FC Dynamo-Minsk v Council (Judgment) [2015] EUECJ T-275/12 (06 October 2015)

Judgment Background to the dispute 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), by which their entry into, or transit through, the territories of the Member States were to be prevented. 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 provided for by that latter common position to persons directly responsible for the fraudulent elections and referendum which had taken place in Belarus on 17 October 2004 and severe human rights violations committed in the repression of peaceful demonstrators following those elections and that referendum. On 24 March 2006, the European Council deplored the failure of the Belarus authorities to meet Organisation for Security and Cooperation in Europe (OSCE) commitments to democratic elections, considered that the Presidential elections of 19 March 2006 were fundamentally flawed and condemned the action of the Belarus authorities of that day in arresting demonstrators protesting peacefully at the conduct of the Presidential elections. 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/CFSP (OJ 2006 L 101, p. 5), by which the entry into, or transit through, the territories of the Member States of President Lukashenko, the Belarusian leadership and certain officials were to be prevented. 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. 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 134, p. 1). On 25 October 2010, by means of Council 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. On 31 January 2011, the Council adopted Decision 2011/69/CFSP amending Decision 2010/639 (OJ 2011 L 28, p. 40) and also Regulation (EU) No 84/2011 amending Regulation No 765/2006 (OJ 2011 L 28, p.17) so as to extend the restrictive measures to the 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. By Council Decision 2012/36/CFSP of 23 January 2012 amending Decision 2010/639/CFSP (OJ 2102 L 19, p. 31), the Council considered that, in view of the gravity of the situation in Belarus, additional restrictive measures against Belarus should be adopted. According to Article 2(1)(c) and (d) of Decision 2010/639, as amended by Decision 2012/36, all funds and economic resources belonging to persons who are responsible: – ‘for serious violations of human rights or the repression of civil society and democratic opposition in Belarus, as listed in Annex V [(c)]; – and persons or entities benefiting from or supporting the [Lukashenko] regime, as listed in Annex V [(d)]; are to be frozen.’ Considering that a regulation was necessary in order to implement at Union level the measures described in Council Decision 2012/36, the Council adopted Regulation (EU) No 114/2012 of 10 February 2012 amending Regulation No 765/2006 (OJ 2012 L 38, p. 3). Article 2(1) of Regulation No 765/2006, as amended by Regulation No 114/2012, provides that ‘All funds and economic resources belonging to … the natural or legal persons, entities or bodies listed in Annexes I, IA and IB shall be frozen’. According to Article 2(6) of Regulation No 765/2006, as amended by Regulation No 114/2012, ‘Annex IB shall consist of a list of the natural or legal persons, entities and bodies who, in accordance with points (c) and (d) of Article 2(1) of Decision [2010/639], have been identified by the Council as being either (i) responsible for serious violations of human rights or the repression of civil society and democratic opposition in Belarus, or (ii) persons or entities benefiting from or supporting the Lukashenko regime’. By Council Implementing Decision 2012/171/CFSP of 23 March 2012 implementing Decision 2010/639 (OJ 2012 L 87, p. 95), the applicant’s name, Football Club ‘Dynamo-Minsk’ ZAO, was added to Annex V to Decision 2010/639 on the ground that it was a ‘[s]ubsidiary of Triple [TAA]’. By Council Implementing Regulation (EU) No 265/2012 of 23 March 2012 implementing Article 8a(1) of Regulation (EC) No 765/2006 (OJ 2012 L 87, p. 37), the applicant’s name was added to Annex IB to Regulation No 765/2006 on the ground that it was a ‘[s]ubsidiary of Triple’. On 24 March 2012, the Council published a notice for the attention of the persons and entities to which the restrictive measures provided for in Decision 2010/639, as implemented by Implementing Decision 2012/171, and in Regulation No 765/2006, as implemented by Implementing Regulation No 265/2012 (OJ 2012 C 88, p. 10), apply. On 24 May and 8 June 2012, the applicant asked the Council, inter alia, to state the reasons for the inclusion of its name in Annex V to Decision 2010/639 and Annex IB to Regulation No 765/2006 and to provide it with supporting documents. 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. Article 4(1) of Decision 2012/642 is worded as follows: ‘All funds and economic resources belonging to, owned, held or controlled by: (a) 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 any natural or legal persons, entities or bodies associated with them, as well as legal persons, entities or bodies owned or controlled by them; (b) natural or legal persons, entities or bodies benefiting from or supporting the [Lukashenko] regime, as well as legal persons, entities or bodies owned or controlled by them, as listed in the Annex shall be frozen.’ The Annex to Decision 2012/642 contains the applicant’s name on the ground that it was a ‘[s]ubsidiary of Triple’, which is identical to that set out in Annex V to Decision 2010/639, as amended by Implementing Decision 2012/171 (see paragraph 14 above). By Council Regulation (EU) No 1014/2012 of 6 November 2012 amending Regulation No 765/2006 (OJ 2012 L 307, p. 1), the Council consolidated in a single Annex I (‘Annex I’), the texts of Annexes I, IA and IB to Regulation No 765/2006. Article 2 of Regulation No 765/2006 was amended by Regulation No 1014/2012 as follows: ‘1. All funds and economic resources belonging to, or owned, held or controlled by the natural or legal persons, entities and bodies listed in Annex I shall be frozen. … 4. Annex I shall consist of a list of the natural or legal persons, entities and bodies who, in accordance with point (a) of Article 4(1) of Council Decision 2012/642 … have been identified by the Council as being 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 any natural or legal persons, entities and bodies associated with them, as well as legal persons, entities or bodies owned or controlled by them. 5. Annex I shall also consist of a list of the natural or legal persons, entities and bodies who, in accordance with point (b) of Article 4(1) of Decision 2012/642 …, have been identified by the Council as benefiting from or supporting the [Lukashenko] regime, as well as legal persons, entities and bodies owned or controlled by them’. By Council Implementing Regulation No 1017/2012 of 6 November 2012 implementing Article 8a(1) of Regulation (EC) No 765/2006 (OJ 2012 L 307, p. 7), the Council included the applicant’s name in Annex I to Regulation No 765/2006 on an identical ground to that set out in the Annex to Decision 2012/642 (see paragraph 20 above). On 7 November 2012, the Council informed the applicant personally that it would be retained on the lists of persons and entities subject to restrictive measures (‘the lists’) and that the grounds for that retention were stated in the Annex to Decision 2012/642 and in Annex I to Regulation No 765/2006. On the same day, the Council published a notice for the attention of the persons and entities to which the restrictive measures provided for in Decision 2012/642, by Regulation No 765/2006, as amended by Regulation No 1014/2012 and implemented by Implementing Regulation No 1017/2012, apply (OJ 2012 C 339, p. 9). On 11 July 2013, the Council replied to the applicant’s letter of 24 May 2012. In its reply, the Council set out to the grounds for the applicant’s inclusion on the lists and stated that its inclusion was necessary to prevent the circumvention of the restrictive measures against Triple. The Council added that the detailed reasons for its inclusion were clear from the letter which it had sent to Mr Chyzh on the same day, providing a copy of that letter with annexes containing certain ‘declassified’ documents. The Council pointed out that, in that letter addressed to Mr Chyzh, explanations were given concerning the amendments which it intended to make to the grounds for Mr Chyzh’s designation. 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 the information relating to certain persons and entities whose names were included on the list in the Annex to Decision 2012/642. The Annex to Decision 2012/642, as amended by Decision 2013/534, includes the applicant’s name on the same ground as that stated in paragraph 20 above. 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 whose names were listed in Annex I to Regulation No 765/2006. Annex I to Regulation No 765/2006, as amended by Implementing Regulation No 1054/2013, includes the name of the applicant on an identical ground to that in the Annex to Decision 2012/642, as amended by Decision 2013/534 (see paragraph 28 above). By letter dated 30 October 2013, received on 11 November 2013 by the applicant, the Council notified it of the retention of its name on the lists, by Decision 2013/534 and Implementing Regulation No 1054/2013. By Council Decision 2014/750/CFSP of 30 October 2014 amending Decision 2012/642 (OJ 2014 L 311, p. 39), the Council, first, extended the restrictive measures provided for in Decision 2012/642 until 31 October 2015, second, removed the names of certain persons and entities from the annex to that decision and, third, updated certain information relating to certain persons and entities whose names were included in that annex. The applicant’s name was retained in that annex and the grounds for its retention were not amended. By Council Implementing Regulation (EU) No 1159/2014 of 30 October 2014 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2014 L 311, p. 2), the Council, first, removed from Annex I to Regulation No 765/2006, the names of certain persons and entities and, second, updated the information relating to certain persons and entities whose names were included in that annex. The ground for the retention, by Implementing Regulation No 1159/2014, of the applicant’s name in Annex I to Regulation No 765/2006 was not amended. Procedure and forms of order sought by the parties By document lodged at the Court Registry on 15 June 2012, the applicant brought the present action seeking annulment of Implementing Decision 2012/171 and Implementing Regulation No 265/2012 in so far as those measures apply to it. On 30 July 2012, the Court Registry informed the parties that the case had been assigned to the Sixth Chamber of the Court. In the reply, lodged at the Court Registry on 13 November 2012, the applicant requested, first, the modification of the form of order sought so that the action also seeks annulment of Decision 2012/642 and Implementing Regulation No 1017/2012 and, second, that the Council send to either it or the Court the minutes of the meetings in which the contested measures were adopted and also all the relevant documents in its file. The Council submitted its observations on those requests in the rejoinder. It stated, in particular, first, that it did not oppose the modification of the form of order sought and, second, that it was seeking the ‘declassification’ of the documents requested by the applicant in order to release them to it. By letter of 7 August 2013, the Council sent to the Court the documents whose partial ‘declassification’ it had secured. The applicant submitted its observations on those documents by letter lodged at the Court Registry on 11 September 2013. Following changes to the composition of the Chambers of the General Court, the Judge-Rapporteur was assigned to the First Chamber, to which this case was consequently allocated. Upon hearing the report of the Judge-Rapporteur, the Court (First Chamber) decided to open the oral procedure. On 28 January 2014, pursuant to Article 64 of the Rules of Procedure of the General Court of 2 May 1991, the Court asked the Council to send to it a copy of the notices cited in paragraphs 16 and 25 above. By document lodged at the Court Registry on 25 February 2014, the applicant modified its form of order sought so that the