JUDGMENT OF THE GENERAL COURT (First Chamber)
9 December 2014(*)
(Common foreign and security policy – Restrictive measures adopted against Belarus – Freezing of funds – Obligation to state reasons – Rights of the defence – Right to be heard – Error of assessment)
In Case T‑439/11,
Sport-pari ZAO, established in Minsk (Belarus), represented by V. Vaitkutė Pavan, A. Smaliukas, E. Matulionyte and T. Milašauskas, lawyers,
applicant,
v
Council of the European Union, represented by F. Naert and M. Bishop, acting as Agents,
defendant,
supported by
European Commission, represented by T. Scharf and E. Paasivirta, acting as Agents,
intervener,
APPLICATION for annulment of Council Decision 2011/357/CFSP of 20 June 2011, amending Decision 2010/639/CFSP concerning restrictive measures against certain officials of Belarus (OJ 2011 L 161, p. 25), Council Regulation (EU) No 588/2011 of 20 June 2011 amending Regulation (EC) No 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2011 L 161, p. 1), Council Decision 2011/666/CFSP of 10 October 2011 amending Decision 2010/639/CFSP concerning restrictive measures against Belarus (OJ 2011 L 265, p. 17), Council Implementing Regulation (EU) No 1000/2011 of 10 October 2011 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2011 L 265, p. 8), Council Decision 2012/642/CFSP of 15 October 2012 concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1), 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 (OJ 2012 L 307, p. 7), in so far as those acts concern the applicant,
THE GENERAL COURT (First Chamber),
composed of H. Kanninen (Rapporteur), President, I. Pelikánová and E. Buttigieg, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 28 January 2014,
gives the following
Judgment
Background to the dispute
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), taking the form of preventing their entry into, or transit through, the territories of the Member States.
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 laid down by the latter Common Position to persons directly responsible for the fraudulent elections and referendum in Belarus on 17 October 2004 and those responsible for severe human rights violations in the repression of peaceful demonstrators in the aftermath of those elections and that referendum.
3 On 24 March 2006 the European Council deplored the failure of the Belarusian authorities to meet OSCE (Organisation for Security and Cooperation in Europe) commitments to democratic elections, considered that the Presidential elections of 19 March 2006 were fundamentally flawed and condemned the action of the Belarusian authorities of that day in arresting peaceful demonstrators protesting against 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), taking the form of preventing the entry into, or transit through, the territories of the Member States of President Lukashenko, the Belarusian leadership and certain officials.
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 144, 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). Article 2(1)(b) of Decision 2010/639, as amended by Decision 2011/69, provides: ‘All funds and economic resources belonging to … persons who are responsible … for the violations of international electoral standards in the presidential elections in Belarus on 19 December 2010, and the crackdown on civil society and democratic opposition, and those natural or legal persons, entities or bodies associated with them, as listed in Annex IIIA, shall be frozen’.
9 On the same date the Council adopted Implementing Regulation (EU) No 84/2011 amending Regulation No 765/2006 (OJ 2011 L 28, p. 17). Under Article 2(1) and (5) of Regulation No 765/2006, as amended by Implementing Regulation No 84/2011, all funds and economic resources of persons and entities listed in Annex IA were to be frozen, that annex containing the names of 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.
10 By Council Decision 2011/357/CFSP of 20 June 2011 amending Decision 2010/639 (OJ 2011 L 161, p. 25), the Council decided, in view of the gravity of the situation in Belarus, that additional persons and entities should be included in the list of those subject to restrictive measures as set out in Annex IIIA to Decision 2010/639 (‘Annex IIIA’), one such entity being the applicant, Sport-pari ZAO, described as ‘Operator of the Republican Lottery company’ and with the reason ‘Entity controlled by [Vladimir Peftiev]’.
11 In order to implement at European Union level the measures described in Decision 2011/357, the Council adopted, on the basis of, inter alia, Article 215 TFEU, Regulation (EU) No 588/2011 of 20 June 2011, amending Regulation No 765/2006 (OJ 2011 L 161, p. 1), which includes the applicant’s name in the list in Annex IA to Regulation No 765/2006 (‘Annex IA’), with the entry ‘Operator of the Republican Lottery company’ and with the reason ‘Entity controlled by [Vladimir Peftiev]’.
12 On 21 June 2011 the Council published in the Official Journal of the European Union a notice for the attention of the persons and entities to which restrictive measures provided for in Decision 2010/639, as amended by Decision 2011/357, and in Regulation No 765/2006, as amended by Regulation No 588/2011 concerning restrictive measures against Belarus, apply (OJ 2011 C 180, p. 9).
13 By letter of 8 July 2011, the applicant requested that the Council disclose to it the grounds for its listing in Annex IIIA and Annex IA.
14 On 2 August 2011 the Council informed the applicant that it was examining its request and that the applicant would be notified of the Council’s response.
15 On 8 August 2011 the applicant requested that the Council reconsider its listing in Annex IIIA and Annex IA.
16 By means of Decision 2011/666/CFSP of 10 October 2011, amending Decision 2010/639 (OJ 2011 L 265, p. 17), the Council (i) extended the restrictive measures laid down in Decision 2010/639 until 31 October 2012, (ii) added names to the list in Annex IIIA and (iii) amended the entries relating to certain persons and entities in Annex IIIA. As regards the applicant, the wording ‘Operator of the Republican Lottery company’ was deleted and, in the column headed ‘Position’, there is the following entry: ‘Entity controlled by [Vladimir Peftiev] in conjunction with Lukashenka, Dzmitry Aliaksandravich, through the latter’s control of the President’s Sports Club, which holds a mandatory, state-owned majority share in Sport-Pari.’
