JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
28 June 2023 (*)
(Common foreign and security policy – Restrictive measures adopted in view of the situation in Belarus – Freezing of funds – Maintaining of the applicant’s name on the lists of persons, entities and bodies concerned – Error of assessment)
In Case T‑239/21,
Dana Astra IOOO, established in Minsk (Belarus), represented by M. Lester, Barrister-at-Law, P. Sellar and J. Beck, lawyers,
applicant,
v
Council of the European Union, represented by S. Van Overmeire and T. Haas, acting as Agents,
defendant,
THE GENERAL COURT (Fifth Chamber),
composed of J. Svenningsen, President, J. Laitenberger and M. Stancu (Rapporteur), Judges,
Registrar: M. Zwozdziak-Carbonne, Administrator,
having regard to the written part of the procedure,
further to the hearing on 13 December 2022,
gives the following
Judgment
1 By its action based on Article 263 TFEU, the applicant, Dana Astra IOOO, seeks annulment
– of Council Decision (CFSP) 2021/353 of 25 February 2021 amending Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2021 L 68, p. 189) and of Council Implementing Regulation (EU) 2021/339 of 25 February 2021 implementing Article 8a of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2021 L 68, p. 29) (together, ‘the 2021 maintaining acts’),
– of Council Decision (CFSP) 2022/307 of 24 February 2022 amending Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus (OJ 2022 L 46, p. 97), and of Council Implementing Regulation (EU) 2022/300 of 24 February 2022 implementing Article 8a of Regulation (EC) No 765/2006 concerning restrictive measures in view of the situation in Belarus (OJ 2022 L 46, p. 3) (together, ‘the 2022 maintaining acts’),
in so far as those acts (together, ‘the contested acts’) concern the applicant.
Background to the dispute and facts subsequent to the lodging of the action
2 The applicant is a Belarusian company which is active in the construction and property development sectors.
3 The present case has arisen in the context of the restrictive measures adopted by the European Union since 2004 on account of the situation in Belarus with regard to democracy, the rule of law and human rights. As is apparent from the recitals to Council Implementing Decision (CFSP) 2020/2130 of 17 December 2020 implementing Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2020 L 426 I, p. 14) and to Council Implementing Regulation (EU) 2020/2129 of 17 December 2020 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2020 L 426 I, p. 1) (together, ‘the initial acts’), the case is more specifically linked to the intensification of the persistent violation of human rights and the brutal crackdown on opponents of the regime of President Lukashenko following the presidential elections of 9 August 2020, which were found by the European Union to be inconsistent with international standards.
4 On 18 May 2006, the Council of the European Union, on the basis of Articles [75 and 215 TFEU], adopted Regulation (EC) No 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2006 L 134, p. 1). On 15 October 2012, on the basis of Article 29 TEU, it adopted Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1).
5 In the versions applicable on the date the contested acts were adopted, Article 4(1)(b) of Decision 2012/642 and Article 2(1) and (5) of Regulation No 765/2006, that latter provision referring to the former, provide that all funds and economic resources owned, held or controlled by, inter alia, natural or legal persons, entities or bodies benefiting from or supporting the regime of President Lukashenko are to be frozen.
6 By the initial acts, the entity identified as ‘Dana Holdings/Dana Astra’ was included on the lists of persons, entities and bodies subject to the restrictive measures set out in the annex to Decision 2012/642 and Annex I to Regulation No 765/2006 (together, ‘the lists at issue’).
7 In the initial acts, the Council justified the inclusion of the entity identified as ‘Dana Holdings/Dana Astra’ on the lists at issue on the following grounds:
‘Dana Holdings/Dana Astra is one of the main real estate developers and constructors in Belarus. The company received plots of land for the development of several large residential complexes and business centres.
Owners of Dana Holdings/Dana Astra maintain close relations with [President Lukashenko]. Liliya Lukashenka, daughter-in-law of the President, has a high- ranking position in the company.
As such Dana Holdings/Dana Astra is benefiting from and supporting [President Lukashenko’s] regime.’