action also seeks annulment of Decision 2013/534 and Implementing Regulation No 1054/2013. In its observations of 25 March 2014, the Council argues, in particular, that that modification of the form of order sought was lodged out of time and therefore ought to be rejected as inadmissible. The parties presented oral arguments and replied to questions put by the Court at the hearing on 11 April 2014. At that hearing, as is clear from the minutes of the hearing, the applicant, in response to a question from the Court, indicated that it no longer required disclosure of its entire file since the Council had, in the rejoinder, provided partially declassified documents. By document lodged at the Court Registry on 7 November 2014, the applicant requested the modification of the form of order sought so that the action also seeks annulment of Decision 2014/750 and Implementing Regulation No 1159/2014. After the hearing was reopened on 25 November 2014, that request was placed in the case file. In its observations of 22 December 2014, the Council states that it does not object to the applicant’s request to extend the subject-matter of the action to include Decision 2014/750 and Implementing Regulation No 1159/2014. However, it notes that it is not clear from the application that the applicant relies on, in respect of the 2014 measures, the pleas and arguments directed against the 2013 measures, concerning compliance with certain procedural rights. According to it, assuming that this is the case, those pleas, which are not substantiated, should be rejected as inadmissible. In any event, it argues that, as regards the 2014 measures, the procedural requirements were respected. The applicant claims that the Court should: – annul Implementing Decision 2012/171, Implementing Regulation No 265/2012, Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2013/534, Implementing Regulation No 1054/2013, Decision 2014/750 and Implementing Regulation No 1159/2014, in so far as those measures relate to it; – annul any measure subsequent to Decision 2012/642 and Implementing Regulation No 1017/2012 having the same subject-matter and affecting the applicant; – order the Council to pay the costs. The Council contends that the Court should: – reject as inadmissible the applicant’s request seeking the extension of the action to any measure subsequent to Decision 2012/642 and to Implementing Regulation No 1017/2012 having the same subject-matter and concerning the applicant; – reject the applicant’s request seeking the extension of the action to Decision 2013/534 and to Implementing Regulation No 1054/2013 as inadmissible or, in the alternative, as unfounded; – dismiss the action as unfounded; – order the applicant to pay the costs. Law Admissibility of the form of order seeking annulment of any measure subsequent to Decision 2012/642 and to Implementing Regulation No 1017/2012 having the same subject-matter and concerning the applicant The Council contends that the head of claim seeking the annulment of any measure subsequent to Decision 2012/642 and to Implementing Regulation No 1017/2012 is inadmissible, arguing that the Court cannot review the legality of hypothetical acts which have not yet been adopted. It must be recalled that only actions for annulment of an act in existence adversely affecting the applicant may be brought before the Court. Accordingly, even if an applicant may be permitted to reformulate the form of order sought so as to seek annulment of acts which have, during the proceedings, replaced the acts initially challenged, that solution cannot authorise the speculative review of the lawfulness of hypothetical acts which have not yet been adopted (see, to that effect, judgments of 12 December 2006 in Organisation des Modjahedines du peuple d’Iran v Council , T‑228/02, ECR, EU:T:2006:384, paragraphs 32 and 33, and 6 September 2013 in Bank Refah Kargaran v Council , T‑24/11, ECR, EU:T:2013:403, paragraph 31). Furthermore, under Article 44(1)(c) of the Rules of Procedure of 2 May 1991, every application must state the subject-matter of the dispute, and that statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the action, if necessary without any other supporting information. In order to guarantee legal certainty and the sound administration of justice it is thus necessary, in order for an action to be admissible, that the application indicate with a certain degree of precision which measures the applicant seeks to have annulled (see, to that effect, judgment of 28 May 1970 in Lacroix v Commission , 30/68, ECR, EU:C:1970:46, paragraphs 20 to 27). In the present case, the Court’s review can therefore relate only to the measures already adopted by the Council, identified with sufficient precision by the applicant, and challenged by the date of closure of the oral procedure (see, to that effect, judgment in Organisation des Modjahedines du peuple d’Iran v Council , cited in paragraph 48 above, EU:T:2006:384, paragraphs 34 and 35). In that regard, it must also be observed that the applicant, during the procedure, modified the form of order sought in such a way as to include specific measures adopted after the action was brought. The general and unspecific head of claim seeking annulment of any measure subsequent to Decision 2012/642 and Implementing Regulation No 1017/2012 must therefore be rejected as inadmissible. Admissibility of the modification of the form of order sought As is apparent from paragraphs 36, 41 and 43 above, after the initiating application was lodged, the applicant requested the modification of the form of order sought in the action such that the action seeks annulment not only of Implementing Decision 2012/171 and Implementing Regulation No 265/2012, but also Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2013/534, Implementing Regulation No 1054/2013, Decision 2014/750 and Implementing Regulation No 1159/2014. It is to be borne in mind in this connection that, when a decision or a regulation 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 modify the form of order sought and the pleas in law. It would be contrary to the principle of sound 