient reasons were provided for those measures.

154 It follows from all the considerations set out in paragraphs 120 to 153 above that Implementing Decision 2012/171 and Implementing Regulation No 265/2012 must be annulled in so far as those measures included, on the lists, the names of NefteKhimTrading, Askargoterminal, Bereza Silicate Products Plant, Variant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Rakovsky brovar, TriplePharm and Triple-Veles on the ground that they were ‘[s]ubsidiar[ies] of Triple’.

155 The other pleas in law will therefore be examined only to the extent that they apply to, first, Implementing Decision 2012/171 and Implementing Regulation No 265/2012, in so far as they relate to Mr Chyzh and Triple, second, Decision 2012/642 and Implementing Regulation No 1017/2012, in so far as they relate to all applicants, third, Decision 2013/534 and Implementing Regulation No 1054/2013, in so far as they relate to NefteKhimTrading, Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Rakovsky brovar and Triple-Veles and, fourth, Decision 2014/750 and Implementing Regulation No 1159/2014, in so far as they relate to Mr Chyzh, Triple, Askargoterminal, Bereza Silicate Products Plant, Variant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple and Rakovsky brovar.

156 The applicants maintain, in essence, that the Council must prove, on the basis of precise and concrete evidence, that they benefit from or support the regime of President Lukashenko. They state, moreover, that MSSFC Logoysk and Triple Agro Agricultural Complex (ACC), whose names were included on the lists by the contested acts are, in actual fact, Triple’s branches which do not have their own legal personality, and not Triple’s subsidiaries.

157 The Council submits that Mr Chyzh is one of the leading businessmen in Belarus and that the regime of President Lukashenko has close and mutually beneficial ties with influential businessmen in Belarus. It states that it is difficult to give material evidence of the payment of bribes, but that it is ‘most unlikely’ that the favours granted by the regime to the applicants would not have been returned in one way or another. It adds that tax payments by Triple and Mr Chyzh are an obvious form of financial support to the regime which, combined with Mr Chyzh ties to the regime, demonstrates that the applicants support the regime.

158 The Council also claims that, given the links between the regime and business leaders, public awards and concessions are not awarded following an objective public procurement procedure. It adds that it is only required to show that Triple benefits from the regime and not to prove that it obtained special or exceptional favours.

159 The Council also argues that Mr Chyzh benefits from the regime in that, first, he and one of President Lukashenko’s sons headed a delegation to Russia to promote Belarusian business interests; second, President Lukashenko, by presidential edict, granted him land in his native village of Sabali for the construction of a tourist and cultural centre; third, he obtained 99-year lease of land, was exempted from paying the related mandatory contributions and benefited from the assistance of the local administration to complete his construction project; and, fourth, Triple obtained a contract to build housing for the army and real estate for the Belarusian Ministry of Defence, which is unique for its scale and length.

160 The Council also argues that, given President Lukashenko’s attachment to sport, the fact of playing a role in sports bodies is one way of developing links with the regime and supporting it. It argues in that regard, first, that one of President Lukashenko’s sons is Chair of the central council of the President’s Sports Club and that another of his sons is a member of that club, like Mr Chyzh; second, that the latter is Chair of the football club FC Dynamo Minsk and Chair of the Belarusian Federation of wrestling, which confirms his association to the regime; third, that Mr Chyzh is President Lukashenko’s regular hockey partner. It adds that the fact that there may be also other reasons for Mr Chyzh’s sporting positions than attempts to please the President Lukashenko does not exclude or diminish the relevance of his association to the regime.

161 Finally, it is apparent from information in the public domain that, at public events, Mr Chyzh frequently appears alongside President Lukashenko, which further supports their association. Mr Chyzh’s relations with President Lukashenko and his sons, both personally and through his business interests, demonstrate that Mr Chyzh is associated with the Belarusian leadership.

162 As regards Triple’s subsidiaries, the Council argues that it only needs to demonstrate that they are indeed subsidiaries of an entity whose name is included on the lists.

