JUDGMENT OF THE GENERAL COURT (First Chamber)

9 December 2014(*)

(Common foreign and security policy – Restrictive measures adopted against Belarus – Freezing of funds – Obligation to state reasons – Rights of the defence – Right to be heard – Error of assessment)

In Case T‑441/11,

Vladimir Peftiev, residing in Minsk (Belarus), represented by V. Vaitkutė Pavan, A. Smaliukas, E. Matulionyte, T. Milašauskas, lawyers, and M. Shenk, Solicitor,

applicant,

v

Council of the European Union, represented by M. Bishop and F. Naert, acting as Agents,

defendant,

supported by

European Commission, represented by T. Scharf and E. Paasivirta, acting as Agents,

intervener,

APPLICATION for annulment of Council Decision 2011/357/CFSP of 20 June 2011 amending Decision 2010/639/CFSP concerning restrictive measures against certain officials of Belarus (OJ 2011 L 161, p. 25), Council Regulation (EU) No 588/2011 of 20 June 2011 amending Regulation (EC) No 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2011 L 161, p. 1), Council Decision 2011/666/CFSP of 10 October 2011 amending Decision 2010/639/CFSP concerning restrictive measures against Belarus (OJ 2011 L 265, p. 17), Council Implementing Regulation (EU) No 1000/2011 of 10 October 2011 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2011 L 265, p. 8), Council Decision 2012/642/CFSP of 15 October 2012 concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1), Council Implementing Regulation (EU) No 1017/2012 of 6 November 2012 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2012 L 307, p. 7), Council Decision 2013/534/CFSP of 29 October 2013 amending Decision 2012/642 (OJ 2013 L 288, p. 69), and Council Implementing Regulation (EU) No 1054/2013 of 29 October 2013 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2013 L 288, p. 1), in so far as those acts concern the applicant,

THE GENERAL COURT (First Chamber),

composed of H. Kanninen (Rapporteur), President, I. Pelikánová and E. Buttigieg, Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 28 January 2014,

gives the following

Judgment

 Background to the dispute

1        On 24 September 2004 the Council of the European Union, in view of the deterioration of democracy, the rule of law and human rights in Belarus, associated in particular with the fact that no independent, full and credible investigation of the crimes examined by the Parliamentary Assembly of the Council of Europe in its report adopted on 28 April 2004 had been carried out, adopted Council Common Position 2004/661/CFSP concerning restrictive measures against certain officials of Belarus (OJ 2004 L 301, p. 67), taking the form of preventing their entry into, or transit through, the territories of the Member States.

2        On 13 December 2004 the Council adopted Common Position 2004/848/CFSP amending Common Position 2004/661 (OJ 2004 L 367, p. 35) in order to expand the scope of the restrictive measures laid down in the latter Common Position to persons directly responsible for the fraudulent elections and referendum in Belarus on 17 October 2004 and those responsible for severe human rights infringements in the repression of peaceful demonstrators in the aftermath of those elections and that referendum.

3        On 24 March 2006 the European Council deplored the failure of the Belarusian authorities to meet OSCE (Organisation for Security and Cooperation in Europe) commitments to democratic elections, considered that the Presidential elections of 19 March 2006 were fundamentally flawed and condemned the action of the Belarusian authorities of that day in arresting peaceful demonstrators protesting against the conduct of the Presidential elections.

4        The Council decided that the European Union should adopt restrictive measures against President Lukashenko, the Belarusian leadership and officials responsible for the violations of international electoral standards and the crackdown on civil society and democratic opposition and, on 10 April 2006, adopted Common Position 2006/276/CFSP concerning restrictive measures against certain officials of Belarus and repealing Common Position 2004/661 (OJ 2006 L 101, p. 5), taking the form of preventing the entry into, or transit through, the territories of the Member States of President Lukashenko, the Belarusian leadership and certain officials.

5        By means of Common Position 2006/362/CFSP of 18 May 2006 amending Common Position 2006/276 (OJ 2006 L 134, p. 45), the Council also provided that the funds and economic resources of President Lukashenko and certain officials of Belarus should be frozen.

6        On the same date, considering that a regulation was necessary in order to implement at Community level the measures described in Common Position 2006/362, the Council adopted, on the basis of, inter alia, Articles 60 EC and 301 EC, Council Regulation (EC) No 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2006 L 144, p. 1).

7        On 25 October 2010, by means of Decision 2010/639/CFSP concerning restrictive measures against certain officials of Belarus (OJ 2010 L 280, p. 18), the Council renewed certain restrictive measures until 31 October 2011 and repealed Common Position 2006/276.

8        On 31 January 2011 the Council adopted Decision 2011/69/CFSP amending Decision 2010/639 (OJ 2011 L 28, p. 40). Article 2(1)(b) of Decision 2010/639, as amended by Decision 2011/69 provides: ‘All funds and economic resources belonging to … persons who are responsible … for the violations of international electoral standards in the presidential elections in Belarus on 19 December 2010, and the crackdown on civil society and democratic opposition, and those natural or legal persons, entities or bodies associated with them, as listed in Annex IIIA, shall be frozen’.

9        On the same date the Council adopted Implementing Regulation (EU) No 84/2011 amending Regulation No 765/2006 (OJ 2011 L 28, p. 17). Under Article 2(1) and (5) of Regulation No 765/2006, as amended by Implementing Regulation No 84/2011, all funds and economic resources of persons and entities listed in Annex IA were to be frozen, that annex containing the names of persons responsible for the violations of international electoral standards in the Presidential elections in Belarus on 19 December 2010, and for the crackdown on civil society and democratic opposition, and those natural or legal persons, entities or bodies associated with them.

10      By Council Decision 2011/357/CFSP of 20 June 2011 amending Decision 2010/639 (OJ 2011 L 161, p. 25), the Council decided, in view of the gravity of the situation in Belarus, that additional persons and entities should be included in the list of those subject to restrictive measures as set out in Annex IIIA to Decision 2010/639 (‘Annex IIIA’), one such person being the applicant, with the following entry in the column headed ‘Reasons’:

‘Person associated with President Lukashenko and his family. Chief economic advisor of President Lukashenko and key financial sponsor of the Lukashenko regime. Chairman of the Council of Shareholders of BelTechExport, the largest export/import company of defence products in Belarus.’

11      In order to implement at European Union level the measures described in Decision 2011/357, the Council adopted, on the basis of, inter alia, Article 215 TFEU, Regulation (EU) No 588/2011 of 20 June 2011, amending Regulation No 765/2006 (OJ 2011 L 161, p. 1), which includes the applicant’s name in the list in Annex IA to Regulation No 765/2006 (‘Annex IA’) with, in the column headed ‘Reasons’, the same entry as quoted in paragraph 10 above.

12      On 21 June 2011 the Council published in the Official Journal of the European Union a notice for the attention of the persons and entities to which restrictive measures provided for in Decision 2010/639, as amended by Decision 2011/357, and in Regulation No 765/2006, as amended by Regulation No 588/2011 concerning restrictive measures against Belarus, apply (OJ 2011 C 180, p. 9).

13      By letter of 8 July 2011, the applicant requested that the Council disclose to him the grounds for his listing in Annex IIIA and Annex IA.

14      On 2 August 2011 the Council informed the applicant that it was examining his request and that he would be notified of the Council’s response.

15      On 8 August 2011 the applicant requested that the Council disclose to him the grounds for his listing in Annex IIIA and Annex IA and reconsider that listing.

16      By means of Decision 2011/666/CFSP of 10 October 2011, amending Decision 2010/639 (OJ 2011 L 265, p. 17), the Council (i) extended the restrictive measures laid down in Decision 2010/639 until 31 October 2012, (ii) added names to the list in Annex IIIA and (iii) amended the entries relating to certain persons and entities in Annex IIIA. As regards the applicant, in the column headed ‘Position’, a new entry is worded as follows:

‘Person associated with Aliaksandr Lukashenka, Viktar Lukashenka and Dzmitry Lukashenka. Provides economic advice to President Lukashenka and is a key financial sponsor of the Lukashenka regime. Majority shareholder and Chairman of the Council of Shareholders of BelTechExport, one of the largest export/import companies of defence products in Belarus.’

17      By Implementing Regulation (EU) No 1000/2011 of 10 October 2011, implementing Article 8a(1) of Regulation No 765/2006 (OJ 2011 L 265, p. 8), the Council added certain persons to the list in Annex IA and amended the entries concerning certain persons and entities in Annex IA. The entry relating to the applicant was amended to read as the entry in Annex IIIA, quoted in paragraph 16 above.

18      On 11 October 2011 the Council published in the Official Journal a notice for the attention of the persons to which restrictive measures provided for in Decision 2010/639, as amended by Decision 2011/666, and in Regulation No 765/2006, as implemented by Implementing Regulation No 1000/2011 concerning restrictive measures against Belarus, apply (OJ 2011 C 299, p. 4).

19      On 7 November 2011 the applicant renewed his request to the Council for the disclosure of the grounds for his listing in Annex IIIA and in Annex IA and for the reconsideration of that listing.

20      On 14 November 2011 the Council replied to the applicant’s request of 8 August 2011, setting out initially the grounds for his listing as stated in Annex IIIA and Annex IA, and then adding that the reason why his name was listed in those annexes was that he was considered to be associated with President Lukashenko and his family, and not that he was considered to be responsible for violations of international electoral standards in the 2010 Presidential elections in Belarus or for the crackdown on civil society and democratic opposition. In that regard, the Council stated, first, that the applicant had multiple relations with President Lukashenko and his family, including personal contacts and, second, that he was, in practice, the chief economic adviser of President Lukashenko, that he was the richest and most influential businessman in Belarus, that he had made a number of proposals in relation to legislation concerning economic issues to the Belarusian authorities and that he had appeared with President Lukashenko on television programmes. Third, the Council stated that the applicant controlled the company BelTechExport as its largest shareholder, owning 70% of the shares in that company, and as the Chairman of the Council of Shareholders. Last, the Council stated that BelTechExport was considered to be the largest defence products trading company in Belarus, which was confirmation of that company having links to the regime. The Council concluded by stating that those grounds justified the continued listing of the applicant in Annex IIIA and Annex IA, as stated in Decision 2011/666 and Implementing Regulation No 1000/2011.

