Action brought on 17 October 2017 — WO Technopromexport v Council
(Case T-722/17)
Language of the case: German
Parties
Applicant: OOO WO Technopromexport (Moscow, Russia) (represented by: N. Meyer, lawyer)
Defendant: Council of the European Union
Form of order sought
The applicant claims that the Court should:
annul the contested Council Decision (CFSP) 2017/1418 1 of 4 August 2017;
in the alternative, and in any event, annul the contested Council Decision (CFSP) 2017/1418 in so far as, by that decision, the applicant was included in No 39 in the list of persons and entities under Article 1 of the decision; and
join the proceedings in this case with the parallel proceedings concerning Mr Topor-Gilka pursuant to Article 68(1) of the Rules of Procedure of the General Court.
Pleas in law and main arguments
In support of the action, the applicant relies on three pleas in law:
First plea in law, alleging several manifest errors of assessment
Reliance on Council Regulation (EU) No 1351/2014 2
That regulation concerns a category of persons other than that to which the applicant belongs and is therefore not a reason why the applicant should be included in the list at issue.
Allegation of a breach of contract
The Council justifies the decision to add the applicant to the list at issue on the basis that, inter alia, gas turbines were supplied to Crimea, and that the provisions of an original supply contract with Siemens Gas Turbine Technology OOO were breached. The appraisal of whether there was in fact a breach of contract is a matter to be determined under Russian law. The parties to the supply contract have instituted proceedings before the Moscow Court of Arbitration. Until such time as that Court of Arbitration has decided the case, the allegation of a breach of contract constitutes an insufficiently solid factual basis and is unsuitable as a justification for Decision 2017/1418 (CFSP).
Transport of gas turbines to Crimea
The allegation against the applicant is that it supplied gas turbines to Crimea. The published press articles are not clear and are based on anonymous sources. It is the task of the competent EU authority to establish that the reasons relied on are sound; it is not the task of the undertaking concerned to adduce evidence to the contrary, namely that those reasons are not sound.
Infringement of the principles of international humanitarian law
Russia is required under international law to restore and maintain public order in Crimea, which at the present time also includes ensuring a safe and constant energy supply. The humanitarian need for such an energy supply is not taken into account in the statement of reasons relating to Decision 2017/1418 (CFSP), and nor are the rules of international humanitarian law.
Second plea in law, alleging infringement of the obligation to state reasons under the second paragraph of Article 296 TFEU
Decision 2017/1418 infringes the obligation to state reasons under the second paragraph of Article 296 TFEU. The reasons stated in No 39 in the annex to the decision are, overall, vague and insufficiently detailed. They do not provide specific reasons as to why the Council, in the exercise of its discretion, decided to apply restrictive measures to the applicant and are thus not at all adequate to satisfy the requirements of the obligation to state reasons under the second paragraph of Article 296 TFEU.
Third plea in law, alleging infringement of the right of defence and the right to effective legal protection
By failing to comply with the obligation to state reasons under the second paragraph of Article 296 TFEU, the Council infringed the applicant’s right of defence and right to effective legal protection, since it is not possible for the applicant to formulate the best possible defence in the absence of knowledge as to the main reasons why it was added to the list at issue.
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1 Council Decision (CFSP) 2017/1418 of 4 August 2017 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2017 L 203 I, p. 5).
2 Council Regulation (EU) No 1351/2014 of 18 December 2014 amending Regulation (EU) No 692/2014 concerning restrictive measures in response to the illegal annexation of Crimea and Sevastopol (OJ 2014 L 365, p. 46).