Language of document : ECLI:EU:T:2016:49

JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

28 January 2016 (*)

(Common foreign and security policy — Restrictive measures taken in view of the situation in Ukraine — Freezing of funds — List of persons, entities and bodies covered by the freezing of funds and economic resources — Inclusion of the applicant’s name — Proof that inclusion on the list is justified)

In Case T‑331/14,

Mykola Yanovych Azarov, residing in Kiev (Ukraine), represented by G. Lansky and A. Egger, lawyers,

applicant,

v

Council of the European Union, represented by J.-P. Hix and F. Naert, acting as Agents,

respondent,

supported by

Republic of Poland, represented by B. Majczyna, acting as Agent,

and by

European Commission, represented by S. Bartelt, D. Gauci and T. Scharf, acting as Agents,

interveners,

APPLICATION for the annulment, first, of Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26), and of Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 1) and, secondly, of Council Decision (CFSP) 2015/143 of 29 January 2015 amending Decision 2014/119 (OJ 2015 L 24, p. 16) and of Council Regulation (EU) 2015/138 of 29 January 2015 amending Regulation No 208/2014 (OJ 2015 L 24, p. 1), in so far as they concern the applicant,

THE GENERAL COURT (Ninth Chamber),

composed of G. Berardis (Rapporteur), President, O. Czúcz and A. Popescu, Judges,

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearing on 30 September 2015,

gives the following

Judgment

 Background to the dispute

1        The applicant, Mr Mykola Yanovych Azarov, was Prime Minister of Ukraine from 11 March 2010 to 28 January 2014.

2        On 5 March 2014, the Council of the European Union adopted, on the basis of Article 29 TEU, Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26).

3        Article 1(1) and (2) of Decision 2014/119 provide as follows:

‘1.      All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations in Ukraine, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.

2.      No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in the Annex.’

4        The procedures for implementing the restrictive measures at issue are defined in the subsequent paragraphs of that article.

5        On the same date, the Council adopted, on the basis of Article 215(2) TFEU, Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 1).

6        In accordance with Decision 2014/119, Regulation No 208/2014 requires the adoption of the restrictive measures at issue and defines the procedures for implementing those restrictive measures in terms which are essentially identical to those used in the aforementioned decision.

7        The names of the persons covered by Decision 2014/119 and Regulation No 208/2014 were included on the list in the annex to that decision and in Annex I to that regulation (‘the list’) along with, in particular, the reason for their inclusion on the list.

8        The name of the applicant was on the list along with the identifying information ‘former adviser to the President of Ukraine’ and the following reason was given:

‘Person subject to investigation in Ukraine for involvement in crimes in connection with the embezzlement of Ukrainian State funds and their illegal transfer outside Ukraine’.

9        On 6 March 2014, the Council published in the Official Journal of the European Union a notice for the attention of the persons subject to the restrictive measures provided for in Decision 2014/119 and Regulation No 208/2014 concerning restrictive measures in view of the situation in Ukraine (OJ 2014 C 66, p. 1). According to that Notice, ‘the persons concerned may submit a request to the Council, together with supporting documentation, that the decision to include them on the … list should be reconsidered …’. The Notice also draws the attention of the persons concerned ‘to the possibility of challenging the Council’s decision before the General Court … in accordance with the conditions laid down in Article 275, second paragraph, and Article 263, fourth and sixth paragraphs [TFEU]’.

10      Decision 2014/119 was amended by Council Decision (CFSP) 2015/143 of 29 January 2015 (OJ 2015 L 24, p. 16), which entered into force on 31 January 2015. As to the criteria for the designation of persons covered by the restrictive measures at issue, according to Article 1 of that decision, Article 1(1) of Decision 2014/119 is replaced by the following:

‘1.      All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations in Ukraine, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.

For the purpose of this Decision, persons identified as responsible for the misappropriation of Ukrainian State funds include persons subject to investigation by the Ukrainian authorities:

(a)      for the misappropriation of Ukrainian public funds or assets, or being an accomplice thereto; or

(b)      for the abuse of office as a public office-holder in order to procure an unjustified advantage for him- or herself or for a third party, and thereby causing a loss to Ukrainian public funds or assets, or being an accomplice thereto.’

11      Council Regulation (EU) 2015/138 of 29 January 2015 amending Regulation No 208/2014 (OJ 2015 L 24, p. 1) amended the latter in accordance with Decision 2015/143.

