Judgment of the General Court (Fifth Chamber) of 6 September 2023
Judgment of the General Court (Fifth Chamber) of 6 September 2023
Data
- Court
- General Court
- Case date
- 6 september 2023
Verdict
Judgment of the General Court (Fifth Chamber) of 6 September 2023 –
Gutseriev v Council
(Case T‑526/21)(1)
"( Common foreign and security policy - Restrictive measures adopted in view of the situation in Belarus - Freezing of funds - Restrictions on admission to the territory of the Member States - Inclusion and retention of the applicant’s name on the lists of persons, entities and bodies concerned - Error of assessment - Right to property - Right to conduct a business - Right to respect for reputation - Rights of the defence )"
1. Common foreign and security policyRestrictive measures taken against certain persons and entities in view of the situation in BelarusDecision to freeze fundsJudicial review of legalityScopeProvision of general scope concerning an individual restrictive measureInclusion by way of the objection of illegalityNatural or legal persons, entities or bodies benefitting from or supporting the Lukashenko regimeMeaning
(Art. 21(2)(b), TEU; Council Decision 2012/642/CFSP, as amended by Decision (CFSP) 2021/1002, recitals 1 to 5, 8 and Art. 4(1); Council Regulation No 765/2006, Art. 2(5))
(see paragraphs 25, 45, 47-54)
2. EU lawPrinciplesDuty to act within a reasonable timeAdministrative procedureAssessment that must be made in concretoCriteria for assessmentRestrictive measures against BelarusInclusion of the applicant on the list annexed to the contested decision on account of his capacity as a prominent businessperson operating in BelarusTime-frame for filing a request for reconsideration not fixed by a provision of EU lawShortness of the time-frame indicated in the notice published in the Official JournalNo infringement of the right to be heard
(Charter of Fundamental Rights of the European Union, Arts 41(1) and 47; Council Decision 2012/642/CFSP, as amended by Decision (CFSP) 2022/307; Council Regulation 2022/300)
(see paragraphs 31-36, 40)
3. European UnionJudicial review of the legality of the acts of the institutionsRestrictive measures against BelarusFreezing of funds of certain persons and entities having regard to the situation in BelarusScope of the reviewProof that the measure is well foundedObligation 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 foundedInclusion 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) 2021/1002 and (CFSP) 2022/307; Council Regulations No 765/2006, No 2021/997 and No 2022/300)
(see paragraphs 59-62)
4. European UnionJudicial review of the legality of the acts of the institutionsRestrictive measures against BelarusScope of the reviewPiece of evidence submitted as exculpatory evidence by the person subject to the restrictive measuresIncluded
(Council Decision 2012/642/CFSP, as amended by Decisions (CFSP) 2021/1002 and (CFSP) 2022/307; Council Regulations No 765/2006, No 2021/997 and No 2022/300)
(see paragraph 63)
5. Common foreign and security policyRestrictive measures against BelarusNatural or legal persons, entities or bodies benefitting from or supporting the Lukashenko regimeProminent businesspersons operating in BelarusMeaningAssessment of the facts and verification of the evidence
(Council Decision 2012/642/CFSP, as amended by Decisions (CFSP) 2021/1002 and (CFSP) 2022/307; Council Regulations No 765/2006, No 2021/997 and No 2022/300)
(see paragraphs 75, 79, 83-89, 94, 97, 98)
6. Common foreign and security policyRestrictive measures against BelarusNatural or legal persons, entities or bodies benefitting from or supporting the Lukashenko regimePersonal relationship with President LukashenkoMeaningAssessment of the facts and verification of the evidence
(Council Decision 2012/642/CFSP, as amended by Decisions (CFSP) 2021/1002 and (CFSP) 2022/307; Council Regulations No 765/2006, No 2021/997 and No 2022/300)
(see paragraphs 104, 107, 110)
7. Common foreign and security policyRestrictive measures against BelarusCriteria for adopting restrictive measuresNatural or legal persons, entities or bodies benefitting from or supporting the Lukashenko regimeMeaningNo error of assessment
(Council Decision 2012/642/CFSP, as amended by Decisions (CFSP) 2021/1002 and (CFSP) 2022/307; Council Regulations No 765/2006, No 2021/997 and No 2022/300)
(see paragraphs 111-115, 128, 129, 132, 136-140)
8. Common foreign and security policyRestrictive measures against BelarusScopeNatural or legal persons, entities or bodies benefitting from or supporting the Lukashenko regimeMeaningPersons who have committed those acts in the past, notwithstanding the lack of evidence establishing current involvement or participation in such actsIncludedInterpretation borne out by the possibility of extending restrictive measuresEffectiveness
(Council Decision 2012/642/CFSP, as amended by Decisions (CFSP) 2021/1002 and (CFSP)2022/307, Arts 8 and 8a(4); Council Regulations No 765/2006, No 2021/997 and No 2022/300)
(see paragraphs 144, 145)
9. European UnionJudicial review of the legality of the acts of the institutionsRestrictive measures against BelarusFreezing of funds of certain persons and entities having regard to the situation in BelarusScope of the reviewMeasures capable of being supported by some grounds and not othersValidity of those measures
(Council Decision 2012/642/CFSP, as amended by Decisions (CFSP) 2021/1002 and (CFSP) 2022/307; Council Regulations No 765/2006, No 2021/997 and No 2022/300)
(see paragraph 146)
10. Common foreign and security policyRestrictive measures against BelarusFreezing of funds of certain persons and entities having regard to the situation in BelarusRestriction on the right to property and the freedom to conduct a business and damage to reputationNo breach of principle of proportionality
(Charter of Fundamental Rights of the European Union, Arts 15, 16, 17 and 52(1); Council Decision 2012/642/CFSP, as amended by Decisions (CFSP) 2021/1002 and (CFSP) 2022/307, Arts 3(1) and (6), 4(1), and 8; Council Regulations No 765/2006, Arts 2(5), 3 and 8a(4), No 2021/997 and No 2022/300)
(see paragraphs 153-165)
Operative part
The Court:
1. Dismisses the action;
2. Orders Mr Mikail Safarbekovich Gutseriev to bear his own costs and to pay those incurred by the Council of the European Union.