8 By letter of 24 December 2020, the applicant requested access to the information and evidence supporting that listing. By letter of 31 December 2020, it disputed the grounds for the designation of the entity identified as ‘Dana Holdings/Dana Astra’ on the lists at issue and asked the Council to reconsider that designation.
9 On 8 January 2021, the Council communicated the documents WK 13845/2020 INIT and WK 14796/2020 EXT 1 to the applicant.
10 By letter of 22 January 2021, the Council notified the applicant of its intention to maintain the entity identified as ‘Dana Holdings/Dana Astra’ on the lists at issue and provided it with additional evidence, compiled in document WK 750/2021 INIT.
11 On 2 February 2021, the applicant informed the Council that it maintained its position that there was no basis for maintaining restrictive measures against it.
12 By the 2021 maintaining acts, the inclusion of the entity identified as ‘Dana Holdings/Dana Astra’ on the lists at issue was maintained until 28 February 2022. The reasons justifying that decision to maintain the listing were that:
‘Dana Holdings/Dana Astra is one of the main real estate developers and constructors in Belarus. The company received plots of land for the development of several large residential complexes and business centres.
Owners of Dana Holdings/Dana Astra maintain close relations with President [Lukashenko]. Liliya Lukashenka, daughter-in-law of the President, had a high- ranking position in the company.
Dana Holdings/Dana Astra is therefore [benefiting] from its association with and supporting [President Lukashenko’s] regime.’
13 By letter of 26 February 2021, the Council informed the applicant of its decision to maintain the entity identified as ‘Dana Holdings/Dana Astra’ on the lists at issue and responded to the observations the applicant had made to it in the letters of 31 December 2020 and 2 February 2021 (see paragraphs 8 and 11 above). By the same letter, the Council sent the applicant the evidence compiled in document WK 14796/2020 INIT.
14 By letter of 30 November 2021, the applicant contested the grounds for maintaining its name on the lists at issue and requested that the Council carry out a review.
15 On 17 January 2022, the Council replied to the applicant’s letter and sent it new evidence, set out in the following documents: WK 15382/2021 REV 2 EXT 1, WK 15436/2021 ADD 1 and WK 15436/2021 EXT 11. The Council also informed the applicant of its decision to maintain its name on the lists at issue.
16 On the same day, the Council sent a similar letter to Dana Holdings, to the address provided in the official Belarusian register of companies.
17 By letter of 27 January 2022, the applicant replied to the two letters sent by the Council on 17 January 2022 to Dana Astra and Dana Holdings.
18 By the 2022 maintaining acts, the restrictive measures against the applicant were maintained until 28 February 2023 on the following grounds:
‘Dana Astra, previously a subsidiary of Dana Holdings, is one of the main real estate developers and constructors in Belarus. The company received development rights for plots of land and is developing the multifunctional centre “Minsk World”, which is advertised by the company as the biggest investment of its kind in Europe.
Individuals reportedly representing Dana Astra maintain close relations with President [Lukashenko]. Liliya Lukashenka, daughter-in-law of the President, had a high- ranking position in the company.
Dana Astra is therefore [benefiting] from and supporting [President Lukashenko’s] regime.’
19 By the 2022 maintaining acts, the name Dana Holdings was also maintained on the lists at issue, albeit separately from that of the applicant.
20 By letter of 25 February 2022, the Council informed the applicant of its decision to maintain its name on the lists at issue. In addition, the Council underlined that both Dana Holdings and Dana Astra had been designated since the initial acts. Consequently, the separate reference to the two entities in the 2022 maintaining acts was not to be regarded as new entries on the lists at issue, but reflected changes to the ties between the two entities that had been brought to the Council’s attention.
Forms of order sought
21 The applicant claims that the Court should:
– annul the contested acts in so far as they concern it;
– order the Council to pay the costs.
