JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
11 July 2019 (*)
(Common foreign and security policy – Restrictive measures taken in view of the situation in Ukraine – Freezing of funds – List of persons, entities and bodies subject to the freezing of funds and economic resources – Maintenance of the applicant’s name on the list – Council’s obligation to verify that the decision of an authority of a third State was taken in accordance with the rights of the defence and the right to effective judicial protection)
In Case T‑274/18,
Oleksandr Viktorovych Klymenko, residing in Moscow (Russia), represented by M. Phelippeau, lawyer,
applicant,
v
Council of the European Union, represented by A. Vitro and P. Mahnič, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU seeking the annulment of Council Decision (CFSP) 2018/333 of 5 March 2018 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2018 L 63, p. 48) and of Council Implementing Regulation (EU) 2018/326 of 5 March 2018 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2018 L 63, p. 5), in so far as the applicant’s name was maintained on the list of persons, entities and bodies subject to those restrictive measures,
THE GENERAL COURT (Sixth Chamber),
composed of G. Berardis (Rapporteur), President, D. Spielmann and Z. Csehi, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1 The present case has been brought in the context of the restrictive measures adopted against certain persons, entities and bodies in view of the situation in Ukraine following the suppression of the demonstrations in Independence Square in Kiev (Ukraine) in February 2014.
2 The applicant, Mr Oleksandr Viktorovych Klymenko, held the post of Minister for Revenue and Duties of Ukraine.
3 On 5 March 2014, the Council of the European Union adopted 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). On the same day, the Council adopted Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 1).
4 Recitals 1 and 2 of Decision 2014/119 state:
‘(1) On 20 February 2014, the Council condemned in the strongest terms all use of violence in Ukraine. It called for an immediate end to the violence in Ukraine, and full respect for human rights and fundamental freedoms. It called upon the Ukrainian Government to exercise maximum restraint and opposition leaders to distance themselves from those who resort to radical action, including violence.
(2) On 3 March 2014, the Council agreed to focus restrictive measures on the freezing and recovery of assets of persons identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations, with a view to consolidating and supporting the rule of law and respect for human rights.’
5 Article 1(1) and (2) of Decision 2014/119 provides as follows:
‘1. All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for 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.’
6 The detailed rules governing that freezing of funds are laid down in Article 1(3) to (6) of Decision 2014/119.
7 In accordance with Decision 2014/119, Regulation No 208/2014 requires the restrictive measures at issue to be adopted and lays down the detailed rules governing them in terms which are identical, in essence, to those used in that decision.
8 The names of the persons covered by Decision 2014/119 and Regulation No 208/2014 appear on the list contained in the annex to that decision and in Annex I to that regulation (‘the list’) together with, inter alia, the reasons for their listing. Initially, the applicant’s name did not appear on the list.
9 Decision 2014/119 and Regulation No 208/2014 were amended by Council Implementing Decision 2014/216/CFSP of 14 April 2014 implementing Decision 2014/119 (OJ 2014 L 111, p. 91) and by Council Implementing Regulation (EU) No 381/2014 of 14 April 2014 implementing Regulation No 208/2014 (OJ 2014 L 111, p. 33) (together, ‘the April 2014 acts’).
10 By the April 2014 acts, the applicant’s name was added to the list at issue with the identifying information ‘former Minister of Revenues and Charges’ and the following statement of reasons:
‘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.’
11 By application lodged at the Court Registry on 30 June 2014, the applicant brought an action, registered as Case T‑494/14, seeking, inter alia, the annulment of the April 2014 acts in so far as they concerned him.
12 On 29 January 2015, the Council adopted Decision (CFSP) 2015/143 amending Decision 2014/119 (OJ 2015 L 24, p. 16), and Regulation (EU) 2015/138 amending Regulation No 208/2014 (OJ 2015 L 24, p. 1).
13 Decision 2015/143 specified the criteria, effective from 31 January 2015, for selecting the persons covered by the freezing of funds. In particular, Article 1(1) of Decision 2014/119 was 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 State 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 State funds or assets, or being an accomplice thereto.’