17 By Implementing Regulation (EU) No 1000/2011 of 10 October 2011, implementing Article 8a(1) of Regulation No 765/2006 (OJ 2011 L 265, p. 8), the Council added certain persons to the list in Annex IA and amended the entries concerning certain persons and entities in Annex IA. As regards the applicant, the wording ‘Operator of the Republican Lottery company’ was deleted and, in the column headed ‘Position’ there is an entry which is the same as that in Annex IIIA, as amended by Decision 2011/666, as quoted in paragraph 16 above.
18 On 11 October 2011 the Council published in the Official Journal a notice for the attention of the persons to which restrictive measures provided for in Decision 2010/639, as amended by Decision 2011/666, and in Regulation No 765/2006, as implemented by Implementing Regulation No 1000/2011, apply (OJ 2011 C 299, p. 4).
19 On 7 November 2011 the applicant renewed its request to the Council for the disclosure of the grounds for its listing in Annex IIIA and in Annex IA and for the reconsideration of that listing.
20 On 14 November 2011 the Council replied to the applicant’s request of 8 August 2011, stating, inter alia, that the reason why it was listed in Annex IIIA and Annex IA was the fact that it was an entity controlled by Mr Peftiev, who was designated in those lists as a person associated with President Lukashenko and his family, and not the fact that it was responsible for violations of international electoral standards in the 2010 Presidential elections in Belarus or for the crackdown on civil society and democratic opposition. The Council added that Mr Peftiev controlled the applicant, through the company BT Telecommunications, owning 27% of its shares, in conjunction with one of the sons of President Lukashenko by reason of the State having an mandatory majority shareholding in the applicant amounting to 69%.
21 On 10 January 2012 the applicant requested access to the file concerning it in order to be informed of the reasons for its listing in Annex IIIA and in Annex IA.
22 By letter of 17 February 2012, the Council replied to the applicant’s letters of 7 November 2011 and 10 January 2012 and gave it access to certain documents.
23 By means of 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 whose names 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.
24 Article 4(1) of Decision 2012/642 is worded as follows:
‘All funds and economic resources belonging to, owned, held or controlled by:
(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 Lukashenka regime, as well as legal persons, entities or bodies owned or controlled by them,
as listed in the Annex shall be frozen.’
25 The Annex to Decision 2012/642 contains the name of the applicant with the following entry:
‘Entity controlled by Vladimir Peftiyev, through his entities Business Network and BT Telecommunications. Sport-Pari is controlled by Peftiyev in conjunction with Dzmitry Aliaksandravich Lukashenka, through the latter’s control of the President’s Sports Club, which holds a mandatory, state-owned majority share in Sport-Pari.’
26 Article 2 of Regulation No 765/2006 was amended by Regulation (EU) No 1014/2012 of 6 November 2012 amending Regulation No 765/2006 (OJ 2012 L 307, p. 1) to read as follows:
‘1. All funds and economic resources belonging to, or owned, held or controlled by the natural or legal persons, entities or 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 … 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 and 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 Lukashenka regime, as well as legal persons, entities and bodies owned or controlled by them.’
27 By Council Implementing Regulation (EU) No 1017/2012 of 6 November 2012, implementing Article 8a(1) of Regulation No 765/2006 (OJ 2012 L 307, p. 7), the Council consolidated in a single annex, namely Annex I, the texts of Annexes I, IA and IB to Regulation No 765/2006.
28 Under Implementing Regulation No 1017/2012, the applicant was listed in Annex I to Regulation No 765/2006 with an entry identical to that in the Annex to Decision 2012/642, referred to in paragraph 25 above.
29 By letter of 7 November 2012, the Council informed the applicant that it would continue to be included in the lists of persons and entities subject to restrictive measures (‘the lists’) and that the grounds for that continued listing were stated in the Annex to Decision 2012/642 and in Annex I to Regulation No 765/2006.
30 By Council Implementing Decision 2013/248/CFSP of 29 May 2013, implementing Decision 2012/642 (OJ 2013 L 143, p. 24), and by Council Implementing Regulation (EU) No 494/2013 of 29 May 2013 implementing Regulation No 765/2006 (OJ 2013 L 143, p. 1), the applicant’s name was removed from the lists.
Procedure and forms of order sought by the parties
31 By application lodged at the Court’s Registry on 12 August 2011, the applicant brought this action for the annulment of Decision 2011/357 and Regulation No°588/2011, in so far as those acts concerned it.
32 By separate document, lodged at the Registry on 12 August 2011, the applicant applied for the case to be decided under an expedited procedure pursuant to Article 76a of the Court’s Rules of Procedure. The Court (Eighth Chamber) rejected that request.
33 By document lodged at the Court’s Registry on 28 October 2011 the European Commission sought leave to intervene in the present proceedings in support of the Council.
34 On 25 November 2011 this case was re-allocated to the Sixth Chamber of the Court.
35 By document lodged at the Court’s Registry on 30 November 2011, the applicant requested confidentiality, vis-à-vis the Commission, of certain information and produced, for that purpose, a non‑confidential version of the application and its annexes and of the request for an expedited procedure.
36 By document lodged at the Court’s Registry on 12 December 2011, the applicant adapted its heads of claim so that the action should also concern Decision 2011/666 and Implementing Regulation No 1000/2011. In the rejoinder, the Council stated that, in so far as those acts concerned the applicant, it had no objections to the adaptation of the forms of order sought in the action.
37 By order of 10 January 2012, the President of the Sixth Chamber of the Court granted leave to the Commission to intervene in support of the forms of order sought by the Council and decided that non-confidential versions of the procedural documents would be sent to the Commission. The Commission submitted no objections to the applicant’s application for confidentiality.