22 The Council contends that the Court should:
– dismiss the action as unfounded;
– order the applicant to pay the costs;
– in the alternative, if the Court were to annul the contested acts in so far as they concern the applicant, it should order that the effects of Decision 2022/307 are to be maintained until the partial annulment of Implementing Regulation 2022/300 takes effect.
Law
23 As a preliminary matter, it should be observed that when questioned by the Court at the hearing, the applicant confirmed in essence, first, that although the expression ‘failure to give reasons’ is included in the heading of that plea as it appears in the application, only one plea has been raised, alleging errors of assessment that vitiate the grounds for maintaining its name on the lists at issue; and, second, that it does not dispute the admissibility of Annexes B.8 to B.14, B.16 and B.17, which the Council attached to the defence.
24 In the single plea that it raises, the applicant submits, in essence, that the grounds referred to in the contested acts, in so far as those acts concern it, are vitiated by errors of assessment and cannot therefore justify maintaining its name on the lists at issue.
25 As regards the first ground for maintaining the applicant’s name on the lists at issue, the applicant argues that the Council mistakenly relies on the presumption that the economic success of companies operating in Belarus is dependent on their being associated with the regime of President Lukashenko for its finding that the applicant’s position in the Belarusian economy shows that it benefits from or supports the regime of President Lukashenko. In addition, the applicant claims that its economic success is not connected to that regime, but is the result of timely investments of capital, made into a fast-growing real estate market in Belarus, as a result of an innovative and profitable business model based on a market economy. Lastly, the applicant submits, in essence, that the Council has not shown that it obtained the development rights for the multifunctional centre Minsk World (‘the Minsk World centre’) other than on its own merits following an open tender process. In addition, it contends that the conditions on which those development rights were awarded to it were appropriate for a public-private project of that type, which involves a balance of benefits and obligations between the investor and the authorities.
26 As regards the second ground for maintaining its name on the lists at issue, the applicant submits, first, that it is hypothetical and, second, that the evidence which the Council uses to substantiate that ground does not in any event make it possible to establish a link between the persons referred to therein and the applicant.
27 As far as the third ground for maintaining the applicant’s name on the lists at issue is concerned, the applicant argues that the Council has not explained how the former employment of the daughter-in-law of President Lukashenko is capable of substantiating the finding that the applicant benefits from or supports the latter’s regime. The period of employment of Ms Liliya Lukashenka, which lasted three years and eight months, ended on 22 August 2018, almost three years before the adoption of the initial acts. Furthermore, she had never held a high-ranking position in the applicant’s company.
28 The Council disputes those arguments.
29 It should be borne in mind, in the first place, that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires inter alia 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 person or entity 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 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, are substantiated (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119).
30 It is for the Courts of the European Union, in order to carry out that examination, to request the competent EU authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination (see judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 120 and the case-law cited).
31 That is because it is the task of the competent EU authority to establish, in the event of challenge, that the reasons relied on against the person or entity concerned are well founded, and not the task of those latter persons to adduce evidence of the negative, that those reasons are not well founded (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 121).
32 If the competent EU authority provides relevant information or evidence, the Courts of the European Union must determine whether the facts alleged are made out in the light of that information or evidence and assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person or entity concerned (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 124).
33 Such an assessment must be carried out by examining the evidence and information not in isolation but in its context. The Council discharges the burden of proof borne by it if it presents to the Courts of the European Union a set of indicia sufficiently specific, precise and consistent to establish that there is a sufficient link between the person or entity subject to a measure freezing its funds and the regime or, in general, the situations being combated (see judgment of 12 February 2020, Kanyama v Council, T‑167/18, not published, EU:T:2020:49, paragraph 93 and the case-law cited).
34 Furthermore, the Courts of the European Union may also rely on an item of evidence, both inculpatory or exculpatory, adduced by the applicant during the judicial proceedings. The fact that a piece of evidence has been submitted as exculpatory evidence by the person or entity subject to the restrictive measures does not prevent that evidence from possibly being used against that person or entity to support the merits of the reasons underpinning the restrictive measures taken against them (see, to that effect, judgment of 12 February 2020, Ilunga Luyoyo v Council, T‑166/18, not published, EU:T:2020:50, paragraph 124 and the case-law cited). The same applies to evidence presented by that person or entity in connection with a request for a review of restrictive measures concerning it.