14 Regulation 2015/138 amended Regulation No 208/2014 in accordance with Decision 2015/143.
15 On 5 March 2015, the Council adopted Decision (CFSP) 2015/364 amending Decision 2014/119 (OJ 2015 L 62, p. 25) and Implementing Regulation (EU) 2015/357 implementing Regulation No 208/2014 (OJ 2015 L 62, p. 1) (together, ‘the March 2015 acts’). Decision 2015/364, first, replaced Article 5 of Decision 2014/119, extending the application of the restrictive measures, in so far as the applicant was concerned, until 6 March 2016, and, second, amended the Annex to that decision. Implementing Regulation 2015/357 consequently amended Annex I to Regulation No 208/2014.
16 By the March 2015 acts, the applicant’s name was maintained on the list with the identifying information ‘former Minister of Revenues and Charges’ and the following new statement of reasons:
‘Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets and for the abuse of office by a public office-holder in order to procure an unjustified advantage for himself or for a third party and thereby causing a loss to Ukrainian public funds or assets.’
17 By application lodged at the Court Registry on 15 May 2015, the applicant brought an action, registered as Case T‑245/15, seeking, inter alia, the annulment of the March 2015 acts in so far as they concerned him.
18 On 4 March 2016, the Council adopted Decision (CFSP) 2016/318 amending Decision 2014/119 (OJ 2016 L 60, p. 76) and Implementing Regulation (EU) 2016/311 implementing Regulation No 208/2014 (OJ 2016 L 60, p. 1) (together, ‘the March 2016 acts’).
19 By the March 2016 acts, the application of the restrictive measures concerning the applicant, among others, was extended to 6 March 2017. The statement of reasons for the applicant’s designation, as set out in the March 2015 acts, was not amended.
20 By a statement lodged at the Court Registry on 28 April 2016, the applicant modified the application in relation to Case T‑245/15, in accordance with Article 86 of the Rules of Procedure of the General Court, so as to request also the annulment of the March 2016 acts, in so far as they concerned him.
21 By order of 10 June 2016, Klymenko v Council (T‑494/14, EU:T:2016:360), adopted on the basis of Article 132 of the Rules of Procedure, the Court upheld the action referred to in paragraph 11 above, declaring it manifestly well founded and therefore annulled the April 2014 acts, in so far as they concerned the applicant.
22 On 3 March 2017, the Council adopted Decision (CFSP) 2017/381 amending Decision 2014/119 (OJ 2017 L 58, p. 34) and Implementing Regulation (EU) 2017/374 implementing Regulation No 208/2014 (OJ 2017 L 58, p. 1) (together, ‘the March 2017 acts’).
23 By the March 2017 acts, the application of the restrictive measures was extended to 6 March 2018. The statement of reasons for the applicant’s designation, as set out in the March 2015 acts and the March 2016 acts, was not amended.
24 By a statement lodged at the Court Registry on 27 March 2017, the applicant again modified the application in relation to Case T‑245/15, so as to request also the annulment of the March 2017 acts, in so far as they concerned him.
25 By judgment of 8 November 2017, Klymenko v Council (T‑245/15, not published, under appeal, EU:T:2017:792), the Court rejected all of the applicant’s claims referred to in paragraphs 17, 20 and 24 above.
26 Between December 2017 and February 2018, various correspondence was exchanged between the Council and the applicant concerning the possible extension of the restrictive measures at issue in relation to the applicant. In particular, the Council sent to the applicant various letters from the Ukrainian Prosecutor General’s Office (‘the PGO’) concerning the criminal proceedings to which he was subject and which formed the basis envisaged for the aforementioned extension.
27 On 5 March 2018, the Council adopted Decision (CFSP) 2018/333 amending Decision 2014/119 (OJ 2018 L 63, p. 48) and Implementing Regulation (EU) 2018/326 implementing Regulation No 208/2014 (OJ 2018 L 63, p. 5) (together, ‘the contested acts’).
28 By the contested acts, the application of the restrictive measures was extended to 6 March 2019. The statement of reasons for the applicant’s designation, as set out in the March 2015 acts, the March 2016 acts and the March 2017 acts, was not amended.
29 By letter of 8 March 2018, the Council informed the applicant that the restrictive measures against him were to be maintained. The Council replied to the observations which the applicant had set out in previous correspondence and sent him the contested acts. Furthermore, it notified the applicant of the time limit for submitting observations prior to a decision being taken regarding the possible maintenance of his name on the list.
Procedure and forms of order sought
30 By application lodged at the Court Registry on 30 April 2018, the applicant brought this action for the annulment of the contested acts.
31 The written part of the procedure was closed on 19 September 2018, as the applicant had not lodged a reply within the prescribed period.
