JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
18 October 2023 (*)
(Common foreign and security policy – Restrictive measures adopted in view of the situation in Belarus – Freezing of funds – Lists of persons, entities and bodies subject to the freezing of funds and economic resources – Inclusion and maintenance of the applicant’s name on the lists – Concept of ‘support for the regime’ – State-owned enterprise – Error of assessment)
In Case T‑533/21,
OAO Belaz – upravljajusaja kompanija holdinga Belaz Holding, established in Zhodino (Belarus), represented by D. O’Keeffe, Solicitor, and N. Tuominen, lawyer,
applicant,
v
Council of the European Union, represented by A. Antoniadis and A. Boggio-Tomasaz, acting as Agents,
defendant,
THE GENERAL COURT (Ninth Chamber),
composed of L. Truchot, President, H. Kanninen (Rapporteur) and R. Frendo, Judges,
Registrar: I. Kurme, Administrator,
having regard to the written part of the procedure,
further to the hearing on 1 February 2023,
having regard to the order of 12 April 2023 by which the Court decided to reopen the oral part of the procedure,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, OAO Belaz – upravljajusaja kompanija holdinga Belaz Holding, seeks the annulment, first, of Council Implementing Decision (CFSP) 2021/1002 of 21 June 2021 implementing Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus (OJ 2021 L 219 I, p. 70), and of Council Implementing Regulation (EU) 2021/997 of 21 June 2021 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2021 L 219 I, p. 3) (‘the initial acts’), and, second, Council Decision (CFSP) 2023/421 of 24 February 2023 amending Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine (OJ 2023 L 61, p. 41), and Council Implementing Regulation (EU) 2023/419 of 24 February 2023 implementing Article 8a of Regulation (EC) No 765/2006 concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine (OJ 2023 L 61, p. 20) (‘the maintaining acts’), in so far as those acts concern it.
Background to the dispute and events subsequent to the bringing of the action
2 The applicant is a company, established in Zhodino (Belarus), that manufactures trucks, as well as other heavy transport equipment.
3 The present case has arisen in the context of the restrictive measures adopted by the European Union since 2004 in view of the situation in Belarus with regard to democracy, the rule of law and human rights.
4 On 18 May 2006, the Council of the European Union adopted, on the basis of Articles [75 and 215 TFEU], Regulation (EC) No 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2006 L 134, p. 1), the title of which was replaced, under Article 1(1) of Council Regulation (EU) No 588/2011 of 20 June 2011 (OJ 2011 L 161, p. 1), by the heading ‘Council Regulation (EC) No 765/2006 of 18 May 2006 concerning restrictive measures in respect of Belarus’.
5 On 15 October 2012, on the basis of Article 29 TEU, the Council adopted Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1).
6 According to Article 4(1)(a) and (b) of Decision 2012/642 and Article 2(4) and (5) of Regulation No 765/2006, as amended by Council Regulation (EU) No 1014/2012 of 6 November 2012 (OJ 2012 L 307, p. 1), the last provision referring to the first, all funds and economic resources owned, held or controlled by, inter alia, persons, entities or bodies responsible for serious violations of human rights or the repression of civil society and democratic opposition, or whose activities otherwise seriously undermine democracy or the rule of law in Belarus, or natural and legal persons, entities and bodies that benefit from or support the Lukashenko regime, are to be frozen.
7 On 21 June 2021, the Council adopted the initial acts.
8 According to recital 2 of the initial acts, ‘on 9 August 2020, Belarus conducted presidential elections, which were found to be inconsistent with international standards and marred by the repression of independent candidates and a brutal crackdown on peaceful protesters in the wake of those elections[; o]n 11 August 2020, the High Representative of the Union for Foreign Affairs and Security Policy issued a declaration on behalf of the Union, assessing that the elections were neither free nor fair[; i]t was also stated that measures against those responsible for violence, unjustified arrests and falsification of election results could be taken.’
9 According to recitals 6 and 8 of Implementing Decision 2021/1002 and recitals 3 and 5 of Implementing Regulation 2021/997, ‘given the escalation of the serious human rights violations in Belarus, and the violent repression of civil society, democratic opposition and journalists as well as of persons belonging to national minorities, additional designations of persons and entities should be adopted[; ]78 persons and 7 entities should therefore be added to the list of persons and entities subject to restrictive measures …’
10 By the initial acts, the name ‘Belarusski Avtomobilnyi Zavod (BelAZ)/OJSC “BELAZ”’ was inserted in line 11 of Table B of the list of natural and legal persons, entities and bodies referred to in Article 3(1) and Article 4(1) of Decision 2012/642 contained in the annex to that decision, and in line 11 of Table B of the list of natural and legal persons, entities and bodies referred to in Article 2(1) of Regulation No 765/2006 contained in Annex I to that regulation (together, ‘the lists at issue’).
11 In the initial acts, in relation to ‘Belarusski Avtomobilnyi Zavod (BelAZ)/OJSC “BELAZ”’, the Council included the identification information ‘address: 40 let Octyabrya street 4, 222161, Zhodino, Minsk region, Republic of Belarus’ and ‘website: https://belaz.by’, and justified the adoption of restrictive measures concerning it, providing the following reasons:
‘OJSC “BElAZ” is one of the leading state-owned companies in Belarus and one of the largest manufacturers of large trucks and large dump trucks in the world. It is a source of significant revenue for the Lukashenk[o] regime. Lukashenk[o] stated that the government will always support the company, and described it as “Belarusian brand” and “part of the national legacy”. OJSC “BelAZ” has offered its premises and equipment to stage a political rally in support of the regime. Therefore OJSC “Belaz” benefits from and supports the Lukashenk[o] regime.
The employees of OJSC “Belaz” who took part in strikes and peaceful protests in the aftermath of the fraudulent August 2020 elections in Belarus were threatened with layoffs and intimidated by the company management. A group of employees was locked indoors by OJSC “Belaz “to prevent them from joining the other protesters. The company management presented a strike to the media as a staff meeting. Therefore OJSC “Belaz” is responsible for the repression of civil society and supports the Lukashenk[o] regime.’
12 By letter of 22 June 2021, the Council informed the applicant that its name had been included in the lists at issue.
13 By letter of 23 August 2021, the applicant asked the Council for access to the information and evidence supporting the inclusion of its name on the lists at issue.
14 By letter of 20 September 2021, the Council provided the applicant with the documents containing the evidence used as the basis for its decision to include its name on the lists at issue.
15 By letter of 21 December 2022, the Council informed the applicant of its intention to extend the restrictive measures against it on the basis of a document enclosed with that letter.
16 By letter of 20 January 2023, the applicant replied that the document forwarded by the Council did not justify the continued inclusion of its name on the lists at issue.
17 On 24 February 2023, the Council adopted the maintaining acts by which it maintained the applicant’s name on the lists at issue on essentially identical grounds as those set out in paragraph 11 above.
18 By letter of 27 February 2023, the Council stated that the observations set out in the letter of 20 January 2023 did not call into question its assessment that it was appropriate to maintain the applicant’s name on the lists at issue.
Forms of order sought
19 The applicant claims that the Court should:
– annul the initial and maintaining acts in so far as they affect it;
– order the Council to pay the costs;
– dismiss the Council’s request in the alternative that the Court order that the effects of Implementing Decision 2021/1002 be maintained as regards the applicant until the annulment in part of Implementing Regulation 2021/997 takes effect.
20 The Council contends that the Court should:
– dismiss the action as unfounded,
– order the applicant to pay the costs;
– in the alternative, should the Court annul the restrictive measures adopted against the applicant, order that the effects of Implementing Decision 2021/1002 be maintained as regards the applicant until the annulment in part of Implementing Regulation 2021/997 takes effect.
Law
21 It is appropriate to examine, in the first place, the application for partial annulment of the initial acts and, in the second place, the application for partial annulment of the maintaining acts.
The application for partial annulment of the initial acts
22 In support of the application for annulment of the initial acts in so far as they affect it, the applicant formally relies on three pleas in law. The first alleges infringement of the principle of effective judicial protection and of the rights of the defence. The second alleges a manifest error of assessment on the part of the Council. The third alleges that, ‘because the Council failed to meet the required standard of proof’, the initial acts contain ‘an unlawful type of sanctions’.