163 The Council further states that, according to Triple’s website, Triple-Agro Agricultural Complex (ACC) ‘was formed as a separate structural self-sustained division of … Triple’. Even if that entity is a branch of Triple, the designation of the latter is sufficient for it to be covered without a separate inclusion of its name on the lists being necessary.

164 The effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to list or to maintain the listing of a given person or entity, the Court is to ensure that that decision, which affects that person or entity individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (see, to that effect, judgment of 18 July 2013 in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, ECR, EU:C:2013:518, paragraph 119).

165 To that end, it is for the Courts of the European Union, in order to carry out that examination, to request the competent EU authority, when necessary, to produce information or evidence relevant to such an examination (judgments in Commission and Others v Kadi, cited in paragraph 164 above, EU:C:2013:518, paragraph 120, and 16 September 2013 in Islamic Republic of Iran Shipping Lines and Others v Council, T‑489/10, ECR, EU:T:2013:453, paragraph 42). That is because it is the task of the competent EU authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, namely that those reasons are not well founded (see judgment in Commission and Others v Kadi, cited in paragraph 164 above, EU:C:2013:518, paragraph 121). For that purpose, there is no requirement that that authority produce before the Court of the European Union all the information and evidence underlying the reasons alleged. It is however necessary that the information or evidence produced should support the reasons relied on against the person concerned (see, to that effect, judgment in Commission and Others v Kadi, cited in paragraph 164 above, EU:C:2013:518, paragraph 122).

166 As stated in paragraphs 14, 15, 24, 27, 39 and 40 above, it is apparent from Implementing Decision 2012/171, Regulation No 265/2012, Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2014/750 and Implementing Regulation No 1159/2014, that Mr Chyzh’s name was included and then retained on the list on the grounds that, in essence, first, he was providing financial support to the regime of President Lukashenko through Triple, which was, in particular, involved in activities resulting from public awards and concessions from the regime, and, second, that the sporting positions he retains, in particular being Chair of the Board of the football club FC Dynamo Minsk and Chair of the Belarusian Federation of wrestling, confirmed his association to the regime.

167 As regards, first, Mr Chyzh’s alleged financial support of the regime, the Council argues, first, that it is ‘widely known’ that he is one of the leading businessmen in Belarus and the regime of President Lukashenko has close ties with those businessmen. Mr Chyzh does not deny that he is a businessman who is successful and who is known to the public. However, even assuming that Mr Chyzh is a leading businessman in Belarus, and that that fact is widely known, it cannot however be inferred from this that he financially supports the regime, as the Council contends.

168 It should be noted in that regard that the Council provides no evidence showing that Mr Chyzh financially supports the regime. First, as the applicants point out, the study commissioned by the European Parliament on the impact of sanctions against Belarus, relied on by the Council, and dated May 2012, was made after the adoption of Implementing Decision 2012/171 and Implementing Regulation No 265/2012 by which Mr Chyzh’s name was included on the list in Annex V to Decision 2010/639 and Annex IB to Regulation No 765/2006, respectively, such that it may not form the basis of those listings. In any case, as argued by the applicants, no evidence is produced in that study of Mr Chyzh’s support for the regime. The Council, moreover, merely cites that study, without identifying, within that study, evidence establishing that Mr Chyzh financially supports the regime.

169 Next, the Council cannot infer from Mr Chyzh’s tax payment that he supports the regime, since such a payment constitutes a legal obligation applicable to all Belarusian taxpayers.

170 Moreover, as regards Mr Chyzh’s alleged payment of bribes to officials of that regime, suffice it to note that the Council does not provide proof of this. It merely asserts that, even if it is difficult to provide hard evidence of the payment of bribes, it is ‘most unlikely’ that the favours granted to Mr Chyzh by the regime have not been returned one way or another. In doing so, the Council does not provide any evidence of the payments of bribes by Mr Chyzh or that he provided any other consideration to the regime.

