JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
21 February 2024 (*)
(Common foreign and security policy – Restrictive measures adopted in view of the situation in Belarus – Freezing of funds – Lists of persons, entities and bodies subject to the freezing of funds and economic resources – Inclusion and maintenance of the applicant’s name on the lists – Concept of ‘support for the regime’ – State-owned enterprise – Error of assessment)
In Case T‑117/22,
Grodno Azot AAT, established in Grodno (Belarus),
Khimvolokno Plant, established in Grodno,
represented by N. Tuominen and L. Engelen, lawyers,
applicants,
v
Council of the European Union, represented by A. Boggio-Tomasaz and A. Antoniadis, acting as Agents,
defendant,
THE GENERAL COURT (Ninth Chamber),
composed of L. Truchot, President, H. Kanninen (Rapporteur) and R. Frendo, Judges,
Registrar: I. Kurme, Administrator,
having regard to the order of 1 February 2023, Grodno Azot and Khimvolokno Plant v Council (T‑117/22 R, not published, EU:T:2023:42),
having regard to the written part of the procedure,
further to the hearing on 18 October 2023,
gives the following
Judgment
1 By their action under Article 263 TFEU, the applicants, Grodno Azot AAT and Khimvolokno Plant, seek the annulment, first, of Council Implementing Decision (CFSP) 2021/2125 of 2 December 2021 implementing Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus (OJ 2021 L 430I, p. 16) and of Council Implementing Regulation (EU) 2021/2124 of 2 December 2021 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2021 L 430I, p. 1) (‘the initial acts’), and, second, of Council Decision (CFSP) 2023/421 of 24 February 2023 amending Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine (OJ 2023 L 61, p. 41) and of Council Implementing Regulation (EU) 2023/419 of 24 February 2023 implementing Article 8a of Regulation (EC) No 765/2006 concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine (OJ 2023 L 61, p. 20) (‘the maintaining acts’), in so far as those acts concern them.
Background to the dispute and events subsequent to the bringing of the action
2 Grodno Azot is a Belarusian company which produces nitrogen compounds, of which Khimvolokno Plant is a branch. The applicants are established in Grodno (Belarus).
3 The present case has arisen in the context of the restrictive measures adopted by the European Union since 2004 in view of the situation in Belarus with regard to democracy, the rule of law and human rights.
4 On 18 May 2006, the Council of the European Union adopted, on the basis of Articles [75 and 215 TFEU], Regulation (EC) No 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2006 L 134, p. 1), the title of which was replaced, under Article 1(1) of Council Regulation (EU) No 588/2011 of 20 June 2011 (OJ 2011 L 161, p. 1), by the heading ‘Council Regulation (EC) No 765/2006 of 18 May 2006 concerning restrictive measures in respect of Belarus’.
5 On 15 October 2012, on the basis of Article 29 TEU, the Council adopted Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1).
6 According to Article 4(1)(a) and (b) of Decision 2012/642 and Article 2(4) and (5) of Regulation No 765/2006, as amended by Council Regulation (EU) No 1014/2012 of 6 November 2012 (OJ 2012 L 307, p. 1), the last provision referring to the first, all funds and economic resources owned, held or controlled by, inter alia, persons, entities or bodies responsible for serious violations of human rights or the repression of civil society and democratic opposition, or whose activities otherwise seriously undermine democracy or the rule of law in Belarus, or natural or legal persons, entities and bodies that benefit from or support the Lukashenko regime, are to be frozen.
7 On 2 December 2021, the Council adopted the initial acts. Recital 4 thereof states that ‘in view of the gravity of the situation in Belarus, 17 persons and 11 entities should be included in the list of natural and legal persons, entities and bodies subject to restrictive measures’.
8 By the initial acts, the entry ‘Open Joint Stock Company “Grodno Azot”[,] Including Branch “Khimvolokno Plant” JSC “Grodno Azot”’ was included in line 24 of Table B of the list of natural and legal persons, entities and bodies referred to in Article 3(1) and Article 4(1) of Decision 2012/642, contained in the annex to that decision, and in line 24 of Table B of the list of natural and legal persons, entities and bodies referred to in Article 2(1) of Regulation No 765/2006, set out in Annex I to that regulation (together, ‘the lists at issue’).