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 that are contained in an application to the Court, 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 measure (see, to that effect, judgments of 23 October 2008 in People’s Mojahedin Organization of Iran v Council , T‑256/07, ECR, EU:T:2008:461, paragraph 46, and of 6 September 2013 in Iranian Offshore Engineering & Construction v Council , T‑110/12, ECR (Extracts), EU:T:2013:411, paragraph 16). Decision 2012/642 and Implementing Regulation No 1017/2012 By Decision 2012/642, the Council extended until 31 October 2013 the restrictive measures to which the applicant was subject as a result of the inclusion of its name in Annex V to Decision 2010/639, by Implementing Decision 2012/171. Furthermore, as mentioned in paragraph 23 above, by Implementing Regulation No 1017/2012, the Council included the applicant’s name in Annex I to Regulation No 765/2006. It must be recalled that, in order to be admissible, a request to modify the form of order sought must be lodged within the period for bringing proceedings provided for in the sixth paragraph of Article 263 TFEU. It has consistently been held that that time-limit for bringing proceedings 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, judgment in Iranian Offshore Engineering & Construction v Council , cited in paragraph 53 above, EU:T:2013:411, paragraph 17, and of 16 September 2013 in Bank Kargoshaei and Others v Council , T‑8/11, EU:T:2013:470, paragraph 40). With regard to the dates of adoption of Decision 2012/642 and Implementing Regulation No 1017/2012, the form of order sought directed against those measures, lodged at the Court Registry on 13 November 2012, was lodged within the period for bringing proceedings laid down by the sixth paragraph of Article 263 TFEU. The modification of the form of order sought to extend its subject-matter to include Decision 2012/642 and Implementing Regulation No 1017/2012 should therefore be considered admissible. It must be recalled moreover that the Council did not object to that modification of the form of order sought by the applicant (see paragraph 36 above). Decision 2013/534 and Implementing Regulation No 1054/2013 As mentioned in paragraph 56 above, in order to be admissible, a request to modify the form of order sought must be lodged within the period for bringing proceedings provided for in the sixth paragraph of Article 263 TFEU. As regards the calculation of the period for bringing proceedings, 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. 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, judgments of 16 November 2011 in Bank Melli Iran v Council , C‑548/09 P, ECR, EU:C:2011:735 , paragraph 47, and Iranian Offshore Engineering & Construction v Council , cited in paragraph 53 above, EU:T:2013:411, paragraph 19). 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 a person with an opportunity to present observations. It follows from this that the period for bringing an action for annulment of 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 form of order sought 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, judgments in Iranian Offshore Engineering & Construction v Council , cited in paragraph 53 above, EU:T:2013:411, paragraph 21, and of 4 February 2014 in Syrian Lebanese Commercial Bank v Council , T‑174/12 and T‑80/13, ECR, EU:T:2014:52, paragraph 59; see also, to that effect and by analogy, judgment of 23 April 2013 in Gbagbo and Others v Council , C‑478/11 P to C‑482/11 P, ECR, EU:C:2013:258 , paragraph 61). In that regard, it must be observed that, while, in the case which gave rise to the judgment of 26 October 2012 in CF Sharp Shipping Agencies v Council (T‑53/12, ECR, EU:T:2012:578) relied on by the applicant at the hearing, the Court accepted, in the circumstances of that case, modifications to the form of order sought which were lodged out of time, a number of judgments of the Court, subsequent to that judgment, have clearly stated that requests to modify the form 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, judgments of 6 September 2013 in Bank Melli Iran v Council , T‑35/10 and T‑7/11, ECR, EU:T:2013:397 , paragraph 55, and Bank Kargoshaei and Others v Council , cited in paragraph 56 above, EU:T:2013:470, paragraph 40). In the present case, it is undisputed that Decision 2013/534 and Implementing Regulation No 1054/2013 were notified to the applicant by letter from the Council of 30 October 2013. In its observations cited in paragraph 41 above, the Council stated that the applicant received that letter on 11 November 2013, which the applicant does not dispute. The two-month period for bringing proceedings, under the sixth paragraph of Article 263 TFEU, against those measures therefore expired on 23 January 2014, pursuant to Article 101 and Article 102(2) of the Rules of Procedure of 2 May 1991. However, the modification of the form of order sought such that the action also seeks annulment of Decision 2013/534 and Implementing Regulation No 1054/2013 was lodged at the Court Registry on 25 February 2014, that is, more than 2 months and 10 days after the applicant was notified of the measures at issue. That modification must therefore be rejected as inadmissible, as the Council argued moreover in its pleadings. Decision 2014/750 By Decision 2014/750, the Council extended, until 31 October 2015, the restrictive measures to which the applicant has been subject since the inclusion of its name in Annex V to Decision 2010/639. Given the date when Decision 2014/750 was adopted, namely 30 October 2014, the form of order sought directed against that decision, lodged at the Court Registry on 7 November 2014, was introduced within the period for bringing proceedings provided for in the sixth paragraph of Article 263 TFEU. The modification of the form of order sought so as to extend its subject-matter to include Decision 2014/750 is therefore admissible. It must be recalled moreover that the Council did not object to that modification of the form of order sought by the applicant (see paragraph 44 above). Implementing Regulation No 1159/2014 By Implementing Regulation No 1159/2014, the Council removed