171 Finally, as regards the public awards and concessions obtained by Mr Chyzh that allegedly show both his support for the regime and the benefit that he draws from it, it must first be noted that Mr Chyzh does not dispute that Triple in fact obtained, as specified by the Council in the defence, a land concession for a period of 99 years, for the construction of a tourist and cultural centre and significant housing for the army and real estate for the Belarusian Ministry of Defence.

172 It is important to point out, however, that the Council itself admits that such awards could theoretically be granted based on merit, following an impartial public procurement procedure, but in the present case, this was not the situation given the links between the regime and businessmen. However, without concrete evidence in support of that assertion, the Council cannot rely only on the general consideration that close links exist between the Lukashenko regime and Belarusian businessmen in order to infer from this that Triple was granted public awards and concessions other than of its own merit.

173 Moreover, in response to a measure of organisation of the procedure, cited in paragraph 47 above, relating to the concrete evidence which allowed the Council to state that Triple had obtained public awards and concessions on the basis of considerations which were not related to merit, the Council merely replied that it had no evidence to support the conclusion that, in Belarus, public awards were granted through an open, transparent and fair procedure for the award of contracts. In so doing, the Council has failed to establish that Triple obtained public awards and concessions because of Mr Chyzh’s links to the regime.

174 In that regard, it is apparent from the case-file that, in Belarus, public awards and concessions are governed by Belarusian law which provides for a procedure for the award of contracts, which the Council fails to rebut.

175 Furthermore, the Court must reject the Council’s argument that it is enough to establish that Mr Chyzh obtained public awards and concessions in order to conclude that he benefits from the regime, and that it is not necessary to show that they were obtained as a result of favours from the regime of President Lukashenko. Such an argument would lead to the inclusion of the names on the lists of persons and entities subject to restrictive measures, any undertaking who is a party, in Belarus, to a public procurement contract, even where that contract was awarded following a lawful procedure for the award of contracts, which would exceed, evidently, the objective pursued by the EU legislature.

176 It should be added, moreover, that the Council’s position is based on circular reasoning when it contends, on the one hand, that the fact that Mr Chyzh’s companies win public contracts demonstrates that he is close to the regime and, on the other hand, that those companies win the contracts at issue because of Mr Chyzh’s close links to that regime.

177 As for the other alleged favours which Mr Chyzh obtained from the regime, such as the fact that he headed, with one of President Lukashenko’s sons, a delegation to Russia to promote the business interests of Belarus, relied on in the Council’s defence, it should be pointed out, as argued by the applicants, that the practice, which is moreover common internationally, of including business leaders in delegations visiting foreign countries, to promote economic and industrial interests, cannot prove that those business leaders benefit from the regime. Moreover, the Council merely cites a short newspaper article showing that the discussions focused on prospects of cooperation in the field of heavy industry, in particular the production of Belarusian dump trucks in Russia without establishing the benefit which Mr Chyzh drew from his participation in the delegation.

178 Second, as regards the grounds relied on against Mr Chyzh relating to his role in sports in order to establish his association with the regime, the Council merely states that, given the importance that President Lukashenko attaches to sport, the mere fact that Mr Chyzh occupies positions in sports bodies demonstrates his association with the regime. In doing so, it provides no concrete evidence demonstrating that association. It merely states that Mr Chyzh is a member of the Central Council of President Lukashenko’s sports club, Chair of the Board of the football club FC Dynamo Minsk, Chair of the Belarusian Federation of wrestling and is a regular hockey partner of President Lukashenko.

179 Mr Chyzh does not dispute that he occupies positions in certain sports clubs, as described above, or that he plays hockey alongside President Lukashenko. He contends, however, that these elements do not establish how he is associated with the regime of President Lukashenko

180 The Court must hold that being a member or chair of sports clubs cannot, as such, establish that Mr Chyzh supports or benefits from the regime on the sole ground that President Lukashenko has an attachment to sport. In that regard, Mr Chyzh also claims that the President’s sports club is a sports association comprising 200 members including sportsmen and is open to anyone including foreigners, which the Council does not dispute. In addition, Mr Chyzh indicates that it is well known that he is a former Greco-Roman wrestler, that he practiced wrestling, football and hockey all his life and that it is in that capacity that he occupies positions in several sports bodies, which the Council moreover fails to refute.

