JUDGMENT OF THE GENERAL COURT (Ninth Chamber, Extended Composition)
20 March 2024 (*) (1)
(Common foreign and security policy – Restrictive measures taken because of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine – Freezing of funds – Lists of persons, entities and bodies to whom the freezing of funds and economic resources applies – Registering and maintaining the applicant’s name on the lists – Support for Lukashenko’s regime – Financial support – State-owned business – Repression of civil society – Error of assessment)
In Case T‑115/22,
Belshyna AAT, established in Bobruisk (Belarus), represented by N. Tuominen and L. Engelen, lawyers,
applicant,
v
Council of the European Union, represented by A. Boggio-Tomasaz and A. Antoniadis, acting as Agents,
defendant,
THE GENERAL COURT (Ninth Chamber, Extended Composition),
composed of S. Papasavvas, President, L. Truchot, H. Kanninen (Rapporteur), R. Frendo and T. Perišin, Judges,
Registrar: I. Kurme, Administrator,
having regard to the written part of the procedure,
further to the hearing on 21 June 2023,
gives the following
Judgment
1 By the present action under Article 263 TFEU, the applicant, Belshyna AAT, seeks the annulment, first, of Council Implementing Decision (CFSP) 2021/2125 of 2 December 2021 implementing Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus (OJ 2021 L 430 I, p. 16), and of Council Implementing Regulation (EU) 2021/2124 of 2 December 2021 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2021 L 430 I, p. 1) (‘the initial acts’), and, secondly, of 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 an undertaking which manufactures tyres and is established in Bobruisk (Belarus).
3 The present case has been brought in connection with 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 title ‘Council Regulation (EC) No 765/2006 of 18 May 2006 concerning restrictive measures in respect of Belarus’.
5 On 15 October 2012, the Council adopted, on the basis of Article 29 TEU, 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 or legal persons, entities or bodies that, inter alia, support the Lukashenko regime, are to be frozen.
7 On 2 December 2021, the Council adopted the initial acts. It is clear from recital 4 thereof that, ‘in view of the gravity of the situation in Belarus, 17 persons and 11 entities should be included in the list of natural and legal persons, entities and bodies subject to restrictive measures’.
8 By the initial acts, the applicant’s name was inserted in line 26 of Table B of the list of natural and legal persons, entities and bodies described in Article 3(1) and Article 4(1) of Decision 2012/642 appearing in the annex to that decision and in line 26 of Table B of the list of natural and legal persons, entities and bodies described in Article 2(1) of Regulation No 765/2006 appearing in Annex I to that regulation (together, ‘the lists at issue’).
9 In the initial acts, with regard to the applicant, the Council entered the identifying information ‘name: Open Joint Stock Company Belshina’, ‘address: 4 Minskoe Shosse St., Bobruisk, 213824 Belarus’, ‘date of registration: 10.1.1994’, ‘registration number: 700016217’ and ‘website: http://www.belshinajsc.by/’ and justified the adoption of the restrictive measures in respect of the applicant on the following grounds:
‘[The applicant] is one of the leading State-owned companies in Belarus and a large manufacturer of vehicle tyres. As such, it is a substantial source of revenue for the Lukashenk[o] regime. The Belarussian State is directly profiting from the earnings made by [the applicant]. Therefore, [the applicant] supports the Lukashenk[o] regime.
Employees of [the applicant] who protested and went on strike in the wake of the 2020 presidential elections in Belarus were dismissed. [The applicant] is therefore responsible for the repression of civil society.’
10 By letter of 3 December 2021, the Council informed the applicant that its name had been included in the lists at issue.
11 By letter of 30 December 2021, the applicant requested from the Council access to the information and evidence supporting the inclusion of its name in the lists at issue and a review of that inclusion.
12 By letter of 14 January 2022, the Council sent the applicant the documents containing the evidence used to decide on the inclusion of its name in the lists at issue and stated that it would inform it at a later date of the outcome of the request for review.
13 On 24 February 2022, the Council adopted Decision (CFSP) 2022/307 amending Decision 2012/642 (OJ 2022 L 46, p. 97) and Implementing Regulation (EU) 2022/300 implementing Article 8a of Regulation No 765/2006 (OJ 2022 L 46, p. 3) (‘the acts of 24 February 2022’), by which it retained the applicant’s name on the lists at issue on grounds that were essentially identical to those set out in the initial acts.