9 In the initial acts, as regards Grodno Azot, the Council included the identifying information ‘Address: 100 Kosmonavtov Ave., Grodno, Belarus’, ‘Date of registration: 1965’, ‘Registration number: 500036524’ and ‘Website: https://azot.by/en/’. As regards Khimvolokno Plant, the Council included the identifying information ‘Address: 4 Slavinskogo St., Grodno, 230026, Belarus’, ‘Date of registration: 12.5.2000’ and ‘Registration number: 590046884’.
10 The Council justified the adoption of restrictive measures concerning the applicants on the following grounds:
‘Grodno Azot is a large State-owned producer of nitrogen compounds, based in Grodno. Lukashenk[o] described it as “a very important enterprise, a strategic one”. Grodno Azot also owns Khimvolokno Plant, which is a large manufacturer of polyamide and polyester and composite materials. Grodno Azot and its Khimvolokno Plant are a source of substantial revenue for the Lukashenk[o] regime. Grodno Azot is therefore supporting the Lukashenk[o] regime.
Lukashenk[o] visited the company and met with its representatives, discussing the plant’s modernisation and various forms of State support. Lukashenk[o] also promised that a loan would be used for the construction of a new nitrogen plant in Grodno. Grodno Azot is therefore benefiting from the Lukashenk[o] regime.
The workers of Grodno Azot, including its employees at the Khimvolokno Plant, who participated in peaceful protests against the regime and went on strike, were dismissed, intimidated and threatened both by the Grodno Azot management and by regime representatives. Grodno Azot is therefore responsible for the repression of civil society.’
11 By letter of 3 December 2021, the Council informed the applicants that their names had been included on the lists at issue.
12 By letter of 31 December 2021, the applicants asked the Council for access to the information and evidence supporting the inclusion of their names on the lists at issue.
13 By letter of 14 January 2022, the Council provided the applicants with the documents containing the evidence used as the basis for its decision to include their names on the lists at issue.
14 By letter of 21 December 2022, the Council informed the applicants of its intention to extend the restrictive measures against them on the basis of a document enclosed with that letter.
15 By letter of 20 January 2023, the applicants replied that the document communicated by the Council did not justify maintaining their names on the lists at issue.
16 On 24 February 2023, the Council adopted the maintaining acts by which it continued to include the applicants’ names on the lists at issue on grounds that were essentially identical to those in the initial acts.
17 By letter of 27 February 2023, the Council stated that the observations in the letter of 20 January 2023 did not call into question its assessment that it was appropriate to maintain the applicants’ names on the lists at issue.
Forms of order sought
18 Following modification of the application on the basis of Article 86 of the Rules of Procedure of the General Court, the applicants claim that the Court should:
– annul the initial and maintaining acts in so far as they affect them;
– order the Council to pay the costs;
– dismiss the Council’s request in the alternative that the Court order that the effects of Implementing Decision 2021/2125 be maintained as regards the applicants until the annulment in part of Implementing Regulation 2021/2124 takes effect.
19 The Council contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs;
– in the alternative, should the Court annul the initial acts in so far as they concern the applicants, order that the effects of Implementing Decision 2021/2125 be maintained as regards the applicants until the annulment in part of Implementing Regulation 2021/2124 takes effect.
Law
20 It is appropriate to examine, in the first place, the application for partial annulment of the initial acts and, in the second place, the application for partial annulment of the maintaining acts.
The application for partial annulment of the initial acts
21 In support of the application for annulment of the initial acts in so far as they concern them, the applicants formally rely on two pleas in law, alleging, first, a manifest error of assessment by the Council and, second, that ‘because the Council failed to meet the required standard of proof’, the initial acts contain ‘an unlawful type of sanction’.
22 The Council disputes the arguments put forward by the applicants.
23 As a preliminary point, it should be observed, first, that the two pleas raised by the applicants overlap to a large extent in that they both allege, in essence, an error in the assessment of the facts and infringement of Article 4(1)(a) and (b) of Decision 2012/642.
24 In those circumstances, the Court considers that the two pleas raised by the applicants in essence form a single plea in law.
25 Second, it should be recalled that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires in particular that the EU judicature is to ensure that the decision by which restrictive measures were adopted or maintained, which affects the person or entity concerned individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119).