35 Lastly, as regards the reliability and probative force of evidence, including that from digital sources, it should be borne in mind that the activity of the Court of Justice and of the General Court is governed by the principle of the unfettered evaluation of evidence, and that it is only the reliability of the evidence before the Court which is decisive when it comes to the assessment of its value. In addition, in order to assess the probative value of a document, regard should be had to the credibility of the account it contains, and in particular to the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears to be sound and reliable (see, to that effect, judgments of 14 March 2018, Kim and Others v Council and Commission, T‑533/15 and T‑264/16, EU:T:2018:138, paragraph 224, and of 12 February 2020, Kande Mupompa v Council, T‑170/18, EU:T:2020:60, paragraph 107 (not published)).
36 In the second place, having regard to the preventive nature of the restrictive measures at issue, if, in the course of its review of the lawfulness of the contested decision, the Courts of the European Union consider that, at the very least, one of the reasons for listing is sufficiently detailed and specific, that it is substantiated and that it constitutes in itself a sufficient basis to support that decision, the fact that the same cannot be said of other such reasons cannot justify the annulment of that decision (see, that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 130).
37 It is in the light of those principles that the Court must determine, in the present case, whether the grounds for maintaining the applicant’s name on the lists at issue are based on a set of indicia that are sufficiently specific, precise and consistent to establish that it benefits from and supports the regime of President Lukashenko.
38 As regards the first ground for maintaining the applicant’s listing, it should be observed as a preliminary point that the Council, by the 2022 maintaining acts, amended the wording of that ground in comparison with the 2021 maintaining acts, in particular by stating that the applicant had received ‘development rights for plots of land’ and not that it had received ‘plots of land’. The Council also stated that the applicant ‘is developing the multifunctional centre Minsk World, which is advertised by the company as the biggest investment of its kind in Europe’ rather than that it would develop ‘several large residential complexes and business centres’.
39 In that respect, it must be held that that change to the first ground for maintaining the applicant’s listing and the clarification provided therein are not inconsistent with the substance of the first ground in the 2021 maintaining acts; this is acknowledged by the applicant in paragraph 9 of the statement of modification, where it states that the statement of reasons in the 2022 maintaining acts differs only ‘slightly’ from that in the 2021 maintaining acts. Indeed, the Minsk World multifunctional centre referred to by the 2022 maintaining acts is intended to house various administrative, commercial, sociocultural, sporting and residential infrastructure objects and, as such, includes ‘several large residential complexes and business centres’, as referred to in the 2021 maintaining acts.
40 Furthermore, as the Council states, the reference in the 2021 maintaining acts to plots of land was not in the sense that the applicant became the owner of those plots. The Council explains that while it is true that the Belarusian State retains ownership of those plots of land, its file shows that the applicant was granted the right to be the sole developer of real estate projects on those plots.
41 In addition, when questioned by the Court on this issue at the hearing, the Council stated that, as far as the applicant was concerned, it was only the Minsk World centre that was referred to and that that was the case also for the 2021 maintaining acts.
42 Consequently, even acknowledging, in the light of the amendment and the explanation provided by the Council, that the first ground for maintaining the applicant’s listing in the 2021 maintaining acts is somewhat imprecise, those factors are not, by themselves, capable of affecting the lawfulness of those acts. In those circumstances, as regards the first ground for maintaining the applicant’s name on the lists at issue, it is necessary to accept the contention that, in essence, the applicant is one of the main real estate developers and constructors in Belarus which is developing the Minsk World centre, which it advertises as the biggest investment of its kind in Europe, on plots of land for which it has received development rights.
43 As to whether the first ground for maintaining the applicant’s listing is well founded, it must be held that, contrary to what is claimed by the applicant, the Council did not merely infer that it benefits from and supports the regime of President Lukashenko from the fact that the applicant is one of the main real estate developers and constructors in Belarus.
44 The Council submits that it should be considered in the present case, having regard to the business environment and economic reality in Belarus, that operations of the magnitude of those pursued by the applicant – which is described by the contested acts as ‘one of the main real estate developers and constructors in Belarus’, which has received real estate development rights for plots of land in order to develop the Minsk World centre – are not possible without the endorsement of the regime of President Lukashenko. In addition, according to the Council, the advantages received by the applicant were intended to facilitate the implementation of a large-scale construction project that was of particular importance for the regime.
45 In that regard, it must be held that the fact of being one of the main real estate developers and constructors in Belarus, taken in isolation, does not suffice to establish that the applicant maintains good contacts with the public authorities and that its operations indicate closeness to the regime of President Lukashenko. Nonetheless, that aspect cannot be disregarded in the overall assessment of the various relevant factors which would justify the applicant being considered as an entity benefiting from or supporting President Lukashenko’s regime (see, by analogy, judgment of 12 May 2015, Ternavsky v Council, T‑163/12, not published, EU:T:2015:271, paragraph 121).
46 In the present case, the Council relied in particular on the fact that the applicant received development rights for plots of land for the development of the Minsk World centre, which was still being constructed at the time the contested acts were adopted.
47 As regards that centre, it should be noted in the first place, contrary to what is claimed by the applicant, that even if that constitutes only one project, its scale and importance for the Belarusian economy and the regime are relevant factors in assessing the ground for maintaining the applicant’s listing, according to which, as one of the main real estate developers and constructors in Belarus which has received development rights with respect to plots of land for the development of the Minsk World centre, the applicant benefits from and supports the regime of President Lukashenko.
48 First, it is apparent from item of evidence No 2 in document WK 750/2021 INIT that the Minsk World centre is a very large project since it concerns a multifunctional centre intended to house administrative, commercial, sociocultural, sports and residential infrastructure, with an area of approximately 300 hectares; it is being developed by the applicant on plots of land owned by the Belarusian State that are located in the centre of Minsk (Belarus), on the basis of a public-private partnership between the applicant and the Belarusian Government. That is confirmed by the applicant, which states that the Minsk World centre is a large development project which is to become the first international financial centre in Belarus and that the development of that centre was to involve a significant investment of at least three billion United States dollars (USD).
49 Second, the applicant confirms that the Minsk World centre is of particular socio-economic importance to Belarus given that hundreds of Belarusian contractors are involved in its construction, that almost all the construction equipment and materials are produced domestically, and that the construction of that centre means guaranteed jobs for tens of thousands of specialist workers across the country.
50 Third, several items of evidence attest to the importance of the Minsk World centre for the regime. Accordingly, President Lukashenko himself on several occasions, in 2015 and 2019, publicly expressed his appreciation of the importance of the Minsk World centre for the Belarusian economy and his support for the applicant’s business, and more particularly for the Minsk World centre that it is developing.
51 It is apparent from item of evidence No 5 in document WK 13845/20 INIT produced by the Council, namely an article conveying statements by President Lukashenko at a news conference, that he publicly declared that he considered Dana Holdings – which, according to the applicant, is a business name under which it also operates – to be one the most successful and probably one of the richest companies in the world, which was able to perform miracles.
52 It is apparent from that same item of evidence that President Lukashenko also stated that he had instructed Dana Holdings to create probably the most advanced economic zone (perhaps the most advanced in Europe) – the Minsk World centre – where a financial centre and office space would be built, and that investors in the Middle East and Europe had already visited the site and were ready to cooperate with Dana Holdings.
53 Similarly, it is apparent from item of evidence No 10 in document WK 750/2021 INIT, consisting of a press release published on the website of the official Belarusian news agency, belta.by, that President Lukashenko stated publicly in 2015 that the Minsk World centre was a project of special importance and that it should not be allowed to fail. On the same occasion, he stated that ‘the Belarusian side will do its utmost to lift all the brakes and use additional reserves if necessary’ for the implementation of the Minsk World centre.
54 In the light of the content of those declarations, made by President Lukashenko himself, it must be held, contrary to what the applicant claims, that those statements demonstrate the support which the applicant receives from the regime. Those statements not only praise the applicant’s activities, in particular the development of the Minsk World centre, but also attest, in completely unambiguous terms, to the commitment given by President Lukashenko on behalf of the Belarusian public authorities to facilitate the development of that centre, which is being developed, as stated in paragraph 48 above, in the framework of a public-private partnership between the Belarusian State and the applicant.
55 It follows from paragraphs 48 to 54 above that the applicant is indeed developing the Minsk World centre and that that is a very large construction project supported by the regime of President Lukashenko.
56 In the second place, it must be stated that the applicant, in order to facilitate the development of the Minsk World centre, has obtained advantages and privileges from the regime which, contrary to what it claims, are not only indicative of the closeness and good contacts that it maintains with the regime of President Lukashenko, but which also demonstrate the benefit which it derives from that regime.
57 Accordingly, under Presidential Decree No 456 of 22 September 2014 on carrying out the investment project for the Minsk-City multifunctional centre, adduced by the Council as item of evidence No 2 in document WK 750/2021 INIT, the applicant, inter alia, has been exempted from property tax on any property constructed at the Minsk World centre throughout the period of implementation of that centre, from profit tax linked to the sale of property built as part of that centre until 1 January 2031, and from customs duties for the equipment, components, spare parts and raw materials necessary for the implementation of that centre until 1 January 2028.
58 In addition, it is apparent from a press release published on the website of the President of the Republic of Belarus, reported on the internet site of the official Belarusian news agency belta.by and submitted as item of evidence No 3 in document WK 750/2021 INIT, that since there was a risk of the Minsk World centre not meeting deadlines, the applicant, by Presidential Decree No 370 of 20 October 2020, was granted the right to approve and amend documentation relating to the design of the Minsk World centre without being required to adjust the entire urban scheme for the detailed planning of the city of Minsk, so to reduce the time for drawing up design documentation.
59 It follows from the foregoing that the applicant has benefited from advantages granted by presidential decrees the purpose of which was to facilitate the implementation of a very large-scale project that is of particular importance for the regime.
60 Admittedly, the applicant submits that under Belarusian legislation the conditions granted to it for the development of the Minsk World centre were appropriate for a public-private partnership, which involves a balance of benefits and obligations between the investor and the authorities. However, it must be found that it is apparent from the legal opinion which the applicant has included as Annex A.7 to its application, and on which the Court, in accordance with the case-law cited in paragraph 34 above, may rely not only for exculpatory, but also for inculpatory purposes, that the privileges and benefits referred to were granted specifically to the applicant as developer of the Minsk World centre. It is apparent from that legal opinion, first, that such privileges and benefits were not provided for by general legislation at the time of the adoption of Presidential Decree No 456 of 22 September 2014 and, second, that, under Belarusian legislation, it was only President Lukashenko who could, by decree, approve the grant of such specific tax privileges and advantages to an investor such as the applicant.
61 In that latter respect, it is important to point out that even if, as the applicant submits, Belarusian legislation gives the President of the Republic of Belarus the possibility to grant advantages and privileges such as those accorded to the applicant in the present case for the development of the Minsk World centre, it must be found that it is apparent from the legal opinion referred to in the preceding paragraph that President Lukashenko’s powers as regards the possibility of granting tax advantages and privileges, as well as their type, extent and beneficiaries, are discretionary. That opinion cites the provisions of the Belarusian Tax Code, in particular Article 3 thereof, which provides that the prohibition on derogating from the provisions of that code by legislative acts or on extending the powers it confers on a competent public authority does not apply to acts of the President of the Republic of Belarus adopted in accordance with the Constitution of the Republic of Belarus. Article 85 of the Constitution, cited in the same legal opinion, provides that ‘the President of the Republic of Belarus, on the basis of and in accordance with the Constitution, shall adopt decrees and orders which are legally binding throughout the entire territory of the Republic of Belarus’.
62 As regards the applicant’s argument that it was selected to develop the Minsk World centre solely on its merits, it is sufficient to observe that that argument is not relevant since the first ground for maintaining its listing is not based on such considerations.
63 It should be observed that, unlike the case dealt with in the judgment of 6 October 2015, Chyzh and Others v Council (T‑276/12, not published, EU:T:2015:748), the grounds for maintaining the applicant’s name on the lists at issue in the present case do not refer to the benefit gained from the regime of President Lukashenko due to the award of public contracts and concessions by that regime, but due to the fact that the applicant is one of the main real estate developers and constructors in Belarus, which is developing the Minsk World centre on plots of land for which it has received development rights from the Belarusian authorities.
64 Moreover, and in any event, the Council did not, in the present case, merely assert that the applicant benefits from or supports the regime of President Lukashenko on account, in general terms, of links between that regime and businessmen in Belarus, without any concrete evidence to support that assertion. In fact, as is apparent from paragraphs 48 to 54 and 56 to 61 above, it has been shown in the present case that the development rights for plots of land – property of the State – which the applicant has obtained and the development of the Minsk World centre result from favours from the regime of President Lukashenko.
65 Lastly, as regards the argument that, unlike the oil, defence and arms export sectors, the property and construction sectors are not regulated in Belarus, it should be observed that, even if the sectors in which the applicant operates are not subject to a system of licensing, it can hardly be denied that the applicant required the rights to make use of the plots of land, which belong to the Belarusian State, in order to develop the Minsk World centre and that those rights could be obtained only from the government.
66 The matters referred to in paragraphs 50 to 65 above should also be considered in the light of the conditions under which economic activities are carried out in Belarus.
67 Indeed, the items of evidence produced by the Council concerning the conditions under which economic activities are pursued in Belarus may be taken into account in the examination of the evidence not in isolation but in context, in accordance with the case-law cited in paragraph 33 above.
68 It is apparent from the evidence from various sources produced by the Council that, under the regime of President Lukashenko, the Belarusian economy is characterised by the control that the regime exercises over both the public and the private sector and a system which rewards loyalty to the regime.
69 In that regard, among the items of evidence set out in documents WK 14796/2020 EXT 1 and WK 15436/2021 EXT 11, the articles published on the websites ‘cepa.org’ on 30 July 2020; ‘naviny.belsat.eu’ on 15 October 2015; ‘news.tut.by’ on 13 December 2016; ‘en.belapan.by’ on 9 July 2020; ‘russian.rt.com’ on 22 March 2016; ‘belsat.eu’, consulted on 3 January 2022; and ‘atlanticcouncil.org’ on 13 October 2021, agree on the point that the pursuit of significant economic activities is possible only with the endorsement of the regime of President Lukashenko.
70 It is true that the applicant disputes the items of evidence set out in documents WK 14796/2020 EXT 1 and WK 15436/2021 EXT 11, arguing, in essence, that that evidence makes no mention of it or any person associated with it. Furthermore, it asserts that the relations between the Belarusian ‘business elite’ and the regime of President Lukashenko described in document WK 14796/2020 EXT 1 are not relevant to it since it was active only in the Belarusian real estate sector and its operations involve large, complex design and construction projects, typically in the form of public-private partnerships. It states that none of the articles describe any illicit arrangements with the regime in relation to such projects.
71 However, among the abovementioned articles, that published on the website ‘news.tut.by’ refers to the fact that the evolution of the autocratic political system in Belarus has produced its own type of businessman closely associated with the authorities – the so-called ‘Belarusian oligarchs’ – whose closeness to the regime is expressed, inter alia, by participation in profitable projects in the framework of public-private partnerships. Lastly, the article published on the website ‘belsat.eu’, produced by the Council in document WK 15436/2021 EXT 11, refers to Dana Holdings – which, according to the applicant, is a trade name under which it also operates – as one of the companies whose operations benefit from endorsement by the regime.
72 In the light of all the foregoing, the Council did not err in its assessment when it found that the applicant benefits from and supports the regime of President Lukashenko since it is one of the main real estate developers and constructors in Belarus which is still developing the Minsk World centre on plots of land for which it has received development rights.
73 That finding is not called into question by the other arguments put forward by the applicant.
74 In the first place, as regards the applicant’s claim that support for the regime must necessarily be financial or material in nature, it should be observed that that claim is based on a misreading of the judgment of 6 October 2015, Chyzh and Others v Council (T‑276/12, not published, EU:T:2015:748). Contrary to what the applicant claims, that judgment does not show that the Court considered that a person or entity supports the regime of President Lukashenko only if it provides direct financial or material support to that regime.
75 Unlike the present case, the statement of reasons relating to Mr Chyzh referred explicitly and solely to the financial support that he provided to the regime of President Lukashenko.
76 In addition, in the judgment of 6 October 2015, Chyzh and Others v Council (T‑276/12, not published, EU:T:2015:748), the Court merely found that there was no evidence in the Council’s file to substantiate in concrete terms that allegation of financial support, without, however, finding that the criterion referred to in paragraph 5 above should be interpreted as meaning that it refers solely to financial or material support to the regime of President Lukashenko. In that regard, it must be pointed out that it is apparent from recital 6 of Decision 2012/642 that the Council considered that, given the gravity of the situation in Belarus, the restrictive measures imposed on that country should to be extended to persons supporting the regime of President Lukashenko, ‘in particular persons … providing financial or material support to the regime’. It follows that the concept of ‘support to the regime’ in terms of the criterion referred to in paragraph 5 above does not encompass only financial or material support to the regime of President Lukashenko, but that it refers to any form of support to that regime.
77 In the present case, having regard to the size and prestigious nature of the Minsk World centre for the regime, confirmed by the public statements made by President Lukashenko himself (see paragraphs 51 to 53 above), and the particular importance of that centre to the Belarus economy, highlighted, as set out in paragraph 49 above, by the applicant itself, it must be found, as did the Council, that those factors demonstrate support to the regime of President Lukashenko.
78 In the second place, the fact that the applicant might have been placed on the list of legal persons considered hostile to the regime of President Lukashenko by that regime from 1 July 2022 cannot be regarded as relevant since it clearly refers to a purported change in the applicant’s situation which occurred after the adoption of the contested acts. The legality of a Union act must be assessed on the basis of the elements of fact and law existing at the date on which the act was adopted (see, to that effect, judgment of 14 April 2021, Al-Tarazi v Council, T‑260/19, not published, EU:T:2021:187, paragraph 69 and the case-law cited).
79 It follows from the foregoing that the first ground for maintaining the applicant’s name on the lists at issue, according to which the applicant is one of the main real estate developers and constructors in Belarus, which is developing the Minsk World centre, which it advertises as the biggest investment of its kind in Europe, on plots of land for which it received development rights, and on that basis benefits from and supports the regime of President Lukashenko, is substantiated to the requisite legal standard. Furthermore, in accordance with the case-law cited in paragraph 36 above, the finding that that ground is substantiated to the requisite legal standard is sufficient to reject the single plea in law raised by the applicant, without there being any need to examine the other arguments it has put forward and which are directed against the second and third grounds justifying the maintenance of restrictive measures against the applicant, since the fact that those grounds might be unsubstantiated cannot lead to annulment of the contested acts.
80 The application must therefore be dismissed.
Costs
81 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
82 In the present case, since the applicant has been unsuccessful, it must be ordered to pay the costs.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Dismisses the action;
2. Orders Dana Astra IOOO to bear its own costs and to pay those incurred by the Council of the European Union.
Svenningsen | Laitenberger | Stancu |
Delivered in open court in Luxembourg on 28 June 2023.
V. Di Bucci | | S. Papasavvas |