181 Finally, it should be noted that it is not apparent from the ‘declassified’ documents, sent by the Council to the Court on 7 August 2013, that the Council relied on concrete evidence to justify the inclusion of Mr Chyzh’s name on the lists. Many of those documents are indeed notes or reports drawn up by the Council itself.

182 In those circumstances, it must be held that the Council has not adduced concrete evidence justifying the validity of the inclusion of Mr Chyzh’s name on the lists by Implementing Decision 2012/171 and Implementing Regulation No 265/2012, and the retention of that name on those lists by Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2014/750 and Implementing Regulation No 1159/2014.

183 It is first necessary to recall that Triple’s name was included on the lists by Implementing Decision 2012/171 and Implementing Regulation No 265/2012, on the ground that that company was owned by Mr Chyzh and financially supported the regime of President Lukashenko (see paragraph 132 above).

184 As regards the first ground for inclusion, namely Mr Chyzh’s ownership of Triple, it has already been mentioned, in paragraphs 133 and 134 above, that if the freezing of an entity’s funds is necessary in order to ensure the effectiveness of the measures adopted, the fact remains that the acts by which the restrictive measures at issue were adopted must provide for the application of those measures to the entities owned or controlled by persons or entities already subject to those measures. As is clear from paragraph 136 above, when Implementing Decision 2012/171 and Implementing Regulation No 265/2012 were adopted, neither Decision 2010/639 nor Regulation No 765/2006, in the versions applicable to this case, made any provision enabling the Council to include, on the lists, the names of legal persons, entities or bodies owned or controlled by other persons or entities whose names were included on those lists.

185 It follows that the Council erred by including Triple’s name on the lists, by Implementing Decision 2012/171 and Implementing Regulation No 265/2012, on the ground that that company was held by Mr Chyzh.

186 As regards the second ground for inclusion, namely that Triple financially supported the regime of President Lukashenko, it must be first pointed out that the Council does not provide any evidence in that respect. It merely states that Triple pays taxes and bribes to the Belarusian authorities. However, as is apparent, mutatis mutandis, from paragraphs 169 and 170 above, Triple cannot, on the basis of those allegations alone, be regarded as supporting the regime of President Lukashenko.

187 Furthermore, in the light of the considerations set out in paragraphs 142 to 144 above, Triple’s name is regarded as having been retained on the lists by Decision 2012/642, Implementing Regulation No 1017/2012, Implementing Decision 2014/750 and Implementing Regulation No 1159/2014 on the ground, first, that that company is owned by Mr Chyzh and, second, that the company supports the regime.

188 It should be noted, first, as stated at paragraphs 166 to 182 above, that the Council erred by retaining Mr Chyzh’s name on the lists in Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2014/750 and Implementing Regulation No 1159/2014. Consequently, the retention of Triple’s name on the lists, by the same measures, cannot be based on the ground that Triple is owned by Mr Chyzh. Restrictive measures against entities owned or controlled by a person or another entity is justified only if the name of the person or entity owning or controlling them was validly included on the lists (see, to that effect, judgments in Islamic Republic of Iran Shipping Lines and Others v Council, cited in paragraph 165 above, EU:T:2013:453, paragraphs 75 to 77 and Nabipour and Others v Council, cited in paragraph 137 above, EU:T:2013:640, paragraphs 81 to 86).

189 Next it should be recalled that the Council does not provide evidence of Triple’s support for the regime. As stated in paragraph 184 above, the Council merely asserts that Triple pays taxes and bribes to the Belarusian authorities, without proving those allegations.