21      On 10 January 2012 the applicant again requested reconsideration of his listing in Annex IIIA and Annex IA, and access to the file concerning him.

22      By Council Decision 2012/36/CFSP of 23 January 2012 amending Decision 2010/639 (OJ 2012 L 19, p. 31), and Council Regulation (EU) No 114/2012 of 10 February 2012 amending Regulation No 765/2006 (OJ 2012 L 38, p. 3), the Council decided that the restrictions on admission and the freezing of funds and economic resources should also be applied to ‘persons and entities benefitting from or supporting the Lukashenka regime’.

23      On 10 February 2012 the Council replied to the applicant’s request for reconsideration of 10 January 2012, stating that the withdrawal of his name from the lists in Annex IIIA and Annex IA was not justified and that the grounds for his continued listing had already been specified in the letter of 14 November 2011.

24      On 17 February 2012 the Council replied to the applicant’s letter of 7 November 2011 and gave him access to certain documents.

25      By means of Council Decision 2012/642/CFSP of 15 October 2012 concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1), the Council extended the restrictive measures laid down in Decision 2010/639 until 31 October 2013 and updated the information concerning the persons and entities whose names are listed therein. Further, the measures imposed by Decision 2010/639 were integrated into Decision 2012/642, which brought together in a single annex the names of the persons and entities who were subject to restrictive measures.

26      The Annex to Decision 2012/642 contains the name of the applicant with, in the column headed ‘Reasons for listing’, the following entry:

‘Person associated with President Lukashenka, Viktar Lukashenka and Dzmitry Lukashenka. Provides economic advice to President Lukashenka and is a key financial sponsor of the Lukashenka regime through his business interests which include Sport Pari, BT Telecommunications and the Spirit and Vodka Company Aquadiv.’

27      By Council Implementing Regulation (EU) No 1017/2012 of 6 November 2012, implementing Article 8a(1) of Regulation No 765/2006 (OJ 2012 L 307, p. 7), the Council consolidated in a single annex, namely Annex I, the texts of Annexes I, IA and IB to Regulation No 765/2006.

28      Under Implementing Regulation No 1017/2012, the applicant was listed in Annex I to Regulation No 765/2006 with an entry identical to that in the Annex to Decision 2012/642, referred to in paragraph 26 above.

29      On 7 November 2012 the Council personally informed the applicant that he would continue to be included in the lists of persons and entities subject to restrictive measures (‘the lists’) and that the grounds for that continued listing were stated in the Annex to Decision 2012/642 and in Annex I to Regulation No 765/2006.

30      By means of a letter of 1 October 2013, in which the Council stated to the applicant that it was open to him to lodge observations until 14 October 2013, which the applicant did by letter of 10 October 2013, the Council in essence informed the applicant of its intention to alter the grounds for his listing to read as follows:

‘Person associated with President Lukashenka, Viktar Lukashenka and Dzmitry Lukashenka. Benefits from and supports the Lukashenka regime. Provides economic advice to President Lukashenka and is a key financial sponsor of the Lukashenka regime through his business interests which include BT Telecommunications.’

31      By Decision 2013/534/CFSP of 29 October 2013 amending Decision 2012/642 (OJ 2013 L 288, p. 69), the Council extended the restrictive measures provided for in Decision 2012/642 until 31 October 2014 and, inter alia, updated information relating to certain persons and entities listed in the Annex to Decision 2012/642.

32      The Annex to Decision 2012/642, as amended by Decision 2013/534, contains the name of the applicant with the following entry:

‘Person associated with President Lukashenka, Viktar Lukashenka and Dzmitry Lukashenka. Benefits from and supports the Lukashenka regime. Provides economic advice to President Lukashenka and is a key financial sponsor of the Lukashenka regime through his business interests which include BT Telecommunications.’

33      By Council Implementing Regulation (EU) No 1054/2013 of 29 October 2013 implementing Article 8a(1) of Regulation No 765/2006 (OJ 2013 L 288, p. 1), the Council, inter alia, updated information relating to certain persons and entities listed in Annex I to Regulation No 765/2006.

34      Annex I to Regulation No 765/2006, as amended by Implementing Regulation No 1054/2013, contains the name of the applicant with an entry identical to that in the Annex to Decision 2012/642, as amended by Decision 2013/534, referred to in paragraph 32 above.

35      On 30 October 2013 the Council replied to the applicant’s letter dated 10 October 2013, referring, in essence, to its letter of 1 October 2013.

36      On 30 October 2013, by a letter separate from that mentioned in the preceding paragraph, the Council informed the applicant that he would continue to be listed, by means of Decision 2013/534 and Implementing Regulation No 1054/2013.

 Procedure and forms of order sought by the parties

37      By application lodged at the Court’s Registry on 12 August 2011, the applicant brought this action for the annulment of Decision 2011/357 and Regulation No 588/2011, in so far as those acts concerned him.

38      By separate document, also lodged at the Registry on 12 August 2011, the applicant applied for the case to be decided under an expedited procedure pursuant to Article 76a of the Court’s Rules of Procedure. The Court (Eighth Chamber) rejected that request.

39      By document lodged at the Court’s Registry on 28 October 2011 the Commission sought leave to intervene in the present proceedings in support of the Council.

40      By letter lodged at the Court’s Registry on 8 November 2011, the applicant made a further request for the case to be decided under an expedited procedure.

41      On 25 November 2011 this case was re-allocated to the Sixth Chamber of the Court.

42      By document lodged at the Court’s Registry on 30 November 2011, the applicant requested confidentiality, vis-à-vis the Commission, of certain information and produced, for that purpose, a non‑confidential version of the application and its annexes and of the request for an expedited procedure.

43      On 7 December 2011 the President of the Sixth Chamber decided to add to the file the applicant’s letter mentioned in paragraph 40 above, as a request that the case be given priority over others, within the meaning of Article 55(2) of the Rules of Procedure.

44      By document lodged at the Court’s Registry on 12 December 2011, the applicant adapted his heads of claim so that the action should also seek the annulment of Decision 2011/666 and Implementing Regulation No 1000/2011. In the rejoinder, the Council stated that it had no objections to that adaptation of the forms of order sought in the action.

45      By order of 10 January 2012, the President of the Sixth Chamber of the Court granted leave to the Commission to intervene in support of the forms of order sought by the Council and decided that non-confidential versions of the procedural documents would be sent to the Commission. The Commission submitted no objections to the applicant’s application for confidentiality.

46      By letter lodged at the Court’s Registry on 24 February 2012, the Commission waived its right to submit a statement in intervention.

47      By letter lodged at the Court’s Registry on 7 May 2012, the applicant again requested that the case be given priority in respect of the date for the hearing, pursuant to Article 55(2) of the Rules of Procedure.

48      On 13 November 2012, as a measure of organisation of procedure provided for by Article 64 of the Rules of Procedure, the Court sent a written question to the applicant relating to the individual notification of his listing. The applicant responded by letter lodged at the Court’s Registry on 16 November 2012.

49      By document lodged at the Court’s Registry on 14 December 2012, the applicant adapted his heads of claim so that the action should also seek the annulment of Decision 2012/642 and Implementing Regulation No 1017/2012. By letters lodged at the Court’s Registry on 24 and 28 January 2013 respectively, the Commission and the Council stated that they had no objections to that adaptation of the forms of order sought in the action.

50      On 23 September 2013 this case was re-allocated to the First Chamber of the Court.

51      Upon hearing the report of the Judge-Rapporteur, the Court (First Chamber) decided to open the oral procedure and not to give the case priority over others.

52      On 31 October 2013, as a measure of organisation of procedure provided for in Article 64 of the Rules of Procedure, the Court invited the Council to reply in writing to a number of questions. The Council complied with that request within the prescribed period.

53      By letter of 9 December 2013, the applicant requested the examination of witnesses and requested that the Court accept additional evidence. The Court added that letter to the file and decided not to grant the request for the examination of witnesses.

54      By letter of 14 January 2014, the Commission informed the Court that it would not attend the hearing.

55      The parties presented oral argument and replied to questions put by the Court at the hearing on 28 January 2014.

56      At the hearing, the applicant adapted his claims so that the action should also be directed to the annulment of Decision 2013/534 and Implementing Regulation No 1054/2013.

57      The applicant claims that the Court should:

–        annul Decision 2011/357, Regulation No 588/2011, Decision 2011/666, Implementing Regulation No 1000/2011, Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2013/534 and Implementing Regulation No 1054/2013, in so far as they concern him;

–        order the Council to pay the costs.

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

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

1.     Admissibility of the adaptation of the forms of order sought

59      As stated in paragraphs 44, 49 and 56 above, after the initiating application was lodged, the applicant sought to adapt the heads of claim in his action for annulment so that the action should be directed against not only Decision 2011/357 and Regulation No 588/2011, but also Decision 2011/666, Implementing Regulation No 1000/2011, Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2013/534 and Implementing Regulation No 1054/2013, in so far as those acts concern him.