12      Decision 2014/119 and Regulation No 208/2014 were further amended by Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119 (OJ 2015 L 62, p. 25) and by Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation No 208/2014 (OJ 2015 L 62, p. 1). Decision 2015/364 amended Article 5 of Decision 2014/119, by extending the restrictive measures against the applicant until 6 March 2016. Implementing Regulation 2015/357 therefore replaced Annex I to Regulation No 208/2014.

13      By Decision 2015/364 and Implementing Regulation 2015/357, the name of the applicant was retained on the list along with the identifying information ‘Prime Minister of Ukraine until January 2014’ and the following new statement of reasons:

‘Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets’.

14      Decision 2015/364 and Implementing Regulation 2015/357 are the subject of a new action brought by the applicant before the General Court on 29 April 2015 (Case T‑215/15, Azarov v Council).

 Procedure and forms of order sought

15      By application lodged at the Court Registry on 12 May 2014, the applicant brought the present action. He also lodged a request for an expedited procedure pursuant to Article 76a of the Rules of Procedure of the General Court of 2 May 1991.

16      By decision of 5 June 2014, the General Court rejected the request for an expedited procedure.

17      By documents lodged at the Court Registry respectively on 28 March and 2 September 2014, the European Commission and the Republic of Poland applied to intervene in the present proceedings in support of the form of order sought by the Council. By orders of 7 November 2014, the President of the Ninth Chamber of the Court granted those applications. The Republic of Poland submitted its statement in intervention and the applicant submitted his observations on that statement within the prescribed periods. The Commission waived its right to submit a statement in intervention.

18      On 19 December 2014, the Council submitted a reasoned application in accordance with the second subparagraph of Article 18(4) of the Instructions to the Registrar of the General Court for the contents of an annex to the rejoinder not to be cited in the documents relating to this case to which the public has access.

19      By document lodged at the Court Registry on 25 March 2015, the applicant amended the form of order sought in order also to seek annulment of Decision 2015/143 and Regulation 2015/138, in so far as they relate to him.

20      By decision of the President of the Ninth Chamber of the Court of 7 August 2015, after the parties had been heard, the present case and Case T‑332/14, Azarov v Council, were joined for the purposes of the oral procedure, in accordance with Article 68 of the Rules of Procedure.

21      The parties presented oral argument and answered the questions put to them by the Court at the hearing on 30 September 2015.

22      The applicant claims that the Court should:

–        annul Decision 2014/119, Regulation No 208/2014, Decision 2015/143 and Regulation 2015/138 in so far as those measures relate to him;

–        order the Council to pay the costs of the proceedings.

23      The Council, supported by the Commission, contends that the Court should:

–        dismiss the application;

–        reject the modification of the form of order sought in so far as it relates to Decision 2015/143 and Regulation 2015/138, on the grounds that the Court lacks jurisdiction or because it is inadmissible;

–        order the applicant to pay the costs.

24      The Republic of Poland, in essence, submits that the action should be dismissed.

 Law

 Claim for annulment of Decision 2014/119 and Regulation No 208/2014 in so far as they relate to the applicant

 The applicant’s continuing interest in bringing proceedings

25      As was pointed out in paragraphs 12 and 13 above, Decision 2015/364 and Implementing Regulation 2015/357 amended the reason for including the applicant’s name on the list and extended the application of the restrictive measures against him until 6 March 2016.

26      In its observations on the statement modifying the form of order sought, the Council raised doubts as to the applicant’s continuing interest in bringing proceedings in relation to the claim for annulment of Decision 2014/119 and Regulation No 208/2014 in so far as those measures concern him and left it to the Court to make an assessment.

27      According to settled case-law, the subject matter of the dispute, like an applicant’s interest in bringing proceedings, must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (see judgment of 6 June 2013 in Ayadi v Commission, C‑183/12 P, ECR, EU:C:2013:369, paragraph 59 and the case-law cited).

28      Moreover, it is clear from the case-law that, whilst recognition of the illegality of the contested act cannot, as such, compensate for material harm or for interference with a person’s private life, it is nevertheless capable of rehabilitating the person concerned or constituting a form of reparation for the non-material harm which he has suffered by reason of that illegality, and of thereby establishing that he retains his interest in bringing proceedings (see, to that effect, judgment of 28 May 2013 in Abdulrahim v Council and Commission, C‑239/12 P, ECR, EU:C:2013:331, paragraphs 70 to 72).