the names of certain persons and entities from Annex I to Regulation No 765/2006 and amended certain information relating to persons and entities whose names were included in that annex. The applicant is not concerned by those amendments or mentioned in that regulation. That said, it should be noted that the applicant is nevertheless directly and individually concerned by Implementing Regulation No 1159/2014, and, as such, it is entitled to seek its annulment under the fourth paragraph of Article 263 TFEU. It must be recalled moreover that the Council did not object to that modification of the form of order sought by the applicant. In that regard, according to settled case-law, persons other than the addressees of an act can claim to be individually concerned, within the meaning of the fourth paragraph of Article 263 TFEU, only if the act affects them by reason of certain attributes peculiar to them or by reason of a factual situation which differentiates them from all other persons and thereby distinguishes them individually in the same way as the addressee (judgment of 15 July 1963 in Plaumann v Commission , 25/62, ECR, EU:C:1963:17 , paragraph 223; order of 26 November 2009 in Região autónoma dos Açores v Council , C‑444/08 P, EU:C:2009:733, paragraph 36, and judgment of 7 December 2010 in Fahas v Council , T‑49/07, ECR, EU:T:2010:499, paragraph 33). In the present case, it should be noted, first, that Implementing Regulation No 1159/2014 was adopted, in particular in the light of Article 8a(1) of Regulation No 765/2006, in the version applicable to the present case, which provides for the possibility of amending Annex I to Regulation No 765/2006. It is important to note, next, that the Council was under an obligation to review the list in Annex I to Regulation No 765/2006 at regular intervals and at least every 12 months, in accordance with Article 8a(4) of Regulation No 765/2006, in the version applicable to the present case. Furthermore, it should be noted that Implementing Regulation No 1159/2014 amends the list in Annex I to Regulation No 765/2006, without repealing it, so that, after the adoption of Implementing Regulation No 1159/2014, the applicant’s name is still listed in Annex I to Regulation No 765/2006. It follows that the reference, by Implementing Regulation No 1159/2014, to Annex I of Regulation No 765/2006 is a manifestation of the Council’s intention to retain that applicant’s name on the list in that annex and, consequently, to maintain the restrictive measures affecting the applicant. Accordingly, the applicant is also directly concerned by Implementing Regulation No 1159/2014. It is settled case-law that the condition of direct concern requires that the measure complained of must directly affect the legal situation of the person concerned (see, to that effect, judgments of 5 May 1998 in Dreyfus v Commission , C‑386/96 P, ECR, EU:C:1998:193, paragraph 43; 29 June 2004 in Front national v Parliament , C‑486/01 P, ECR, EU:C:2004:394 , paragraph 34; and 10 September 2009 in Commission v Ente per le Ville vesuviane and Ente per le Ville vesuviane v Commission , C‑445/07 P and C‑455/07 P, ECR, EU:C:2009:529, paragraph 45). In addition, the form of order sought which is directed against Implementing Regulation No 1159/2014 was lodged at the Court Registry within the period for bringing proceedings provided for in the sixth paragraph of Article 263 TFEU. It follows from the foregoing considerations that the Court must hold as admissible the modification of the form of order sought by the applicant in the action in so far as it seeks to extend its subject-matter to include Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2014/750 and Implementing Regulation No 1159/2014, (hereinafter, together with Implementing Decision 2012/171 and Implementing Regulation No 265/2012, ‘the contested measures’). Substance In support of its action, the applicant relies on five pleas in law, alleging, first, errors of law and errors of assessment, second, infringement of the obligation to state reasons, third, infringement of the rights of the defence, the right to a fair hearing and the right to an effective judicial remedy, fourth, infringement of the right to property and, fifth, infringement of the principle of proportionality. It is appropriate to examine, first of all, the claim alleging infringement of the obligation to state reasons. Plea alleging infringement of the obligation to state reasons The applicant claims, in essence, that the ground that it is a ‘[s]ubsidiary of Triple’ cannot constitute an actual and specific statement of reasons within the meaning of the case-law. It does not make it possible to understand how the applicant could support or benefit from the regime and therefore the reason for its inclusion on the lists. According to the applicant, the only explanation given by the Council, in the defence, which could directly explain the inclusion of the applicant’s name on the lists, is the need to prevent circumvention of the sanctions imposed on Triple. However, that explanation was not known to the applicant before the Council lodged its defence. The Council’s response is that the statement of reasons which is provided, in the present case, indicates in a sufficiently clear and detailed manner, first, the reasons why it adopted restrictive measures against Belarus, second, the criteria used for including the names of certain persons and entities on the lists and, third, the reasons why the Council considers that the applicant is covered by the relevant criteria. The Council contends, next, that it designated the applicant on the lists not because of its support for the regime or the benefit which it derives therefrom, but on the ground that it is a subsidiary of Triple, which benefits from or financially supports the regime of President Lukashenko. Its designation is necessary because the measures affecting Triple could be easily circumvented if its subsidiaries were not also designated. It adds that the application shows that the applicant understood that its name had been included on the lists on the ground that it was a subsidiary of Triple. As