190 In those circumstances, it must be held that the Council erred by including Triple’s name on the list in Annex V to Decision 2010/639 and Annex IB to Regulation No 765/2006 by Implementing Decision 2012/171 and Implementing Regulation No 265/2012 and, then by retaining the inclusion of that name on the lists by Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2014/750 and Implementing Regulation No 1159/2014.

191 First, and as a preliminary point, the Court must hold that, even if MSSFC Logoysk and Triple Agro Agricultural Complex (ACC) were mere branches of Triple — since they do not have separate legal personality from Triple and therefore cannot bring proceedings — that would have no consequence on the inclusion of Triple’s name in the contested measures.

192 Second, in the light of the number of applicants and taking into account the above considerations, it is necessary to begin by determining the acts in respect of which the present plea must be examined.

193 Bearing in mind the observations made in paragraph 155 above, the Court must examine the merits of:

– the retention on the lists of the names of NefteKhimTrading, Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Variant, TriplePharm, Rakovsky brovar and Triple-Veles, by Decision 2012/642 and Implementing Regulation No 1017/2012;

– the retention on the lists of the names of NefteKhimTrading, Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Rakovsky brovar and Triple-Veles, by Decision 2013/534 and Implementing Regulation No 1054/2013;

– the retention on the lists of the names of Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Variant and Rakovsky brovar, by Decision 2014/750 and Implementing Regulation No 1159/2014.

194 It should be recalled, next, that the reason for the retention on the lists of the names of the applicants cited in paragraph 193 above by Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2013/534, Implementing Regulation No 1054/2013, Decision 2014/750 and Implementing Regulation No 1159/2014 respectively, is that they are ‘subsidiar[ies] of Triple’.

195 As is clear from paragraphs 187 to 190 above, the Council has failed to establish that it was justified in retaining Triple’s name on the lists by Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2014/750 and Implementing Regulation No 1159/2014.

196 It must therefore be held that the Council erred by retaining on the lists, on the ground that they were Triple’s subsidiaries, on the one hand, the names of NefteKhimTrading, Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Variant, TriplePharm, Rakovsky brovar and Triple-Veles by Decision 2012/642 and Implementing Regulation No 1017/2012, and, on the other hand, the names of Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Variant and Rakovsky brovar by Decision 2014/750 and Implementing Regulation No 1159/2014 (see, to that effect, judgments in Islamic Republic of Iran Shipping Lines and Others v Council, cited in paragraph 165 above, EU:T:2013:453, paragraphs 75 to 77 and Nabipour and Others v Council, cited in paragraph 137 above, EU:T:2013:640, paragraphs 81 to 86).

197 Concerning the retention on the lists of the names of NefteKhimTrading, Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Rakovsky brovar and Triple-Veles by Decision 2013/534 and Implementing Regulation No 1054/2013, it must be recalled, as is clear from paragraphs 33 and 35 above, that it was based on the same grounds as those set out when Decision 2012/642 and Implementing Regulation No 1017/2012 were adopted.

198 Therefore, the finding, as is clear from paragraphs 195 and 196 above, that the fact of being Triple’s subsidiary did not justify the retention, on the lists, of the names Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple and Rakovsky brovar by Decision 2012/642 and Implementing Regulation No 1017/2012 is capable of being applied to Decision 2013/534 and Implementing Regulation No 1054/2013 in so far as they apply to the applicants cited in paragraph 197 above.

199 Thus, even though Decision 2013/534 and Implementing Regulation No 1054/2013 have not been annulled in so far as they apply to Triple, that does not mean that the retention of Triple’s name on the lists by those measures must be regarded as justified in the context of the review of the validity of retaining, on the lists, the names of NefteKhimTrading, Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Rakovsky brovar and Triple-Veles, by Decision 2013/534 and Implementing Regulation No 1054/2013.

200 Given the foregoing considerations, it is necessary to consider that it is not necessary to rule on the argument, put forward at the hearing by the applicants that Triple does not hold any shares in the capital of six of the applicants, namely NefteKhimTrading, Askargoterminal, Altersolutions, Rakovsky brovar, TriplePharm and Triple-Veles.