26 It is the task of the competent EU authority to establish, in the event of challenge, that the reasons relied on against the person or entity concerned are well founded, and not the task of that person or that entity to adduce evidence of the negative, that those reasons are not well founded (judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 121).
27 If the competent EU authority provides relevant information or evidence, the Courts of the European Union must then determine whether the facts alleged are made out in the light of that information or evidence and assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person or entity concerned (judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 124).
28 In addition, the fact that a piece of evidence has been submitted as exculpatory evidence by the person subject to the restrictive measures does not prevent that evidence from possibly being used against that person to support the merits of the reasons underpinning the restrictive measures taken against him or her (see, to that effect, judgment of 12 February 2020, Ilunga Luyoyo v Council, T‑166/18, not published, EU:T:2020:50, paragraph 124 and the case-law cited).
29 Moreover, having regard to the preventive nature of the restrictive measures at issue, if, in the course of their review of the lawfulness of the contested decision, the Courts of the European Union consider that, at the very least, one of the reasons mentioned in the summary in question is sufficiently detailed and specific, that it is substantiated and that it constitutes in itself sufficient basis to support that decision, the fact that the same cannot be said of other such reasons cannot justify the annulment of that decision (see, to that effect, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 130, and of 24 November 2021, Assi v Council, T‑256/19, EU:T:2021:818, paragraph 168).
30 In the present case, the Court considers it appropriate to begin by examining the grounds for the initial acts set out in the first paragraph referred to in paragraph 10 above, from which it is apparent that Grodno Azot is a large State-owned producer of nitrogen compounds, that Lukashenko has described that undertaking as a ‘very important enterprise, a strategic one’, that Grodno Azot owns the Khimvolokno Plant, that Grodno Azot and its Khimvolokno Plant are a source of substantial revenue for the Lukashenko regime, and that Grodno Azot is therefore supporting the Lukashenko regime.
31 Those grounds are based on the criterion of ‘support’ for the Lukashenko regime laid down in Article 4(1)(b) of Decision 2012/642, to which Article 2(5) of Regulation No 765/2006 refers.
32 It is therefore necessary to examine, first, whether the facts set out in paragraph 30 above are established and, second, whether they come within the scope of Article 4(1)(b) of Decision 2012/642.
33 In the first place, first of all, the applicants state that the Belarusian State held 99.96% of their capital as of 1 January 2022 and do not dispute the information, which appears in a document published on the website ‘azot.by’ on 26 January 2021, adduced by the Council, that the person appointed as general director of Grodno Azot in January 2021, with the approval of President Lukashenko, is a former member of the Belarusian Government.
34 The applicants also state that they are among the largest chemical enterprises in Belarus, employ approximately 7 500 people and are the largest producers of nitrogen fertilisers in Europe, and do not dispute, as is apparent from the document published on the website ‘azot.by’ referred to in paragraph 33 above, that President Lukashenko asserted that Grodno Azot was a ‘very important enterprise, a strategic one’.
35 Next, it is apparent from the application that Khimvolokno Plant is a branch of Grodno Azot.
36 Lastly, the Council has placed on the file, first, an article published on the website ‘export.by’ on 25 April 2019, from which it is apparent that ‘[Grodno Azot’s] net profit totalled [176 895 000] [Belarusian roubles (BYN)] … [approximately EUR 76 000 000] in 2018, up 6.5 times year on year’, and that its ‘gross revenue grew by 19.5% year on year … to [BYN 1 706 000 000] … [approximately EUR 728 000 000]’ and, second, an article published on the website ‘dnb.com’, which states that Grodno Azot’s revenue in 2020 was ‘[526 850 000] [United States dollars (USD)] [approximately EUR 461 339 000]’.
37 In addition, in their written pleadings, the applicants ‘acknowledge … that [they have] paid out dividends’ to the Belarusian State, which holds almost all of the capital in Grodno Azot. In that regard, they also produced a document which shows that Grodno Azot paid dividends into the budget of the Republic of Belarus that amounted to BYN 8 481 000 (approximately EUR 3 526 000) in 2018, BYN 34 200 000 (approximately EUR 14 604 000) in 2019, BYN 6 835 000 (approximately EUR 2 462 000) in 2020 and that no dividend was paid in 2021. Contrary to what the applicants maintain in their observations submitted following the hearing, it is apparent from the case-law cited in paragraph 28 above that that information may be used against them by the Court, notwithstanding the fact that it was submitted as exculpatory evidence in the present proceedings.