a preliminary point, it is important to note 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, judgments of 15 November 2012 in Council v Bamba , C‑417/11 P, ECR, EU:C:2012:718 , paragraph 60, and Iranian Offshore Engineering & Construction v Council , cited in paragraph 53 above, EU:T:2013:411, paragraph 30). It follows that the applicant’s argument relating to the substantive legality of the contested measures, namely that the Council failed to adduce evidence that the applicant supports or benefits from the regime of President Lukashenko, will be examined as part of the plea alleging errors of law or assessment. According to settled case-law, the purpose of the obligation to state the reasons for an act adversely affecting a person, as set out 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 Court and, second, to enable the Court to review the lawfulness of that act (see, to that effect, judgments of 2 October 2003 in Corus UK v Commission , C‑199/99 P, ECR, EU:C:2003:531, paragraph 145, and Council v Bamba , cited in paragraph 83 above, EU:C:2012:718 , paragraph 49). 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 to exercise its power of review (see, to that effect, judgments of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa , C‑539/10 P and C‑550/10 P, ECR, EU:C:2012:711 , paragraph 138, and Council v Bamba , cited in paragraph 83 above, EU:C:2012:718 , paragraph 50). 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 (judgment in Council v Bamba , cited in paragraph 83 above, EU:C:2012:718 , paragraph 51). Therefore, the statement of reasons for an act of the Council which imposes a restrictive measure must identify not only the legal basis of that measure but also 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 (see, to that effect, judgments in Council v Bamba , cited in paragraph 83 above, EU:C:2012:718 , paragraph 52, and of 14 October 2009 in Bank Melli Iran v Council , T‑390/08, ECR, EU:T:2009:401, paragraph 83). 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, judgments in Al-Aqsa v Council and Netherlands v Al-Aqsa , cited in paragraph 86 above, EU:C:2012:711 , paragraphs 139 and 140, and Council v Bamba , cited in paragraph 83 above, EU:C:2012:718 , paragraph 53). In particular, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him to understand the scope of the measure concerning him (judgment in Council v Bamba , cited in paragraph 83 above, EU:C:2012:718 , paragraph 54). It follows that, in order to determine whether the contested measures satisfy the obligation to state reasons, it is necessary to ascertain whether, in the grounds stated in those acts, the Council set out, in a manner that is comprehensible and sufficiently precise, the reasons that led it to conclude that the inclusion, then the retention of the applicant’s name, were justified in the light of the applicable legal criteria. First, it must be held that the background to the imposition of restrictive measures in respect of the applicant was known to it, a fact which, moreover, it does not dispute. Suffice it to note in that regard that, in its pleadings, the applicant itself sets out, in a precise manner, the ‘legislative background to restrictive measures’. Next, as for the reasons for which restrictive measures specifically apply to the applicant, it must be recalled that, by Implementing Decision 2012/171 and Implementing Regulation No 265/2012, the Council included the applicant’s name on the lists, on the ground that it was a ‘[s]ubsidiary of Triple’. It is clear from the case-law that when the funds of a person or an entity already subject to restrictive measures are frozen, there is a not insignificant danger that that person or entity may exert pressure on the entities which it owns or controls or which belong to it in order to circumvent the effect of the measures applying to it. Consequently, the freezing of the funds of such entities is necessary and appropriate in order to ensure the effectiveness of the measures adopted and to ensure that those measures are not circumvented (see, to that effect, judgments of 20 February 2013 in Melli Bank v Council , T‑492/10, ECR, EU:T:2013:80, paragraph 55, and Syrian Lebanese Commercial Bank v Council , cited in paragraph 63 above, EU:T:2014:52, paragraph 101). However, that case-law is applicable solely on the condition that the acts by means of which the restrictive measures at issue were adopted provide for the application of those measures to legal persons or entities owned or controlled by persons or entities already subject to those measures (see, to that effect, judgments of 13 March 2012 in Melli Bank v Council , C‑380/09 P, ECR, EU:C:2012:137, paragraphs 39 and 75 to 79; Melli Bank v Council , cited in paragraph 94 above, EU:T:2013:80, paragraphs 55 and 56; and Syrian Lebanese Commercial Bank v Council , cited in paragraph 63 above, EU:T:2014:52, paragraph 101). At the date of adoption of Implementing Decision 2012/171 and Implementing Regulation No 265/2012, it was clear from Article 2(1)(c) and (d) of Decision 2010/639, as amended by Decision 2012/36, and Article 2(1) and (6) of Regulation No 765/2006, as amended by Regulation No 114/2012, that the only persons or entities covered by Annex V to Decision 2010/639 and Annex IB to Regulation No 765/2006, as mentioned at paragraphs 10 and 13 above, were, first, ‘persons responsible for serious violations of human rights or acts of repression against civil society and the democratic opposition in Belarus’ and, second, ‘persons or entities benefiting from or supporting the [Lukashenko] regime’. Neither Decision 2010/639 nor Regulation No 765/2006, in the versions applicable to this case, made any provision enabling the Council to include, on the lists, the names of legal persons, entities or bodies owned or controlled by other persons or entities whose names were included on those lists. As is clear from paragraphs 19 and 22 above, the Council made provision for that power in Article 4(1) of Decision 2012/642 and in Article 2 of Regulation No 765/2006, as amended by Regulation No 1014/2012, in other words after the adoption of Implementing Decision 