32 By judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), the Court of Justice set aside the judgment of 7 July 2017, Azarov v Council (T‑215/15, EU:T:2017:479) and annulled the March 2015 acts in so far as they concerned the applicant in the case giving rise to that judgment.
33 On account of the potential impact of the Court of Justice’s ruling in the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031) on the present case, the General Court (Sixth Chamber) decided, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, to issue a written question to the parties inviting them to state in writing what conclusions were, in their view, to be drawn from that judgment in the present case. The parties complied with that measure within the time allowed.
34 Under Article 106(3) of the Rules of Procedure, if no request for a hearing has been submitted by the main parties within three weeks after service of notification of the close of the written part of the procedure, the General Court may decide to rule on the action without an oral part of the procedure. In the present case, since the Court considers that it has sufficient information available to it from the material in the file, it has decided, in the absence of such a request, to give a decision on the action without an oral part of the procedure.
35 The applicant claims, in essence, that the Court should:
– annul the contested acts, in so far as they concern him;
– order the Council to pay the costs.
36 The Council contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs;
– in the alternative, if the contested acts must be annulled in so far as they concern the applicant, order that the effects of Decision 2018/333 be maintained until the partial annulment of Implementing Regulation 2018/326 takes effect.
Law
37 In support of his action, the applicant relies on five pleas in law in the application, alleging: (i) infringement of the obligation to state reasons; (ii) infringement of the rights of the defence and of the right to an effective remedy; (iii) lack of legal basis; (iv) error of fact; and (v) breach of the right to property. In his answer to the question referred to in paragraph 33 above, the applicant submits that, in the present case, the consequence of the principles arising from the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031) is that the contested acts must necessarily be annulled.
38 For its part, the Council, in the defence, disputes the merits of the applicant’s pleas referred to in paragraph 37 above. In its answer to the question referred to in paragraph 33 above, it submits that the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031) has no bearing on the present case, since, in the application, the applicant did not raise a similar plea in law to that accepted by the Court of Justice in that judgment and that such a plea is not a matter of public policy. In the alternative, the Council submits that, in any event, that plea is unfounded in the present case.
39 As a preliminary matter, it is therefore appropriate to recall the principles deriving in particular from the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), which are likely to have crucial implications for the present case.
Preliminary observations
40 It is apparent from settled case-law that, in a review of restrictive measures, the Courts of the European Union must ensure the review, in principle the full review, of the lawfulness of all Union acts in the light of the fundamental rights forming an integral part of the EU legal order, which include, inter alia, respect for the rights of the defence and the right to effective judicial protection (see judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraphs 20 and 21 and the case-law cited).
41 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 (see judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 22 and the case-law cited).
42 The adoption and the maintenance of restrictive measures, such as those laid down in Decision 2014/119 and Regulation No 208/2014, as amended, taken against a person who has been identified as responsible for the misappropriation of funds belonging to a third State are based, in essence, on the decision of an authority of that state, which was competent to make it, to initiate and conduct criminal investigation proceedings concerning that person and relating to an offence of misappropriation of public funds (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 25).
43 Therefore, whereas, under the listing criterion, such as that referred to in paragraph 13 above, the Council can base restrictive measures on the decision of a third State, the obligation, on that institution, to respect the rights of the defence and the right to effective judicial protection means that it must satisfy itself that those rights were complied with by the authorities of the third State which adopted that decision (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraphs 26, 27 and 35).
44 In that regard, the Court of Justice states that the requirement for the Council to verify that the decisions of third States, on which it intends to rely, have been taken in accordance with those rights is designed to ensure that the adoption or the maintenance of the measures for the freezing of funds occurs only on a sufficiently solid factual basis and, accordingly, to protect the persons or entities concerned. Thus, the Council cannot conclude that the adoption or the maintenance of such measures is taken on a sufficiently solid factual basis before having itself verified that the rights of the defence and the right to effective judicial protection were complied with at the time of the adoption of the decision by the third State in question on which it intends to rely (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraphs 28 and 34 and the case-law cited).
45 Moreover, although it is true that the fact that a third State is among the States which acceded to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’) entails review, by the European Court of Human Rights, of the fundamental rights guaranteed by the ECHR, which, in accordance with Article 6(3) TEU, form part of EU law as general principles, that fact cannot render superfluous the verification requirement referred to in paragraph 44 above (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 36).