38 Accordingly, the Council did not err in its assessment of the facts in finding that Grodno Azot was a large State-owned enterprise that has been described by President Lukashenko as a ‘very important enterprise, a strategic one’, that Grodno Azot owned Khimvolokno Plant and that Grodno Azot and Khimvolokno Plant were a source of substantial revenue for the Lukashenko regime.
39 In the second place, the applicants claim that the factors set out in paragraph 38 above cannot be treated as support for the Lukashenko regime for the purposes of Article 4(1)(b) of Decision 2012/642.
40 In that regard, it should be borne in mind that, as is apparent from recitals 1 to 5 and 8 of Decision 2012/642, the restrictive measures against Belarus were taken and extended as a result of the continued lack of respect in that country for human rights, democracy and the rule of law and are, therefore, directed against those responsible for fraud and violations of international electoral standards in connection with certain election or referendum procedures in Belarus, and against those responsible for serious human rights violations and the repression of peaceful demonstrators in the aftermath of those procedures (judgments of 18 October 2023, MAZ-upravljajusaja kompanija holdinga Belavtomaz v Council, T‑532/21, not published, EU:T:2023:656, paragraph 58, and of 18 October 2023, Belaz-upravljajusaja kompanija holdinga Belaz Holding v Council, T‑533/21, not published, EU:T:2023:657, paragraph 55).
41 In addition, as is apparent from recital 6 of Decision 2012/642, given the gravity of the situation, measures were also imposed on, inter alia, persons and entities benefiting from or supporting the Lukashenko regime, in particular persons and entities providing financial or material support to the regime (judgments of 18 October 2023, MAZ-upravljajusaja kompanija holdinga Belavtomaz v Council, T‑532/21, not published, EU:T:2023:656, paragraph 59, and of 18 October 2023, Belaz-upravljajusaja kompanija holdinga Belaz Holding v Council, T‑533/21, not published, EU:T:2023:657, paragraph 56).
42 Accordingly, by making, in Article 4(1)(b) of Decision 2012/642, support for the Lukashenko regime a criterion justifying the inclusion of a name on the lists at issue, the Council, in view of the serious and persistent nature of the breach of human rights, democracy and the rule of law and the repression of civil society and democratic opposition in Belarus, sought to increase pressure on that regime by broadening the circle of persons and entities subject to EU restrictive measures. In that respect, the Council has provided for the possibility of applying measures freezing funds and economic resources to persons and entities supporting the Lukashenko regime and, in particular, those providing financial support to it (see, to that effect, judgments of 18 October 2023, MAZ-upravljajusaja kompanija holdinga Belavtomaz v Council, T‑532/21, not published, EU:T:2023:656, paragraph 60, and of 18 October 2023, Belaz-upravljajusaja kompanija holdinga Belaz Holding v Council, T‑533/21, not published, EU:T:2023:657, paragraph 57).
43 The arguments made by the applicants must be examined in the light of those considerations.
44 First, the applicants argue that the fact that they belong to the State cannot by itself justify the measures taken against them.
45 Furthermore, according to the applicants, it is common practice, including in countries other than the Republic of Belarus, for undertakings to be owned by the State and, consequently, for the members of their management or supervisory bodies to be appointed by the State and for them to distribute dividends to the State, which is their shareholder. The applicants also submit that the fact that they belong to the State does not cause them to become politically engaged and to support a certain regime and that their corporate objective is to conduct a profitable business.
46 That line of argument cannot succeed.
47 First, contrary to what the applicants claim, the Council did not rely solely on the fact that they belong to the Belarusian State in order to consider that they support the Lukashenko regime. The Council also found that Grodno Azot was a large State-owned enterprise that was described by President Lukashenko as a ‘very important enterprise, a strategic one’, that Grodno Azot owned Khimvolokno Plant, and that Grodno Azot and Khimvolokno Plant were a source of substantial revenue for the Lukashenko regime.
48 It is also incorrect of the applicants to claim, in their observations submitted following the hearing, that the Council was of the view that any State-owned undertaking was automatically a source of revenue for the Belarusian State. It is apparent from the grounds of the initial acts that the fact that the applicants are a source of revenue for the Lukashenko regime is additional to the fact that Grodno Azot is a State-owned undertaking. It cannot therefore be inferred, from reading those grounds, that any undertaking owned by the Belarusian State automatically represents a source of revenue for that regime.