60      It is to be borne in mind in this connection that, when a decision or a regulation of direct and individual concern to an individual is replaced, during the proceedings, by another measure with the same subject‑matter, this is to be considered a new factor allowing the applicant to adapt his claims and pleas in law. It would be contrary to the principle of due administration of justice and to the requirements of procedural economy to oblige the applicant to make a fresh application. Moreover, it would be inequitable if the institution in question were able, in order to counter criticisms of a measure, contained in an application to the Courts of the European Union, to amend the contested measure or to substitute another for it and to rely in the proceedings on such an amendment or substitution in order to deprive the other party of the opportunity of extending his original pleadings to the later measure or of submitting supplementary pleadings directed against that decision (see, to that effect, Case T‑256/07 People’s Mojahedin Organization of Iran v Council [2008] ECR II‑3019, paragraph 46, and Case T‑110/12 Iranian Offshore Engineering & Construction v Council [2013] ECR, paragraph 16).

61      In this case, it is clear that Decisions 2011/666 and 2012/642 extend, until 31 October 2012 and 31 October 2013 respectively, the restrictive measures to which the applicant is subject. Further, by means of Decisions 2011/666 and 2012/642 and by Implementing Regulations No 1000/2011 and No 1017/2012, the Council updated the information relating to the applicant.

62      Further, it must be recalled that the admissibility of a request to adapt the forms of order sought is conditional on its being submitted within the period for bringing proceedings laid down by the sixth paragraph of Article 263 TFEU (see, to that effect, the judgment in Case T‑8/11 Bank Kargoshaei and Others v Council [2013] ECR, paragraph 40). In this case, the claims directed against Decisions 2011/666 and 2012/642 and Implementing Regulations No 1000/2011 and No 1017/2012 were lodged at the Court’s Registry within that time-limit.

63      The adaptations of the forms of order sought designed to ensure that the action should also be directed to the annulment of Decision 2011/666, Implementing Regulation No 1000/2011, Decision 2012/642 and Implementing Regulation No 1017/2012 must therefore be accepted. It may moreover be stated, in that regard, that the Council raised no objections to the adaptations of the forms of order sought in the action in so far as those acts are concerned.

64      As regards the adaptations of the forms of order sought so that the action should also seek the annulment of Decision 2013/534 and Implementing Regulation No 1054/2013, it must be recalled that the time‑limit for bringing proceedings laid down by the sixth paragraph of Article 263 TFEU is mandatory and must be applied by the Courts of the European Union, where necessary of their own motion, in such a way as to safeguard legal certainty and equality of persons before the law (see, to that effect, Iranian Offshore Engineering & Construction v Council, paragraph 60 above, paragraph 17, and Bank Kargoshaei and Others v Council, paragraph 62 above, paragraph 40).

65      As regards the calculation of the time-limit for bringing an action, it should be borne in mind that, under the sixth paragraph of Article 263 TFEU, an action for annulment must be brought within two months of the publication of the contested measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.

66      According to the case-law, the principle of effective judicial protection means that the European Union authority which adopts individual restrictive measures against a person or entity, as in the present case, is bound to communicate the grounds on which those measures are based, either when those measures are adopted or, at the very least, as swiftly as possible after they have been adopted, in order to enable those persons or entities to exercise their right to bring an action (see, to that effect, Case C-548/09 P Bank Melli Iran v Council [2011] ECR I‑11381, paragraph 47, and Iranian Offshore Engineering & Construction v Council, paragraph 60 above, paragraph 19).

67      In this case, that principle is given effect in Article 6(2) of Decision 2012/642 and in Article 8a(2) of Regulation No 765/2006, in the version applicable at the material time, which provide that the Council is to communicate its decision, including the grounds for listing as one of the persons or entities subject to restrictive measures, to the person concerned, either directly, if the address is known, or through the publication of a notice, providing such person with an opportunity to present observations.

68      It follows that the period for bringing annulment proceedings against an act imposing restrictive measures on a person or entity starts to run only from the date of the individual communication of that act to the party concerned, if the address is known, or from the date of the publication of a notice in the Official Journal, if not. Similarly, the period for the submission of an application seeking to extend the claims and pleas in law to an act which repeals and replaces the contested act imposing the restrictive measures, and which maintains those measures, begins to run only from the date of the individual communication of that new act to the person or the entity concerned, if the address is known, or from the date of the publication of a notice in the Official Journal, if individual communication is impossible (see, to that effect, Iranian Offshore Engineering & Construction v Council, paragraph 60 above, paragraph 21).

69      In that regard, it must be observed that, while, in the case which gave rise to the judgment in Case T‑53/12 CF Sharp Shipping Agencies v Council [2012] ECR, relied on by the applicant at the hearing, the Court accepted, in the circumstances of that case, adaptations to heads of claim which were lodged late, a number of judgments of the Court, subsequent to that judgment, have reiterated in clear language that requests to adapt the forms of order sought must be submitted within the period for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU (see, to that effect, Joined Cases T‑35/10 and T‑7/11 Bank Melli Iran v Council [2013] ECR, paragraph 55, and Bank Kargoshaei and Others v Council, paragraph 62 above, paragraph 40).

70      In this case, it is undisputed that Decision 2013/534 and Implementing Regulation No 1054/2013 were notified to the applicant by the Council’s letter of 30 October 2013. The period of two months for bringing proceedings against those acts, as laid down by the sixth paragraph of Article 263 TFEU, extended on account of distance by the single period of 10 days provided for by Article 102(2) of the Rules of Procedure, therefore expired on 9 January 2014.

71      Yet the adaptation of the heads of claim so that the action should also seek the annulment of Decision 2013/534 and Implementing Regulation No 1054/2013 was submitted in the course of the hearing on 28 January 2014, that is, more than 2 months and 10 days after the notification to the applicant of the acts at issue. That adaptation must therefore be rejected as being out of time, as contended by the Council at the hearing.

72      The adaptation of the forms of order sought by the applicant must therefore be accepted solely in so far as it concerns Decisions 2011/666 and 2012/642 and Implementing Regulations No 1000/2011 and No 1017/2012 (those acts, together with Decision 2011/357 and Regulation No 588/2011, being hereinafter referred to as ‘the contested acts’).

2.     Substance

73      In support of the action, the applicant relies on five pleas in law: (i) infringement of the obligation to state reasons, (ii) infringement of the rights of the defence and the right to be heard, (iii) manifest errors of assessment, (iv) infringement of the right to property and (v) infringement of the principle of proportionality.

74      It is appropriate to examine, first, the plea concerning infringement of the rights of the defence and the right to be heard.

 The plea in law concerning infringement of the rights of the defence and the right to be heard

 Arguments of the parties

75      The applicant claims that the contested acts are contrary to his rights of defence and his right to a fair hearing, within the meaning of Article 47 of the Charter of Fundamental Rights of the European Union, and Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’).

76      The applicant claims in that regard that: first, contrary to what is argued by the Council, the rights of the defence are applicable to him; second, the contested acts make no provision at any time for the communication to him of the grounds for his being listed and, therefore, do not provide him with the possibility of exercising his rights of defence and his right to request the removal of his name from the lists; third, the restrictive measures laid down by the contested acts constitute penalties which justify, as such, the application of the safeguards in relation to matters of criminal law provided by Article 6 of the ECHR; fourth, given that the statement of reasons for the contested acts is insufficient, he was not in a position to use his rights of defence effectively; fifth, he was not at any time personally notified of the reasons for his being listed and he was not heard either before or after the adoption of the contested measures. In that regard, the applicant states that the notice referred to in paragraph 12 above cannot be the equivalent of a notification of reasons. He further comments that the Council’s reply of 14 November 2011 to his requests for explanations of 8 July and 8 August 2011 cannot represent an adequate summary of reasons. Last, the applicant claims that it is a requirement of the right to a fair hearing that he should be heard before the adoption of the contested measures.

77      Sixth, the applicant claims that his rights of defence were substantially impaired by the fact that the competent national authority to which application was made, namely the Ministry of Foreign Affairs of the Republic of Lithuania, refused to release to him frozen funds in order to pay for the provision of legal services essential for his defence. Seventh, the applicant claims that the procedure for applying for reconsideration of his listing was, as far as he was concerned, ineffective. In the first place, the Council did not reply to the applicant’s request for reconsideration within the period of one month as it had undertaken to do. Next, the examination of his request for reconsideration, made on 8 August 2011, was withdrawn, on 30 September 2011, from the agenda of the meeting of the Council working groups. In that regard, the applicant asks the Court to request the Council to provide detailed explanations on the procedure for the reconsideration of his situation. Last, by means of Decision 2011/666 and Implementing Regulation No 1000/2011, the Council decided, according to the applicant, to continue the applicant’s listing without first having replied to his request for reconsideration, the reply to that request being given only on 14 November 2011.

78      The Council’s response is that, first, the Court has already rejected the argument that restrictive measures constitute penalties and that there is no justification for revisiting that position. Second, the Council refers to the judgment in Case T‑181/08 Tay Za v Council [2010] ECR II‑1965, in support of its claim that, in a legislative procedure culminating in the adoption of sanctions against a third country which apply to certain categories of its nationals, the rights of the defence are not applicable to them. In this case, the restrictive measures were adopted against Belarus and the applicant is in a situation comparable to that of the applicant in the case which gave rise to the judgment in Tay Za v Council. In any event, the Council states that the statements of reasons in the contested acts are sufficient, and consequently the applicant cannot plead an infringement of his rights of defence in that regard. Third, as regards respect for the right to be heard, the applicant’s listing and the reasons for that listing were communicated to him pursuant to Article 4 of Decision 2010/639, since a notice was published in the Official Journal. Further, the Council states that it replied on 2 August 2011 to the applicant’s requests for information dated 8 July 2011, on 14 November 2011 to the applicant’s request for reconsideration of 8 August 2011, on 17 February 2012 to the letter of 7 November 2011 whereby the applicant requested information and access to certain documents, and on 10 February 2012 to the applicant’s fresh request for reconsideration of 10 January 2012. The Council states that, in each of those letters sent to the applicant, it explained in detail the reasons why he had been listed and why he continued to be listed. Fourth, the Council states that the abovementioned notice published in the Official Journal indicated that all the persons concerned could request reconsideration of their listing and that it was also open to them to challenge that listing before the Court and to request specific authorisations from the competent authorities. The Council adds that, according to the case-law, it is not obliged to hear a person or entity before that person or entity is initially listed. Similarly, the Council was under no obligation to inform the applicant before the adoption of subsequent measures which maintained that listing, since he was already aware of the reasons for that listing. Fifth, the reconsideration procedure made it possible to ensure that the applicant could effectively exercise his rights of defence since, on 14 November 2011, the Council replied to his request for reconsideration informing him very clearly of the reasons why his name had been listed. The Council adds that careful examination of the request for reconsideration is one explanation of the date when it replied to the applicant. Sixth, the Council made no attempt to hinder the applicant obtaining the legal services required for his defence. The Council states that the competent authorities of the Member States exercise their discretion as regards release of funds, taking into account both the need to be able to determine whether the sums requested are reasonable and that the funds will not be diverted in order to circumvent the restrictive measures, and also compliance with their obligations with regard to, inter alia, human rights.