46 The Court of Justice also held that the Council must refer, if only briefly, in the statement of reasons relating to the adoption or the maintenance of the restrictive measures against a person or entity, to the reasons why it considers the decision of the third State on which it intends to rely have been adopted in accordance with the rights of the defence and the right to effective judicial protection. Thus, it is for the Council, in order to fulfil its obligation to state reasons, to show, in the decision imposing the restrictive measures, that it has verified that the decision of the third State on which those measures are based was taken in accordance with those rights (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraphs 29 and 30 and the case-law cited).
47 Ultimately, when it bases the adoption or the maintenance of restrictive measures, such as those in the present case, on the decision of a third State to initiate and conduct criminal proceedings for misappropriation of public funds or assets by the person concerned, the Council must, first, ensure that, at the time of the adoption of that decision, the authorities of that third State have complied with the rights of the defence and the right to effective judicial protection of the person against whom the criminal proceedings at issue have been brought and, second, refer, in the decision imposing restrictive measures, to the reasons why it considers that that decision of the third State has been adopted in accordance with those rights.
48 In the present case, in his answer to the question referred to in paragraph 33 above, the applicant submits that, as in the case giving rise to the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), the Council did not adduce any evidence in the contested acts that it had verified compliance by the Ukrainian judicial authorities, in the context of the proceedings brought against him, with the rights of the defence and the right to judicial protection. He claims that the General Court is therefore unable to satisfy itself as to the lawfulness of the contested acts, which should be annulled as a result. The applicant adds that the contested acts do not contain even a brief statement of the reasons why the Council considers that those acts were adopted in accordance with the aforementioned rights. That argument supports the first plea relied on in the application, alleging infringement of the obligation to state reasons.
49 For its part, the Council submits that the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), has no bearing on the present case since, in the application, the applicant did not rely on a plea alleging the infringement of its obligation to verify whether the decision of an authority of a third State to initiate and conduct criminal proceedings concerning an offence of misappropriation of public funds had been adopted in accordance with the rights of the defence and the right to effective judicial protection. According to the Council, such a plea is not a matter of public policy and cannot, therefore, be raised by the Court of its own motion. Furthermore, the Council states that, even though the applicant did mention infringement of Article 6 of the ECHR and infringement of the rights of the defence and the right to effective judicial protection, he nevertheless referred to the procedure which had been conducted before the Council for the purposes of renewing the restrictive measures against him, and not to the lack of verification by the Council of the applicant’s rights in Ukraine.
50 In those circumstances, it is necessary to rule on the plea of inadmissibility which the Council, in essence, raised with regard to the arguments put forward by the applicant in response to the question referred to in paragraph 33 above.
The plea of inadmissibility raised by the Council
51 The plea of inadmissibility raised by the Council consists, in essence, of a claim that, in relying on the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), the applicant is raising a new plea, which is in breach of the conditions laid down to that end by Article 84 of the Rules of Procedure and which does not involve a matter of public policy.
52 Article 84 of the Rules of Procedure reads as follows:
‘1. No new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.
2. Any new pleas in law shall be introduced in the second exchange of pleadings and identified as such. Where the matters of law or of fact justifying the introduction of new pleas in law are known after the second exchange of pleadings or after it has been decided not to authorise a second exchange of pleadings, the main party concerned shall introduce the new pleas in law as soon as those matters come to his knowledge …’
53 In that regard, in the first place, it should be noted that, in principle, the introduction of a new plea in law must comply with the requirements laid down in Article 84 of the Rules of Procedure. However, those requirements do not apply when a plea, despite being classifiable as new, involves a matter of public policy (see, to that effect, judgments of 15 September 2016, La Ferla v Commission and ECHA, T‑392/13, EU:T:2016:478, paragraph 65, and of 20 July 2017, Badica and Kardiam v Council, T‑619/15, EU:T:2017:532, paragraphs 40 to 43).
54 According to settled case-law, in an action for annulment, a plea which is a matter of public policy may be invoked by the parties at any stage of the proceedings, since such a plea may, or even must, be raised by the EU courts of their own motion (judgments of 8 July 2004, Mannesmannröhren-Werke v Commission, T‑44/00, EU:T:2004:218, paragraph 210, and of 14 April 2015, Ayadi v Commission, T‑527/09 RENV, not published, EU:T:2015:205, paragraph 44; see also, to that effect, judgments of 20 February 1997, Commission v Daffix, C‑166/95 P, EU:C:1997:73, paragraphs 23 to 25, and of 3 May 2018, Malta v Commission, T‑653/16, EU:T:2018:241, paragraphs 47 and 48). According to the same case-law, a plea alleging failure to state or failure sufficiently to state the reasons on which an EU act is based is a matter of public policy.