49 Second, it is apparent both from the clear and precise wording of Article 4(1)(b) of Decision 2012/642, which refers to persons and entities ‘supporting the Lukashenk[o] regime’, and from the objective pursued by that provision, which is to increase pressure on that regime (see paragraph 42 above), that it is the relationship that certain persons and entities have with that regime which justifies the adoption of restrictive measures, where that relationship takes the form of support, in particular financial support (judgments of 18 October 2023, MAZ-upravljajusaja kompanija holdinga Belavtomaz v Council, T‑532/21, not published, EU:T:2023:656, paragraph 67, and of 18 October 2023, Belaz-upravljajusaja kompanija holdinga Belaz Holding v Council, T‑533/21, not published, EU:T:2023:657, paragraph 64).
50 Accordingly, to accept that certain relationships with the Lukashenko regime should be excluded from the scope of the criterion of ‘support’ on the sole ground that they are common in comparable situations in countries other than the Republic of Belarus would have the result, as regards such relationships, of depriving the clear and precise wording of Article 4(1)(b) of Decision 2012/642 of any practical effect (judgments of 18 October 2023, MAZ-upravljajusaja kompanija holdinga Belavtomaz v Council, T‑532/21, not published, EU:T:2023:656, paragraph 68, and of 18 October 2023, Belaz-upravljajusaja kompanija holdinga Belaz Holding v Council, T‑533/21, not published, EU:T:2023:657, paragraph 65).
51 Furthermore, as regards the applicants’ argument that they are not politically engaged in favour of the Lukashenko regime, it must be observed that, according to recital 6 of Decision 2012/642, the criterion of support laid down in Article 4(1)(b) of Decision 2012/642 refers ‘in particular’ to persons or entities providing financial support to the Lukashenko regime.
52 It follows that the concept of ‘support for the regime’ does not exclude other forms of support than political support for the Lukashenko regime. In addition, since the concept of ‘support for the regime’ concerns in particular financial or material support to that regime, the Council did not err in finding that that concept was applicable to the situation at issue in the present case, in which an undertaking belonging to the Belarusian State and making a profit pays dividends to its shareholder and, therefore, constitutes a source of revenue for that regime.
53 Second, the applicants argue that they have no form of control over the use of the funds which they pay to the Belarusian State and that those funds are not employed in financing the personal expenses of President Lukashenko.
54 In that regard, on the one hand, it should be noted that the very wording of Article 4(1)(b) of Decision 2012/642, to which Article 2(5) of Regulation No 765/2006 makes reference, refers to ‘support’ for the Lukashenko regime without adding any condition relating to the use that may be made of such support by that regime or to the responsibility, in that regard, of the person or entity providing such support. The additional condition relied on by the applicants therefore runs counter to the clear and precise wording of that provision (judgments of 18 October 2023, MAZ-upravljajusaja kompanija holdinga Belavtomaz v Council, T‑532/21, not published, EU:T:2023:656, paragraph 71, and of 18 October 2023, Belaz-upravljajusaja kompanija holdinga Belaz Holding v Council, T‑533/21, not published, EU:T:2023:657, paragraph 68).
55 Accordingly, the mere fact that the applicants pay dividends to the Belarusian State, which are therefore available to the Lukashenko regime, is sufficient to establish the existence of financial support, irrespective of the use that may be made of those resources by the regime, in particular as regards financing the personal expenses of President Lukashenko, or the applicants’ control in that regard (see, to that effect, judgments of 18 October 2023, MAZ-upravljajusaja kompanija holdinga Belavtomaz v Council, T‑532/21, not published, EU:T:2023:656, paragraph 72, and of 18 October 2023, Belaz-upravljajusaja kompanija holdinga Belaz Holding v Council, T‑533/21, not published, EU:T:2023:657, paragraph 69).
56 On the other hand, in so far as, by their arguments, the applicants claim that they are not themselves responsible, by reason of their financial contributions, for the Lukashenko regime committing breaches of human rights, democracy and the rule of law and repressing civil society and democratic opposition in Belarus, it should be borne in mind that the criterion of ‘support’ was included in Article 4(1)(b) of Decision 2012/642 in order to increase pressure on the Lukashenko regime by subjecting persons or entities other than those responsible for the abovementioned violations or repression to measures freezing funds and economic resources. It is by application of the separate criterion, laid down in Article 4(1)(a) of that decision, to which Article 2(4) of Regulation No 765/2006 refers, that such responsibility must be established in order to justify the adoption of a restrictive measure (judgments of 18 October 2023, MAZ-upravljajusaja kompanija holdinga Belavtomaz v Council, T‑532/21, not published, EU:T:2023:656, paragraph 74, and of 18 October 2023, Belaz-upravljajusaja kompanija holdinga Belaz Holding v Council, T‑533/21, not published, EU:T:2023:657, paragraph 71).
57 Having found, in the present case, that the ‘support’ criterion applied because the applicants represented a source of revenue for the Lukashenko regime, the Council did not have to demonstrate, for that purpose, that the applicants, by reason of their financial contributions, were responsible for breaches of human rights, democracy and the rule of law or the repression of civil society and democratic opposition.
58 Third, the applicants claim that, under Belarusian law, State-owned undertakings which make profits are required to pay dividends to their shareholder. The dividends thus paid should therefore be likened to taxes. The Council cannot infer from the payment of taxes by a person or entity that it supports the regime. In support of that argument, the applicants produced before the General Court, under a measure of organisation of procedure, the Edict of the President of the Republic of Belarus No 637 of 28 December 2005 on the procedure for entry in the budget of part of the profits of State enterprises, State associations which are commercial organisations, as well as income from shares (stakes in the share capital) of business entities owned by the State or municipalities, and on the formation of a State special-purpose budget fund for national development (National Register of Legal Acts of the Republic of Belarus No 1/7075 of 29 December 2005) (‘Edict No 637’).
59 In that regard, it is true that the Court held, in the case which gave rise to the judgment of 6 October 2015, Chyzh and Others v Council (T‑276/12, not published, EU:T:2015:748, paragraph 169), that the Council cannot infer from the payment of taxes ‘support for the regime’, since such a payment constitutes a legal obligation applicable to all Belarusian taxpayers.
60 However, in the present case, the applicants’ argument assimilating dividends to taxes for the purposes of the case-law cited in paragraph 59 above cannot be accepted.
61 It is apparent from subparagraph 1.1 of Edict No 637 that the undertakings which are required to pay a part of their profits to the State or to infra-State bodies are those whose decisions the State or those bodies determine. Thus, that obligation concerns only a defined category of economic operators and not all Belarusian taxpayers.
62 In addition, under subparagraph 1.2 of Edict No 637, the part of the profits of the undertakings concerned which must be paid to the Belarusian public authorities is to be calculated on the basis of the difference between the profit received and, inter alia, charges of taxes and duties. As a result, the payment in question is formally separate from taxes and are additional thereto. The fact that, as is apparent from subparagraph 3.1 of that edict, the collection of that part of the profits comes within the competence of the tax authorities, following the relevant tax procedures, is not capable of calling that finding into question.
63 Accordingly, it must be observed that the fact that the applicants are required to pay part of their profits to the State under Edict No 637 does not contradict the finding that they provide financial support to the Lukashenko regime. On the contrary, such a factor confirms that assessment since, by that same edict, that regime increased the control which it already exercised, as the sole shareholder, over the applicants’ resources by ensuring that it regularly had a share of their profits.
64 It follows from the foregoing that the Council did not err in law in finding that the applicants’ position in the Belarusian economy, the fact that they belonged to the State and the fact that they represented a source of substantial revenue for the Lukashenko regime, taken together, constituted a sufficient basis for the view to be taken that the applicants supported that regime for the purposes of Article 4(1)(b) of Decision 2012/642, that provision referring in particular to persons and entities providing financial support to that regime.
65 Furthermore, the Court considers that those grounds, which are sufficiently detailed and specific and are free from any error of assessment of the facts or error of law, constitute in themselves a sufficient basis to justify the inclusion of the applicants’ names on the lists at issue.
66 Therefore, in accordance with the case-law cited in paragraph 29 above, the sole plea in law put forward must be rejected as unfounded, without there being any need to examine the applicants’ arguments directed against the other grounds justifying the initial acts, since the fact that those grounds are not substantiated cannot lead to the annulment of those acts.