38 By letter lodged at the Court’s Registry on 24 February 2012, the Commission waived its right to submit a statement in intervention.
39 On 13 November 2012, as a measure of organisation of procedure provided for by Article 64 of the Rules of Procedure, the Court sent a written question to the applicant relating to the individual notification of its listing. The applicant responded by letter lodged at the Court’s Registry on 16 November 2012.
40 By document lodged at the Court’s Registry on 14 December 2012, the applicant adapted its heads of claim so that the action should also seek the annulment of Decision 2012/642 and Implementing Regulation No 1017/2012. By letters lodged at the Court’s Registry on 24 and 28 January 2013 respectively, the Commission and the Council stated that they had no objections to that adaptation of the forms of order sought in the action.
41 On 23 September 2013 this case was re-allocated to the First Chamber of the Court.
42 Upon hearing the report of the Judge-Rapporteur, the Court (First Chamber) decided to open the oral procedure.
43 On 31 October 2013, as a measure of organisation of procedure provided for in Article 64 of the Rules of Procedure, the Court asked the Council to send to it a copy of the notice referred to in paragraph 12 above, which the Council duly did.
44 By letter of 14 January 2014, the Commission informed the Court that it would not attend the hearing.
45 The parties presented oral argument and replied to questions put by the Court at the hearing on 28 January 2014.
46 The applicant claims that the Court should:
– annul Decision 2011/357, Regulation No 588/2011, Decision 2011/666, Implementing Regulation No 1000/2011, Decision 2012/642 and Implementing Regulation No 1017/2012, in so far as they concern it;
– order the Council to pay the costs.
47 The Council, supported by the Commission, contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
Admissibility of the adaptation of the forms of order sought
48 As stated in paragraphs 36 and 40 above, after the initiating application was lodged, the applicant adapted the heads of claim in its action for annulment so that it should be directed against not only Decision 2011/357 and Regulation No 588/2011, but also Decision 2011/666, Implementing Regulation No 1000/2011, Decision 2012/642 and Implementing Regulation No 1017/2012, in so far as those acts concern it.
49 It is to be borne in mind in this connection that, when a decision or a regulation of direct and individual concern to an individual 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 adapt its claims and pleas in law. It would be contrary to the principle of due 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, contained in an application to the Courts of the European Union, 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, Case T‑256/07 People’s Mojahedin Organization of Iran v Council [2008] ECR II‑3019, paragraph 46, and Case T-110/12 Iranian Offshore Engineering & Construction v Council [2013] ECR, paragraph 16).
50 In this case, Decisions 2011/666 and 2012/642 extended, to 31 October 2012 and 31 October 2013 respectively, the restrictive measures to which the applicant was subject. Further, both (i) Decision 2011/666 and Implementing Regulation No 1000/2011 and (ii) Decision 2012/642 and Implementing Regulation No 1017/2012 amended the grounds for the applicant’s continued listing.
51 Further, the claims directed against (i) Decision 2011/666 and Implementing Regulation No 1000/2011 and (ii) Decision 2012/642 and Implementing Regulation No 1017/2012 were lodged at the Court’s Registry within the period for bringing proceedings laid down by the sixth paragraph of Article 263 TFEU, in accordance with the case-law (see, to that effect, Joined Cases T‑35/10 and T‑7/11 Bank Melli Iran v Council [2013] ECR, paragraph 55, and Case T‑8/11 Bank Kargoshaei and Others v Council [2013] ECR, paragraph 40), extended on account of distance by the single period of 10 days provided for by Article 102(2) of the Rules of Procedure.
52 The adaptation of the heads of claim in the action so that the subject‑matter of the action should extend to Decision 2011/666, Implementing Regulation No 1000/2011, Decision 2012/642 and Implementing Regulation No 1017/2012 (those acts, together with Decision 2011/357 and Regulation No 588/2011 being hereinafter referred to as ‘the contested acts’) must therefore be accepted. It may be added that neither the Council nor the Commission objected to the adaptation of the heads of claim in the action.
Substance
53 In support of the action, the applicant relies on five pleas in law: (i) manifest errors of assessment, (ii) infringement of the obligation to state reasons, (iii) infringement of the rights of the defence and the right to be heard, (iv) infringement of the right to property and (v) infringement of the principle of proportionality.
Infringement of the obligation to state reasons
54 The applicant claims, in essence, that it is not in a position to know what the actual and specific reasons are for its being listed. The applicant also claims that the Court is unable to exercise its power to review the legality of the contested acts. In that regard, the applicant argues, first, that the ground for its listing by means of Decision 2011/357 and Regulation No 588/2011, namely ‘Entity controlled by [Vladimir Peftiev]’ is vague and general. The applicant then submits that the ground for its listing is even more general and ambiguous than those debated in the case which gave rise to the judgment in Case T‑86/11 Bamba v Council [2011] ECR II‑2749, which held that the ground at issue was not capable of being a sufficient reason for inclusion in a list of persons subject to restrictive measures. The applicant also cites the judgment of 16 September 2011 in Case T‑316/11 Kadio Morokro v Council, not published in the ECR, and the judgment in Case T‑562/10 HTTS v Council [2011] ECR II‑8087, as requiring the Council to communicate to the person concerned reasons which are sufficient and specific for that person’s listing. According to the applicant, those judgments show a clear tendency on the part of the Court to depart from the approach maintained in Case T‑181/08 Tay Za v Council [2010] ECR II‑1965. Further, the applicant claims that the ground ‘Entity controlled by [Vladimir Peftiev]’ is not sufficient to demonstrate the link between it and the regime and, in particular, how it is responsible for the violations of international electoral standards which marked the Presidential elections of 19 December 2010 in Belarus or how it participated in the crackdown on civil society and democratic opposition.
55 The Council’s response, in essence, 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 listing of persons and entities who were to be the subject of restrictive measures and, third, the reasons why the Council considers that the applicant is covered by those criteria. In that regard, the Council states that it has never claimed that the applicant is associated with the regime or that it is responsible for, or participated in, the violations of international electoral standards which marked the Presidential elections of 19 December 2010 in Belarus or the crackdown on civil society and democratic opposition. According to the Council, the applicant is listed solely on the ground that it is controlled by Mr Peftiev, who is considered to be associated with President Lukashenko and his family. The Council also considers that it is clear from the application that the applicant understood why it had been listed. The Council submits, last, that the applicant’s situation is very different from that of the applicant in the case which gave rise to the judgment in Bamba v Council, paragraph 54 above, and observes that that judgment was set aside by the Court of Justice on 15 November 2012, by the judgment in Case C‑417/11 P Council v Bamba [2012] ECR.
56 According to settled case-law, the purpose of the obligation to state the reasons for an act adversely affecting a person, as laid down 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 Courts of the European Union and, second, to enable the latter to review the lawfulness of the act (see, to that effect, Case C‑199/99 P Corus UK v Commission [2003] ECR I‑11177, paragraph 145; Case C‑521/09 P Elf Aquitaine v Commission [2011] ECR I‑8947, paragraph 148; and Council v Bamba, paragraph 55 above, paragraph 49).
57 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 having jurisdiction to exercise its power of review (see, to that effect, Joined Cases C‑539/10 P and C‑550/10 P Al‑Aqsa v Council and Netherlands v Al‑Aqsa [2012] ECR, paragraph 138, and Council v Bamba, paragraph 55 above, paragraph 50).
58 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 (Council v Bamba, paragraph 55 above, paragraph 51).
59 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, Council v Bamba, paragraph 55 above, paragraph 52, and Case T‑390/08 Bank Melli Iran v Council [2009] ECR II‑3967, paragraph 83).
60 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, Al-Aqsa v Council and Netherlands v Al‑Aqsa, paragraph 57 above, paragraphs 139 and 140, and Council v Bamba, paragraph 55 above, paragraph 53).
61 In particular, the reasons given for a measure adversely affecting a person are sufficient if it was adopted in circumstances known to the party concerned which enable him to understand the scope of the measure concerning him (see, to that effect, Council v Bamba, paragraph 55 above, paragraph 54).
62 It follows that, in order to determine whether the contested acts 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 applicant’s listing was justified in the light of the legal criteria applicable.
63 First, it must be held that the background to the imposition of restrictive measures on the applicant was known to it, a fact which, it may be said, the applicant does not dispute. Suffice it to observe, in that regard, that the acts at issue all mention, in the recitals in their preambles, the ‘gravity of the situation’ in Belarus and refer to Decision 2010/639 and Regulation No 725/2006, which themselves refer to Common Position 2006/276, cited in paragraph 4 above, and Common Position 2006/362, cited in paragraph 5 above, which describe the political background in Belarus.
64 Second, as regards the reasons why restrictive measures are specifically imposed on the applicant, it must be recalled that, by means of Decision 2011/357 and Regulation No 588/2011, the Council listed the applicant on the ground that it was an ‘[e]ntity controlled by [Vladimir Peftiev]’ and that, by Decision 2011/666 and Implementing Regulation No 1000/2011, the applicant’s listing was continued on the ground, in essence, that it was an entity controlled by Mr Vladimir Peftiev in conjunction with Mr Dzmitry Aliaksandravich Lukashenko.
65 It is clear from the case-law that when the funds of a person or an entity 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 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, Case T‑492/10 Melli Bank v Council [2013] ECR, paragraph 55).
66 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 those persons already subject to those measures (see, to that effect, Case C‑380/09 P Melli Bank v Council [2012] ECR, paragraphs 39 and 75 to 79, and Case T‑492/10 Melli Bank v Council, paragraph 65 above, paragraphs 55 and 56).
67 However, when Decision 2011/357, Regulation No 588/2011, Decision 2011/666 and Implementing Regulation No 1000/2011 were adopted, it was stated in Article 2(1)(b) of Decision 2010/639 and Article 2(1) and (5) of Regulation No 765/2006 that the only persons subject to Annex IIIA and Annex IA were, first, the persons responsible for the violations of international electoral standards which marked the Presidential elections of 19 December 2010 in Belarus and for the crackdown on civil society and democratic opposition and, second, the natural or legal persons, entities and bodies associated with them.
68 When Decision 2011/357, Regulation No 588/2011, Decision 2011/666 and Implementing Regulation No 1000/2011 were adopted, neither Decision 2010/639 nor Regulation No 765/2006, in the versions applicable to this case, made any provision for the Council being able to list legal persons, entities or bodies owned or controlled by other listed persons or entities. The Council made provision for that option 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 subsequent to the adoption of Decision 2011/357, Regulation No 588/2011, Decision 2011/666 and Implementing Regulation No 1000/2011.
69 In this case, it is plain that, on the basis of the statement of reasons in Decision 2011/357, Regulation No 588/2011, Decision 2011/666 and Implementing Regulation No 1000/2011, the applicant cannot be included in either of the two categories defined in paragraph 67 above. That statement does not concern either a natural person responsible for the violations of international electoral standards which marked the Presidential elections of 19 December 2010 in Belarus or the crackdown on civil society and democratic opposition, or an entity associated with those responsible and affected by the provisions cited in paragraph 67 above.