 Findings of the Court

–       Whether the rights of the defence can be claimed by the applicant

79      Relying on the judgment in Tay Za v Council, paragraph 78 above (paragraph 123), the Council contends that, in a legislative procedure culminating in the adoption of sanctions against a ‘third country’ which apply to certain categories of its nationals, the rights of the defence are not applicable to them.

80      First, it must be recalled that since the judgment of the General Court in Tay Za v Council, paragraph 78 above, was set aside on appeal, in its entirety, by the judgment of the Court of Justice in Case C-376/10 P Tay Za v Council [2012] ECR, what is stated in the former judgment is no longer part of the legal order of the European Union and cannot validly be relied on by the Council (see, to that effect, Case T‑492/10 Melli Bank v Council [2013] ECR, paragraph 78, and Case T‑495/10 Bank Saderat v Council [2013] ECR, paragraph 73).

81      Secondly, Article 4(2) and (3) of Decision 2010/639, Article 6(2) and (3) of Decision 2012/642 and Article 8a(2) and (3) of Regulation No 765/2006, in the versions applicable to this case, contain provisions safeguarding the rights of defence of persons and entities subject to restrictive measures adopted under those texts.

82      In those circumstances, it must be held that the rights of the defence are applicable to the applicant and that respect for those rights is subject to review by the Courts of the European Union (see, to that effect, Melli Bank v Council, paragraph 80 above, paragraph 79, and Bank Saderat v Council, paragraph 80 above, paragraph 74).

83      The Council’s argument must therefore be rejected.

–       The complaint that the contested acts do not provide for the communication of the reasons for the applicant’s listing

84      Article 4(2) and (3) of Decision 2010/639, Article 6(2) and (3) of Decision 2012/642 and Article 8a(2) and (3) of Regulation No 765/2006, in the versions applicable to this case, provide that, first, the Council is to communicate to the person concerned its decision, including the grounds for listing, either directly, if the person’s address is known, or through the publication of a notice, providing him with an opportunity to present observations and, second, where observations are submitted or where substantial new evidence is presented, the Council is to review its decision and inform the person concerned accordingly.

85      It follows that the applicant cannot claim that the contested acts do not provide at any time for the communication of detailed reasons for his being listed, thus not enabling him to exercise his rights of defence, his right to be heard, or his right to access to a procedure permitting him to seek the removal of his name from the lists.

86      This complaint must therefore be rejected.

–       The argument that the restrictive measures constitute penalties

87      Suffice it to recall that, in accordance with settled case-law, restrictive measures consisting of freezing of funds are not penal in nature (see, to that effect, the judgment of 11 July 2007 in Case T‑47/03 Sison v Council, not published in the ECR, paragraph 101, and Case T‑49/07 Fahas v Council [2010] ECR II‑5555, paragraph 67). Since the assets of the persons concerned have not been confiscated as the proceeds of a crime, but frozen as a precautionary measure, those measures do not constitute penalties and do not, moreover, imply any accusation of a criminal nature (Sison v Council, paragraph 101).

88      The applicant cannot therefore claim that the restrictive measures consisting of freezing of funds imposed on him constitute penalties which, as such, require respect for the safeguards laid down in relation to matters of criminal law by Article 6 of the ECHR.

89      This argument must therefore be rejected.

–       The complaint that the applicant was never personally informed of the reasons applied to him and was not heard either before or after the adoption of the contested acts

90      As stated in paragraph 84 above, Article 4(2) of Decision 2010/639, Article 6(2) of Decision 2012/642 and Article 8a(2) of Regulation No 765/2006, in the versions applicable to this case, provide that the Council is to communicate its decision, including the grounds for listing, to the natural or legal person, entity or body concerned, either directly, if the address is known, or by the publication of a notice, providing the opportunity to present observations.

91      In this case, the Council did not personally inform the applicant of his initial listing by means of Decision 2011/357 and Regulation No 588/2011, or of his continued listing by means of Decision 2011/666 and Implementing Regulation No 1000/2011. It must however be observed that the applicant has made no attempt to demonstrate that, when those acts were adopted, the Council knew his personal address.

92      In any event, if the position is that the Council could not have been unaware of the applicant’s address, it must be observed that while a failure to effect individual communication of the acts at issue is relevant to the time at which the period for bringing proceedings began to run, it does not, by itself, justify annulment of those acts (see, to that effect, Case T‑202/12 Al Assad v Council [2014] ECR, paragraph 81).

93      Further, it must be held that the applicant was not hindered in becoming aware of the grounds for his listing by means of Decision 2011/357 and Regulation No 588/2011 and the grounds for the continuation of his listing by means of Decision 2011/666 and Implementing Regulation No 1000/2011, and consequently he was in a position to exercise his rights of defence and his right to be heard.

94      First, as is stated in paragraphs 12 and 18 above, on the very days of publication, first, of Decision 2011/357 and Regulation No 588/2011 and, second, of Decision 2011/666 and Implementing Regulation No 1000/2011, the Council published notices for the attention of the persons and entities to which the restrictive measures applied, informing them of their listing or the continuation of their listing and giving them the opportunity to submit observations to the Council.

95      Second, on 8 July 2011, that is 17 days after the publication of Decision 2011/357, Regulation No 588/2011 and the notice referred to in paragraph 12 above, the applicant asked the Council to inform him of the detailed grounds for his listing in Annexes IIIA and IA. It is plain that that letter makes reference, first, to Decision 2011/357 and Regulation No 588/2011 and to the ground concerning him in Annex IIIA and Annex IA and, second, to Article 8a of Regulation No 765/2006 and Article 4 of Decision 2010/639, which provide for his having the opportunity to present observations.

96      Third, by letter of 8 August 2011, the applicant renewed his request for the disclosure of the grounds for his listing and asked that the listing be reconsidered. It is plain that, in that letter, the applicant discusses in detail the grounds for his listing, from which it can be inferred that he had become aware of them.

97      Fourth, as stated in paragraphs 19 and 21 above, after the adoption of Decision 2011/666 and Implementing Regulation No 1000/2011, the applicant, by letters of 7 November 2011 and 10 January 2012, renewed his request that the Council disclose to him the grounds for his continued listing and his request for reconsideration of that listing. In those letters the applicant expressly refers to the amendments made to the grounds for his listing by Decision 2011/666 and Implementing Regulation No 1000/2011.

98      Fifth, it must also be noted that the applicant has not advanced any specific arguments capable of demonstrating that his defence vis-à-vis the Council had not been possible or had been made more difficult.

99      Sixth, it must be stated that the fact that the Council informed the applicant by notice published in the Official Journal, subsequent to the first inclusion of his name in the lists, may not in itself be regarded as an infringement of the rights of the defence.

100    In that regard, it must be recalled that, in accordance with the case-law, respect for the rights of the defence and, in particular, the right to be heard, with regard to restrictive measures, does not require the European Union authorities, prior to the initial inclusion of the name of a person or entity in a list imposing restrictive measures, to disclose the grounds for that listing to the person or entity concerned (see, to that effect, Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351, paragraph 338, and Al Assad v Council, paragraph 92 above, paragraph 66).

101    Such prior disclosure would be liable to jeopardise the effectiveness of the freezing of funds and economic resources imposed by those authorities (see, to that effect, Kadi and Al Barakaat International Foundation v Council and Commission, paragraph 100 above, paragraph 339, and Al Assad v Council, paragraph 92 above, paragraph 67). In order to attain their objective, such measures must, by their very nature, take advantage of a surprise effect and apply with immediate effect (see, to that effect, Kadi and Al Barakaat International Foundation v Council and Commission, paragraph 100 above, paragraph 340, and Case T‑383/11 Makhlouf v Council [2013] ECR, paragraphs 37 to 40).

102    If the applicant also intended to challenge the absence of an oral hearing before the adoption of Decision 2011/357 and Regulation No 588/2011, it is plain that neither the legislation at issue nor the general principle of respect for the rights of the defence confer on persons concerned the right to such a hearing (see, by analogy, People’s Mojahedin Organization of Iran v Council, paragraph 60 above, paragraph 93 and case-law cited).

103    It follows from the foregoing that the Council was not obliged to hear the applicant prior to his first listing by means of Decision 2011/357 and Regulation No 588/2011.

104    However, in the context of the adoption of Decision 2011/666 and Implementing Regulation No 1000/2011, and Decision 2012/642 and Implementing Regulation No 1017/2012, which are subsequent acts which maintained the listing of the applicant, the argument as to the surprise effect of those measures can in principle no longer be validly relied upon (see, to that effect, Case C‑27/09 P France v People’s Mojahedin Organization of Iran [2011] ECR I‑13427, paragraph 62, and Makhlouf v Council, paragraph 101 above, paragraph 42).