67 In the light of all the foregoing considerations, the application for partial annulment of the initial acts must be dismissed.
The application for partial annulment of the maintaining acts
68 By a statement of modification, the applicants seek, on the basis of Article 86 of the Rules of Procedure, the annulment of the maintaining acts in so far as those acts concern them.
69 In its observations on the statement of modification, the Council submits that the application for partial annulment of the maintaining acts is inadmissible and, in the alternative, that it should be dismissed as unfounded.
70 It should be borne in mind, first, that the conformity of a request to modify the application under Article 86(1) of the Rules of Procedure forms part of the admissibility of an action (see, to that effect, judgment of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraph 139) and, second, that the Courts of the European Union are entitled to assess, according to the circumstances of each individual case, whether the proper administration of justice justifies the dismissal of the action on the merits, without first ruling on its admissibility (see, to that effect, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52).
71 In the present case, the Court considers that it is appropriate, in the interests of procedural economy, to begin by examining the pleas in law relied on by the applicants, without first ruling on the admissibility of the application for partial annulment of the maintaining acts.
72 In the statement of modification, the applicants rely, in essence, on a single plea in law, alleging error in the assessment of the facts and infringement of Article 4(1)(a) and (b) of Decision 2012/642.
73 In that regard, first, it should be noted that, in so far as they concern the applicants, the grounds for the maintaining acts are, in essence, identical to the grounds for the initial acts. In addition, in support of the application for partial annulment of the maintaining acts, the applicants reiterate the arguments already relied on in respect of the initial acts, merely stating that they apply a fortiori to the maintaining acts. In its defence, the Council reiterates the same arguments as those already put forward to justify the validity of the initial acts.
74 It should also be observed that, in its observations on the statement of modification, the Council relies on an article published on the website ‘reform.by’ on 18 April 2022, which states that Grodno Azot, after recording a loss of BYN 85 170 000 (approximately EUR 30 680 000) in 2020, made a net profit of almost BYN 530 000 000 (approximately EUR 175 000 000) in 2021, and announced the payment of more than BYN 100 000 000 (approximately EUR 33 195 000) in dividends. The Council also relies on an article published on the website ‘belta.by’ on 20 October 2022 which shows that the Belarusian Economy Minister stated that Grodno Azot’s earnings had increased by almost 20% between January and August 2022. Those articles were added to the file compiled by the Council at the time the maintaining acts were adopted.
75 In that regard, in the letter of 20 January 2023 sent to the Council before the adoption of the maintaining acts, the applicants submitted solely that the article published on the abovementioned website ‘reform.by’ had mistakenly referred to a ‘report on the results of work in 2021’ since the only information they had published was a report by Grodno Azot on the payment of dividends for 2021. However, the applicants have not challenged the validity of the information in that article. In the statement of modification, the applicants did not dispute the abovementioned evidence and reiterated the arguments in the application, in which they ‘acknowledge … that [they have] paid out dividends’ to the Belarusian State. Accordingly, the Council did not err in its assessment when it found, following a review of the applicants’ situation, that they were a source of substantial revenue for the Lukashenko regime.
76 It follows that for the reasons set out in paragraphs 25 to 64 above, the applicants have not established that the grounds for the maintaining acts are vitiated by an error of assessment as regards the question of whether they support the Lukashenko regime.
77 Second, the grounds on which the assessment that the applicants support the Lukashenko regime is based are sufficiently detailed and specific, are free from error of assessment of the facts or error of law and constitute in themselves a sufficient basis for maintaining the applicants’ names on the lists at issue.
78 Therefore, in accordance with the case-law cited in paragraph 29 above, the sole plea in law put forward must be rejected as unfounded, without there being any need to examine the applicants’ arguments directed against the other grounds justifying the maintaining acts, since the fact that those grounds are not substantiated cannot lead to the annulment of those acts.
79 In the light of all the foregoing considerations, the application for partial annulment of the maintaining acts and, consequently, the present action in its entirety must be dismissed as unfounded.
Costs
80 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Council, including those relating to the proceedings for interim measures.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1. Dismisses the action;
2. Orders Grodno Azot AAT and Khimvolokno Plant to pay the costs, including those related to the proceedings for interim measures.
Delivered in open court in Luxembourg on 21 February 2024.
V. Di Bucci | | S. Papasavvas |