29      In the present case, it must be noted, as the applicant asserted in the statement modifying the form of order sought and at the hearing, that being publicly identified as the subject of criminal proceedings in Ukraine in connection with the misappropriation of public funds could harm, in particular, his reputation as a politician and as a businessman.

30      It must be pointed out, as the applicant stated at the hearing, that recognition of the illegality of Decision 2014/119 and of Regulation No 208/2014 may form the basis of a subsequent action for compensation for damage suffered as a result of those acts during the period of their application, that is to say, for the period from 5 March 2014 to 6 March 2015 (see, to that effect and by analogy, judgment in Abdulrahim v Council and Commission, EU:C:2013:331, cited in paragraph 28 above, paragraph 82).

31      In that regard, contrary to what the Council maintains, the fact that Decision 2014/119 and Regulation No 208/2014 are no longer in force, having been amended, in so far as they concern the applicant, by Decision 2015/364 and Implementing Regulation 2015/357, cannot be equated with annulment by the Court of acts adopted initially, in so far as that amendment does not amount to recognition of the illegality of those acts (see, to that effect and by analogy, judgment of 11 June 2014 in Syria International Islamic Bank v Council, T‑293/12, EU:T:2014:439, paragraphs 36 to 41 and the case-law cited).

32      It must therefore be concluded that the applicant’s interest in bringing proceedings continues to exist despite the amendment of Decision 2014/119 and Regulation No 208/2014, in so far as they concern the applicant, by Decision 2015/364 and Implementing Regulation 2015/357, which are also the subject of a separate action (see paragraph 14 above).

 Merits of the claim for annulment of Decision 2014/119 and Regulation No 208/119 in so far as they relate to the applicant

33      In support of the action, the applicant relies on five pleas in law. The first alleges an infringement of the duty to give reasons. The second alleges an infringement of fundamental rights. The third alleges misuse of power. The fourth alleges an infringement of the principle of sound administration and the fifth alleges a manifest error of assessment.

34      The Court considers that it is appropriate to examine the fifth plea first.

35      In support of the fifth plea, the applicant claims, in essence, that the restrictive measures concerning him were adopted without a sufficiently solid factual basis.

36      According to the applicant, Decision 2014/119 and Regulation No 208/2014 contain only very brief statements of reasons for including his name on the list, confining themselves to stating that he is subject to investigation in Ukraine for involvement in crimes in connection with the misappropriation of State funds and their illegal transfer outside Ukraine. More particularly, he claims that, by manifestly relying solely on the fact that he had held a political position in Ukraine in order to justify that listing, when he was not subject to a criminal investigation in Ukraine for involvement in those offences, the Council committed a manifest error of assessment. Furthermore, the only reason given to justify that listing is vague and general, in that the complaints are not sufficiently specified, either as regards the time, place or nature of his involvement in the alleged offences.

37      In the reply, the applicant contests the Council’s argument that the restrictive measures at issue aim to prevent the unlawful use of State funds, because, first, they do not have a preventive effect, and secondly, such an objective cannot, in any event, justify including the applicant’s name on the list. He also claims that the letter from the Office of the Public Prosecutor of Ukraine sent to the High Representative of the European Union for Foreign Affairs and Security Policy of 3 March 2014 (‘the letter of 3 March 2014’) does not constitute a sufficiently solid factual basis.

38      In response to an argument put forward by the Republic of Poland in its statement in intervention, the applicant claims that there were no ongoing proceedings concerning misappropriation of State funds when the letter of 3 March 2014 was sent. That is borne out by the letters from the Office of the Public Prosecutor of Ukraine of 8 July and 10 October 2014. The first letter mentions different offences and the second concerns proceedings initiated only after the restrictive measures at issue were adopted.

39      The Council contends that it is clear from the recitals of Decision 2014/119 and Regulation No 208/2014, and from the general context in which those measures were adopted that they aimed, inter alia, to consolidate and support the rule of law, and to assist the Ukrainian authorities in combating corruption and misappropriation of funds belonging to the State. Those objectives also include the objective of preventing the unlawful use of State funds, in particular by persons who hold or held political positions in Ukraine.