105    It is however apparent from the case-law that the right to be heard prior to the adoption of acts which maintain the imposition of restrictive measures on persons already subject to such measures presupposes that the Council has adduced new evidence against those persons (see, to that effect, and by analogy, France v People’s Mojahedin Organization of Iran, paragraph 104 above, paragraph 63, and Makhlouf v Council, paragraph 101 above, paragraph 43).

106    In this case, it is plain that, essentially, Decision 2011/666 and Implementing Regulation No 1000/2011 amended the wording of the grounds applied to the applicant by adding detail to them. However, as stated by the Council, the amendment to the wording does not affect the substance of the grounds, which itself remains unaltered. It is true that the reference to the applicant being the ‘majority shareholder of BelTechExport’ was not to be found in the earlier acts. However, as claimed by the Council, the applicant occupied the post of ‘Chairman of the Council of Shareholders’ of BelTechExport by reason of the fact that he was the ‘majority shareholder’ of that company, and consequently that complementary information cannot be regarded as new evidence within the meaning of the case‑law cited in paragraph 105 above. Furthermore, that link is not disputed by the applicant. In his letter of 8 July 2011, mentioned in paragraph 13 above, the applicant himself emphasises that close link.

107    It follows that when the Council maintained, by means of Decision 2011/666 and Implementing Regulation No 1000/2011, the applicant’s listing, it did not rely on any evidence which had not previously been disclosed to the applicant following his initial listing.

108    On the other hand, as regards Decision 2012/642 and Implementing Regulation No 1017/2012, it is plain that the Council applied new grounds to the applicant in order to justify the continuation of his listing. The Council states that henceforth the applicant is listed on the grounds that, inter alia, he is ‘a key financial sponsor of the Lukashenka regime through his business interests which include Sport Pari, BT Telecommunications and the Spirit and Vodka Company Aquadiv’.

109    Yet it is undisputed that, prior to the adoption of those acts, the Council did not disclose those new grounds to the applicant.

110    Consequently, pursuant to the case-law cited in paragraphs 104 and 105 above, Decision 2012/642 and Implementing Regulation No 1017/2012 must be annulled, in so far as they concern the applicant by reason of an infringement of the rights of the defence and the right to be heard, and the third complaint must be rejected in so far as it concerns the other contested acts.

–       The complaint that the statements of reasons in the contested acts are insufficient

111    As stated in paragraphs 139 to 147 below, Decisions 2011/357 and 2011/666, and Regulation No 588/2011 and Implementing Regulation No 1000/2011, contained information which was sufficiently detailed on the grounds for the imposition of restrictive measures on the applicant.

112    Consequently, the applicant cannot maintain that those acts, in so far as they failed to provide detailed information on the reasons for his listing, did not enable him to exercise his rights of defence and right to be heard.

113    This complaint must therefore be rejected.

–       The complaint that the applicant’s rights of defence were substantially impaired by reason of the refusal of the Republic of Lithuania to release his funds

114    This complaint must be rejected at the outset as being ineffective in that it is directed against neither the substantive legality of the contested acts nor the procedure followed by the Council for their adoption.

115    In any event, it is plain that the applicant fails to establish that the difficulties, notably financial difficulties, allegedly linked to the refusal to release frozen funds prevented him from defending himself. The applicant cannot therefore maintain that his rights of defence were ‘substantially impaired’.

116    It follows that this complaint must be rejected.

–       The complaint that the procedure for reconsideration was, as regards the applicant, ineffective

117    Under Article 4(2) of Decision 2010/639 and Article 8a(2) of Regulation No 765/2006, in the versions applicable at the material time, the Council is to communicate its decision, including the grounds for listing, to the person concerned, either directly, if the address is known, or through the publication of a notice, providing such person with an opportunity to present observations. Article 4(3) and Article 8a(3) of those texts provide that where observations are submitted or where substantial new evidence is presented, the Council is to review its decision and inform the person concerned accordingly.

118    The notices for the attention of the persons and entities to which restrictive measures apply, mentioned in paragraphs 12 and 18 above, state that the persons and entities may submit a request to the Council that the decision to list them should be reconsidered.

119    In this case, the applicant requested the reconsideration of his listing by means of the letters of 8 August and 7 November 2011, mentioned respectively in paragraphs 15 and 19 above.

120    The Council replied to those requests on 14 November 2011, within a period which cannot be regarded as unreasonable.

121    In the Council’s reply of 14 November 2011, the Council states that the continued listing of the applicant is justified, taking into account the grounds applied to him, which grounds are set out in detail by the Council, as stated in paragraph 20 above.

122    Further, the Council replied, by letter of 10 February 2012, to the request for reconsideration of 10 January 2012, mentioned in paragraph 21 above. The Council stated that the removal of the applicant’s name from the lists in Annex IIIA and Annex IA was not justified and that the grounds for his continued listing had previously been specified in the letter of 14 November 2011.

123    In those circumstances, the applicant cannot maintain that the Council’s replies of 14 November 2011 and 10 February 2012 constitute neither a summary of reasons nor a reply to his requests for reconsideration.

124    That conclusion cannot be called into question by the argument that the letter of 14 November 2011 was sent after the adoption of Decision 2011/666 and Implementing Regulation No 1000/2011 which maintained the listing of the applicant. The legislation at issue does not impose any obligation on the Council to reply to a request for reconsideration before the adoption of a decision to maintain the listing of the person concerned. The Council may undertake concurrent examinations of a request for reconsideration and of a person’s continued listing.

125    Further, the applicant does no more than claim that the fact that the decisions on his continued listing were adopted before the Council replied to his requests for reconsideration demonstrates that the procedure for reconsideration is ineffective. However, he adduces no specific evidence from which it can be established that the Council did not properly examine his requests for reconsideration. In that regard, it must be stated that the argument that the Council withdrew, from the agenda of the Council meeting of 30 September 2011, the item concerning his request for reconsideration is not supported by any specific evidence capable of demonstrating that his request for reconsideration of 8 August 2011 was not examined.

126    Last, it must be observed that, as stated by the Council and without objection from the applicant, the reasons stated for the applicant’s listing were amended following his request for reconsideration of 8 August 2011, which necessarily implies that reconsideration took place.

127    The applicant cannot therefore maintain that he did not have the opportunity actually to request reconsideration of his listing or that the reconsideration of that listing was ineffective.

128    It follows that this complaint must be rejected.

129    It follows from the foregoing that the plea in law concerning an infringement of the rights of the defence and the right to be heard must be upheld as regards Decision 2012/642 and Implementing Regulation No 1017/2012, in so far as those acts concern the applicant but must be rejected in so far as it concerns Decisions 2011/357 and 2011/666, Regulation No 588/2011 and Implementing Regulation No 1000/2011.

130    The other pleas in law in the action will therefore be examined only in so far as they are directed against Decisions 2011/357 and 2011/666, Regulation No 588/2011 and Implementing Regulation No 1000/2011.

 The plea in law concerning infringement of the obligation to state reasons

131    The applicant claims, in essence, that he is not in a position to know what the actual and specific reasons are for his listing. He also claims that the Court is unable to exercise its power to review the legality of the contested acts. In that regard, he argues, first, that the grounds for his listing are vague and general. The applicant then submits that the grounds for his listing are even more general and ambiguous than those debated in the case which gave rise to the judgment in Case T‑86/11 Bamba v Council [2011] ECR II‑2749, which held that the ground at issue was not capable of being a sufficient reason for inclusion in a list of persons subject to restrictive measures. The applicant also cites the judgment of 16 September 2011 in Case T‑316/11 Kadio Morokro v Council, not published in the ECR, and the judgment in Case T‑562/10 HTTS v Council [2011] ECR II‑8087, as requiring the Council to communicate to the person concerned reasons which are sufficient and specific for that person’s listing. According to the applicant, those judgments show a clear tendency on the part of the Court to depart from the approach maintained in Tay Za v Council, paragraph 78 above. Further, the applicant claims that the grounds for his listing do not enable him to understand: first, how he is responsible for the violations of international electoral standards in the Presidential elections of 19 December 2010 in Belarus and the crackdown on civil society and democratic opposition; second, how he controls the company Sport Pari although he owns only one fifth of its shares; third, how the company BT Telecommunications can be deemed to be responsible for the crackdown on civil society or the violations of electoral standards as abovementioned; fourth, how the fact that he is Chairman of the Council of Shareholders of the company BelTechExport can justify his listing; and, fifth, how the listing of that company can assist in achieving the objective of preventing the importation of defence products to Belarus.

132    The Council contests the applicant’s arguments.

133    According to settled case-law, the purpose of the obligation to state the reasons for an act adversely affecting a person, as laid down in the second paragraph of Article 296 TFEU is, first, to provide the person concerned with sufficient information to make it possible to determine whether the act is well founded or whether it is vitiated by an error which may permit its validity to be contested before the Courts of the European Union and, second, to enable the latter to review the lawfulness of the act (see, to that effect, Case C‑199/99 P Corus UK v Commission [2003] ECR I‑11177, paragraph 145; Case C‑521/09 P Elf Aquitaine v Commission [2011] ECR I‑8947, paragraph 148; and Case C‑417/11 P Council v Bamba [2012] ECR, paragraph 49).

134    The statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the act in such a way as to enable the person concerned to ascertain the reasons for the measures and to enable the court having jurisdiction to exercise its power of review (see, to that effect, Joined Cases C‑539/10 P and C‑550/10 P Al-Aqsa v Council and Netherlands v Al-Aqsa [2012] ECR, paragraph 138, and Council v Bamba, paragraph 133 above, paragraph 50).

135    Where the person concerned is not afforded the opportunity to be heard before the adoption of an initial decision to freeze funds, compliance with the obligation to state reasons is all the more important because it constitutes the sole safeguard enabling the person concerned, at least after the adoption of that decision, to make effective use of the legal remedies available to him in order to challenge the lawfulness of that decision (Council v Bamba, paragraph 133 above, paragraph 51).