70 It follows that the statement of reasons for the listing of the applicant, and the continuation of that listing, in Annex IIIA and Annex IA, by means of Decision 2011/357, Regulation No 588/2011, Decision 2011/666 and Implementing Regulation No 1000/2011, did not enable the applicant, having regard to the provisions cited in paragraph 67 above, to understand why it had been listed in those annexes, since it did not enable the applicant to determine which criterion the Council had relied on as justification for the adoption of restrictive measures.
71 On the other hand, as regards the statement of reasons for the listing of the applicant by means of Decision 2012/642 and Implementing Regulation No 1017/2012, it must be recalled that, under Article 4(1)(b) of Decision 2012/642 and Article 2(5) of Regulation No 765/2006, as amended by Regulation No 1014/2012, the persons and entities to be listed are, in particular, ‘natural or legal persons, entities or bodies benefiting from or supporting the Lukashenka regime, as well as legal persons, entities or bodies owned or controlled by them’.
72 As stated in paragraphs 25 and 28 above, Decision 2012/642 and Implementing Regulation No 1017/2012 maintained the applicant’s listing on the ground, in essence, that it was an entity controlled by Mr Peftiev in conjunction with Mr Dzmitry Aliaksandravich Lukashenko.
73 Having regard to the provisions cited in paragraph 71 above, the applicant was therefore in a position to understand why its listing had been continued by means of Decision 2012/642 and Implementing Regulation No 1017/2012. The applicant was moreover able effectively to challenge the merits of its continued listing by means of those two acts, which was demonstrated by the arguments advanced in its written pleadings and at the hearing.
74 In those circumstances, it must be held that the statement of reasons in Decision 2012/642 and Implementing Regulation No 1017/2012 is sufficient in so far as the applicant is concerned.
75 That conclusion cannot be rebutted by the applicant’s reference to the judgment in Bamba v Council, paragraph 54 above. It must be recalled that the sufficiency of the statement of reasons must be assessed on a case-by-case basis, according to the circumstances of the particular case. The reasons stated for the listing of the applicant in the case which gave rise to the judgment in Bamba v Council, paragraph 54 above, differ from those which caused the applicant in this case to be listed. The ruling in Bamba v Council, paragraph 54 above, cannot therefore be transposed to this case. In any event, it must be noted that the judgment in Bamba v Council, paragraph 54 above, was set aside by the Court of Justice on the ground that the General Court had erred in holding that the statement of reasons in the contested decision was insufficient. Further, it must be added that while it is true that the judgments in Kadio Morokro v Council and HTTS v Council, paragraph 54 above, post‑date the judgment in Tay Za v Council, paragraph 54 above, they precede the judgment in Bamba v Council, paragraph 54 above.
76 It follows that the plea in law concerning an infringement of the obligation to state reasons must be upheld with regard to Decision 2011/357, Regulation No 588/2011, Decision 2011/666 and Implementing Regulation No 1000/2011, in so far as those acts concern the applicant, and must be rejected with regard to Decision 2012/642 and Implementing Regulation No 1017/2012.
77 Consequently, the other pleas in the action will be examined solely in so far as they concern Decision 2012/642 and Implementing Regulation No 1017/2012.
The plea concerning infringement of the rights of the defence and the right to be heard
78 The applicant claims that the contested acts are contrary to its rights of defence and its right to a fair hearing, within the meaning of Article 47 of the Charter of Fundamental Rights of the European Union, and Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’).
79 The applicant claims in that regard that: (i) contrary to what is argued by the Council, the rights of the defence are applicable to it; (ii) the contested acts make no provision at any time for the communication to it of reasons for its being listed and, therefore, do not provide it with the possibility of exercising its rights of defence and its right to request the removal of its name from the lists; (iii) the restrictive measures laid down by the contested acts constitute penalties which justify, as such, the application of the safeguards in relation to matters of criminal law provided by Article 6 of the ECHR; (iv) given that the statement of reasons for the contested acts is insufficient, the applicant was not in a position to use its rights of defence effectively; (v) the applicant was not at any time personally notified of the reasons for its being listed and it was not heard either before or after the adoption of the contested acts. In that regard, the applicant claims that it is a requirement of the right to a fair hearing that it should have been heard before the adoption of the contested acts. The applicant claims (vi) that its rights of defence were substantially impaired by the fact that the competent national authority to which application was made, namely the Ministry of Foreign Affairs of the Republic of Lithuania, refused to release to it frozen funds in order to pay for the provision of legal services essential for its defence. The applicant claims (vii) that the procedure of applying for reconsideration of its listing was, as far as it was concerned, ineffective. The applicant states in that regard that the subsequent fund freezing measures were adopted even before a reply had been given to its request for reconsideration of 8 August 2011, since that reply was given on 14 November 2011.
80 The Council contests the applicant’s arguments. The Council claims, inter alia, that in a legislative procedure culminating in the adoption of sanctions against a third country which apply to certain categories of its nationals, the rights of the defence are not applicable to them. The Council adds that, in any event, it respected the applicant’s rights of defence.
– The applicability of the rights of the defence to the applicant
81 First, it must be recalled that since the judgment of the General Court in Tay Za v Council, paragraph 54 above, was set aside on appeal, in its entirety, by the judgment of the Court of Justice of 13 March 2012 in Case C‑376/10 P Tay Za v Council [2012] ECR, what is stated in the former judgment is no longer part of the legal order of the European Union and cannot validly be relied on by the Council (see, to that effect, Case T‑492/10 Melli Bank v Council, paragraph 65 above, paragraph 78, and the judgment of 20 March 2013 in Case T‑495/10 Bank Saderat v Council, not published in the ECR, paragraph 73).