55 In the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), the Court of Justice, after finding that the judgment of 7 July 2017, Azarov v Council (T‑215/15, EU:T:2017:479) should be set aside, held that the state of the proceedings was such as to permit judgment to be given and annulled the acts at issue. To that end, the Court of Justice stated that it was in no way apparent from the statement of reasons for those acts that the Council had verified that the Ukrainian judicial authorities had respected the rights of defence and right to judicial protection of the individual concerned and referred to the grounds that it had set out in paragraphs 25 to 30 and 34 to 42 of its judgment (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraphs 43 to 46).
56 In particular, paragraph 30 of the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031) clearly states that ‘it is for the Council, in order to fulfil its obligation to state reasons, to show, in the decision imposing the restrictive measures, that it has verified that the decision of the third State on which those measures are based was taken in accordance with [the rights of the defence and the right to effective judicial protection]’.
57 Moreover, paragraph 30 of the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031) cites paragraph 37 of the judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583), in which the Court of Justice had clearly stated that ‘the statements of reasons for [the contested] regulations [did] not, therefore, disclose whether the Council [had] fulfilled its verification obligation in that regard’ before concluding, in paragraph 38 of that same judgment, that the General Court had correctly held that the acts at issue ‘were vitiated by a failure to give sufficient reasons’.
58 As a result of the foregoing, in the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), the Court of Justice finally held that the acts at issue were not sufficiently reasoned as regards the manner in which the Council had verified that the Ukrainian authorities had respected the rights of the defence and the right to effective judicial protection, in the context of the criminal proceedings for misappropriation of public funds which formed the basis for the restrictive measures adopted and maintained by the Council against the applicant in the case giving rise to that judgment.
59 Admittedly, the decision of the Court of Justice in the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031) to deal with the question of whether the Ukrainian authorities had respected the rights at issue from the perspective of whether the Council had complied with its obligation to state reasons was not consistent with the arguments put forward by the applicant in the case giving rise to the judgment of 7 July 2017, Azarov v Council (T‑215/15, EU:T:2017:479) in relation to the Council’s obligation to verify that the level of protection of fundamental rights in Ukraine was equivalent to that in the European Union. Those arguments did not form part of the plea alleging infringement of the obligation to state reasons but, rather, were included in the plea alleging that the Council had committed a manifest error of assessment, as is clear from paragraph 166 of that judgment and indeed also from point 41 of the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031).
60 However, in the light of the matters set out in paragraphs 55 to 58 above, it is clear that, in the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), the Court of Justice focused on the obligation to state reasons.
61 Therefore, since, in the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), the Court of Justice annulled the acts at issue on the basis of a plea involving a matter of public policy, the Council’s plea of inadmissibility summarised in paragraph 51 above must be rejected.
62 In any event and in the second place, it must be borne in mind that, according to settled case-law, even though, in principle, no new plea in law may be introduced in the course of proceedings, a plea or an argument which may be regarded as amplifying a plea or an argument put forward previously, whether directly or by implication, in the original application and which is closely connected therewith must nevertheless be declared admissible (see, to that effect, judgments of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 46, and of 26 February 2016, Bodson and Others v EIB, T‑240/14 P, EU:T:2016:104, paragraph 30).
63 In the present case, in paragraphs 83 and 84 of the application, the applicant submitted, in essence, that the criminal proceedings upon which the Council had relied as the basis for maintaining the restrictive measures against him had been ongoing for four years, with no sign of a conclusion on the part of the PGO, and that this stagnant state of affairs showed that the Ukrainian authorities wished to maintain pressure on him and would continue to cite the existence of those proceedings in order to freeze funds as a result of those measures. According to the applicant, that rendered the aforementioned proceedings contrary to Article 6 of the ECHR and should have led the Council to question whether the proceedings were well founded.
64 It must be stated that the arguments put forward by the applicant in answer to the question referred to in paragraph 33 above, as summarised in paragraph 48 above, are closely connected with those paragraphs of the application referred to in paragraph 63 above. Therefore, irrespective of the question of whether a matter of public policy is involved, the applicant cannot be regarded as being precluded from asking the Court, in the present case, to follow the same approach as that taken by the Court of Justice in the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031).