136    Therefore, the statement of reasons for an act of the Council which imposes a freezing of funds must identify the actual and specific reasons why the Council considers, in the exercise of its discretion, that that measure must be adopted in respect of the person concerned (Council v Bamba, paragraph 133 above, paragraph 52).

137    The statement of reasons required by Article 296 TFEU must, however, be appropriate to the act at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the statement of reasons to go into all the relevant facts and points of law, since the question whether it meets the requirements must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, to that effect, Elf Aquitaine v Commission, paragraph 133 above, paragraph 150; Al-Aqsa v Council and Netherlands v Al-Aqsa, paragraph 134 above, paragraphs 139 and 140, and Council v Bamba, paragraph 133 above, paragraph 53).

138    In particular, the reasons given for a measure adversely affecting a person are sufficient if it was adopted in circumstances known to the party concerned which enable him to understand the scope of the measure concerning him (Council v Bamba, paragraph 133 above, paragraph 54).

139    It must therefore be determined whether, in this case, the statement of reasons for the listing of the applicant, by means of Decision 2011/357 and Regulation No 588/2011, and for his continued listing, by means of Decision 2011/666 and Implementing Regulation No 1000/2011, is sufficient within the meaning of the case-law cited.

140    First, it must be noted that the applicant does not claim that the contested acts do not refer to the particular circumstances of this case. In any event, it must be held that the background circumstances of the restrictive measures imposed on the applicant were known to him. Suffice it to observe in that regard that the acts at issue all refer, in the recitals in their preambles, to the ‘gravity of the situation in Belarus’ and refer to Decision 2010/639 and Regulation No 725/2006, which themselves refer to Common Position 2006/276, cited in paragraph 4 above, and Common Position 2006/362, cited in paragraph 5 above, which describe the political background in Belarus.

141    Second, as regards the reasons why restrictive measures are specifically imposed on the applicant, it must first be pointed out that it is clear from Article 2(1)(b) of Decision 2010/639 and Article 2(1) and (5) of Regulation No 765/2006, in the versions applicable to this case, that restrictive measures are to be imposed on, in particular, persons who are ‘associated’ with those responsible for the violations of international electoral standards in the Presidential elections of 19 December 2010 in Belarus and the crackdown on civil society and democratic opposition.

142    It is apparent from Annexes IIIA and IA, both in the versions following Decision 2011/357 and Regulation No 588/2011 and in those following Decision 2011/666 and Implementing Regulation No 1000/2011, that the applicant is listed as a ‘person associated with President [Lukashenko] and his family’ and not as a person responsible for violations of international electoral standards or the crackdown on civil society and democratic opposition.

143    It must also be observed that the Council does not confine the reasons stated for the listing of the applicant to the general information that he is associated with President Lukashenko and his family. The Council illustrates that general ground by stating actual and specific reasons, as is clear from paragraphs 10, 11, 16 and 17 above.

144    It follows that the applicant cannot maintain that he was not in a position to know the actual and specific reasons for his listing. Further, it is plain that the applicant was able effectively to challenge the merits of that listing, which is demonstrated by the arguments he sets out in support of the plea in law concerning manifest errors of assessment, in which context he calls into question each of the grounds relied on by the Council against him.

145    That conclusion cannot be rebutted by the applicant’s reference to the judgment in Bamba v Council, paragraph 131 above. It must be recalled that the sufficiency of the statement of reasons must be assessed on a case-by-case basis, according to the circumstances of the particular case. The reasons stated for the listing of the applicant in the case which gave rise to the judgment in Bamba v Council, paragraph 131 above, differ from those which caused the applicant in this case to be listed. The ruling in Bamba v Council, paragraph 131 above, cannot therefore be transposed to this case. In any event, it must be noted that the judgment in Bamba v Council, paragraph 131 above, was set aside by the Court of Justice on the ground that the General Court had erred in holding that the statement of reasons in the contested decision was insufficient. Further, it must be added that while it is true that the judgments in Kadio Morokro v Council, paragraph 131 above, and HTTS v Council, paragraph 131 above, post-date the judgment in Tay Za v Council, paragraph 78 above, they precede the judgment in Bamba v Council, paragraph 131 above.

146    It must also be borne in mind that the question of the statement of reasons, which concerns an essential procedural requirement, is separate from that of the evidence of the alleged conduct, which concerns the substantive legality of the act in question and involves assessing the truth of the facts set out in that act and the characterisation of those facts as evidence justifying the use of restrictive measures against the person concerned (see, to that effect, Bank Melli Iran v Council, paragraph 66 above, paragraph 88, and Council v Bamba, paragraph 133 above, paragraph 60). Consequently, the applicant’s argument that the grounds relied on against him are not sufficient justification for his listing will be examined in the context of the plea in law concerning manifest errors of assessment.

147    It follows that the plea alleging infringement of the obligation to state reasons must be rejected.

 The plea in law concerning manifest errors of assessment

 Arguments of the parties

148    The applicant claims that the Council committed several manifest errors of assessment. First, the Council adduced no evidence that the applicant is ‘associated’ with President Lukashenko and his family.

149    Second, the applicant never had any personal relationship with President Lukashenko or his family. In that regard, the applicant claims that his meetings with President Lukashenko and members of his family are not such as to permit the conclusion that he is personally associated with those persons. The applicant further claims that the successful development of his business is unrelated to any personal contacts with President Lukashenko or his family. The applicant adds that he is not involved in Belarusian politics and that, since March 2011, he has begun making efforts to secure the release of Belarusian political dissidents.

150    Third, the applicant was never ‘chief economic advisor of President Lukashenko’ and that status cannot be inferred from the various proposals made by him for the improvement of legislation in Belarus, the sole aim of which was to ‘promote a more hospitable, respectful and liberal environment for investments and business in general’. The applicant also points out that some of his proposals for legislation were not accepted by the Belarusian authorities.

151    Fourth, the applicant was not the ‘key financial sponsor’ of the regime of President Lukashenko. In that regard, the applicant states that the companies which he controls are not among the most profitable companies in Belarus. As regards the companies in which he holds shares, the applicant claims that their turnover is relatively small, compared to other companies in Belarus. He indicates moreover that he has never offered any financial sponsorship to President Lukashenko, his entourage or structures associated with them. The applicant adds that the payment of taxes cannot be regarded as an essential source of funding for the regime since the payment of taxes is a legal obligation. Even if the obligatory payment of taxes were to be regarded as a source of funding for the regime, the amount of tax revenue paid by the applicant is not significant. The applicant adds that the Council’s assertion that he is one of the richest and most influential businessmen in Belarus is not substantiated.

152    Fifth, the fact that the applicant is Chairman of the Council of Shareholders of BelTechExport cannot be interpreted as the provision of support to the regime or participation in violations of international electoral standards in the Presidential elections in Belarus on 19 December 2010, or in the crackdown on civil society and democratic opposition. He adds that the combination of his being both Chairman of the Council of Shareholders and the principal shareholder of BelTechExport is of no relevance since the contested acts make no reference to that dual status.

153    Sixth, the applicant claims that the company BelTechExport is not ‘the largest export/import company of defence products in Belarus’ and that, even if that were true, it could not be inferred therefrom that the applicant is linked to the violations of international electoral standards in the Presidential elections in Belarus on 19 December 2010 or to the crackdown on civil society and democratic opposition. The applicant further claims that the fact that the company BelTechExport is the sole Belarusian exporter of defence products to the United States and to the United Kingdom is not sufficient ground to conclude that it is the largest export/import company of defence products in Belarus. The applicant adds that the fact that the company’s website refers to the fact that it is the leading export company is without substance. The fact that BelTechExport appears on the website of the State Military Industrial Committee of the Republic of Belarus cannot establish any link between that company and the regime of President Lukashenko. According to the applicant, the reason why BelTechExport appears on that website is due to the control exercised by the State authorities over trade in defence products. Last, the applicant claims that the inconsistencies in the Council’s written pleadings demonstrate that BelTechExport is not associated with the regime and that the Council is attempting to fabricate a link between the applicant and the regime.

154    Seventh, the applicant claims that the amendment, by Decision 2011/666 and Implementing Regulation No 1000/2011, of the grounds relied on to justify his continued listing is confirmation that the grounds for his initial listing were unfounded. In that regard, the applicant states that the Council’s amendment of the grounds, such as the use of the expression ‘provides economic advice to’ instead of ‘chief economic advisor of’ President Lukashenko, the expression ‘a key financial sponsor’ of the regime in place of ‘key financial sponsor’ of the regime, or the addition of the status of ‘majority shareholder’ of BelTechExport, demonstrates that the initial grounds relied on by the Council were erroneous.

155    Eighth, the new grounds relied on by the Council, as they are stated in Decision 2011/666 and Implementing Regulation No 1000/2011, are based on information provided by the applicant in the context of his request for reconsideration and not on information which the Council itself held.

156    Ninth, the relationship of the four grounds relied on by the Council is ‘completely blurred and incorrect’, and consequently a hierarchy of those grounds seems to have been established by the Council.

157    Tenth, the Council is not entitled to amend the grounds at any time of its own choosing when there is no change in the situation of the person concerned to justify it.

158    The Council’s response is, first, that the ground for the applicant’s listing resides solely in the fact that he has links to President Lukashenko and his family and the other grounds relied on do no more than support the existence of those links. Consequently, it is not necessary to establish a link between the applicant and the violations of international electoral standards in the Presidential elections in Belarus on 19 December 2010 or the crackdown on civil society and democratic opposition.

159    Second, the Council states that it is sufficient to show that the applicant has multiple relations with President Lukashenko and his family in order to infer a link amounting to an association. In that regard, the Council observes that it is apparent from the application that the applicant attended several official meetings with President Lukashenko and that he met two of President Lukashenko’s sons, contacts with one of those sons being linked to the latter’s position as President Lukashenko’s assistant on national security matters. As for the applicant’s alleged efforts to secure the release of Belarusian political dissidents, the Council observes that, if those efforts were undertaken before he was included on the lists at issue, they are contradicted by the fact that the applicant is associated with the regime. The Council contends, moreover, that the applicant has not adduced the slightest evidence of having made such efforts.

160    Third, the Council contends that the role of ‘chief economic adviser’ must not be understood in the sense of an official position but in a material sense. The applicant has made a number of proposals in relation to economic legislation. In view of the control exercised by President Lukashenko over legislation in Belarus, it can therefore be considered that the applicant provided advice to President Lukashenko. That role is also apparent from the fact that the applicant participated with President Lukashenko in a number of official television programmes dealing with economic issues. The Council adds that the applicant’s legislative proposals are not designed to encourage a more open and business-friendly economy but, on the contrary, to reinforce the repressive regime.

161    Fourth, the Council contends that, through his extensive business interests, in particular those in BelTechExport, the applicant is a key source of funding for President Lukashenko’s regime. The Council adds that, even on the assumption that none of the companies which the applicant controls or in which he has interests are on the list of the 20 largest companies in Belarus, the revenue generated by the taxation of all his business activities is a key source of funding. In addition, the applicant is generally considered to be one of the richest and most influential businessmen in Belarus. The Council states in that regard that it would not place a person on the lists at issue on the sole ground that he pays tax in Belarus, but where that person is one of the richest and most influential businessmen in Belarus and has close relations with the regime, and controls companies with foreign currency revenues, the freezing of funds is necessary and legitimate in order to prevent the funding of that regime.

162    Fifth, the Council submits that it can rely on the fact that the applicant is the major shareholder of BelTechExport, in so far as that status is clearly connected to that of being Chairman of the Council of Shareholders of that company. The Council also states that the fact that BelTechExport is one of the largest undertakings involved in the import/export of defence-related products and not the largest undertaking in that sector is sufficient to justify the listing of the applicant. The Council also maintains that the fact that an undertaking in that sector, established in a country controlled by a regime such as that in Belarus, has close links with that regime is sufficient to establish the link between that company and the regime. The fact that the Council did not base BelTechExport’s listing on the ground that it was directly associated with the regime does not mean that that company does not have close links with the regime.

163    Sixth, the Council states that its assertion that major businessmen in Belarus generally have close relations with that country’s leaders is supported by, inter alia, a study commissioned by the European Parliament.

164    Seventh, the Council contends that the applicant is not only Chairman of the Council of Shareholders of BelTechExport, but is also that company’s majority shareholder. The Council adds that BelTechExport’s website describes that company as ‘the largest company in Belarus for export/import of defence products’ and that a similar statement is also to be found on the website of the State Military Industrial Committee of Belarus, which, moreover, shows the links between that company and the regime. The Council argues that even if it were the case that the company was one of the largest undertakings in that sector and not the largest, the relevance of that reason would not be reduced.

165    Eighth, the Council states that the initial reasons and the reasons stated in Decision 2011/666 and Implementing Regulation No 1000/2011 are not different, the reasons being only slightly amended, and consequently the applicant cannot maintain that those amendments show that the initial reasons were incorrect. The Council observes, next, that those amendments were made following the applicant’s request for reconsideration, but that they were based on information already in the Council’s possession when the applicant was initially listed. The Council maintains that there is nothing to prevent it from amending the grounds initially relied on, provided that the new grounds are correct. If that were not the case, the procedure for reconsideration would be rendered irrelevant.

 Findings of the Court

166    First, it must be recalled that, in the light of the considerations set out above (paragraphs 108 to 110 above), this plea will be examined solely in so far as it concerns Decision 2011/357, Regulation No 588/2011, Decision 2011/666 and Implementing Regulation No 1000/2011.

167    The effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights requires 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 given person or entity, 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, is substantiated (see, to that effect, Joined Cases C‑584/10 P, C‑593/10 P and C‑595/10 P Commission and Others v Kadi [2013] ECR, paragraph 119).

168    To that end, it is for the Courts of the European Union, in order to carry out that examination, to request the competent European Union authority, when necessary, to produce information or evidence relevant to such an examination (see, to that effect, Commission and Others v Kadi, paragraph 167 above, paragraph 120, and Case T‑489/10 Islamic Republic of Iran Shipping Lines and Others v Council [2013] ECR, paragraph 42). That is because it is the task of the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded (see Commission and Others v Kadi, paragraph 167 above, paragraph 121). For that purpose, there is no requirement that that authority produce before the Courts of the European Union all the information and evidence underlying the reasons alleged. It is however necessary that the information or evidence produced should support the reasons relied on against the person concerned (see, to that effect, Commission and Others v Kadi, paragraph 167 above, paragraph 122).

169    In this case, it must first be recalled that, under Article 2(1)(b) of Decision 2010/639 and Article 2(1) and (5) of Regulation No 765/2006, in the versions applicable to this case, the persons to be subject to restrictive measures are, in particular, those who are ‘associated’ with those responsible for the violations of international electoral standards in the Presidential elections in Belarus on 19 December 2010 and the repression of civil society and democratic opposition.

170    Under Decision 2011/357 and Regulation No 588/2011 the grounds for the applicant’s listing were the following:

‘Person associated with President Lukashenko and his family. Chief economic advisor of President Lukashenko and key financial sponsor of the Lukashenko regime. Chairman of the Council of Shareholders of BelTechExport, the largest export/import company of defence products in Belarus.’

171    By Decision 2011/666 and Implementing Regulation No 1000/2011, the Council maintained the listing of applicant on the following grounds:

‘Person associated with Aliaksandr Lukashenka, Viktar Lukashenka and Dzmitry Lukashenka. Provides economic advice to President Lukashenka and is a key financial sponsor of the Lukashenka regime. Majority shareholder and Chairman of the Council of Shareholders of BelTechExport, one of the largest export/import companies of defence products in Belarus.’

172    First, it is plain that, by Decision 2011/666 and Implementing Regulation No 1000/2011, the Council amended the initial wording of certain grounds for the listing of the applicant. The Council specifies the family members with whom the applicant was associated, states that the applicant ‘provides economic advice to’ President Lukashenko and is no longer his ‘[c]hief economic advisor’, states that the applicant is ‘a key financial sponsor of the regime’ and no longer its ‘key financial sponsor’ and last, no longer describes the company BelTechExport as ‘the largest export/import company of defence products in Belarus’, but as ‘one of the largest export/import companies of defence products in Belarus’.

173    Pursuant to Article 4(3) of Decision 2010/639 and Article 8a(3) of Regulation No 765/2006, in the versions applicable at the material time, where observations are submitted, the Council is to review its decision and is to inform the person concerned accordingly. It must therefore be held, at the outset, that the applicant cannot fault the Council for having added more detail to the initial grounds for his listing, taking into account, inter alia, the observations contained in his request for reconsideration, mentioned in paragraph 15 above.

174    It must be observed, next, that the amendments mentioned in paragraph 172 above are not contradictory of the substance of the initial grounds. Finally, even were it accepted, in the light of the amendments made by the Council, that the initial grounds lacked detail, that is not, by itself, capable of affecting the merits of the applicant’s initial listing.

175    As regards the addition, by Decision 2011/666 and Implementing Regulation No 1000/2011, of the information that the applicant is ‘majority shareholder’ of the company BelTechExport, it must be recalled, as stated in paragraph 106 above, that that information is closely linked to his status as the Chairman of the Council of Shareholders of BelTechExport, which was expressly mentioned in the initial grounds for the applicant’s listing. That addition therefore does no more than add detail to a previously existing ground.

176    Second, it is plain that, contrary to what is suggested by the applicant, it is very clear from the grounds cited in paragraphs 170 and 171 above that he was not listed on the ground that he participated in the violations of international electoral standards in the Presidential elections in Belarus on 19 December 2010 or the repression of civil society and democratic opposition. The applicant’s argument is therefore ineffective.

177    Third, as stated in paragraphs 141 to 143 above, it is clear from the grounds cited in paragraphs 170 and 171 above that the principal ground for the applicant’s listing was that he was considered, by the Council, to be a person who was associated with President Lukashenko and his family, while the other grounds, namely the fact that he provided economic advice to President Lukashenko, was a financial sponsor of the Lukashenko regime and was Chairman of the Council of Shareholders of BelTechExport, one of the largest export/import companies of defence products in Belarus, were no more than illustrations of that principal ground, as stated by the Council in its written pleadings.

178    It is necessary therefore to examine the merits of each particular ground in order to reach a conclusion on the merits of the principal ground.

–       The ground that the applicant provided economic advice to President Lukashenko

179    In support of this ground, the Council states, first, that the applicant had submitted to the Belarusian authorities a number of proposals for legislation concerning the economy and, secondly, that the applicant had accompanied President Lukashenko in appearing on a number of official television programmes devoted to economic matters.

180    The applicant does not dispute those facts which are relied on by the Council. He claims however that those facts are not capable of establishing that he was ‘associated’ with President Lukashenko.

181    It must be held, as claimed by the applicant, that the Council cannot infer from the applicant’s various legislative proposals aimed at altering Belarusian legislation concerning the economy that he was ‘providing economic advice’ to President Lukashenko. First, as stated by the applicant without being rebutted by the Council, those proposals may have been made by the applicant in order to pursue his own private economic interests. Second, it is not apparent from the documents before the Court that those proposals by the applicant were submitted by him to the Belarusian authorities at their request. The Council does no more than assert that, ‘given President Lukashenko’s control over his government and Belarusian legislation’, to make legislative proposals ‘amounts to providing economic advice to President Lukashenko’.