82 Secondly, Article 6(2) and (3) of Decision 2012/642 and Article 8a(2) and (3) of Regulation No 765/2006, in the versions applicable to this case, contain provisions safeguarding the rights of defence of persons and entities subject to restrictive measures adopted under those texts.
83 In any event, according to the case-law, observance of the rights of the defence, especially the right to be heard, in all proceedings initiated against an entity which may lead to a measure adversely affecting that entity, is a fundamental principle of European Union law which must be guaranteed, even when there are no rules governing the procedure in question (Case T‑390/08 Bank Melli Iran v Council, paragraph 59 above, paragraph 91).
84 Consequently, it must be held that the rights of the defence are applicable to the applicant and that respect for those rights is subject to review by the Courts of the European Union (see, to that effect, Case T‑492/10 Melli Bank v Council, paragraph 65 above, paragraph 79, and Bank Saderat v Council, paragraph 81 above, paragraph 74).
85 The Council’s argument must therefore be rejected.
– The complaint that the acts at issue do not provide for the communication of the grounds for the applicant’s listing
86 Article 6(2) and (3) of Decision 2012/642 and Article 8a(2) and (3) of Regulation No 765/2006, in the versions applicable to this case, provide that, first, the Council is to communicate to the person concerned its decision, including the grounds for listing, either directly, if the person’s address is known, or through the publication of a notice, providing him with an opportunity to present observations and, second, where observations are submitted or where substantial new evidence is presented, the Council is to review its decision and inform the person concerned accordingly.
87 It follows that the applicant cannot claim that the acts at issue do not provide at any time for the communication of detailed reasons for its being listed, thus not enabling it to exercise its rights of defence, its right to be heard, or its right to access to a procedure permitting it to seek the removal of its name from the lists.
88 This complaint must therefore be rejected.
– The argument that the restrictive measures constitute penalties
89 Suffice it to recall that, in accordance with settled case-law, restrictive measures consisting of freezing of funds are not penal in nature (see, to that effect, the judgment of 11 July 2007 in Case T‑47/03 Sison v Council, not published in the ECR, paragraph 101, and Case T‑49/07 Fahas v Council [2010] ECR II‑5555, paragraph 67). Since the assets of the persons concerned have not been confiscated as the proceeds of a crime, but frozen as a precautionary measure, those measures do not constitute penalties and do not, moreover, imply any accusation of a criminal nature (see, to that effect, Sison v Council, paragraph 101).
90 The applicant cannot therefore claim that the restrictive measures consisting of freezing of funds imposed on it constitute penalties which, as such, require respect for the safeguards laid down in relation to matters of criminal law by Article 6 of the ECHR.
91 This argument must therefore be rejected.
– The complaint that the applicant was never personally informed of the reasons applied to it and was not heard either before or after the adoption of the contested acts
92 As stated in paragraph 86 above, Article 6(2) of Decision 2012/642 and Article 8a(2) of Regulation No 765/2006, in the versions applicable to this case, provide that the Council is to communicate its decision, including the grounds for listing, to the natural or legal person, entity or body concerned, either directly, if the address is known, or by the publication of a notice, providing the opportunity to present observations.
93 In this case, by letter of 7 November 2012, mentioned in paragraph 29 above, the Council informed the applicant that its name would continue to be listed, by means of Decision 2012/642 and Implementing Regulation No 1017/2012.
94 Further, in accordance with the case-law, respect for the rights of the defence and, in particular, the right to be heard, with regard to restrictive measures, does not require the European Union authorities, prior to the initial inclusion of the name of a person or entity in a list imposing restrictive measures, to disclose the grounds for that listing to the person or entity concerned (see, to that effect, Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351, paragraph 338).
95 Such prior disclosure would be liable to jeopardise the effectiveness of the freezing of funds and economic resources imposed by those authorities (see, to that effect, Kadi and Al Barakaat International Foundation v Council and Commission, paragraph 94 above, paragraph 339). In order to attain their objective, such measures must, by their very nature, take advantage of a surprise effect and apply with immediate effect (see, to that effect, Kadi and Al Barakaat International Foundation v Council and Commission, paragraph 94 above, paragraph 340, and Case T‑383/11 Makhlouf v Council [2013] ECR, paragraphs 37 to 40).
96 However, in the context of the adoption of Decision 2012/642 and Implementing Regulation No 1017/2012, which are subsequent acts which maintained the listing of the applicant, the argument as to the surprise effect of those measures can in principle no longer be validly relied upon (see, to that effect, and by analogy, Case C‑27/09 P France v People’s Mojahedin Organization of Iran [2011] ECR I‑13427, paragraph 62, and Makhlouf v Council, paragraph 95 above, paragraph 42).
97 It is however apparent from the case-law that the right to be heard prior to the adoption of acts which maintain the imposition of restrictive measures on persons already subject to such measures presupposes that the Council has adduced new evidence against those persons (see, to that effect, and by analogy, France v People’s Mojahedin Organization of Iran, paragraph 96 above, paragraph 63, and Makhlouf v Council, paragraph 95 above, paragraph 43).
98 In this case, first, it must be observed that, by Decision 2011/666 and Implementing Regulation No 1000/2011, the Council had previously maintained the listing of the applicant on the ground that it was considered to be an ‘[e]ntity controlled by [Vladimir Peftiev] in conjunction with Lukashenka, Dzmitry Aliaksandravich, through the latter’s control of the President’s Sports Club, which holds a mandatory state-owned majority share in Sport-Pari’.