2012/171 and Implementing Regulation No 265/2012. In that regard, the Court must reject the Council’s argument, put forward at the hearing, that the criterion for listing the names of entities owned or controlled by persons or entities already listed, already existed implicitly before the adoption of Decision 2012/642 and Regulation No 1014/2012, in so far as it is always necessary, for sanctions to be effective, to designate entities controlled by persons or entities already designated. Suffice it to recall in that regard that, according to settled case-law, the principle of legal certainty, which is a general principle of EU law, requires, inter alia, that legal rules be clear, precise and predictable in their effects, in particular, where they may have negative consequences for individuals and undertakings so that those individuals and undertakings may know without ambiguity what rights and obligations flow from those rules and may take steps accordingly (see, to that effect, judgments of 18 November 2008 in Förster , C‑158/07, ECR, EU:C:2008:630 , paragraph 67; 29 April 2010 in M and Others , C‑340/08, ECR, EU:C:2010:232, paragraphs 64 and 65; and 12 December 2013 in Nabipour and Others v Council , T‑58/12, EU:T:2013:640, paragraph 107). In the present case, it must be held that the applicant cannot be included in either of the two categories defined in paragraph 96 above on account of the reasons in Implementing Decision 2012/171 and Implementing Regulation No 265/2012. Those reasons relate to neither a person responsible for serious violations of human rights or the repression of civil society and democratic opposition in Belarus, nor a person or entity benefiting from or supporting the Lukashenko regime, as the Council moreover confirmed in its pleadings. It follows that the statement of reasons for the inclusion of the applicant’s name on the lists, by Implementing Decision 2012/171 and Implementing Regulation No 265/2012, namely that it was a ‘[s]ubsidiary of Triple’, did not enable the applicant, having regard to the provisions cited in paragraph 96 above, to understand why its name had been included on those lists, since it did not allow the applicant to determine which criterion the Council had relied on as justification for the adoption of restrictive measures. By contrast, as regards the statement of reasons for the retention of the applicant’s name on the lists by Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2014/750 and Implementing Regulation 1159/2014, it must be recalled that, at the date of the adoption of those measures, Article 4(1)(b) of Decision 2012/642 and Article 2(5) of Regulation No 765/2006, as amended by Regulation No 1014/2012, provided that the persons and entities to be included on the lists were, in particular, ‘natural or legal persons, entities or bodies benefiting from or supporting the [Lukashenko] regime, as well as legal persons, entities or bodies owned or controlled by them’. As is clear from paragraphs 20, 23, 32 and 33 above, Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2014/750 and Implementing Regulation No 1159/2014 retained the name of the applicant on the lists on the ground that it was a subsidiary of Triple, which was also included in the lists on the ground that it supported and benefited from the regime of President Lukashenko. In view of the provisions cited in paragraph 101 above, the applicant was therefore able to understand why its name had been retained on the lists by Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2014/750 and Implementing Regulation No 1159/2014. It is also clear from its pleadings that the applicant understood that the reason why its name was included and then retained on the list, as a subsidiary of Triple, responded to the need to prevent circumvention of the restrictive measures imposed on the latter. In those circumstances, it must be held that sufficient reasons were provided in Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2014/750 and Implementing Regulation No 1159/2014 in so far as the applicant is concerned. It follows that the plea alleging infringement of the obligation to state reasons must be upheld as regards Implementing Decision 2012/171 and Implementing Regulation No 265/2012 and rejected as regards Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2014/750 and Implementing Regulation No 1159/2014. Consequently, the other pleas in law will be considered only in so far as they relate to Decision 2012/642, Implementing Regulation No 1017/2012, Implementing Decision 2014/750 and Implementing Regulation No 1159/2014. Plea alleging errors of law and errors of assessment The applicant puts forward, in essence, two complaints. First, it claims that the Council does not provide evidence that it supports or benefits from the regime and that it may, as a subsidiary of Triple, be used by the latter to circumvent the sanctions to which it is subject. In that regard, it states that Triple holds only 43.5% of its capital and that it acts autonomously in relation to Triple in accordance with the applicable legislation in the field of professional football. Second, it claims that the Council failed to take into account, when applying the restrictive measures against it, either the nature of the sport or the right to cultural diversity. The Council replies, in essence, first, that the name of the applicant is not on the lists on the ground that it benefits from or supports the regime of President Lukashenko, but on the ground that it is a subsidiary of Triple, which benefits from or supports that regime, in particular by providing it with financial support, and that the designation of Triple could be easily circumvented if its subsidiaries were not also designated. In that regard, it states that Triple holds 55.80% of the capital of the applicant and Mr Chyzh chairs the applicant’s supervisory committee, which governs the applicant’s activities between shareholder meetings. Triple is thus able to exert influence on the management and commercial decisions of the applicant. Furthermore, it indicates that the shares in Triple can generate revenue or be sold, which would