14 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.
15 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.
16 On 24 February 2023, the Council adopted the maintaining acts maintaining the applicant’s name on the lists at issue for reasons identical to those laid down in the acts of 24 February 2022.
17 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
18 Following modification of the application pursuant to Article 86 of the Rules of Procedure of the General Court, 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 2021/2125 be maintained as regards the applicant until the annulment in part of Implementing Regulation 2021/2124 takes effect.
19 The Council contends that the Court should:
– dismiss the action;
– 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 2021/2125 be maintained as regards the applicant until the annulment in part of Implementing Regulation 2021/2124 takes effect.
Law
20 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
21 In support of the application to annul the initial acts in so far as they concern it, the applicant formally relies on two pleas in law, the first alleging a manifest error of assessment by the Council and the second alleging that the initial acts ‘[are] an unlawful type of sanctions … because the Council failed to meet the required standard of proof’.
22 As a preliminary point, first, it should be observed that the two pleas formally raised by the applicant 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. At the hearing, the applicant stated that the second plea supplemented the first.
23 In those circumstances, the Court considers that the two pleas raised by the applicant form, in essence, a single plea.
24 Secondly, it should be recalled that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires in particular that the Courts of the European Union are 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).
25 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).
26 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).
27 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 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).
28 It is in the light of that case-law that it is necessary to examine the merits of the assessments contained in the grounds for the initial acts set out in paragraph 9 above, according to which, first, the applicant supports the Lukashenko regime and, secondly, the applicant is responsible for the repression of civil society.
The assessment that the applicant supports the Lukashenko regime
29 The applicant, which acknowledges that it is one of the large manufacturers of tyres in Belarus and that it is wholly owned by the Belarusian State, submits, inter alia, that the Council erred in considering that it was a source of revenue for the Lukashenko regime. According to the applicant, its business was loss-making in the years prior to the adoption of the initial acts.
30 The Council replies that the evidence produced before the Court shows that the facts relied on in support of the assessment that the applicant supports the Lukashenko regime are established.
31 In that regard, it should be observed that it follows from the statement of reasons for the inclusion of the applicant’s name on the lists at issue that, as one of the leading State-owned companies in Belarus, it represents an important source of revenue for the Lukashenko regime and that the Belarusian State benefits directly from the revenue which it generates. According to the Council’s statements at the hearing, when the initial acts were adopted, the consideration that the applicant constituted such a source of revenue was considered to be decisive in finding that it supported the Lukashenko regime within the meaning of Article 4(1)(b) of Decision 2012/642.
32 In support of its claims, in the first place, the Council produced an extract from the applicant’s consolidated financial statements for 2020 and an article published on the website ‘belta.by’ on 28 October 2021, which were included in the file available to it when the initial acts were adopted.
33 In that regard, first, it should be observed that, admittedly, it is apparent from the extract from the applicant’s consolidated financial statements for 2020, relied on by the Council, that the applicant made a ‘gross profit’ of 67 478 000 Belarusian roubles (BYN) (approximately EUR 28 815 000) in the 2019 financial year and BYN 79 149 000 (approximately EUR 28 514 000) in the 2020 financial year.
34 However, in the light of the full version of the applicant’s consolidated financial statements for 2020, annexed to the application, it appears that the Council is reading that document in part. As is clear from the accounting guidelines subsequent to those relied on by the Council, the ‘gross profit’ invoked by the Council results from the difference between ‘revenue’ and the ‘cost of sales’ and is calculated before the inclusion of other income and expenses. In addition, the same financial statements report that the applicant recorded a ‘net loss’ of BYN 71 088 000 (approximately EUR 30 356 000) in the 2019 financial year and BYN 216 290 000 (approximately EUR 77 920 000) in the 2020 financial year.
35 Thus, the accounting document on which the Council relied, considered in its entirety, shows rather that the applicant’s business was loss-making during the period prior to the adoption of the initial acts.
36 Secondly, contrary to what the Council maintains, the applicant’s claims concerning its loss-making situation are not contradicted by the statements made by the applicant’s managing director, transcribed in the article published on the website ‘belta.by’ referred to in paragraph 32 above, according to which ‘the company’s work demonstrates [that] the company can generate profits’, ‘our work is balanced’ and ‘we get profits from sales’.
37 Indeed, as the applicant points out, such statements can be understood as confirming the existence of positive trends in its business, irrespective of its actual profitability.
38 That interpretation is corroborated by the fact that, in the article published on the website ‘belta.by’, the statements of the applicant’s managing director follow those of the Belarusian Prime Minister, according to whom:
‘Today we’ve discussed the matter of the company’s transformation, its financial recovery. Because the projects being implemented [by the applicant] right now are rather costly. The market situation is not so good and will not allow us to promptly recoup the investments. This is why there is a financial burden on the enterprise. To make sure these projects can recoup the investments is the most important thing right now. The company is working on it. We’ve discussed how we can expedite the process. There certainly will be a return on the investments. The shortcomings that happened in the course of planning these projects are being fixed now.’
39 Such a description of the applicant’s situation, indicating financial difficulties, tends to lend credence to the theory that it was not making a profit during the period prior to the inclusion of its name on the lists at issue.
40 Thirdly, in the rejoinder, the Council ‘notes that the applicant … made losses’ during the period prior to the adoption of the initial acts. However, it maintains that the gross profit made by the applicant was used to repay debts contracted with the Belarusian State or Belarusian public banks and the related interest.
41 In support of that argument, the Council refers to the ‘financial documents in question’ in its written submissions, without providing any further details.
42 Assuming that, in so doing, the Council is referring to the accounting guidelines of the applicant’s consolidated financial statements for 2020 already examined in paragraphs 33 and 34 above, it does not follow that it is charges arising from borrowings from Belarusian public entities that explain the applicant’s ‘net loss[es]’, notwithstanding the realisation of ‘gross profit[s]’ during the financial years 2019 and 2020. The most that is mentioned, among various expenses, is ‘financial burdens’, the exact nature of which is not specified. At the hearing, the applicant merely stated that the latter included, in particular, interest on debts contracted by the applicant with commercial banks or public entities, without however stating that they were the cause of the net losses recorded.
43 Furthermore, the article published on the ‘Belarusian Telegraph Agency’ website on 4 August 2021, annexed to the rejoinder, does not support the Council’s claims.
44 Indeed, without needing to rule on the admissibility of that evidence, the statements of the Belarusian Prime Minister contained therein merely state that ‘[the applicant’s] debts are rather large, … [in relation] to the [S]tate budget’, while referring to the ‘partial restructuring of the debts’ and the ‘enabling of more comfortable conditions for repaying the debts’, which tends to cast doubt on the applicant’s ability to honour its obligations. Thus, those statements do not mention the repayment of the applicant’s debts thanks to the increase in profits that it is said to have made.
45 Furthermore, in so far as the Council argues, at the hearing, that the applicant’s payment of interest on loans taken out with Belarusian public entities constitutes a source of revenue for the Lukashenko regime, it is sufficient to note that it does not refer to or provide any information or indication enabling the amount or beneficiaries of that interest to be determined. Consequently, the Council cannot claim, by means of such an argument, to establish to the requisite legal standard that the applicant generates ‘large’ revenues from which the Belarusian State ‘directly’ benefits.
46 In the second place, at the hearing, the Council argued that the applicant’s reply to a question put by the Court in the context of a measure of organisation of procedure (‘the applicant’s reply’) reflected the existence of various transfers of the applicant’s resources to the Belarusian State and, therefore, demonstrated that the applicant was an important source of revenue for the Lukashenko regime, notwithstanding the losses recorded in the accounts.
47 In that regard, first, it is clear from the applicant’s reply that it did not pay any dividends to its shareholder during the period from 2018 to 2021. When questioned on this point at the hearing, the Council did not dispute it.
48 In addition, in response to a question put by the Court at the hearing concerning the period relevant to the examination, the Council stated that, when adopting the initial acts, it had relied on the income generated by the applicant in 2019 and 2020 and that it could not rely on dividends paid prior to 2018 to justify the initial entry of the applicant’s name on the lists at issue on 2 December 2021.
49 It follows that the Council does not identify any income in the form of dividends paid by the applicant to the Belarusian State which would be capable of justifying the adoption of restrictive measures against the applicant in the initial acts.
50 Secondly, as regards the taxes and other compulsory levies whose payments appear in the applicant’s reply, it should be recalled 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, in cases concerning restrictive measures taken against Belarus, the Council cannot infer support for the Lukashenko regime from the payment of taxes, in so far as such payment constitutes a legal obligation applicable to all Belarusian taxpayers.
51 Without needing to rule on whether, as the Council maintains, it is appropriate to depart from that case-law in the present case on the ground that the applicant cannot be regarded as an ordinary taxpayer since it is an undertaking belonging to the Belarusian State, the following should be observed.
52 It is apparent from the applicant’s reply that, during the period from 2019 to 2020, considered by the Council to be the relevant period (see paragraph 48 above), first of all, it paid, in the first year, a sum equivalent to EUR 485 000 and received, in the second year, a tax refund equivalent to EUR 451 000 in respect of income tax. However, it cannot reasonably be considered that the collection of the sum equivalent to EUR 34 000, resulting from the difference between the two aforementioned amounts, constitutes a ‘substantial’ source of revenue for the Belarusian State.
53 Next, as regards value added tax, the amounts reimbursed to the applicant by the Belarusian State exceed those it paid to the latter. The applicant stated that, in 2019, it had paid a sum equivalent to EUR 22 081 000 and received a tax refund equivalent to EUR 22 493 000 and, in 2020, it had paid a sum equivalent to EUR 13 768 000 and received a tax refund equivalent to EUR 14 147 000. Accordingly, the payments made by the applicant in respect of value added tax cannot be regarded as a source of revenue for the Belarusian State.
54 Lastly, with regard to the other taxes or compulsory levies mentioned in the applicant’s reply, the rules governing their allocation and, more generally, their legal systems are not specified in any way, and the Council has failed to provide any information in this regard. Accordingly, the Court cannot find that the sums paid by the applicant in respect of those taxes or compulsory levies are at the disposal of the Lukashenko regime, nor can it assess whether or not the conditions for the application of the case-law cited in paragraph 50 have been met.
55 It follows from the foregoing that the Council has not adduced any evidence or, at the very least, a body of sufficiently concrete, precise and consistent evidence to support the claim that the applicant generates significant income from which the Belarusian State directly benefits.
56 That finding cannot be called into question by the Council’s arguments based, in the rejoinder, on discrepancies between the information contained in the applicant’s consolidated financial statements for 2020 and in its financial balance sheet for 2021 annexed to the reply and, at the hearing, on doubts about the applicant’s reply in so far as it states that no income tax was paid in 2020 notwithstanding the realisation of a ‘gross profit’.
57 It should be borne in mind that, under the case-law cited in paragraph 25 above, it is for the Council to establish that the grounds relied on against the applicant are well founded, and not for the applicant to provide negative evidence that those grounds are not well founded.
58 In the present case, the only precise information and figures produced before the Court, including by the Council, concerning the applicant’s financial situation and the resources transferred by it to the Belarusian State are those which emerge from the applicant’s accounting documents, such as the financial statements for 2020, the financial balance sheet for 2021 or the applicant’s reply. Consequently, to consider, as the Council maintains, that those documents are not probative, because of certain discrepancies between them, could only reinforce the finding that the Council does not adduce the evidence which it is required to adduce with regard to the existence of significant income generated by the applicant from which the Belarusian State directly benefits.
59 The Council also relies to no avail on the fact that the applicant is one of the ‘leading’ undertakings owned by the Belarusian State in order to maintain that, in a country such as Belarus, economic activities on the scale of those of the applicant are not possible without the approval of President Lukashenko’s regime, or that the applicant benefited from support from the Belarusian State in the form of loans, a debt buy-back and a resolution requiring that all public contracts for the purchase of tyres be awarded to it in Belarus.
60 In that regard, it is important to recall that the legality of the initial acts may be assessed only on the basis of elements of fact and law on which they were adopted (see, to that effect, judgment of 24 May 2016, Good Luck Shipping v Council, T‑423/13 and T‑64/14, EU:T:2016:308, paragraph 55).
61 In the present case, the grounds of the initial acts, in their first paragraph, are based solely on the criterion of ‘support’ for the Lukashenko regime, which, as is clear from Article 4(1)(b) of Decision 2012/642, is a criterion for inclusion on the lists that is separate from the criterion of ‘benefit’ 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), and make no reference to any endorsement or support, financial or otherwise, granted by the Belarusian State to the applicant. Consequently, the Council’s claims in this respect must be dismissed as ineffective.
62 In the light of all the foregoing considerations, it must be concluded that the Council has not proved to the requisite legal standard that, as one of the leading public undertakings in Belarus, the applicant represents a substantial source of revenue for the Lukashenko regime and that the Belarusian State directly benefits from the income which it generates.
63 The applicant is therefore right to submit that the ground according to which it supports the Lukashenko regime is vitiated by an error of assessment.
The assessment that the applicant is responsible for the repression of civil society
64 The applicant submits that the Council has not provided evidence that it dismissed employees who demonstrated and went on strike following the 2020 presidential election in Belarus.
65 The Council maintains that it has established to the requisite legal standard the factual elements underlying the assessment that the applicant is responsible for the repression of civil society.
66 It should be noted that, in support of its allegations, the Council relies on two press articles published on the ‘Radio Free Europe/Radio Liberty’ website on 21 and 26 August 2020 and on a press article published on the ‘intex-press.by’ website on 26 August 2020.
67 In that regard, it should be borne in mind that the prevailing principle of EU law is that of the unfettered evaluation of evidence (judgment of 6 September 2013, Persia International Bank v Council, T‑493/10, EU:T:2013:398, paragraph 95 (not published)).
68 Moreover, in the absence of investigative powers in third countries, the assessment of the EU authorities adopting restrictive measures must, in fact, rely on publicly available sources of information, reports, articles in the press or other similar sources of information (see, to that effect, judgment of 14 March 2018, Kim and Others v Council and Commission, T‑533/15 and T‑264/16, EU:T:2018:138, paragraph 107). According to the case-law, press articles may be used in order to corroborate the existence of certain facts, where they come from several different sources, and they are sufficiently specific, precise and consistent as regards the facts there described (see judgment of 11 September 2019, Topor-Gilka and WO Technopromexport v Council, T‑721/17 and T‑722/17, not published, EU:T:2019:579, paragraph 137 and the case-law cited).
69 In the present case, it should be observed, first of all, that it is apparent from the three press articles referred to in paragraph 66 above, in essence, that employees of the applicant initiated strike action from 11 August 2020 in support of political demands, in particular the resignation of President Lukashenko and the holding of free elections, which could not succeed owing to the pressure exerted on the strikers by the applicant, inter alia in the form of dismissals. In particular, according to those same articles, the employment contracts of two employees, A and B, were terminated, and they were forced to resign, while a third employee, C, was dismissed for unjustified absence even though he had tried to lodge a valid leave of absence in order to attend a trade union meeting.
70 Next, the press articles referred to in paragraph 66 above are contemporaneous with the facts reported and are based on precise and concrete allegations as to the course of the relevant events, their timing and the identity of the persons involved.
71 Finally, contrary to the applicant’s submission, the press articles referred to in paragraph 66 above present the facts at issue in the same terms and in a logical manner in view of the lapse of time between the publication of the first and last of those articles.
72 However, on the one hand, the applicant is right to point out that two of the three press articles referred to in paragraph 66 above were published by the same press organisation and that all three articles are based, principally, on the testimony of one and the same person, namely C, who was allegedly dismissed by the applicant for unjustified absence. Moreover, although the article published on the ‘Radio Free Europe/Radio Liberty’ website on 21 August 2020 and the article published on the ‘intex-press.by’ website also refer to interviews with other persons employed by the applicant at the time of the events in question, or to statements made by members of the applicant’s management, those other sources are ancillary.
73 It follows that the press articles referred to in paragraph 66 above cannot be regarded as coming from several different sources, within the meaning of the case-law cited in paragraph 68 above. Consequently, they constitute prima facie evidence of the facts of which the applicant is accused.
74 On the other hand, the applicant relies on the acts of dismissal of A, B and C, whose situation is specifically referred to in the press articles referred to in paragraph 66 above.
75 As the applicant submits, according to the acts of dismissal, the contracts of employment of A, B and C were terminated for reasons unrelated to their participation in a strike. The first two employees were dismissed for unjustified absences during working hours from 20 August 2020, while the third employee was dismissed for unjustified absences during working hours on 20 and 22 August 2020. Those acts were accompanied by three letters in which, in essence, A and B acknowledged the absences of which they were accused and C admitted having been absent on 20 August 2020.
76 Admittedly, as the Council points out, in view of the context of repression of civil society by the Lukashenko regime following the presidential elections in Belarus in August 2020, in which the events at issue took place, and the applicant’s status as a State-owned undertaking, it cannot be ruled out that the acts of dismissal produced by the applicant, in so far as they relate to absences on certain days in August 2020, are connected with the participation of the employees in question in collective action of a political nature.
77 The fact remains that, under the case-law referred to in paragraph 25 above, the Council bears the burden of proving that the reasons given against the applicant are well founded.
78 In the present case, the Council has not provided the slightest piece of evidence capable of corroborating the content of the press articles referred to in paragraph 66 above on which it relies and of contradicting the information contained in the acts of dismissal produced by the applicant.
79 Indeed, the other evidence, without prejudice to the admissibility of that produced at the rejoinder stage, is relied upon by the Council solely to describe the context of the repression of strike action in Belarus following the presidential election of August 2020 or to challenge the applicant’s claims concerning the protection afforded to workers before the Belarusian courts, and does not relate to any specific conduct attributable to the applicant.
80 It follows from the foregoing that the Council has not adduced any evidence or, at the very least, a body of sufficiently concrete, precise and consistent evidence to support the claim that the applicant dismissed employees who demonstrated and went on strike following the 2020 presidential election in Belarus.
81 Consequently, the applicant is right to submit that the ground that it is responsible for the repression of civil society is vitiated by an error of assessment.
82 In the light of all the foregoing, the single plea in law must be upheld and, consequently, the initial acts must be annulled in so far as they concern the applicant.
83 As regards the Council’s alternative request (see the third indent of paragraph 19 above), essentially that the effects of Implementing Decision 2021/2125 be maintained until the expiry of the time limit for lodging an appeal and, if an appeal is lodged, until the decision on it, it is sufficient to point out that Implementing Decision 2021/2125 produced effects only until 28 February 2022, by virtue of the amendments made to Article 8(1) of Decision 2012/642 by Council Decision (CFSP) 2021/353 of 25 February 2021 (OJ 2021 L 68, p. 189). Consequently, the annulment of Implementing Decision 2021/2125 by the present 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 23 September 2020, Arbuzov v Council, T‑289/19, not published, EU:T:2020:445, paragraph 98 and the case-law cited).
The application for partial annulment of the maintaining acts
84 By means of a statement of modification, the applicant seeks the annulment of the maintaining acts in so far as they concern it.
85 In its observations on the statement of modification, the Council submits that the application for partial annulment of the maintaining acts is admissible and that it should be rejected as unfounded.
Admissibility of the modification of the application
86 Considering that the examination of the admissibility of actions was a matter of public policy and that it is therefore appropriate, in the event of modification of the application, to ascertain whether the conditions laid down in Article 86(1) of the Rules of Procedure are satisfied (see, to that effect, judgment of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraphs 139 to 145 and the case-law cited), the Court questioned the parties in that regard at the hearing.
87 In response to the Court’s questions, both the applicant and the Council submitted that the fact that the applicant had not, in the context of the present case, modified its form of order to seek annulment of the acts of 24 February 2022, in so far as those acts concerned it, should not affect the admissibility of the modification of the application to seek partial annulment of the maintaining acts as well.
88 In support of their arguments, the parties submit that the findings in paragraphs 141 and 142 of the judgment of 14 December 2018, Hamas v Council (T‑400/10 RENV, EU:T:2018:966) and paragraphs 90 and 96 of the judgment of 24 November 2021, LTTE v Council (T‑160/19, not published, EU:T:2021:817) cannot be transposed to the present case. They claim that the cases which gave rise to those judgments concerned restrictive measures taken by the European Union pursuant to Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93), under which the legal acts drawing up the list of persons and entities covered by the restrictive measures are repealed and replaced by new acts during the periodic review carried out by the Council, whereas, in the context of the restrictive measures concerning Belarus, the periodic review of the lists at issue takes the form of legal acts amending the period of application or the annexes to Decision 2012/642 and Regulation No 765/2006. The Council also argued that considering the application to annul the maintaining acts admissible was consistent with the objective of procedural economy.
89 It must be recalled that Article 86(1) of the Rules of Procedure provides that, where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter, the applicant may, before the oral part of the procedure is closed, or before the decision of the Court to rule without an oral part of the procedure, modify the application to take account of that new factor.
90 In the present case, it should be observed, first, that both the initial acts and the maintaining acts, in so far as they concern the applicant, have as their subject matter the imposition on it of individual restrictive measures consisting of a freezing of all its funds and economic resources, pursuant to Article 4(1)(a) and (b) of Decision 2012/642 and Article 2(4) and (5) of Regulation No 765/2006.
91 Secondly, as the parties have rightly pointed out, under the regime introducing restrictive measures against Belarus, the individual restrictive measures take the form of the inclusion of the names of the targeted persons, entities or bodies on the lists at issue set out in the annexes to Decision 2012/642 and Regulation No 765/2006.
92 In that context, the initial acts amended the annexes to Decision 2012/642 and Regulation No 765/2006 to include, in particular, the applicant’s name on the lists at issue. As regards the maintaining acts, it should be noted, first, that Decision 2023/421 extended until 28 February 2024 the applicability of Decision 2012/642, Annex I to which, as amended by Implementing Decision 2021/2125, mentions the applicant’s name and, secondly, that Implementing Regulation 2023/419 amended Annex I to Regulation No 765/2006, while maintaining, at least implicitly, the inclusion of the applicant’s name in that annex. Consequently, the maintaining acts must be regarded as having amended the initial acts within the meaning of Article 86(1) of the Rules of Procedure.
93 It follows that, in accordance with the objective of procedural economy underlying Article 86 of the Rules of Procedure (see, to that effect, judgment of 13 September 2018, Almaz-Antey v Council, T‑515/15, not published, EU:T:2018:545, paragraphs 43 and 44), the applicant, having sought annulment of the initial acts in the application, was entitled, in the context of the present proceedings, to modify the application in order to seek annulment of the maintaining acts as well, even though it had not previously modified the application in order to seek annulment of the acts of 24 February 2022.
94 It must therefore be held that the application for modification of the application is admissible.
Substance
95 It should be observed 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, in the statement of modification, reiterates the single plea relied on, in essence, in the application and in the reply. In its observations on the statement of modification, the Council reiterates the same arguments as those put forward in the defence and in the rejoinder, while relying on new evidence that it added to the file when the maintaining acts were adopted.
96 That new evidence consists of four documents, namely:
– an article published on the ‘auto.onliner.by’ website on 29 August 2022, from which it is apparent that the Belarusian Deputy Prime Minister stated that the applicant could strengthen its position on the Russian market, from which some competing operators have exited;
– an article published on the official website of the Executive Committee of the City of Bobruisk on 13 January 2022 reporting on a meeting held on the applicant’s premises on the subject of draft amendments to the Constitution of the Republic of Belarus, in which a member of parliament, a member of the legal profession and a Belarusian civil servant took part;
– an article published on the ‘gp.by’ website on 17 June 2022, according to which President Lukashenko spoke in Bobruisk, in the presence of employees of the applicant, about the position of Belarus with regard to the conflict in Ukraine;
– an article published on the official website of the President of the Republic of Belarus on 17 June 2022 referring to President Lukashenko’s visit to the applicant’s premises during a trip to Bobruisk.
97 However, none of the documents referred to in paragraph 96 above is capable of supporting the Council’s claims concerning the significant income generated by the applicant from which the Belarusian State directly benefits or the dismissal of the applicant’s employees who protested and went on strike.
98 Accordingly, it must be held that, for the same reasons as those set out in paragraphs 29 to 81 above, the Council committed an error of assessment in considering, in the maintaining acts, that the applicant supports the Lukashenko regime and that it is responsible for the repression of civil society.
99 It follows that the application for annulment of the maintaining acts in so far as they concern the applicant must be granted.
Costs
100 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 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 (Ninth Chamber, Extended Composition)
hereby:
1. Annuls Council Implementing Decision (CFSP) 2021/2125 of 2 December 2021 implementing Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus, Council Implementing Regulation (EU) 2021/2124 of 2 December 2021 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus, 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, 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, in so far as they concern Belshyna AAT;
2. Orders the Council of the European Union to pay the costs.
Papasavvas | Truchot | Kanninen |
Delivered in open court in Luxembourg on 20 March 2024.
V. Di Bucci | | S. Papasavvas |