182    It must further be observed that some of the applicant’s legislative proposals were rejected by the Belarusian authorities, which the Council does not deny. Yet if the applicant had been providing economic advice to President Lukashenko and if the latter, as maintained by the Council, controlled Belarusian legislation, the applicant’s legislative proposals ought to have been accepted by the regime.

183    Moreover, the Council does no more than assert that the applicant’s proposals are designed to serve the repressive regime, thereby confirming the applicant’s association with the regime, but fails to support that assertion with any specific evidence.

184    Last, nor does the applicant’s participation in television programmes together with President Lukashenko demonstrate that he is providing economic advice to President Lukashenko. As the applicant stated at the hearing, without being contradicted by the Council, the applicant appeared on two occasions on Belarusian television, and did not speak on either occasion. Further, the Council does not establish that, in those television programmes, the applicant was presented as a person providing economic advice to President Lukashenko.

185    In those circumstances, the Council cannot rely on the ground that the applicant was providing economic advice to President Lukashenko in order to demonstrate that he was associated with President Lukashenko and his family.

–       The ground that the applicant was one of the key financial supporters of the regime

186    In support of the ground that the applicant was one of the key financial supporters of the regime, the Council states, in its written pleadings, that the company BelTechExport, which was controlled by the applicant, exported defence products, generating large amounts of foreign currency. The Council also refers to the ‘extensive business interests’ of the applicant, which are, therefore, a ‘key source of funding’ for the regime of President Lukashenko, as is demonstrated also by the applicant’s reputation as the richest and most influential businessman in Belarus. The Council adds that, in any event, the revenue generated by the taxation of the applicant’s combined business activities constitutes a ‘key source of funding’.

187    It is undisputed that the applicant owns or owned shares in a number of companies, including BelTechExport. However, the Council adduces no specific evidence from which it can be established that the applicant is one of the key financial supporters of the regime of President Lukashenko. Having regard to all the assertions made by the Council, as set out in paragraph 186 above, none are established.

188    First, the Council adduces no evidence of the ‘extensive business interests’ owned by the applicant. In that regard, the applicant states, in the first place, that the companies in which he has interests are not among the largest companies in Belarus, which the Council does not deny. The applicant then states, and provides supporting evidence, that the turnover of those companies is relatively small, which, in its written pleadings, the Council again does not deny. Further, the Council provides no evidence of the extent to which BelTechExport generates substantial foreign currency, or to what extent the amount of tax revenue generated by the companies in which the applicant has interests constitutes a ‘key source of funding’ for the regime. In that regard, it is plain that the applicant provides statistical data sufficient to show that the Council cannot infer, from the tax revenue generated by the companies which he controlled, that he was one of the key financial sponsors of the regime. Yet in its written pleadings, the Council does not rebut the evidence provided by the applicant. In any event, the Council cannot infer from the applicant’s payment of taxes that he was providing financial support to the regime, since such payment constitutes a legal obligation. Last, the Council asserts that the applicant is known to be one of the richest and most influential businessmen in Belarus, but fails to adduce any evidence to that effect. The Council confines itself to stating that the applicant is ‘listed as a billionaire by Forbes (the business news magazine)’, which the applicant denies. In that regard, it must be observed that, at the hearing, the Council stated it had been unable to verify whether the applicant was listed as a billionaire by Forbes, but that there existed lists in the public domain mentioning the applicant as being one of the richest and most influential businessmen in Belarus, though the Council failed to adduce any evidence.

189    It follows that the ground that the applicant was one of the key financial supporters of the regime cannot establish that he was associated with President Lukashenko and his family.

–       The ground that the applicant was the majority shareholder of BelTechExport and Chairman of the Council of Shareholders of that company, which was one of the largest export/import companies of defence products in Belarus

190    It is common ground among the parties that, on the dates of adoption of Decision 2011/357, Regulation No 588/2011, Decision 2011/666 and Implementing Regulation No 1000/2011, the applicant was Chairman of the Council of Shareholders of BelTechExport. Further, the Council states in its written pleadings, without being contradicted by the applicant, that that status is closely linked to the fact that the applicant was also the majority shareholder of BelTechExport, holding 70% of its shares.

191    In those circumstances, the applicant cannot seriously maintain that he exercised no managerial powers over BelTechExport. Besides, the applicant does no more than assert that the position of Chairman of the Council of Shareholders was ‘merely technical’, neglecting to mention that he was also the majority shareholder of BelTechExport.

192    Moreover, while the Council accepted that the company BelTechExport was not ‘the largest’ export/import company of defence products in Belarus, by proceeding to amend the wording of the grounds for the applicant’s listing, by Decision 2011/666 and Implementing Regulation No 1000/2011, the Council maintains nonetheless that BelTechExport was ‘one of the largest’ export/import companies of defence products in Belarus, which the applicant does not dispute.

193    The Council’s finding that the applicant is both the majority shareholder of BelTechExport and Chairman of the Council of Shareholders of that company, which is one of the largest export/import companies of defence products in Belarus, is therefore not incorrect.

194    According to the Council, those facts reflect the existence of a link amounting to an association between the applicant, on the one hand, and President Lukashenko and his family, on the other. The Council considers that BelTechExport, in so far as it was one of the largest companies in Belarus in the sector of trade in defence products, generated a substantial amount of foreign currency and substantial tax revenue. The Council concludes that, through the intermediary of BelTechExport, a company which he controlled, the applicant was providing financial support to the regime.

195    Yet, as stated in paragraphs 187 to 189 above, the Council adduces no evidence that the applicant was providing financial support to the regime, through the intermediary of, inter alia, BelTechExport. In that regard, it must be held that the fact that the trade in defence products is a regulated sector, in which it is inherent that there are relations between BelTechExport and the State authorities, cannot demonstrate, as such, that that company supported the regime financially. The same is true of the listing of the company BelTechExport on the website of the State Military Industrial Committee of the Republic of Belarus. The Council fails to demonstrate that, from the fact of that listing on that website, it can be inferred that BelTechExport supports the regime financially. The Council confines itself to stating that that listing demonstrates the particular links between BelTechExport and the regime, neglecting to mention the fact that the explanation for that listing could be that that sector is regulated.

196    It must also be observed that, according to the Council, the link amounting to an association between the applicant and regime cannot follow from any supply to the regime, by BelTechExport, of defence products. At the hearing, the Council stated plainly that it did not claim that BelTechExport ‘was supplying equipment to the security forces’. The Council even added that ‘there was no evidence in the file to that effect’.

197    In those circumstances, even though, first, the applicant controlled BelTechExport and, second, that company was one of the largest companies in Belarus in the field of trade in defence products, it must be held that the Council has not established that, through the intermediary of that company, the applicant was supporting the regime financially.

198    It follows from all the foregoing that the Council erred in listing the applicant on the ground that he was associated with President Lukashenko and his family, for the purposes of Article 2(1)(b) of Decision 2010/639 and Article 2(1) and (5) of Regulation No 765/2006, in the versions applicable to this case.

199    That conclusion cannot be affected by fact that there were meetings of the applicant, one the one hand, and President Lukashenko and his two sons, Viktor and Dzmitry Lukashenko, on the other.

200    First, while the applicant does not deny that he attended meetings with President Lukashenko, he adds however that those meetings occurred seldom and were official in character, which is not denied by the Council. As regards the applicant’s meetings with the two sons of President Lukashenko, the Council does not explain how they might demonstrate that the applicant was associated with the regime. As regards, in particular, meetings with Viktor Lukashenko, who was responsible for national defence, it must be recalled that, according to the Council, BelTechExport, a company controlled by the applicant, was not targeted as one which was providing arms to the regime. Further, if, by referring to those meetings, the Council is suggesting that the applicant was providing financial support to the regime, suffice it to state that the Council adduces no evidence to that effect.

201    It follows that Decisions 2011/357, 2011/666, Regulation No 588/2011 and Implementing Regulation No 1000/2011 must be annulled, in so far as they concern the applicant, and there is no need to allow the introduction of the further evidence lodged by the applicant on 9 December 2013, as stated in paragraph 53 above.

202    It is unnecessary to examine the other pleas in the action.

 Costs

203    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party’s pleadings.

204    Article 87(3) of those rules provides that where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court may order that the costs be shared or that each party bear its own costs.

205    In the circumstances of this case, where the Council has failed on the heads of claim seeking annulment which were held to be admissible, which were the main subject-matter of the case, it must be ordered to bear all the costs incurred by the applicant, as applied for in that party’s pleadings, and to bear its own costs.

206    In accordance with the first subparagraph of Article 87(4) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Commission shall bear its own costs.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1.      Annuls Council Decision 2011/357/CFSP of 20 June 2011, amending Decision 2010/639/CFSP concerning restrictive measures against certain officials of Belarus, Council Regulation (EU) No 588/2011 of 20 June 2011 amending Regulation (EC) No 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus, Council Decision 2011/666/CFSP of 10 October 2011 amending Decision 2010/639/CFSP concerning restrictive measures against Belarus, Council Implementing Regulation (EU) No 1000/2011 of 10 October 2011 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus, Council Decision 2012/642/CFSP of 15 October 2012 concerning restrictive measures against Belarus, and Council Implementing Regulation (EU) No 1017/2012 of 6 November 2012 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus, in so far as those acts concern Mr Vladimir Peftiev;

2.      Dismisses the action as being inadmissible in so far as it concerns Council Decision 2013/534/CFSP of 29 October 2013 amending Decision 2012/642 and Council Implementing Regulation (EU) No 1054/2013 of 29 October 2013 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus;

3.      Orders the Council of the European Union to bear its own costs and to pay those incurred by Mr Peftiev;

4.      Orders the European Commission to bear its own costs.

Kanninen Pelikánová Buttigieg

Delivered in open court in Luxembourg on 9 December 2014.

[Signatures]

* Language of the case: English.