40      The reasons for including the applicant’s name on the list therefore have a solid factual basis and are compatible with the case-law. Those reasons are based on the letter of 3 March 2014 informing the Council that investigations were conducted concerning the applicant’s involvement, inter alia, in offences in connection with the misappropriation of State funds and their illegal transfer outside Ukraine, which corresponds to the statement of reasons concerning the applicant in Decision 2014/119 and in Regulation No 208/2014.

41      Indeed, stricter requirements could undermine the effectiveness of restrictive measures taken following a misappropriation of State funds. The Council considers that a distinction must be made between, on the one hand, ongoing investigations in Ukraine, in which the applicant may refute the allegations made against him in accordance with the provisions governing criminal proceedings in Ukraine and, on the other, the restrictive measures taken at EU level which are limited in time and are reversible. In that context, urgent measures are necessary for the freezing of funds because of the misappropriation of State funds, otherwise there is a risk that those funds would be transferred outside the territory of the EU and that, as a result, the aim of those measures would not be achieved.

42      The Republic of Poland, in essence, puts forward arguments which are broadly the same as those advanced by the Council. In particular, it considers that, in the present case, the Council had concrete evidence of the existence of criminal proceedings against the applicant and that the accuracy of the allegations made, in view of the evidence provided, was not in doubt.

43      It should be noted that, although the Council has a broad discretion as regards the general criteria to be taken into consideration for the purpose of adopting restrictive measures, 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 include or to maintain a person’s name on the list of persons subject to restrictive measures, the Courts of the European Union are to ensure that that decision, which affects that person 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, are substantiated by sufficiently specific and concrete evidence (see judgment of 21 April 2015 in Anbouba v Council, C‑605/13 P, ECR, EU:C:2015:248, paragraphs 41 and 45 and the case-law cited).

44      In the present case, the criterion laid down in Article 1(1) of Decision 2014/119 provides that restrictive measures are to be adopted against persons having been identified as responsible for the misappropriation of public funds. Furthermore, it is clear from the second recital of that decision that the Council adopted those measures ‘with a view to consolidating and supporting the rule of law ... in Ukraine’.

45      The name of the applicant was included on the list on the ground that he was a ‘person subject to investigation in Ukraine for involvement in crimes in connection with the embezzlement of Ukrainian State funds and their illegal transfer outside Ukraine’. It thus appears that the Council considered that the applicant was the subject of a preliminary investigation or an inquiry which had not (or not yet) culminated in the bringing of a formal charge, in relation to his alleged involvement in the misappropriation of public funds.

46      In support of the reason for including the applicant’s name on the list, the Council relies on the letter of 3 March 2014 and on other evidence post-dating Decision 2014/119 and Regulation No 208/2014.

47      The first part of the letter of 3 March 2014 states that the ‘law-enforcement agencies of Ukraine’ have launched a certain number of criminal proceedings to investigate criminal acts committed by former senior officials, whose names are listed immediately afterwards, with regard to whom the investigation into the above mentioned offences has made it possible to establish embezzlement of State funds in sizeable amounts and the further illegal transfer of those funds out of Ukrainian territory.

48      The second part of the letter of 3 March 2014 adds that ‘the investigation verifies the involvement of other senior officials representing former authorities in the same sort of crimes’ and that it is ‘planned to inform them shortly of the opening of that investigation’. The names of those other senior officials, including the applicant, are also listed immediately afterwards.

49      With regard to the case-file, the letter of 3 March 2014 is the only piece of evidence submitted by the Council during the course of these proceedings which pre-dates Decision 2014/119 and Regulation No 208/2014. Accordingly, the lawfulness of those acts must be assessed in the light of that piece of evidence alone.

50      It must therefore be established whether the letter of 3 March 2014 constitutes sufficient proof to support the conclusion that the applicant was identified ‘as responsible for the misappropriation of Ukrainian State funds’ within the meaning of Article 1(1) of Decision 2014/119.

51      Although, as the Council states, the letter of 3 March 2014 was sent by a high judicial body in a non-member country, namely, the Office of the Public Prosecutor of Ukraine, it contains only a general and generic statement linking the applicant’s name, among those of other former senior officials, to an inquiry which, essentially, established acts of misappropriation of public funds. The letter does not provide any details as to the establishment of the acts which the investigation conducted by the Ukrainian authorities was in the process of verifying and, still less, as to the applicant’s individual liability, even if only presumed, in respect of those acts.

52      It is true that, as the Council submits, in the context of the application of restrictive measures, the EU judicature has held that identifying a person as responsible for an offence does not necessarily imply that that person has been convicted of that offence (see, to that effect, judgments of 5 March 2015 in Ezz and Others v Council, C‑220/14 P, ECR, EU:C:2015:147, paragraph 72, and of 27 February 2014 in Ezz and Others v Council, T‑256/11, ECR, EU:T:2014:93, paragraphs 57 to 61).

53      However, in the context of the cases which gave rise to the case-law cited in paragraph 52 above, the applicants had at least been the subject of an order of the prosecutor general of the non-member country concerned seeking to seize their assets, which had been endorsed by a criminal court (judgment in Ezz and Others v Council, EU:T:2014:93, cited in paragraph 52 above, paragraph 132). Consequently, the imposition of restrictive measures on the applicants in those cases was based on specific facts of which the Council was apprised.

54      In this case, it must be found, first, that the Council did not have any information regarding the acts or conduct specifically imputed to the applicant by the Ukrainian authorities and, secondly, that, even if it is examined in its context, the letter of 3 March 2014 on which it relies cannot constitute a sufficiently solid factual basis within the meaning of the case-law cited in paragraph 43 above for including the applicant’s name on the list on the ground that he was identified ‘as responsible’ for the misappropriation of State funds.

55      Irrespective of the stage of the proceedings to which the applicant was deemed to be subject, the Council could not adopt restrictive measures against him without knowing the acts of misappropriation of public funds which the Ukrainian authorities specifically alleged against him. It is only by being aware of such acts that the Council would have been in a position to establish that they were capable, first, of being categorised as misappropriation of public funds and, secondly, of undermining the rule of law in Ukraine, the consolidation and support of which, as was recalled in paragraph 44 above, constitute the objective pursued by the adoption of the restrictive measures in question.

56      Moreover, it is for 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 (judgments 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, paragraphs 120 and 121, and of 28 November 2013 in Council v Fulmen and Mahmoudian, C‑280/12 P, ECR, EU:C:2013:775, paragraphs 65 and 66).

57      In view of all the foregoing, the inclusion of the applicant’s name on the list does not comply with the criteria set by Decision 2014/119 for the designation of persons covered by the restrictive measures at issue.

58      The action must therefore be upheld in that it seeks annulment of Decision 2014/119 in so far as it concerns the applicant, without it being necessary to rule on the other pleas which he relied on, or on his application to adopt measures of organisation of procedure.

59      For the same reasons, Regulation No 208/2014 must be annulled in so far as it concerns the applicant.

 Claim for annulment of Decision 2015/143 and Regulation 2015/138 in so far as they relate to the applicant

60      In the statement modifying the form of order sought, the applicant also seeks annulment of Decision 2015/143 and Regulation 2015/138, essentially in so far as they amend Article 1(1) of Decision 2014/119 and Article 3 of Regulation No 208/2014, respectively.

61      In its observations on the statement modifying the form of order sought, the Council contends, first, that the Court does not have jurisdiction under Article 275 TFEU to rule on an action brought against Decision 2015/143, which was adopted, inter alia, on the basis of Article 29 TEU, and secondly, that the extension of the form of order sought to that decision and to Regulation 2015/138 is inadmissible due to the applicant’s lack of locus standi. Furthermore, the Council, supported by the Commission, contends that the applicant’s claim does not contain any statement of the pleas relied on for the purposes of Article 21 of the Statute of the Court of Justice and Article 44(1) of the Rules of Procedure of 2 May 1991.

62      As regards, at the outset, the issue of the jurisdiction of the EU judicature, it must be recalled that the second paragraph of Article 275 TFEU expressly provides that, by way of derogation from the first paragraph of that article, the EU judicature has jurisdiction ‘to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 of this Treaty, reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted on the basis of Chapter 2 of Title V of the [EU] Treaty’. Thus, contrary to what the Council maintains, that provision is directed at all Council decisions relating to restrictive measures against natural or legal persons, falling within Chapter 2 of Title V of the EU Treaty, without making any distinction on the basis of decisions of general application or individual decisions. In particular, it does not preclude the possibility of challenging, in a statement modifying the form of order sought, the legality of a general provision, in support of an action for annulment brought against an individual restrictive measure (see, to that effect, judgment of 4 September 2015 in NIOC and Others v Council, T‑577/12, under appeal, EU:T:2015:596, paragraphs 93 and 94).