65 In the third place, it must be borne in mind that, by way of an exception to the principle that no new pleas can be introduced, they are permitted when they are based on matters of law or of fact which come to light in the course of the procedure, in accordance with Article 84 of the Rules of Procedure (see paragraph 52 above).
66 In that regard, it has been held that although, admittedly, EU case-law which merely confirms law which ought, in principle, to have been known to the applicant when it brought an action cannot be regarded as a new matter allowing a fresh plea to be raised, the position is otherwise with case-law which provides clarifications (see, to that effect, judgment of 22 March 2018, Stavytskyi v Council, T‑242/16, not published, EU:T:2018:166, paragraph 125 and the case-law cited).
67 In the present case, at the time that the applicant brought the present action, there was existing case-law of the General Court which stated, first, that the approach adopted in the judgment of 16 October 2014, LTTE v Council (T‑208/11 and T‑508/11, EU:T:2014:885), could not be transposed to the context of restrictive measures taken by the Council in view of the situation in Ukraine and, second, that it was only if the Council’s political decision to support the new Ukrainian regime proved to be manifestly erroneous that any inconsistency between the protection of fundamental rights in Ukraine and that in place in the European Union could have a bearing on the legality of those measures (see, to that effect, judgments of 7 July 2017, Azarov v Council, T‑215/15, EU:T:2017:479, paragraphs 166 to 178, and of 8 November 2017, Klymenko v Council, T‑245/15, not published, under appeal, EU:T:2017:792, paragraphs 218 to 232). However, by the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), the Court of Justice overturned that case-law of the General Court, which must be regarded as a matter of law capable of justifying the submission of a new plea or argument.
68 It follows from the foregoing considerations that the argument derived by the applicant from the principles originating, inter alia, in the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), as set out in paragraphs 40 to 47 above, is admissible.
69 Furthermore, it must be noted that, by means of the question referred to in paragraph 33 above, the parties’ right to be heard was respected. It follows from the case-law that, when the Court invites the parties to a case to state in writing what conclusions are, in their view, to be drawn from a judgment delivered in another case, those parties must be deemed to be aware that the Court is considering the possibility of applying the solution adopted in that judgment to the present case, even if that is of the Court’s own motion (see, to that effect, order of 4 December 2013, Forgital Italy v Council, T‑438/10, not published, EU:T:2013:648, paragraphs 59 and 60).
Substance
70 The arguments which the applicant draws from the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), have been summarised in paragraph 48 above.
71 The Council submits that, although it did not make specific reference thereto in the grounds for the contested acts, at the time those acts were adopted, it was aware of judicial oversight having taken place in Ukraine, as was apparent from several letters from the PGO. Those letters attest to several judicial decisions taken in Ukraine with regard to the applicant, such as the detention permit issued by the investigating judge of the Pecherskyi District Court in Kiev for the applicant’s appearance before the court. What is more, the fact – admitted by the applicant – that the Ukrainian authorities had given him access to the criminal proceedings file, on which the Council relied in order to maintain the restrictive measures at issue, is an example demonstrating that the applicant’s rights of the defence and his right to effective judicial protection were observed in Ukraine.
72 As a preliminary point, it must be noted that the applicant is subject to new restrictive measures adopted by means of the contested acts on the basis of the listing criterion set out in Article 1(1) of Decision 2014/119, as clarified in Decision 2015/143, and in Article 3 of Regulation No 208/2014, as clarified in Regulation 2015/138 (see paragraphs 13 and 14 above). That criterion provides for the freezing of funds of persons who have been identified as responsible for the misappropriation of public funds, including persons subject to investigation by the Ukrainian authorities.
73 It is common ground that the Council, in order to decide to maintain the applicant’s name on the list, relied on the fact that he was subject to ‘criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets’, which was evidenced by the PGO’s letters, of which the applicant had received a copy (see paragraph 26 above).
74 The maintenance of the restrictive measures taken against the applicant was therefore based, as in the case giving rise to the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), on the PGO’s decision to initiate and conduct criminal investigation proceedings concerning an offence of misappropriation of Ukrainian State funds.
75 In the first place, the fact remains that the statement of reasons for the contested acts relating to the applicant (see paragraphs 16 and 28 above) does not include a single reference to the fact that the Council verified compliance, by the Ukrainian judicial authorities, with the applicant’s rights of defence and his right to effective judicial protection and that, therefore, such a failure to refer to those reasons amounts to an early indication that the Council did not carry out such a verification.
76 In the second place, it must be noted that none of the information contained in the letter of 8 March 2018 (see paragraph 29 above) makes it possible to consider that the Council had information relating to compliance with the rights at issue by the Ukrainian authorities so far as concerns the criminal proceedings against the applicant and, even less so, that the Council had assessed such information, in order to verify that those rights had been sufficiently complied with by the Ukrainian judicial authorities at the time of the adoption of the decision to initiate and conduct criminal investigation proceedings concerning an offence of misappropriation of public funds or assets committed by the applicant. In that letter, as in the case giving rise to the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031, paragraph 24), the Council merely stated that the PGO’s letters, supplied to the applicant beforehand (see paragraph 26 above) showed that the applicant continued to be subject to criminal proceedings for misappropriation of public funds or assets.
77 In the third place, it must be observed that the Council was under an obligation to verify that the rights of defence and right to effective judicial protection had been complied with, irrespective of any evidence adduced by the applicant to show that, in the present case, his personal situation had been affected by the problems which he pointed out relating to the functioning of the judicial system in Ukraine. In the defence, the Council stated, in essence, that any alleged infringement of the applicant’s rights of defence by the Ukrainian authorities could be relied on only before the Ukrainian courts.
78 In the fourth place, it must be borne in mind that, in its answer to the question relating to the judgment of 19 December 2018, Azarov v Council (C 530/17 P, EU:C:2018:1031), the Council, on the substance, merely put forward the arguments summarised in paragraph 71 above.
79 In that regard, first, it must be noted that the Council accepts that the statement of reasons for the contested acts does not cover the issue of compliance with the rights of the defence and the right to effective judicial protection in the light of the decision to initiate and conduct the criminal proceedings justifying the inclusion and maintenance of the applicant’s name on the list.
80 Second, it must be noted that the Council claims that it is clear from the file before the Court in the present case that the conduct of the criminal investigations had been subject to judicial oversight in Ukraine. More specifically, according to the Council, the existence of several judicial decisions adopted in the context of the criminal proceedings against the applicant shows that, when it relied on the decision of the Ukrainian authorities referred to in the PGO’s letters, first, it was able to verify that that decision had been taken in accordance with the rights of the defence and the right to effective judicial protection and, second, it checked that a certain number of judicial decisions in the context of those criminal proceedings had been taken in accordance with those rights.
81 All the judicial decisions mentioned by the Council fall within the scope of the criminal proceedings which justified the inclusion and maintenance of the applicant’s name on the list and are merely incidental in the light of those proceedings, since they are either restrictive or procedural in nature. It is true that those decisions are capable of supporting the Council’s argument concerning the existence of a sufficiently solid factual basis, namely the fact that, in accordance with the listing criterion, the applicant was subject to criminal proceedings concerning, inter alia, an offence of misappropriation of Ukrainian State funds or assets. However, such decisions are not ontologically capable, alone, of demonstrating, as the Council maintains, that the decision of the Ukrainian judicial authorities to initiate and conduct those criminal proceedings, on which the maintenance of the restrictive measures directed against the applicant is, in essence, based, was taken in accordance with his rights of defence and his right to effective judicial protection.
82 In any event, first, the Council is not in a position to refer to any document in the file of the procedure which resulted in the adoption of the contested acts showing that it examined the decisions of the Ukrainian courts on which it now relies and from which it was able to conclude that the essence of the applicant’s rights of defence and his right to effective judicial protection had been complied with.
83 Second, the Council does not even try to explain how the existence of those decisions permits the inference that the protection of the rights in question was guaranteed, even though, as the applicant had argued, in particular in his letter of 26 January 2018 to the Council, that procedure, which had been ongoing since March 2014, was still at the preliminary investigation stage and had not been submitted to a Ukrainian court on the substance but at most, only in respect of procedural issues.
84 In that regard, it should be noted that Article 6(1) of the ECHR provides that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. That right relates to the principle of effective judicial protection and has, moreover, been reaffirmed in Article 47 of the Charter of Fundamental Rights (see, to that effect, judgment of 16 July 2009, Der Grüne Punkt – Duales System Deutschland v Commission, C‑385/07 P, EU:C:2009:456, paragraphs 177 and 179).