201 In consequence, in the light of the considerations set out in paragraphs 194 to 200 above, it must be concluded that the Council erred:

– by retaining on the lists, by Decision 2012/642 and Implementing Regulation No 1017/2012, the names of NefteKhimTrading, Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Variant, TriplePharm, Rakovsky brovar and Triple-Veles;

– by retaining on the lists, by Decision 2013/534 and Implementing Regulation No 1054/2013, the names of NefteKhimTrading, Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Rakovsky brovar and Triple-Veles;

– by retaining on the lists, by Decision 2014/750 and Implementing Regulation No 1159/2014, the names of Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Variant and Rakovsky brovar.

202 In the light of all of the foregoing, the Court must uphold the action in part and annul Implementing Decision 2012/171, Implementing Regulation No 265/2012, Decision 2012/642 and Implementing Regulation No 1017/2012 in so far as they relate to all the applicants, Decision 2013/534 and Implementing Regulation No 1054/2013 in so far as they relate to NefteKhimTrading, Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Rakovsky brovar and Triple-Veles, and also Decision 2014/750 and Implementing Regulation No 1159/2014 in so far as they relate to M. Chyzh, Triple, Askargoterminal, Bereza Silicate Products Plant, Variant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple and Rakovsky brovar, without there being any need for the Court to consider the other pleas in law.

203 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party’s pleading.

204 In the circumstances of this case, where the Council has failed on the heads of claim seeking annulment, which were the main subject-matter of the case, it must be ordered to bear all the costs incurred by the applicants, in addition to its own costs, as applied for in the applicants’ pleadings.

1. Annuls Council Implementing Decision 2012/171/CFSP of 23 March 2012 implementing Decision 2010/639/CFSP concerning restrictive measures against Belarus, Council Implementing Regulation (EU) No 265/2012 of 23 March 2012 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus, Council Decision 2012/642/CFSP of 15 October 2012 concerning restrictive measures against Belarus and Council Implementing Regulation (EU) No 1017/2012 of 6 November 2012 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus in so far as they relate to Mr Yury Aleksandrovich Chyzh, Triple TAA, NefteKhimTrading STAA, Askargoterminal ZAT, Bereza Silicate Products Plant AAT, Variant TAA, Triple-Dekor STAA, KvartsMelProm SZAT, Altersolutions SZAT, Prostoremarket SZAT, AquaTriple STAA, Rakovsky brovar TAA, TriplePharm STAA and Triple-Veles TAA;

2. Annuls Council Decision 2013/534/CFSP of 29 October 2013 amending Decision 2012/642 and Council Implementing Regulation (EU) No 1054/2013 of 29 October 2013 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus in so far as they relate to NefteKhimTrading, Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Rakovsky brovar and Triple-Veles;

3. Annuls Council Decision 2014/750/CFSP of 30 October 2014 amending Decision 2012/642 and Council Implementing Regulation (EU) No 1159/2014 of 30 October 2014 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus in so far as they relate to Mr Chyzh, Triple, Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Variant and Rakovsky brovar;

4. Dismisses the action as inadmissible in so far as it seeks annulment of Decision 2013/534 and Implementing Regulation No 1054/2013 in so far as they concern Mr Chyzh, Triple, Variant and TriplePharm;

6. Orders the Council of the European Union to bear its own costs and to pay the costs of Mr Chyzh, Triple, NefteKhimTrading, Askargoterminal, Bereza Silicate Products Plant, Triple-Dekor, KvartsMelProm, Altersolutions, Prostoremarket, AquaTriple, Variant, Rakovsky brovar, TriplePharm and Triple-Veles.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Chyzh and Others v Council (Judgment) [2015] EUECJ T-276/12 (06 October 2015) URL: http://www.bailii.org/eu/cases/EUECJ/2015/T27612.html Cite as: ECLI:EU:T:2015:748, EU:T:2015:748, [2015] EUECJ T-276/12

Court of Justice of the European Communities (including Court of First Instance Decisions)