99 Second, it is plain that, in its letter of 14 November 2011, mentioned in paragraph 20 above, the Council specified that Mr Peftiev controlled the applicant, through BT Telecommunications, to the extent of 27% of its share capital, in conjunction with one of the sons of President Lukashenko by reason of a mandatory State‑owned majority share in Sport-Pari amounting to 69%.
100 In those circumstances, as is clear from paragraphs 25 and 28 above, it must be held that, by Decision 2012/642 and Implementing Regulation No 1017/2012, the Council did not, when maintaining the applicant’s listing, rely on any evidence which had not previously been disclosed to the applicant following its initial listing.
101 It follows that the Council was not obliged to disclose to the applicant the grounds for its continued listing, prior to the adoption of Decision 2012/642 and Implementing Regulation No 1017/2012.
102 This complaint must therefore be rejected.
– The complaint that the statement of reasons in the contested acts is insufficient
103 As stated in paragraphs 71 to 75 above, Decision 2012/642 and Implementing Regulation No 1017/2012 contained information which was sufficiently detailed on the grounds for the continued listing of the applicant.
104 Consequently, the applicant cannot maintain that those acts, in so far as they failed to provide detailed information on the reasons for its listing, did not enable it to exercise its rights of defence and right to be heard.
105 This complaint must therefore be rejected.
– The complaint that the applicant’s rights of defence were substantially impaired by reason of the refusal of the Republic of Lithuania to release its funds
106 This complaint is ineffective in that it is directed against neither the substantive legality of the contested acts nor the procedure followed by the Council for their adoption.
107 In any event, it must be stated that the applicant does no more than claim that its rights of defence were ‘substantially impaired’ by reason of the refusal of the Republic of Lithuania to release its frozen funds but fails to establish that the difficulties, notably financial difficulties, allegedly linked to the refusal to release frozen funds prevented it from exercising its rights of defence.
108 This complaint must therefore be rejected.
– The complaint that the procedure for reconsideration was, as regards the applicant, ineffective
109 Under Article 6(2) of Decision 2012/642 and Article 8a(2) of Regulation No 765/2006, in the versions applicable at the material time, 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. Article 6(3) and Article 8a(3) of those texts provide that where observations are submitted or where substantial new evidence is presented, the Council is to review its decision and inform the person concerned accordingly.
110 The notices for the attention of the persons and entities to which restrictive measures apply, mentioned in paragraphs 12 and 18 above, state that the persons and entities may submit a request to the Council that the decision to list them should be reconsidered.
111 In this case, the applicant requested the reconsideration of its listing by means of the letters of 8 August and 7 November 2011, mentioned respectively in paragraphs 15 and 19 above.
112 The Council replied to those requests on 14 November 2011, within a period which cannot be regarded as unreasonable.
113 In the Council’s reply of 14 November 2011, the Council states that the continued listing of the applicant is justified, taking into account the grounds applied to it, which grounds are set out in detail by the Council, as stated in paragraph 20 above.
114 In those circumstances, the applicant cannot maintain that the Council’s reply of 14 November 2011 does not constitute a reply to its request for reconsideration.
115 That conclusion cannot be called into question by the argument that the letter of 14 November 2011 was sent after the adoption of Decision 2011/666 and Implementing Regulation No 1000/2011, which maintained the listing of the applicant. The legislation at issue does not impose any obligation on the Council to reply to a request for reconsideration before the adoption of a decision to maintain the listing of the person concerned. The Council may undertake concurrent examinations of a request for reconsideration and of a person’s continued listing.
116 Further, the applicant does no more than claim that the fact that the decisions on its continued listing were adopted before the Council replied to its requests for reconsideration demonstrates that the procedure for reconsideration is ineffective. However, it adduces no specific evidence from which it can be established that the Council did not properly examine its requests for reconsideration.
117 It must further be observed that, as stated by the Council, the details added to the reasons stated in the acts at issue, to justify the applicant’s continued listing, followed the applicant’s request for reconsideration of 8 August 2011, which necessarily implies that reconsideration took place.
118 In those circumstances, the applicant cannot therefore maintain that it did not have the opportunity actually to request reconsideration of its listing or that that reconsideration was ineffective.
119 It follows that this complaint must be rejected and, consequently this plea in law must be rejected in its entirety.
The plea concerning manifest errors of assessment
120 The applicant submits, in essence, that the Council made several manifest errors of assessment. The applicant claims in that regard, first, that it is not controlled by Mr Peftiev, who owns, through the intermediary of the company BT Telecommunications, only 27% of its share capital. The applicant claims, second, that, it is not a ‘national lottery’, as the Council describes it. The applicant states, in that regard, that the State (through the State republican association ‘President’s Sport Club’) owns 69% of the applicant’s share capital, in order to meet a legal requirement. Third, the applicant claims that it did not participate in the violations of international electoral standards in the Presidential elections in Belarus on 19 December 2010 and in human rights violations or in the trade of material which might be used for the purposes of repression in Belarus. The applicant is merely concerned with the organisation of online lotteries and does not use either its activities or its funds to support the Belarusian regime. If the applicant’s inclusion on the lists at issue is to be valid, the Council must prove that there is a reasonable link between the applicant and the abovementioned acts and not merely state that the applicant is associated with a person who is himself associated with the persons responsible for those acts.