23 It should be observed that the second and third pleas overlap to a large extent in that they both allege, in essence, an error in the assessment of the facts and infringement of Article 4(1)(a) and (b) of Decision 2012/642. Moreover, at the hearing the applicant stated that the third plea was based on the premiss that the error of assessment relied on in the second plea was established.
24 In those circumstances, the Court considers it appropriate to examine, in the first place, the first plea and, in the second place, the second and third pleas together.
The first plea, alleging infringement of the principle of effective judicial protection and of the rights of the defence
25 The applicant claims that, since 2012, its company name is ‘Open Joint Stock Company “BELAZ”’ – Management Company of holding “BELAZ-HOLDING”’. It adds that the acronym ‘BELAZ’ was never part of its name before 2012, while ‘OJSC “BELAZ”’ has never been its company name formally registered in the Belarusian Unified State Register of Legal Entities and Individual Entrepreneurs. According to the applicant, since the designated entity was not correctly identified, the initial acts did not put it in a position to understand their exact scope, which was problematic in view of the consequences of the restrictive measures on the entities it owns or controls. It is of the view that, for this reason, the Council breached its right of defence. It is of the view, moreover, that such an error demonstrates that the Council did not have sufficient information when it included its name on the lists at issue.
26 In that regard, it should be recalled that respect for the rights of the defence, which is affirmed in Article 41(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’), includes, inter alia, the right to have access to the file, while respecting the legitimate interests of confidentiality. In addition, the right to effective legal protection, which is affirmed in Article 47 of the Charter, requires that the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him or her is based, either by reading the decision itself or by requesting and obtaining disclosure of those reasons, without prejudice to the power of the court having jurisdiction to require the authority concerned to disclose that information, so as to make it possible for that person to defend his or her rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his or her applying to the court having jurisdiction, and in order to put the latter fully in a position to review the lawfulness of the decision in question (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, paragraphs 99 and 100).
27 In the present case, even if the name used in the initial acts were different from the applicant’s formally registered company name, it includes, at the very least, the element ‘OJSC “BELAZ”’. The applicant, which knows the legal form in which it was incorporated, was able to understand that the acronym ‘OJSC’ means ‘Open Joint Stock Company’. The element ‘OJSC “BELAZ”’ therefore corresponds, in essence, to the first part of the officially registered company name to which the applicant refers in the application. In addition, among the information identifying the applicant indicated in the initial acts was the address ‘40 let Octyabrya street 4, 222161, Zhodino, Minsk region, Republic of Belarus’, which corresponds to the address indicated by the applicant in the application as the address of its registered office.
28 Moreover, in the light of the abovementioned factors, the applicant was able, first, to request access to its file from the Council by letter of 23 August 2021, in accordance with Article 41(2) of the Charter, and then to bring the present action with knowledge of the grounds of the initial acts, as required by Article 47 of the Charter.
29 Accordingly, the alleged error in the applicant’s company name in the initial acts did not, in any event, prevent it from exercising its right of defence and its right to effective judicial protection.
30 Furthermore, the discrepancy between the name used in the initial acts and the applicant’s formally registered company name, even if it were established, cannot, in itself, demonstrate that the Council did not have sufficient evidence to include the applicant’s name on the lists at issue.
31 It follows that the first plea must be rejected as unfounded.
The second and third pleas, alleging an error of assessment of the facts and infringement of Article 4(1)(a) and (b) of Decision 2012/642
32 The applicant claims, in essence, that, by including its name on the lists at issue, the Council made an error of assessment of the facts and infringed Article 4(1)(a) and (b) of Decision 2012/642.
33 The Council disputes the applicant’s line of argument.
34 As a preliminary point, it should be recalled that the effectiveness of the judicial review guaranteed by Article 47 of the Charter requires in particular that the EU judicature is to ensure that the decision by which restrictive measures were adopted or maintained, which affects the person or entity concerned individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (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).
35 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 that person or that entity to adduce evidence of the negative, that those reasons are not well founded (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).
36 If the competent EU authority provides relevant information or evidence, the Courts of the European Union must then 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 (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).
37 In addition, the fact that a piece of evidence has been submitted as exculpatory evidence by the person subject to the restrictive measures does not prevent that evidence from possibly being used against that person to support the merits of the reasons underpinning the restrictive measures taken against him or her (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).
38 Moreover, 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 mentioned in the summary in question is sufficiently detailed and specific, that it is substantiated and that it constitutes in itself 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, to that effect, judgments 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, and of 24 November 2021, Assi v Council, T‑256/19, EU:T:2021:818, paragraph 168).
39 In the present case, the Court considers it appropriate to begin by examining the grounds for the initial acts set out in the first paragraph quoted in paragraph 11 above, in particular in so far as that paragraph of the initial acts states that the applicant is one of the leading state-owned companies in Belarus and one of the largest manufacturers of large trucks and large dump trucks in the world, that it is a source of significant revenue for the Lukashenko regime, that Lukashenko stated that the government will always support the company, and described it as a ‘Belarusian brand’ and ‘part of the national legacy’ and that it therefore benefits from and supports that regime.
40 Those grounds are based on the criteria laid down in Article 4(1)(b) of Decision 2012/642, to which Article 2(5) of Regulation No 765/2006 refers. It is clear from Article 4(1)(b) of Decision 2012/642 that ‘support’ for the Lukashenko regime is a criterion for listing that is distinct from the criterion of ‘benefit’ derived from that regime (see, to that effect, judgment of 27 September 2017, BelTechExport v Council, T‑765/15, not published, EU:T:2017:669, paragraph 92).
41 It is therefore necessary to examine, first, whether the facts set out in paragraph 39 above are established and, second, whether they come within the scope of Article 4(1)(b) of Decision 2012/642.
42 In the first place, first of all, it is common ground that the applicant is State-owned, since all of its capital is held by the Republic of Belarus. The applicant states that the State Property Committee is its ultimate beneficial owner and that it is under the supervision of the Ministry of Industry of Belarus.
43 In addition, the applicant declares that it is ‘one of the largest automotive manufacturer in Eastern Europe, having approximately 13 000 employees’, that it is ‘present in over 80 countries’ and that ‘according to its own estimates, [its] share on the global market of super heavy mining dump trucks is 30%’. Moreover, it does not dispute the fact, stated by the Council, that President Lukashenko described it as a ‘Belarusian brand’ and ‘part of the national legacy’.
44 Next, the applicant acknowledges that its general director is appointed by its supervisory board, ‘which is further approved by the Council of Ministers, the Minister of Industry, the Zhodino City Executive Committee and finally, the President of [the Republic of] Belarus’, and does not dispute that, as the Council notes, the President of that supervisory board is the Minister of the Economy of the Republic of Belarus.
45 Lastly, the applicant also does not dispute the information reported by the Council that, in 2019, it made a net profit of more than 266 000 000 Belarusian roubles (BYN). In addition, it states, first, that it ‘may … pay dividends to its shareholder, [that] information [being] included in the audited accounts’ and, second, that it paid, in addition to tax, mandatory contributions to the National Development Fund in 2019 and to the Centralised Investment Fund of the Ministry of Industry of Belarus between 2019 and 2021.
46 Accordingly, the Council did not err in its assessment of the facts in concluding that the applicant was one of the leading state-owned companies in Belarus and one of the largest manufacturers of large trucks and large dump trucks in the world, that it was a source of significant revenue for the Lukashenko regime and that Lukashenko had stated that the government will always support the company, and described it as a ‘Belarusian brand’ and ‘part of the national legacy’.
47 In the second place, the applicant claims that the factors set out in paragraph 46 above do not constitute ‘support for the scheme’ for the purposes of Article 4(1)(b) of Decision 2012/642.
48 In that regard, it should be noted that the terms ‘natural or legal persons, entities or bodies … supporting the Lukashenko regime’ used in Article 4(1)(b) of Decision 2012/642 and Article 2(5) of Regulation No 765/2006 are not defined either by those provisions or by other provisions of Decision 2012/642 or Regulation No 765/2006.
49 As a result, the meaning and scope of the terms in question must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part (see, to that effect, judgments of 10 March 2005, easyCar, C‑336/03, EU:C:2005:150, paragraph 21 and the case-law cited, and of 7 May 2019, Germany v Commission, T‑239/17, EU:T:2019:289, paragraph 40 and the case-law cited), it being noted that the interpretation of a provision of EU law cannot have the result of depriving the clear and precise wording of that provision of all effectiveness (see judgment of 20 September 2022, VD and SR, C‑339/20 and C‑397/20, EU:C:2022:703, paragraph 71 and the case-law cited).
50 It should also be borne in mind that a regulation providing for restrictive measures must be interpreted in the light not only of the decision adopted in the framework of the common foreign and security policy referred to in Article 215(2) TFEU, but also of the historical context in which the provisions were adopted by the European Union, that regulation being one such provision. The same applies to a decision adopted in the area of the common foreign and security policy, which must be interpreted taking into account the context in which it is adopted (judgment of 1 March 2016, National Iranian Oil Company v Council, C‑440/14 P, EU:C:2016:128, paragraph 78).
51 In accordance with that case-law, it should be noted that, in the context of the restrictive measures taken against Belarus since 2004, the criterion of ‘support’ for the Lukashenko regime was introduced by Article 1(1) and (2) of Council Decision 2012/36/CFSP of 23 January 2012 amending Decision 2010/639/CFSP concerning restrictive measures against Belarus (OJ 2012 L 19, p. 31).
52 It was apparent from recitals 3 and 4 of Decision 2012/36 that, in view of the gravity of the situation in Belarus, additional restrictive measures against that country had to be adopted, including with respect to persons and entities benefiting from or supporting the Lukashenko regime, in particular persons and entities providing financial or material support to the regime.
53 Article 2 of Regulation No 765/2006 was amended as a result of that extension, by Decision 2012/36, of the freezing of funds and economic resources, as is apparent from recitals 2 and 4 of Council Regulation (EU) No 114/2012 of 10 February 2012 amending Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2012 L 38, p. 3).
54 Decision 2012/642 replaced Decision 2010/639 with effect from 1 November 2012.
55 As is apparent from recitals 1 to 5 and 8 of Decision 2012/642, the restrictive measures against Belarus were taken and extended as a result of the continued lack of respect in that country for human rights, democracy and the rule of law and are, therefore, directed against those responsible for fraud and violations of international electoral standards in connection with certain election or referendum procedures in Belarus, and against those responsible for serious human rights violations and the repression of peaceful demonstrators in the aftermath of those procedures.
56 In addition, as is apparent from recital 6 of Decision 2012/642, given the gravity of the situation, measures were also imposed on, inter alia, persons and entities benefiting from or supporting the Lukashenko regime, in particular persons and entities providing financial or material support to the regime.
57 It is apparent from the foregoing that, by making support for the Lukashenko regime a criterion justifying the inclusion of a name on the lists at issue, the Council, in view of the serious and persistent nature of the breach of human rights, democracy and the rule of law and the repression of civil society and democratic opposition in Belarus, sought to increase pressure on that regime by broadening the circle of persons and entities subject to EU restrictive measures. In that respect, the Council has provided for the possibility of applying measures freezing funds and economic resources to, inter alia, persons and entities supporting the Lukashenko regime and, in particular, those providing financial support to it.
58 The applicant’s arguments must be examined in the light of those considerations.
59 First, the applicant claims that the fact that it belongs to the State is due to the fact that it was formed at the time when the Republic of Belarus was a country under communist regime and cannot, on its own, justify the measures taken against it.
60 Furthermore, it is usual for the management and supervisory bodies of an undertaking belonging to the State to be appointed by the State, for such an undertaking to pay dividends to its shareholder and for the head of the State concerned to comment on the importance of its position in the national economy. Such circumstances exist in countries other than the Republic of Belarus, including in the Member States of the European Union.
61 This argument cannot succeed.
62 First, contrary to what the applicant claims, the Council did not rely solely on the fact that it is owned by the Belarusian State in order to find that it supports the Lukashenko regime. The Council also found, inter alia, that the applicant was one of the largest manufacturers of large trucks and large dump trucks in the world, that it was a source of significant revenue for the Lukashenko regime, and that Lukashenko had stated that the government will always support the company, and described it as a ‘Belarusian brand’ and ‘part of the national legacy’, which the applicant does not dispute.
63 Second, in accordance with the case-law cited in paragraph 49 above, the meaning and scope of the terms in question must be determined by considering their usual meaning in everyday language, while also taking into account, in particular, the purposes of the rules of which they are part and the need to preserve the effectiveness of their clear and precise wording.
64 In that regard, it is apparent both from the clear and precise wording of Article 4(1)(b) of Decision 2012/642, which refers to persons and entities ‘supporting the Lukashenk[o] regime’, and from the objective pursued by that provision, which is to increase pressure on that regime (see paragraph 57 above), that it is the relationship that certain persons and entities have with that regime which justifies the adoption of restrictive measures, where that relationship takes the form of support, in particular financial support.
65 Accordingly, to accept that certain relationships with the Lukashenko regime should be excluded from the scope of the criterion of ‘support’ on the sole ground that they are common in comparable situations in countries other than the Republic of Belarus or that they are common in Belarus due to historical considerations would have the result, as regards such relationships, of depriving the clear and precise wording of Article 4(1)(b) of Decision 2012/642 of any practical effect.
66 That applies a fortiori to situations characterised by a transfer of financial resources, such as, in the present case, inter alia, the payment of dividends to the State or mandatory contributions to the Centralised Investment Fund of the Ministry of Industry of Belarus, since the criterion of support for the Lukashenko regime covers, in particular, persons and entities financially supporting it, as is apparent from paragraph 57 above.
67 Second, the applicant submits that it does not control the use made of the dividends and compulsory contributions which it pays to the Belarusian State and the Centralised Investment Fund of the Ministry of Industry of Belarus, respectively. As regards those mandatory contributions, it adds that they are managed by the Belarusian Government and do not, as such, constitute aid to the Lukashenko regime, since their purpose is laid down by law. In reply to a question put by the Court at the hearing, it states that only State-owned undertakings must pay those same compulsory contributions, that a ministerial body determines each year their amount and their allocation in the interest of the industrial sector concerned and that the resources thus collected are not paid into the State budget.
68 In that regard it should be noted that the very wording of Article 4(1)(b) of Decision 2012/642, to which Article 2(5) of Regulation No 765/2006 makes reference, refers to ‘support’ for the Lukashenko regime without adding any condition relating to the use that may be made of such support by that regime or to the responsibility, in that regard, of the person or entity providing such support. The additional condition relied on by the applicant therefore runs counter to the clear and precise wording of that provision within the meaning of the case-law cited in paragraph 49 above.
69 Accordingly, the mere fact that the applicant pays dividends to the Belarusian State, which are therefore available to the Lukashenko regime, as well as compulsory contributions to the Centralised Investment Fund of the Ministry of Industry of Belarus, which, according to the applicant’s own statements, are managed by the Belarusian Government, is sufficient to establish the existence of financial support, irrespective of the use that may be made of those resources by the regime or the applicant’s control in that regard (see, by analogy, judgment of 5 November 2014, Mayaleh v Council, T‑307/12 and T‑408/13, EU:T:2014:926, paragraph 136).
70 Moreover, in so far as, by its arguments, the applicant claims that it is not itself responsible, by reason of its financial contributions, for the Lukashenko regime committing breaches of human rights, democracy and the rule of law and repressing civil society and democratic opposition in Belarus, it is necessary, in accordance with the case-law cited in paragraph 49 above, to take into account the context in which the criterion of ‘support’ occurs and the purposes of the rules of which it forms part.
71 In that regard, it is apparent from paragraphs 55 to 57 above that the criterion of ‘support’ was included in Article 4(1)(b) of Decision 2012/642 in order to increase pressure on the Lukashenko regime by subjecting persons or entities other than those responsible for the abovementioned violations or repression to measures freezing funds. It is by application of the separate criterion, laid down in Article 4(1)(a) of that decision, to which Article 2(4) of Regulation No 765/2006 refers, that such responsibility must be established in order to justify the adoption of a restrictive measure.
72 Having found, in the present case, that the ‘support’ criterion applied because the applicant represented a significant source of revenue for the Lukashenko regime, the Council did not have to demonstrate, for that purpose, that the applicant, by reason of its financial contributions, was responsible for breaches of human rights, democracy and the rule of law or the repression of civil society and democratic opposition.
73 Third, the applicant claims that, under Belarusian law, State-owned undertakings which make profits are required to pay dividends to their shareholders. The dividends thus paid should therefore be likened to taxes. The Council cannot infer from the payment of taxes by a person or entity that it supports the regime. In support of that argument, the applicant produced before the General Court, after the hearing, the Edict of the President of the Republic of Belarus No 637 of 28 December 2005 on the procedure for entry in the budget of part of the profits of State enterprises, State associations which are commercial organisations, as well as income from shares (stakes in the share capital) of business entities owned by the State or municipalities, and on the formation of a State special-purpose budget fund for national development (National Register of Legal Acts of the Republic of Belarus No 1/7075 of 29 December 2005) (‘Edict No 637’).
74 In that regard, it is true that the Court held, in the case which gave rise to the judgment of 6 October 2015, Chyzh and Others v Council (T‑276/12, not published, EU:T:2015:748, paragraph 169), that the Council cannot infer from the payment of taxes ‘support for the regime’, since such a payment constitutes a legal obligation applicable to all Belarusian taxpayers.
75 However, in the present case, the applicant’s argument assimilating dividends to taxes for the purposes of the case-law cited in paragraph 74 above cannot be accepted.
76 It is apparent from subparagraph 1.1 of Edict No 637, as the applicant itself points out, that the undertakings which are required to pay a part of their profits to the State or to infra-State bodies are those whose decisions the State or those bodies determine. Thus, that obligation concerns only a defined category of economic operators and not all Belarusian taxpayers.
77 In addition, under subparagraph 1.2 of Edict No 637, the part of the profits of the undertakings concerned which must be paid to the Belarusian public authorities is to be calculated on the basis of the difference between the profit received and, inter alia, charges of taxes and duties. As a result, the payment in question is formally separate from taxes and are additional thereto. The fact that, as is apparent from subparagraph 3.1 of that edict, the collection of that part of the profits comes within the competence of the tax authorities, following the relevant tax procedures, is not capable of calling that finding into question.
78 Accordingly, without there being any need to examine the Council’s arguments in relation to Edict No 637 produced after the hearing, it must be observed that the fact that the applicant is required to pay part of its profits to the State under that edict does not contradict the finding that it provides financial support to the Lukashenko regime. On the contrary, such a factor confirms that assessment since, by that same edict, that regime increased the control which it already exercised, as the sole shareholder, over the applicant’s resources by ensuring that it regularly had a share of the applicant’s profits.
79 It follows from the foregoing that the Council did not err in law in finding that the applicant’s position in the Belarusian economy, the fact that it belonged to the State and the fact that it represented a significant source of revenue for the Lukashenko regime, taken together, constituted a sufficient basis for the view to be taken that the applicant supported that regime for the purposes of Article 4(1)(b) of Decision 2012/642, that provision referring in particular to persons and entities providing financial support to that regime.
80 Furthermore, the Court considers that those grounds, which are sufficiently detailed and specific and are free from any error of assessment of the facts or error of law, constitute in themselves a sufficient basis to justify the inclusion of the applicant’s name on the lists at issue.
81 Therefore, in accordance with the case-law cited in paragraph 38 above, the second and third pleas in law must be rejected as unfounded, without there being any need to examine the applicant’s arguments directed against the other grounds justifying the initial acts, since the fact that those grounds are not substantiated cannot lead to the annulment of those acts.
82 In the light of all the foregoing considerations, the application for partial annulment of the initial acts must be dismissed.
The application for partial annulment of the maintaining acts
83 By a statement of modification, the applicant seeks, under of Article 86 of the Rules of Procedure of the General Court, the annulment of the maintaining acts in so far as they concern it, reiterating the pleas in law and arguments raised in the application. In addition, in response to a question relating to the admissibility of the request to modify the application, put by the Court in the context of a measure of organisation of procedure, the applicant submits that that request complies with the provisions of Article 86(1) of the Rules of Procedure.
84 The Council considers that it has already demonstrated in the defence and the rejoinder that the applicant supports and benefits from the Lukashenko regime and contends that the evidence available to it justifies maintaining the applicant’s name on the lists at issue.
85 It should be borne in mind, first, that the conformity of a request to modify the application under Article 86(1) of the Rules of Procedure forms part of the admissibility of an action (see, to that effect, judgment of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraph 139) and, second, that the Courts of the European Union are entitled to assess, according to the circumstances of each individual case, whether the proper administration of justice justifies the dismissal of the action on the merits, without first ruling on its admissibility (see, to that effect, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52).
86 In the present case, the Court considers that it is appropriate, in the interests of procedural economy, to begin by examining the pleas in law relied on by the applicant, without first ruling on the admissibility of the application for partial annulment of the maintaining acts.
87 In the context of the first plea, alleging infringement of the principle of effective judicial protection and of the rights of the defence, the applicant claims that there was an error in its company name.
88 In that regard, even if the name used in the maintaining acts were indeed different from the applicant’s formally registered company name, it should be noted that, by the letter of 21 December 2022, the Council notified the applicant of its intention to extend the restrictive measures against it on the basis of a document enclosed with that letter and that the applicant was able to present its comments in that respect by letter of 20 January 2023. In addition, the applicant was able to modify its application in order to seek the partial annulment of those measures with knowledge of the grounds on which they were based.
89 Accordingly, the alleged error in the applicant’s company name did not, in any event, prevent it from exercising its right of defence.
90 Furthermore, the discrepancy between the name used in the initial acts and the formally registered company name of the applicant, even if it were established, cannot, in itself, demonstrate that the Council did not have sufficient evidence to maintain the applicant’s name on the lists at issue.
91 It follows that the first plea must be rejected.
92 In the context of the second and third pleas in law, taken together, the applicant alleges an error of assessment of the facts and infringement of Article 4(1)(a) and (b) of Decision 2012/642.
93 In that regard, first, it should be noted that, in so far as they concern the applicant, the grounds for the maintaining acts are, in essence, identical to the grounds for the initial acts. In addition, in support of the application for partial annulment of the maintaining acts, the applicant reiterates the arguments already relied on in respect of the initial acts. In its defence, the Council reiterates the same arguments as those already put forward to justify the validity of the initial acts.
94 It follows, without there being any need to examine the evidence in the document enclosed with the letter of 21 December 2022, that, for the reasons set out in paragraphs 34 to 79 above, the applicant has not established that the grounds for the maintaining acts are vitiated by an error of assessment as regards the question of whether it supports the Lukashenko regime.
95 Second, the grounds on which the assessment that the applicant supports the Lukashenko regime is based are sufficiently detailed and specific, are free from error of assessment of the facts or error of law and constitute in themselves a sufficient basis for maintaining the applicant’s name on the lists at issue.
96 Therefore, in accordance with the case-law cited in paragraph 38 above, the second and third pleas in law must be rejected as unfounded, without there being any need to examine the applicant’s arguments directed against the other grounds justifying the maintaining acts, since the fact that those grounds are not substantiated cannot lead to the annulment of those acts.
97 In the light of all the foregoing considerations, the application for partial annulment of the maintaining acts and, consequently, the present action in its entirety must be dismissed as unfounded.
Costs
98 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the Council.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1. Dismisses the action;
2. Orders OAO Belaz – upravljajusaja kompanija holdinga Belaz Holding to pay the costs.
Delivered in open court in Luxembourg on 18 October 2023.
V. Di Bucci | | M. van der Woude |