63      Therefore, contrary to what the Council submits, the Court has jurisdiction to examine the legality of Decision 2015/143 in so far as it amends Article 1(1) of Decision 2014/119.

64      Next, as regards the plea of inadmissibility concerning the applicant’s lack of locus standi, it must be observed that Decision 2014/119 and Regulation No 208/2014 were amended by Decision 2015/143 and by Regulation 2015/138 only in so far as the criteria for the freezing of funds targeting persons responsible for the misappropriation of Ukrainian State funds were clarified.

65      Decision 2015/143 and Regulation 2015/138 do not name the applicant, nor were they adopted further to a complete review of the lists of persons subject to the restrictive measures. Those measures cover only the general listing criteria applicable to objectively determined situations and having legal effects in relation to categories of persons and entities envisaged in a general and abstract manner, and not the inclusion of the applicant’s name on the list. Consequently, they are not of either direct or individual concern to the applicant, and he is not entitled, as the Council submitted, to amend his claims to seek their annulment (see, to that effect, judgment of 6 September 2013 in Bank Refah Kargaran v Council, T‑24/11, ECR, EU:T:2013:403, paragraph 50).

66      Moreover, the amendments made to the general listing criterion by Decision 2015/143 and by Regulation 2015/138 are not relevant for the assessment of the legality of the listing of the applicant’s name, which was conducted by the Council on the basis of the single criterion set out in Article 1(1) of Decision 2014/119 (see paragraph 44 above).

67      In the light of the foregoing, the action must be dismissed as inadmissible in so far as it is directed against Decision 2015/143 and Regulation 2015/138, without it being necessary to rule on the other plea of inadmissibility raised by the Council and the Commission.

 The temporal effects of the annulment in part of Decision 2014/119

68      The Council submits that, if the Court annuls Decision 2014/119 in so far as it concerns the applicant, it will be necessary for the effects of that decision as regards the applicant to be maintained pursuant to the second paragraph of Article 264 TFEU until the partial annulment of Regulation No 208/2014 takes effect, in order to ensure legal certainty and preserve the coherence and consistency of the legal order.

69      The applicant disputes that line of argument.

70      It must be recalled that Decision 2014/119 was amended by Decision 2015/364 which replaced the list from 7 March 2015 and extended the application of the restrictive measures, in so far as they concern the applicant, until 6 March 2016. Following those amendments the applicant’s name was retained on the list with new reasons for his listing (see paragraphs 12 and 13 above).

71      Therefore, as at today’s date, the applicant is subject to a new restrictive measure. It follows that the annulment of Decision 2014/119, in so far as it relates to the applicant, does not lead to the removal of his name from the list.

72      Consequently, it is not necessary to maintain the effects of Decision 2014/119, in so far as it relates to the applicant.

 Costs

73      Under Article 134(2) of the Rules of Procedure, where there is more than one unsuccessful party the Court will decide how the costs are to be shared.

74      In the present case, since the Council has been unsuccessful in relation to the claim for annulment made in the application, it must be ordered to pay the costs relating to that claim, in accordance with the form of order sought by the applicant. Since the applicant has been unsuccessful in relation to the claim for annulment made in the statement modifying the form of order sought, he must be ordered to pay the costs relating to that claim, in accordance with the form of order sought by the Council.

75      In addition, under Article 138(1) of the Rules of Procedure, Member States and institutions which have intervened are to bear their own costs. The Republic of Poland and the Commission will thus bear their own costs.

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby:

1.      Annuls Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine and Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine in so far as they concern Mykola Yanovych Azarov;

2.      Dismisses the action as to the remainder;

3.      Orders the Council of the European Union to bear its own costs and to pay those incurred by Mr Azarov in relation to the claim for annulment made in the application;

4.      Orders Mr Azarov to bear his own costs and to pay those incurred by the Council in relation to the claim for annulment made in the statement modifying the form of order sought;

5.      Orders the Republic of Poland and the European Commission to bear their own costs.

Berardis

Czúcz

Popescu

Delivered in open court in Luxembourg on 28 January 2016.

[Signatures]


* Language of the case: German.