121 The Council’s response is, first, that the applicant accepts that 27% of its shares are owned by Mr Peftiev, through the intermediary of BT Telecommunications. The Council contends, second, that the 27% of shares in the applicant’s capital owned by Mr Peftiev, through the intermediary of BT Telecommunications, must be added to the 69% of the applicant’s share capital owned by the President’s Sport Club association, which is controlled by Mr Dzmitry Lukashenko, who is one of the sons of President Lukashenko. According to the Council, in view of the reason for Mr Peftiev’s listing, namely his association with President Lukashenko and his family, it must be concluded that the applicant is controlled by Mr Peftiev. The Council states, third, that the applicant is not listed on the ground that it participated in the violations of international electoral standards and in human rights violations or in the trade of material which might be used for the purposes of repression in Belarus, but on the ground that it is controlled by Mr Peftiev.
122 As stated in paragraph 71 above, when Decision 2012/642 and Implementing Regulation No 1017/2012 were adopted, under Article 4(1)(b) of Decision 2012/642 and Article 2(5) of Regulation No 765/2006, as amended by Regulation No 1014/2012, the persons and entities to be listed were, in particular, ‘natural or legal persons, entities or bodies benefiting from or supporting the Lukashenka regime, as well as legal persons, entities or bodies owned or controlled by them’.
123 According to the case-law, where a person, such as Mr Peftiev, is listed as being a person who is associated with a regime or as supporting it, there is a not insignificant danger that that person may exert pressure on the entities he owns or controls in order to circumvent the effect of the measures applying to him. 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, and by analogy, Case C-380/09 P Melli Bank v Council, paragraph 66 above, paragraph 58;Case T‑493/10 Persia International Bank v Council [2013] ECR (Extracts), and Bank Kargoshaei and Others v Council, paragraph 51 above, paragraph 147).
124 In this case, it is apparent from Decision 2012/642 and Implementing Regulation No 1017/2012 that the grounds for the applicant’s listing are as follows:
‘Entity controlled by Vladimir Peftiyev, through his entities Business Network and BT Telecommunications. Sport-Pari is controlled by Peftiyev in conjunction with Dzmitry Aliaksandravich Lukashenka, through the latter’s control of the President’s Sports Club, which holds a mandatory, state-owned majority share in Sport-Pari.’
125 Accordingly, contrary to what is claimed by the applicant, it is at the outset clear that the applicant is not listed on the ground that it participated in the violations of international electoral standards in the Presidential elections in Belarus on 19 December 2010 and in human rights violations or in the trade of material which might be used for the purposes of repression in Belarus. The applicant’s argument is therefore ineffective.
126 It is common ground between the parties that, on the date of adoption of Decision 2012/642 and Implementing Regulation No 1017/2012, Mr Peftiev owned 27% of the applicant’s share capital, through the company BT Telecommunications. However, it cannot be inferred from that holding in the applicant’s share capital alone that Mr Peftiev controlled the applicant.
127 The Council contends, in that regard, that Mr Peftiev’s holding in the applicant’s share capital has to be coupled with the 69% shareholding owned by the President’s Sport Club association. According to the Council, that association is directed by one of the sons of President Lukashenko, Mr Dzmitry Lukashenko. Mr Peftiev is listed on the ground that he is linked to the family of President Lukashenko, and consequently the Council could ‘reasonably decide’ that Mr Peftiev controls the applicant in conjunction with Mr Dzmitry Lukashenko.
128 In that regard, it must be recalled that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights 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 Courts of the European Union are 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, Joined Cases C‑584/10 P, C‑593/10 P and C‑595/10 P Commission and Others v Kadi [2013] ECR, paragraph 119.
129 To that end, it is for the Courts of the European Union, in order to carry out that examination, to request the competent European Union authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination (see, to that effect, Commission and Others v Kadi, paragraph 128 above, paragraph 120). That is because it is the task of the competent European Union 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, that those reasons are not well founded (see Commission and Others v Kadi, paragraph 128 above, paragraph 121). For that purpose, there is no requirement that that authority produce before the Courts 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, Commission and Others v Kadi, paragraph 128 above, paragraph 122).
130 In this case, the Council adduces no concrete evidence from which it can be established that Mr Peftiev and Mr Dzmitry Lukashenko together control the applicant. The Council does no more than state that, since one of the grounds for the listing of Mr Peftiev is that he has links to the Lukashenko family, the Council could ‘reasonably decide that Mr. Peftiev controls the applicant in conjunction with Dzmitry Lukashenka’.
131 It must therefore be held that the Council has not established that the ground alleged against the applicant to justify its continued listing by means of Decision 2012/642 and Implementing Regulation No 1017/2012 is well founded.
132 It follows that Decision 2012/642 and Implementing Regulation No 1017/2012 must be annulled, in so far as they concern the applicant, and there is no need to examine the other pleas in the action.
133 It follows from all the foregoing that the action must be entirely upheld and the contested acts must be annulled.
Costs
134 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party’s pleadings.
135 Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
136 In accordance with the first subparagraph of Article 87(4) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Commission shall bear its own costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Annuls Council Decision 2011/357/CFSP of 20 June 2011, amending Decision 2010/639/CFSP concerning restrictive measures against certain officials of Belarus, Council Regulation (EU) No 588/2011 of 20 June 2011 amending Regulation (EC) No 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus, Council Decision 2011/666/CFSP of 10 October 2011 amending Decision 2010/639/CFSP concerning restrictive measures against Belarus, Council Implementing Regulation (EU) No 1000/2011 of 10 October 2011 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 those acts concern Sport-pari ZAO;
2. Orders the Council of the European Union to bear its own costs and to pay those incurred by Sport-pari;
3. Orders the European Commission to bear its own costs.
Kanninen | Pelikánová | Buttigieg |
Delivered in open court in Luxembourg on 9 December 2014.
[Signatures]