85 Furthermore, the European Court of Human Rights has already pointed out that infringement of that principle could be established in particular where the investigation phase of criminal proceedings was characterised by a certain number of stages of inactivity attributable to the authorities responsible for that investigation (see, to that effect, ECtHR, 6 January 2004, Rouille v. France, CE:ECHR:2004:0106JUD005026899, §§ 29 to 31; 27 September 2007, Reiner and Others v. Romania, CE:ECHR:2007:0927JUD000150502, §§ 57 to 59; and 12 January 2012, Borisenko v. Ukraine, CE:ECHR:2012:0112JUD002572502, §§ 58 to 62).
86 Furthermore, it follows from the case-law that, where a person has been the subject of the restrictive measures at issue for several years, on account of the same criminal proceedings brought by the PGO, the Council is required to explore in greater detail the question of a possible breach of a fundamental right of that person by the Ukrainian authorities (see, to that effect, judgment of 30 January 2019, Stavytskyi v Council, T‑290/17, EU:T:2019:37, paragraph 132).
87 Therefore, in the present case, the Council should at the very least have stated the reasons why, despite the applicant’s argument referred to in paragraph 83 above, it was entitled to take the view that the applicant’s right to effective judicial protection before the Ukrainian judicial authorities, which is clearly a fundamental right, had been respected in terms of having his case heard within a reasonable time.
88 Third, with regard to the reference made by the Council to the fact that the applicant acknowledged that he had had access, on 21 April 2017, to the PGO’s file about him, it must be noted that, while this is a pre-condition for a finding that the applicant’s rights of defence and his right to effective judicial protection had been respected, it is certainly not sufficient.
89 It cannot therefore be found that the information available to the Council at the time of the adoption of the contested acts enabled it to verify that the decision of the Ukrainian judicial authorities, on which the decision to maintain the restrictive measures against the applicant was, in essence, based, had been taken in accordance with those rights.
90 Furthermore, in that regard, it must also be noted, as was made clear in the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), that the case-law of the Court of Justice – according to which, in particular, in the event of the adoption of a decision to freeze funds such as that adopted in respect of the applicant, it is not for the Council or General Court to verify whether or not the investigations to which the person concerned by those measures was subject in Ukraine were well founded, but only to verify whether that was the case in relation to the decision to freeze funds in the light of the document or documents on which that decision was based (see, to that effect, judgments of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraph 77; of 19 October 2017, Yanukovych v Council, C‑599/16 P, not published, EU:C:2017:785, paragraph 69; and of 19 October 2017, Yanukovych v Council, C‑598/16 P, not published, EU:C:2017:786, paragraph 72) – cannot be interpreted as meaning that the Council is not required to verify that the decision of the third State on which it intends to base the adoption of restrictive measures was taken in accordance with the rights of the defence and the right to effective judicial protection (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 40 and the case-law cited).
91 In the light of all of the foregoing, it has not been established that the Council, prior to the adoption of the contested acts, verified that the Ukrainian judicial authorities complied with the applicant’s rights of defence and his right to effective judicial protection.
92 In those circumstances, the contested acts must be annulled, in so far as they concern the applicant, without it being necessary to examine the other pleas in law and arguments put forward by the applicant.
93 With regard to the Council’s alternative claim (see the third indent of paragraph 36 above), in essence seeking that the effects of Decision 2018/333 be maintained until the expiry of the period of time allowed for bringing an appeal and, in the event that an appeal is lodged, until the decision ruling on that appeal, it is sufficient to observe that Decision 2018/333 was effective only until 6 March 2019. Consequently, the annulment of that decision by this judgment has no effect on the period after that date, so that it is not necessary to rule on the question of maintaining the effects of that decision (see, to that effect, judgment of 6 June 2018, Arbuzov v Council, T‑258/17, EU:T:2018:331, paragraph 107 and the case-law cited).
Costs
94 Under Article 134(1) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 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.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Annuls Council Decision (CFSP) 2018/333 of 5 March 2018, amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine and Council Implementing Regulation (EU) 2018/326 of 5 March 2018 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, in so far as Mr Oleksandr Viktorovych Klymenko’s name was maintained on the list of persons, entities and bodies subject to those restrictive measures;
2. Orders the Council of the European Union to pay the costs.
Delivered in open court in Luxembourg on 11 July 2019.
[Signatures]