Case T‑115/22
(Published in extract form)
Belshyna AAT
v
Council of the European Union
Judgment of the General Court (Ninth Chamber, Extended Composition) of 20 March 2024
(Common foreign and security policy – Restrictive measures taken because of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine – Freezing of funds – Lists of persons, entities and bodies to whom the freezing of funds and economic resources applies – Registering and maintaining the applicant’s name on the lists – Support for Lukashenko’s regime – Financial support – State-owned business – Repression of civil society – Error of assessment)
1. European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures against Belarus – Freezing of funds of certain persons and entities having regard to the situation in Belarus – Scope of the review – Proof that the measure is well founded – Obligation on the competent EU authority to establish, in the event of challenge, that the reasons relied on against the persons or entities concerned are well founded – Inclusion on the lists based on a specific, precise and consistent set of indicia
(Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2012/642/CFSP, as amended by Decisions (CFSP) 2021/2125 and (CFSP) 2023/421, Annex; Council Regulations No 765/2006, 2021/2124 and 2023/419, Annex I)
(see paragraphs 24-27, 57, 77)
2. Common foreign and security policy – Restrictive measures against Belarus – Criteria for adopting restrictive measures – Natural or legal persons, entities or organisations benefiting from or supporting the Lukashenko regime – Concept of support for the regime – Error of assessment
(Council Decision 2012/642/CFSP, as amended by Decisions (CFSP) 2021/2125 and (CFSP) 2023/421, Art. 4(1)(b), and Annex; Council Regulations No 765/2006, Art. 2(2), 2021/2124 and 2023/419, Annex I)
(see paragraphs 31, 35-37, 45, 49, 51-55, 61, 62, 97, 98)
3. European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures against Belarus – Scope of the review – Exclusion of matters brought to the knowledge of the institution after the adoption of the contested decision
(Council Decision 2012/642/CFSP, as amended by Decisions (CFSP) 2021/2125 and (CFSP) 2023/421, Annex; Council Regulations No 765/2006, 2021/2124 and 2023/419, Annex I)
(see paragraph 60)
4. European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures against Belarus – Freezing of funds of certain persons and entities having regard to the situation in Belarus – Scope of the review – Inclusion on the list annexed to the contested decision on account of its responsibility for the repression of civil society and democratic opposition – Press articles not from different sources – Probative value – Lack
(Council Decision 2012/642/CFSP, as amended by Decisions (CFSP) 2021/2125 and (CFSP) 2023/421, Annex; Council Regulations No 765/2006, 2021/2124 and 2023/419, Annex I)
(see paragraphs 68, 72, 73)
5. Common foreign and security policy – Restrictive measures against Belarus – Criteria for adopting restrictive measures – Persons, entities and bodies responsible for serious violations of human rights, repression of civil society or democratic opposition, or undermining democracy or the rule of law – Concept – Error of assessment
(Council Decision 2012/642/CFSP, as amended by Decisions (CFSP) 2021/2125 and (CFSP) 2023/421, Art. 4(1)(a), and Annex; Council Regulations No 765/2006, Art. 2(4), 2021/2124 and 2023/419, Annex I)
(see paragraphs 76-81, 97, 98)
6. Judicial proceedings – Decision replacing or amending the contested decision in the course of proceedings – Application to modify the application – Application to set aside a decision to freeze funds – Modification for the purpose of setting aside a maintaining decision – Admissibility – Previous maintaining decision for which no such request was made – Irrelevant
(Rules of Procedure of the General Court, Art. 86(1); Council Decision 2012/642/CFSP, as amended by Decisions (CFSP) 2021/2125 and (CFSP) 2023/421, Annex; Council Regulations No 765/2006, 2021/2124 and 2023/419, Annex I)
(see paragraphs 89-94)
Résumé
In its judgment, the General Court upholds the action for annulment brought by Belshyna AAT against the acts by which it was included, and then retained for a second time, by the Council of the European Union, on the list of persons and entities subject to restrictive measures on account of the situation in Belarus. This case gives the Court the opportunity to clarify the admissibility, under Article 86(1) of the Rules of Procedure of the General Court, of an application for modification of the application in proceedings concerning restrictive measures.
This judgment forms part 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. Those measures provide for, inter alia, the freezing of funds and economic resources belonging to persons, entities or bodies responsible for serious violations of human rights or the repression of civil society and democratic opposition, or whose activities seriously undermine democracy or the rule of law in Belarus, as well as persons, entities or bodies supporting the Lukashenko regime. (1) The applicant, an undertaking established in Belarus that manufactures tyres, was placed on that list in 2021 (2) by the Council, and then retained on the list in 2022 (3) and 2023, (4) on the grounds that it represented a major source of revenue for the Lukashenko regime and that it had dismissed employees who had gone on strike in the wake of the 2020 presidential elections. After requesting the annulment of the initial acts, the applicant modified its application to also request the annulment of the 2023 maintaining acts, without however having made such a request for the 2022 maintaining acts.
Findings of the Court
With regard to the examination of the admissibility of the modification of the application, which is a matter of public policy, the Court points out that, where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter, the applicant may, before the oral part of the procedure is closed, or before the decision of the Court to rule without an oral part of the procedure, modify the application to take account of that new factor. (5)
In the present case, the Court observes, first of all, that both the initial acts and the maintaining acts, in so far as they concern the applicant, have as their subject matter the imposition on it of individual restrictive measures consisting of a freezing of all its funds and economic resources. (6)
The Court then notes that those individual restrictive measures take the form of the inclusion of the names of the targeted persons, entities or bodies on the lists at issue set out in the annexes to Decision 2012/642 and Regulation No 765/2006.
In that context, the initial acts amended the annexes to Decision 2012/642 and Regulation No 765/2006 to include, in particular, the applicant’s name on the lists at issue. As regards the maintaining acts, the Court notes, first, that Decision 2023/421 extended until 28 February 2024 the applicability of Decision 2012/642, Annex I to which, as amended by Implementing Decision 2021/2125, mentioned the applicant’s name. Secondly, Implementing Regulation 2023/419 amended Annex I to Regulation No 765/2006, while maintaining, at least implicitly, the inclusion of the applicant’s name in that annex. Consequently, the maintaining acts must be regarded as having amended the initial acts within the meaning of Article 86(1) of the Rules of Procedure.
In the light of the foregoing, the Court concludes that the applicant, having sought annulment of the initial acts in the application, was entitled to modify the application in order to seek annulment of the 2023 maintaining acts, even though it had not previously modified the application in order to seek annulment of the 2022 acts.