enable it to provide financial support to the regime of President Lukashenko. Thus, there exists a real risk that the measures taken against Triple may be circumvented if the applicant was not also designated. The Council then states that it took the policies relating to sport and culture into account in its relations with Belarus in order to avoid affecting the wider population in Belarus and to continue to encourage cultural exchanges and sports. It must be recalled that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union 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 Court is 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, judgment of 18 July 2013 in Commission and Others v Kadi , C‑584/10 P, C‑593/10 P and C‑595/10 P, ECR, EU:C:2013:518 , paragraph 119). To that end, it is for the Court, 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 (judgments in Commission and Others v Kadi , cited in paragraph 110 above, EU:C:2013:518 , paragraph 120 and of 16 September 2013 in Islamic Republic of Iran Shipping Lines and Others v Council , T‑489/10, ECR, EU:T:2013:453, 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, namely that those reasons are not well founded (see, to that effect, judgment in Commission and Others v Kadi , cited in paragraph 110 above, EU:C:2013:518 , paragraph 121). For that purpose, there is no requirement that that authority produce before the Court 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 , cited in paragraph 110 above, EU:C:2013:518 , paragraph 122). In the present case, it should be noted that the name of the applicant was retained on the lists by Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2014/750 and Implementing Regulation No 1159/2014 on the ground that it was a ‘[s]ubsidiary of Triple’, which is also retained on the lists by those same measures. As stated in paragraph 101 above, at the date of adoption of Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2014/750 and Implementing Regulation No 1159/2014, having regard to the provisions of Article 4(1)(b) of Decision 2012/642 and Article 2(5) of Regulation No 765/2006, as amended by Regulation No 1014/2012, the Council could retain the applicant’s name on the list on the ground that it was a subsidiary of Triple. However, as is clear from the judgment of 6 October 2015 in Chyzh and Others v Council (T‑276/12, paragraphs 184 to 187), delivered today, the retention of Triple’s name on the lists, by Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2014/750 and Implementing Regulation No 1159/2014 was not justified, such that the Court has annulled the measures as they relate to Triple. In those circumstances, even assuming that the applicant is owned or controlled by Triple, the retention of its name on the lists, by Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2014/750 and Implementing Regulation No 1159/2014 on the ground that it is a subsidiary of Triple, is not justified (see, to that effect, judgments in Islamic Republic of Iran Shipping Lines and Others v Council , cited in paragraph 111 above, EU:T:2013:453, paragraphs 75 to 77 and Nabipour and Others v Council , cited in paragraph 98 above, EU:T:2013:640, paragraphs 81 to 86). In that regard, it should be noted that, at the hearing, following a question put by the Court on the consequences of the annulment, in T‑276/12, of the inclusion and then retention of Triple on the lists, the applicant replied that the annulment of its own inclusion would be automatic since its designation is based on that of Triple. The Council agreed with the applicant’s response. In those circumstances, it is not necessary to rule on the argument, put forward at the hearing by the applicant, that, first, Triple’s holding in the applicant’s capital is not a majority holding and, second, there is no evidence that the applicant could circumvent the freezing of funds to which Triple is subject. It follows that the plea alleging errors of law and errors of assessment is well founded in so far as Decision 2012/642, Implementing Regulation No 1017/2012, Decision 2014/750 and Implementing Regulation No 1159/2014 are concerned. In view of all the foregoing, the Court must uphold the action in part and annul the contested measures in so far as they concern the applicant, without there being any need for the Court to consider the other complaints and pleas in law. The action is dismissed as inadmissible in so far as it seeks annulment of Decision 2013/534 and Implementing Regulation No 1054/2013. Costs Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party’s pleading. In the circumstances of this case, where the Council has failed on the heads of claim seeking annulment, which were the main subject-matter of the case, it must be ordered to bear all the costs incurred by the applicant, in addition to its own costs, as applied for in the applicant’s pleadings. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Annuls Council Implementing Decision 2012/171/CFSP of 23 March 2012 implementing Decision 2010/639/CFSP concerning restrictive measures against Belarus, Council Implementing Regulation (EU) No 265/2012 of 23 March 2012 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, 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, Council Decision 2014/750/CFSP of 30 October 2014 amending Decision 2012/642 and Council Implementing Regulation (EU) No 1159/2014 of 30 October 2014 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus in so far as they relate to Football Club ‘Dynamo-Minsk’ ZAO; 2. Dismisses the action as inadmissible in so far as it seeks annulment of 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; 3. Dismisses the action as to the remainder; 4. Orders the Council of the European Union to bear its own costs and to pay the costs of Football Club ‘Dynamo-Minsk’. Kanninen Pelikánová Buttigieg Delivered in open court in Luxembourg on 6 October 2015. [Signatures] * Language of the case: English. © European Union The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice . This electronic version is not authentic and is subject to amendment. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII