SBK Art v Council (Restrictive measures taken in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine - Judgment) [2025] EUECJ T-102/23 (30 April 2025)
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SBK Art v Council (Restrictive measures taken in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine - Judgment) [2025] EUECJ T-102/23 (30 April 2025)
URL: https://www.bailii.org/eu/cases/EUECJ/2025/T10223.html Cite as:
EU:T:2025:416,
[2025] EUECJ T-102/23,
ECLI:EU:T:2025:416
( Common foreign and security policy - Restrictive measures taken in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine - Freezing of funds - List of persons, entities and bodies subject to the freezing of funds and economic resources - Inclusion and maintenance of the applicant's name on the list - Concept of 'association' - Article 2(1), in fine, of Decision 2014/145/CFSP - Article 3(1), in fine, of Regulation (EU) No 269/2014 - Obligation to state reasons - Rights of the defence - Error of assessment - Proportionality - Plea of illegality )
In Case T‑102/23,
SBK Art OOO, established in Moscow (Russia), represented by G. Lansky and P. Goeth, lawyers,
applicant,
v
Council of the European Union, represented by A. Boggio-Tomasaz, acting as Agent, and by B. Maingain, lawyer,
defendant,
supported by
Republic of Croatia, represented by G. Vidović Mesarek, acting as Agent,
by
Kingdom of the Netherlands, represented by M. Bulterman, A. Hanje and C. Schillemans, acting as Agents,
and by
European Commission, represented by M. Carpus Carcea, C. Georgieva and L. Puccio, acting as Agents,
interveners,
THE GENERAL COURT (First Chamber),
composed of R. Mastroianni, President, M. Brkan (Rapporteur) and T. Tóth, Judges,
Registrar: I. Kurme, Administrator,
having regard to the order of 27 February 2024, SBK Art v Council (T‑102/23 R, not published),
having regard to the written part of the procedure, in particular:
– the application lodged at the Registry of the General Court on 26 February 2023,
– the statement of modification lodged at the Court Registry on 13 April 2023,
– the decision of 29 June 2023 granting the Kingdom of the Netherlands leave to intervene in support of the Council,
– the order of 27 July 2023 of the President of the First Chamber granting the Commission leave to intervene in support of the Council,
– the order of 8 September 2023 of the President of the First Chamber granting the Republic of Croatia leave to intervene in support of the Council,
– the statement of modification lodged at the Court Registry on 24 November 2023,
– the order of 13 December 2023 of the President of the First Chamber concerning the applicant's application for confidential treatment vis-à-vis the Republic of Croatia,
– the statement of modification lodged at the Court Registry on 18 April 2024,
– the decision of 14 October 2024 of the President of the First Chamber not to place on the file the statement of modification lodged at the Court Registry on 9 October 2024,
– the applicant's letter of 18 October 2024 seeking the application of the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union,
– the applicant's documents lodged at the Court Registry on 18 October 2024 and placed on the file,
– the applicant's documents lodged at the Court Registry on 5 November 2024 and placed on the file,
further to the hearing on 6 November 2024,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, SBK Art OOO, seeks annulment of (i) Council Decision (CFSP) 2022/2477 of 16 December 2022 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 322 I, p. 466) and Council Implementing Regulation (EU) 2022/2476 of 16 December 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 322 I, p. 318) (together, 'the initial acts'); (ii) Council Decision (CFSP) 2023/572 of 13 March 2023 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2023 L 75 I, p. 134) and Council Implementing Regulation (EU) 2023/571 of 13 March 2023 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2023 L 75 I, p. 1) (together, 'the March 2023 maintaining acts'); (iii) Council Decision (CFSP) 2023/1767 of 13 September 2023 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2023 L 226, p. 104) and Council Implementing Regulation (EU) 2023/1765 of 13 September 2023 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2023 L 226, p. 3) (together, 'the September 2023 maintaining acts'); (iv) Council Decision (CFSP) 2024/847 of 12 March 2024 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ L 2024/847) and Council Implementing Regulation (EU) 2024/849 of 12 March 2024 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ L 2024/849) (together, 'the March 2024 maintaining acts'), in so far as all of those acts (together, 'the contested acts') concern the applicant.
Background to the dispute and events subsequent to the bringing of the action
2 The applicant is a limited liability company governed by Russian law.
3 The present case has been brought in connection with the restrictive measures adopted by the European Union in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine.
4 On 17 March 2014, the Council of the European Union adopted, under Article 29 TEU, Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 16). That same day, the Council adopted, under Article 215 TFEU, Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 6).
5 On 25 February 2022, in view of the gravity of the situation in Ukraine, the Council adopted Decision (CFSP) 2022/329 amending Decision 2014/145 (OJ 2022 L 50, p. 1) and Regulation (EU) 2022/330 amending Regulation No 269/2014 (OJ 2022 L 51, p. 1), in order, inter alia, to amend the criteria pursuant to which natural or legal persons, entities or bodies could be subject to the restrictive measures at issue.
6 Article 2(1) of Decision 2014/145, as amended by Decision 2022/329, provides as follows:
'1. All funds and economic resources belonging to, or owned, held or controlled by:
…
(f) natural or legal persons, entities or bodies supporting, materially or financially, or benefiting from the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine; or
(g) leading businesspersons or legal persons, entities or bodies involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine,
and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.'
7 The detailed rules for the freezing of those funds are set out in the subsequent paragraphs of Article 2 of Decision 2014/145, as amended by Decision 2022/329.
8 Regulation No 269/2014, as amended by Regulation 2022/330, required the adoption of measures to freeze funds and laid down the detailed rules governing that freezing in terms essentially identical to those of Decision 2014/145, as amended by Decision 2022/329. Article 3(1)(a) to (g) of that regulation largely reproduces Article 2(1)(a) to (g) of that decision.
Initial inclusion of the applicant's name on the lists at issue
9 On 21 July 2022, the Council adopted Decision (CFSP) 2022/1272 amending Decision 2014/145 (OJ 2022 L 193, p. 219) and Implementing Regulation (EU) 2022/1270 implementing Regulation No 269/2014 (OJ 2022 L 193, p. 133) by which it added the company Sberbank to the list annexed to Decision 2014/145, as amended by Decision 2022/329, and to the list set out in Annex I to Regulation No 269/2014, as amended by Regulation 2022/330 ('the lists at issue').
10 On 16 December 2022, the Council adopted the initial acts by which it added the applicant's name to the lists at issue on the following grounds:
'[The applicant] is a company in the Russian Federation associated with Sberbank. [The applicant] was established as a subsidiary of Sberbank before it was listed, for the purpose of holding Sberbank's interests in the Fortenova group. Sberbank retains effective control over [the applicant] notwithstanding the purported transfer of its shares to a businessman in the United Arab Emirates.
[The applicant] is therefore associated with Sberbank, which is listed as an entity financially supporting the Government of the Russian Federation and as an entity involved in an economic sector providing a substantial source of revenue to it.'
11 On 19 December 2022, the Council published a notice in the Official Journal of the European Union for the attention of the persons, entities and bodies subject to the restrictive measures provided for in Decision 2014/145, as amended by Decision 2022/2477, and Regulation No 269/2014, as implemented by Implementing Regulation 2022/2476 (OJ 2022 C 481 I, p. 1). That notice stated, inter alia, that the persons concerned could submit a request to the Council, together with supporting documentation, asking that the decision to include their names on the lists at issue be reconsidered.
12 By letter of 21 December 2022, the applicant asked the Council for a copy of the file on which it had based its decision to include the applicant's name on the lists at issue.
13 On 11 January 2023, the Council sent the applicant the information included in the file bearing the reference WK 17709/2022 INIT, dated 15 December 2022, containing the evidence concerning the applicant ('the first WK file').
Maintenance of the applicant's name on the lists at issue until 15 September 2023
14 On 6 February 2023, the Council sent the applicant the file bearing the reference WK 17709/2022 ADD 1 dated 25 January 2023 ('the second WK file') and the file bearing the reference WK 1325/23 INIT dated 30 January 2023 ('the third WK file').
15 By letter of 9 March 2023, the applicant sent the Council a request for reconsideration of the inclusion of its name on the lists at issue.
16 On 13 March 2023, the Council adopted the March 2023 maintaining acts, extending the restrictive measures against the applicant until 15 September 2023 on the same grounds as those set out in paragraph 10 above.
17 By letter of 13 April 2023, the applicant sent the Council a second request for reconsideration.
Maintenance of the applicant's name on the lists at issue until 15 March 2024
18 On 13 September 2023, the Council adopted the September 2023 maintaining acts, extending the restrictive measures against the applicant until 15 March 2024 on the same grounds as those set out in paragraph 10 above.
19 By letter of 15 September 2023, the Council informed the applicant of its decision to maintain its name on the lists at issue.
20 By letter of 22 September 2023, the applicant sent the Council a third request for reconsideration.
Maintenance of the applicant's name on the lists at issue until 15 September 2024
21 On 12 March 2024, the Council adopted the March 2024 maintaining acts, extending the restrictive measures against the applicant until 15 September 2024 on the same grounds as those set out in paragraph 10 above.
22 By letter of 13 March 2024, the Council refused the applicant's request for reconsideration received on 25 September 2023, stating that the applicant's observations did not call into question its assessment that there were adequate grounds to support the decision to include the applicant's name on the lists at issue, and notified it of the decision to maintain its name on those lists.
Maintenance of the applicant's name on the lists at issue until 15 March 2025
23 On 12 September 2024, the Council adopted Decision (CFSP) 2024/2456 amending Decision 2014/145 (OJ L 2024/2456) and Implementing Regulation (EU) 2024/2455 implementing Regulation No 269/2014 (OJ L 2024/2455) (together, 'the September 2024 maintaining acts'), extending the restrictive measures against the applicant until 15 March 2025 on the same grounds as those set out in paragraph 10 above.
Forms of order sought
24 The applicant claims, in the final form of its pleadings, that the Court should:
– annul the contested acts in so far as they concern it;
– order the Council to pay the costs.
25 The Council, supported by the Republic of Croatia, the Kingdom of the Netherlands and the European Commission, contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
Admissibility of the action in so far as it relates to Implementing Regulation 2023/1765
26 In its observations on the second statement of modification, the Council, supported by the Commission, submits that that statement of modification is inadmissible in so far as it seeks the annulment of Implementing Regulation 2023/1765. According to the Council, the amendments introduced by that regulation do not concern the inclusion of the applicant's name on the lists at issue and therefore do not affect it either directly or indirectly.
27 The applicant submits that even though Implementing Regulation 2023/1765 does not technically change the inclusion of its name on the lists at issue, it has the effect of tacitly confirming the previous listing and, in particular, confirming the grounds for its listing.
28 Moreover, the applicant claims that the Council has a duty to examine its situation every time the Council reviews the inclusion of its name on the lists at issue. Since Implementing Regulation 2023/1765 does not satisfy that obligation, the applicant's rights are infringed and that regulation is of direct and individual concern to it.
29 The assessment of the admissibility of the action brought against Implementing Regulation 2023/1765 must therefore be carried out in the light of the Council's obligation to conduct a periodic review of the list set out in Annex I to Regulation No 269/2014, as amended by Regulation 2022/330, in accordance with Article 14(4) of that regulation. In that connection, it should be observed that the implementing regulations adopted further to reviews, such as Implementing Regulation 2023/1765, refer to amendments made to and deletions from the lists at issue following such a review, with the result that, pursuant to those implementing regulations, those listings which are neither amended nor deleted are extended (see, by analogy, judgment of 28 April 2021, Sharif v Council, T‑540/19, not published, EU:T:2021:220, paragraph 48 and the case-law cited).
30 According to the case-law, even where the person concerned is not expressly mentioned by a subsequent act amending the list on which his or her name has been included, and even if that act does not alter the grounds on which that person's name was initially included on the list, such an act must be construed as evidence of the Council's intention to maintain the name of the person concerned on the list, which has the consequence that his or her funds remain frozen, given that the Council has a duty to examine that list at regular intervals (see judgment of 11 September 2024, NSD v Council, T‑494/22, EU:T:2024:607, paragraph 28 and the case-law cited).
31 Furthermore, in accordance with Article 14(3) of Regulation No 269/2014, as amended by Regulation 2022/330, where observations are submitted, or where substantial new evidence is presented, the Council is to review its decision to include a person on the lists at issue. It follows from the second statement of modification that the Council informed the applicant, by letter of 15 September 2023, that it had decided to maintain the restrictive measures taken against it by way of the adoption of the September 2023 maintaining acts. Consequently, those acts must be considered to be the result of a reconsideration of the applicant's situation.
32 In the light of the foregoing, the Court holds that the present action is admissible inasmuch as it seeks the annulment of Implementing Regulation 2023/1765 in so far as that regulation concerns the applicant.
Production of additional evidence
33 By letter registered at the Registry of the General Court on 18 October 2024, the applicant lodged 19 additional documents, relying on Article 85(3) of the Rules of Procedure of the General Court. It submits three additional sets of evidence. The first set concerns the claim that the applicant was squeezed out of the Fortenova Group, the second set seeks to demonstrate that Sberbank does not control the applicant and the third set concerns the transfer of the applicant to an Emirati investor.
34 By letter of 5 November 2024, the applicant lodged two additional documents, again relying on Article 85(3) of the Rules of Procedure.
35 In order to justify the belated submission of all of those items of evidence, the applicant refers, first, to important, recent developments which it states have taken place since the lodging of the statement of modification concerning the March 2024 maintaining acts and to the claim that it was squeezed out of the Fortenova Group and, secondly, to the need to respond to the Council's arguments.
36 At the hearing, the Council, supported by the Republic of Croatia and the Commission, disputed the admissibility of the new items of evidence referred to in paragraphs 33 and 34 above on the ground that they were submitted out of time.
37 It should be recalled that, under Article 85(1) and (3) of the Rules of Procedure, evidence is to be submitted in the first exchange of pleadings; the main parties may, exceptionally, produce or offer further evidence before the oral part of the procedure is closed, provided that the delay in the submission of such evidence is justified.
38 Article 85(3) of the Rules of Procedure, unlike Article 85(2) thereof, is not a mere derogation from the general time-bar rule laid down in Article 85(1) of those rules, but an exception to the basic rule and the derogation laid down, respectively, in Article 85(1) and (2), since the possibility provided for in that paragraph 3, according to the very wording of that provision, is available only exceptionally, with its application thus presupposing that the existence of exceptional circumstances be established (see judgment of 23 November 2023, Ryanair and Airport Marketing Services, C‑758/21 P, EU:C:2023:917, paragraph 44 and the case-law cited).
39 In the present case, it should be noted that the applicant has not expressly identified the acts the annulment of which is supported by the evidence submitted pursuant to Article 85(3) of the Rules of Procedure. However, in the light of the applicant's pleadings, the Court will examine whether that evidence may be regarded as having been submitted late in relation to the lodging of the statement of modification concerning the March 2024 maintaining acts.
40 As regards the first set of documents relating to the claim that the applicant was squeezed out of the Fortenova Group, it must be stated, first, that the applicant produces an undated term sheet setting out the general investment terms, an undated subscription agreement and an extract from a Commission document containing a list of frequently asked questions relating to restrictive measures dated 8 April 2022 (Annexes J.3, J.4 and J.8). Those documents bearing no date or pre-dating the lodging of the statement of modification concerning the March 2024 maintaining acts must be regarded as having been submitted out of time. Since the applicant merely refers to important, recent developments relating to its squeezing out from the Fortenova Group without demonstrating the existence of exceptional circumstances, those documents must be rejected as inadmissible, pursuant to Article 85(1) and (3) of the Rules of Procedure (see, to that effect, judgment of 12 October 2017, Moravia Consulting v EUIPO – Citizen Systems Europe (SDC‑554S), T‑316/16, EU:T:2017:717, paragraph 63). Secondly, the applicant produces a summary of the request for a preliminary ruling in Case C‑465/24 lodged on 2 July 2024, an offer memorandum from Open Pass AG dated 8 August 2024, a Commission merger control notification dated 11 June 2024, a series of emails dated July and August 2024 and a document of the Fortenova Group dated 2 August 2024 concerning the disposal of the Fortenova Group's agricultural division (Annexes J.1 and J.2 and J.5 to J.7).
41 It should be recalled that, according to settled case-law, the lawfulness of an EU act must be assessed on the basis of the facts and the law as they stood when the act was adopted (see, to that effect, judgments of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 22 and the case-law cited, and of 4 September 2015, NIOC and Others v Council, T‑577/12, not published, EU:T:2015:596, paragraph 112 and the case-law cited).
42 Those documents refer to facts subsequent to the contested acts, which were adopted on 16 December 2022, 13 March 2023, 13 September 2023 and 12 March 2024 respectively. The taking into account of those documents is therefore excluded for the purposes of assessing the lawfulness of those acts. Thus, without it being necessary to rule on the admissibility of the offer of evidence, it must be held that, since those documents have no effect on the examination of the lawfulness of the contested acts, that offer of evidence is irrelevant in the context of the present case.
43 As regards the second set of evidence concerning the claim that Sberbank does not control the applicant, the applicant produces press articles published in 2022 and 2023 (Annexes J.9 to J.12). It must be stated that those press articles were already produced as an annex to the applicant's observations on the Republic of Croatia's statement in intervention (Annexes 3, 4, 8 and 9 to those observations) and that they were admissible in so far as they were intended to respond to that statement in intervention. Consequently, there is no need to rule on the admissibility of those items of evidence in the light of Article 85(3) of the Rules of Procedure.
44 The applicant also produces a translation of an interview with a shareholder of the Fortenova Group (Annex J.13). However, that document is undated and must be regarded as having been submitted out of time for the purposes of Article 85(3) of the Rules of Procedure. The applicant merely stated in its letter of 18 October 2024 that that document was relevant to the present case. Consequently, the applicant has failed to justify the belated submission of that item of evidence, which must be rejected as inadmissible pursuant to Article 85(3) of the Rules of Procedure.
45 The third set of evidence, concerning the transfer of the applicant to an Emirati investor, comprises a power of attorney drawn up by that Emirati investor dated 31 October 2022, payment receipts dated 31 October 2022, a sale agreement and an amendment thereto dated 24 February 2022 and 31 May 2022, the applicant's undated consent to the assignment of rights of claim, a notice of assignment of rights of claim dated 31 October 2022 and a document of the same date confirming payment under the rights of claim assignment agreement (Annexes J.14 to J.19). Given that those documents are undated or pre-date the lodging of the statement of modification concerning the March 2024 maintaining acts, they must be regarded as having been submitted out of time. In order to justify the belated submission of those documents, the applicant merely refers to the need to respond to the Council's observations. It has not explained why it was unable to produce the documents in question earlier. Consequently, that evidence must be rejected as inadmissible.
46 As regards the documents produced by the applicant on 5 November 2024, those comprise an estimate of the value of the company Agrokor dated 8 June 2018 and an article dated 11 January 2019 concerning that company. Given that those documents pre-date the lodging of the statement of modification concerning the March 2024 maintaining acts, they must be regarded as having been submitted out of time. The applicant merely states that it obtained access to those documents only recently because of developments relating to its alleged squeezing out from the Fortenova Group. Yet, as early as the application, the applicant referred to the restructuring of Agrokor which led to the establishment of the Fortenova Group. Consequently, it has not explained why it was unable to produce those documents relating to Agrokor at the latest with the statement of modification concerning the March 2024 maintaining acts, with the result that it has not justified the belated submission of those documents.
47 In those circumstances, the applicant cannot be considered to have justified, for the purposes of Article 85(3) of the Rules of Procedure, the belated production of those additional items of evidence, which must therefore be dismissed as inadmissible.
48 Accordingly, the applicant cannot rely on Article 85(3) of the Rules of Procedure in order to produce those additional items of evidence inasmuch as they are partly inadmissible and partly irrelevant to the lawfulness of the contested acts.
Request for the application of Article 45 of the Statute of the Court of Justice of the European Union made on 18 October 2024
49 On 9 October 2024, the applicant, by separate document, lodged at the Court Registry a statement of modification under Article 86(1) of the Rules of Procedure, seeking annulment of the September 2024 maintaining acts in so far as those acts concerned it.
50 In accordance with Article 86(1) of the Rules of Procedure, in the version resulting from the amendments to the Rules of Procedure of the General Court of 12 August 2024 (OJ L 2024/2095) which entered into force on 1 September 2024, where an act the annulment of which is sought is replaced or amended by another act with the same subject matter, the applicant may, by no later than two weeks after service of a decision fixing the date of the hearing or before service of the decision of the General Court to rule without an oral part of the procedure, modify the application to take account of that new factor.
51 Under Article 246(3) of the Rules of Procedure, Article 86(1) is to apply only when the period referred to in Article 86(2), namely the period for bringing an action laid down in the sixth paragraph of Article 263 TFEU, starts to run after 1 September 2024.
52 It must be stated, first, that the acts to which the modification of the application relates were adopted on 12 September 2024 and published in the Official Journal the following day, meaning that the period for bringing an action laid down in the sixth paragraph of Article 263 TFEU began to run after 1 September 2024, thus triggering the application of Article 86(1) of the Rules of Procedure in the present case, and, secondly, that the notice of the hearing was served on the applicant on 18 September 2024. Consequently, the period for lodging the statement of modification seeking annulment of the September 2024 maintaining acts expired on 2 October 2024.
53 Since the statement of modification was lodged at the Court Registry after the expiry of the period laid down in Article 86(1) of the Rules of Procedure, the President of the First Chamber decided, by decision of 14 October 2024, not to place it on the case file. The applicant was informed of that decision by letter from the Registry on the same day.
54 By letter of 18 October 2024, the applicant submitted a request under Article 45 of the Statute of the Court of Justice of the European Union. In response to a question in that regard at the hearing, the applicant stated that the purpose of that request was to have the Court declare that the statement of modification submitted late was admissible, on the basis of Article 45 of the Statute of the Court of Justice of the European Union. The applicant submits that the existence of unforeseeable circumstances prevented it from lodging that statement of modification within the period laid down in Article 86(1) of the Rules of Procedure, as amended. It argues that the fact that the amendments to the Rules of Procedure were published during the judicial vacations, alongside allegedly ambiguous information on the EUR-Lex website, created a situation in which it could not have foreseen that a well-known and important time limit would be replaced by the General Court within a matter of weeks, without any prior warning or announcement.
55 The Council, supported by the Republic of Croatia and the Commission, disputes the applicant's arguments.
56 In that regard, it is settled case-law that no derogation from the application of the European Union's rules on procedural time limits may be made save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to force majeure, in accordance with the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, since the strict application of those rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see judgment of 14 December 2016, SV Capital v EBA, C‑577/15 P, EU:C:2016:947, paragraph 56 and the case-law cited).
57 It should be borne in mind that Article 45 of the Statute of the Court of Justice of the European Union is applicable to proceedings before the General Court pursuant to Article 53 of the Statute.
58 The Court of Justice has held that the concepts of 'force majeure' and 'unforeseeable circumstances' contain an objective element relating to abnormal circumstances unconnected with the applicant and a subjective element involving the obligation, on his or her part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. In particular, the applicant must pay close attention to the course of the procedure set in motion and, in particular, demonstrate diligence in order to comply with the prescribed time limits (judgment of 15 December 1994, Bayer v Commission, C‑195/91 P, EU:C:1994:412, paragraph 32).
59 The concepts of 'unforeseeable circumstances' and 'force majeure' do not apply to a situation in which, objectively, a diligent and prudent person would have been able to take the necessary steps before the expiry of the period prescribed for instituting proceedings (see order of 11 June 2020, GMPO v Commission, C‑575/19 P, not published, EU:C:2020:448, paragraph 34 and the case-law cited).
60 Lastly, it should be borne in mind that, under the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, it is for the person concerned pleading unforeseeable circumstances or force majeure to prove their existence.
61 In the present case, it should be observed that the circumstances relied on by the applicant are that it became aware of the amendments to the Rules of Procedure only belatedly because of, first, their publication during the judicial vacations and, secondly, the ambiguous way in which the Rules of Procedure were displayed on the EUR-Lex website, which did not show those amendments clearly.
62 However, as the Council rightly points out, the amendments to the Rules of Procedure were published in the Official Journalon 12 August 2024 and were stated to enter into force on 1 September 2024. Furthermore, the Court of Justice of the European Union issued a press release concerning those amendments on 30 August 2024 and a consolidated version of the Rules of Procedure was made available on its website on 1 September 2024, while a link to that consolidated version of the Rules of Procedure was included in the letter of 18 September 2024 by which the Registry notified the parties of the hearing.
63 An act adopted by an EU institution may be enforced against natural and legal persons where they have had the opportunity to acquaint themselves with it by proper publication in the Official Journal (see, to that effect, judgment of 11 December 2007, Skoma-Lux, C‑161/06, EU:C:2007:773, paragraph 37 and the case-law cited). Following publication, everyone is deemed to be aware of the content of the Official Journal.
64 Consequently, the applicant has not proven the existence of unforeseeable circumstances or force majeure making it possible to derogate from the period at issue on the basis of the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union.
65 It follows from the foregoing that the applicant's request under Article 45 of the Statute of the Court of Justice of the European Union must be rejected as unfounded.
Substance
66 In support of its action, the applicant essentially raises five pleas in law alleging the illegality of Article 2(1), in fine, of Decision 2014/145, as amended by Decision 2022/329, and of Article 3(1), in fine, of Regulation No 269/2014, as amended by Regulation 2022/30, breach of the right to be heard, error of assessment, breach of the principle of proportionality and infringement of the obligation to state reasons.
Plea of illegality in respect of the association criterion
67 The applicant raises – on the basis of Article 277 TFEU – a plea of illegality in respect of Article 2(1), in fine, of Decision 2014/145, as amended by Decision 2022/329, and of Article 3(1), in fine, of Regulation No 269/2014, as amended by Regulation 2022/330, concerning persons associated with a person subject to restrictive measures under Article 2(1) of Decision 2014/145, as amended by Decision 2022/329, and Article 3(1) of Regulation No 269/2014, as amended by Regulation 2022/330 ('the association criterion').
68 The applicant submits that the association criterion is not consistent with the objectives of Article 21 TEU and of Article 215 TFEU in so far as it allows the Council to include on the lists at issue the names of persons who have no links with the regime targeted by the restrictive measures in question. It pleads breach of the principle of legal certainty. Specifically, the applicant challenges the broad definition of the association criterion which it claims gives the Council unlimited and arbitrary discretion and allows it to include any person on the lists at issue.
69 In its reply, the applicant submits that the inclusion of its name on the lists at issue is arbitrary because there is only one other entity whose name is included on those lists as an entity associated with another entity and because, if it were still controlled by Sberbank, as the Council contends, there would be no need for it to be listed.
70 The applicant also states that it is no longer controlled by Sberbank.
71 The Council, supported by the Commission, disputes the applicant's arguments.
72 Under Article 277 TFEU, any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the European Union is at issue, plead the grounds specified in the second paragraph of Article 263 TFEU in order to invoke before the Court of Justice of the European Union the inapplicability of that act.
73 Article 277 TFEU gives expression to the general principle conferring upon any party to proceedings the right to challenge indirectly, in seeking annulment of an act against which it can bring an action, the validity of previous acts of the institutions which form the legal basis of the contested act, if that party was not entitled under Article 263 TFEU to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that they be annulled. The general act claimed to be illegal must be applicable, directly or indirectly, to the issue with which the action is concerned and there must be a direct legal connection between the contested individual decision and the general act in question (see judgment of 17 February 2017, Islamic Republic of Iran Shipping Lines and Others v Council, T‑14/14 and T‑87/14, EU:T:2017:102, paragraph 55 and the case-law cited).
74 It is settled case-law that the Courts of the European Union must, in accordance with the powers conferred on them under the TFEU, ensure the review, in principle the full review, of the lawfulness of all EU acts in the light of the fundamental rights forming an integral part of the EU legal order, which includes in particular respect for the rights of the defence and the right to effective judicial protection (see, to that effect, judgments of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 326, and 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, paragraphs 97 and 98).
75 However, the Council enjoys a broad discretion as regards the general and abstract definition of the legal criteria and procedures for adopting restrictive measures (see, to that effect, judgment of 21 April 2015, Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 41 and the case-law cited). Consequently, rules of general application defining those criteria and procedures, such as the provisions of the acts laying down the criteria for including and maintaining a person's name on the lists at issue, referred to in the present plea in law, are subject to a limited judicial review, restricted to checking that the rules governing procedure and the statement of reasons have been complied with, that the facts are materially accurate, that there has been no error in law and that there has been no manifest error of assessment of the facts or misuse of power (see judgment of 15 November 2023, OT v Council, T‑193/22, EU:T:2023:716, paragraph 35 and the case-law cited).
76 The applicant claims that the association criterion is at variance with Article 21 TEU and Article 215 TFEU and breaches the principle of legal certainty.
77 In the first place, the principle of legal certainty requires that EU legislation be clear and precise and its application foreseeable by those subject to it (see judgment of 15 November 2023, OT v Council, T‑193/22, EU:T:2023:716, paragraph 42 and the case-law cited).
78 In that regard, it has been held that the association criterion limits the Council's discretion by establishing objective criteria which ensure the degree of foreseeability required by EU law and observance of the principle of legal certainty (judgment of 6 September 2023, Pumpyanskiy v Council, T‑291/22, not published, EU:T:2023:499, paragraph 126).
79 In the second place, the applicant raises a plea alleging infringement of Article 215 TFEU in so far as there is no sufficient link between the persons subject to restrictive measures and the third country in question, and relies, inter alia, on the judgment of 13 March 2012, Tay Za v Council (C‑376/10 P, EU:C:2012:138, paragraphs 64 and 68). However, it must be stated that the decision cited by the applicant does not relate to Article 215 TFEU, but to Articles 60 and 301 EC.
80 It is apparent from the case-law that, as a result of the amendments made to primary law after the Treaty of Lisbon entered into force on 1 December 2009, the content of Article 60 EC, relating to restrictive measures with regard to capital movements and payments, and Article 301 EC, concerning the interruption or reduction, in part or completely, of economic relations with one or more third countries, is mirrored in Article 215 TFEU. Article 215(2) TFEU allows the Council to adopt restrictive measures against natural or legal persons and groups or non-State entities, namely, measures that, before the Treaty of Lisbon entered into force, required Article 308 EC too to be included in their legal basis if their addressees were not linked to the governing regime of a third country (judgment of 19 July 2012, Parliament v Council, C‑130/10, EU:C:2012:472, paragraphs 51 and 53).
81 It follows that the applicant's argument alleging infringement of Article 215 TFEU must be rejected.
82 In the third place, the association criterion does not require there to be a direct link between the person covered by that criterion and the situation in Ukraine (see, to that effect, judgment of 11 September 2024, Ezubov v Council, T‑741/22, not published, EU:T:2024:605, paragraph 120).
83 The not insignificant danger that a person subject to restrictive measures may, in order to circumvent those measures, exploit his or her link with the persons associated with him or her so as to exert pressure on those persons explains why it is possible to impose restrictive measures in such a situation (see judgment of 11 September 2024, Ezubov v Council, T‑741/22, not published, EU:T:2024:605, paragraph 121 and the case-law cited).
84 Consequently, that criterion contributes to ensuring the effectiveness of the restrictive measures and therefore to exerting pressure on the Russian authorities so that they bring an end to their actions and policies destabilising Ukraine and to the military aggression against Ukraine.
85 It follows that the association criterion and the restrictive measures taken on the basis of it are consistent with the objective, referred to in Article 21(2)(c) TEU, of preserving peace, preventing conflicts and strengthening international security, in accordance with the purposes and principles of the United Nations Charter, signed in San Francisco (United States) on 26 June 1945 (see, to that effect, judgment of 15 November 2023, OT v Council, T‑193/22, EU:T:2023:716, paragraph 46).
86 The applicant's argument concerning the lack of any link between the situation in Ukraine and the role of the natural persons subject to the restrictive measures at issue must therefore be rejected.
87 The Court must also reject the applicant's argument that the inclusion of its name on the lists at issue is arbitrary inasmuch as only one other entity is targeted by the restrictive measures in question on the basis of the association criterion. That argument relates to the application of the association criterion, not its definition.
88 Furthermore, the applicant's argument that Sberbank no longer controls it is concerned with whether the grounds for listing are well founded, not with whether the criterion serving as the legal basis for the inclusion of its name on the lists at issue is lawful.
89 It follows that the plea of illegality raised by the applicant must be dismissed.
Plea in law alleging infringement of the obligation to state reasons
90 The applicant submits that the Council failed to provide sufficient or appropriate reasons for including its name on the lists at issue, in breach of the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union ('the Charter').
91 First, the applicant argues that the context of the contested acts did not enable it to understand the scope of the measure taken against it. According to the applicant, it could not have foreseen that the Council would claim that it was 'controlled by Sberbank' when it had been sold by Sberbank to a new owner.
92 Secondly, the applicant claims that the assertion that it remains under Sberbank's effective control is not detailed enough, irrespective of the fact that it is untrue, even though the Council could actually have provided a more precise statement of reasons.
93 Thirdly, in its reply, the applicant adds that the statement of reasons does not enable it to understand the exact grounds for the inclusion and maintenance of its name on the lists at issue. Since the context arising from recital 3 of Decision 2022/2477 is one underpinned by missile and drone attacks by the Russian Federation on Ukrainian civilians, the Council fails to provide a reasonable explanation as to how the applicant was in the same position as the 'persons responsible' for those attacks.
94 The Council, supported by the Commission, disputes the applicant's arguments.
95 It should be borne in mind that 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 persons concerned to ascertain the reasons for the measures for the purpose of assessing whether they are well founded and to enable the court having jurisdiction to exercise its power of review (judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 50; see also judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 47 and the case-law cited).
96 The statement of reasons required by Article 296 TFEU must 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 that act, the nature of the reasons given and the interest which the addressees of the act, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. In particular, it is not necessary for the reasoning to go into all the relevant facts and points of law or to provide a detailed answer to the considerations set out by the person concerned when consulted prior to the adoption of that act, since the question whether the statement of reasons is sufficient 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. Consequently, the reasons given for an act adversely affecting a person are sufficient if that act was adopted in a context which was known to that person and which enables him or her to understand the scope of the measure concerning him or her (judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraphs 53 and 54; see also judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 48 and the case-law cited).
97 In addition, it has been made clear in the case-law that the statement of reasons for an act of the Council imposing a restrictive measure must not only identify the legal basis for that measure but also the actual and specific reasons why the Council considered, in the exercise of its discretion, that such a measure had to be adopted in respect of the person concerned (see judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 105 and the case-law cited).
98 It should also be noted that the obligation to state reasons laid down in Article 296 TFEU is an essential procedural requirement, as distinct from the question whether the reasoning is well founded, which goes to the substantive legality of the contested act (see, to that effect, judgment of 2 April 1998, Commission v Sytraval and Brink's France, C‑367/95 P, EU:C:1998:154, paragraph 67). The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect (judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 181).
99 In the present case, first, it should be noted that the general context which led the Council to adopt the restrictive measures at issue is clearly set out in the recitals of the contested acts, which refer, in particular, to the Russian Federation's unprovoked and unjustified military aggression against Ukraine. Similarly, the foundations in law on the basis of which those acts were adopted, namely Article 29 TEU and Article 215 TFEU, are clearly stated.
100 Secondly, the grounds for the contested acts in respect of the applicant are those set out in paragraph 10 above. Contrary to what the applicant claims, it must be held that, in the light of their wording, the grounds are sufficiently clear and precise to enable it to understand the reasons why its name was included, and then maintained, on the lists at issue. In particular, it follows from that statement of reasons that, in the initial acts and in the March 2023, September 2023 and March 2024 maintaining acts, the Council included and maintained the applicant's name on the lists at issue on the basis of the association criterion.
101 It is readily apparent from the statement of reasons that the applicant's name is included on the lists at issue because it 'is associated with Sberbank', in that Sberbank retains effective control over it notwithstanding the purported transfer of its shares to a businessman from the United Arab Emirates. By using the words 'purported transfer', the grounds make it clear that the Council casts doubt on the sale of the applicant to an Emirati businessman.
102 Thirdly, the Court rejects the applicant's arguments that the Council did not adequately explain how it is still under Sberbank's control, an assertion which the applicant contends is incorrect. In so far as those arguments go to the substance of the claims contained in the grounds for inclusion on the lists at issue, they are actually concerned with an error of assessment, not an infringement of the obligation to state reasons, and will be examined in the context of the third plea.
103 Fourthly, the Court must also reject the applicant's argument, raised in the reply, that the Council does not provide any reasonable explanation as to how the applicant was in the same position as the 'persons responsible' for drone attacks in Ukraine. Although recital 3 of the initial acts refers to missile and drone attacks carried out by the Russian Federation against civilians and civilian objects and infrastructure in Ukraine, it must be stated that that recital describes the general context of the initial acts, as does recital 4 of those acts which refers to the gravity of the situation in Ukraine. Contrary to what the applicant claims, the initial acts are not intended to put it in the same position as the persons responsible for those attacks.
104 Therefore, it follows from the statement of reasons for the contested acts that the actual and specific reasons which led the Council to include, and then maintain, the applicant's name on the lists at issue are set out in a sufficiently clear manner to enable the applicant to understand those reasons and the Court to exercise its power of review in that regard.
105 It is apparent from the foregoing considerations that the plea in law alleging infringement of the obligation to state reasons must be dismissed.
Plea in law alleging breach of the right to be heard
106 In its application, the applicant claims infringement of Article 41 of the Charter and, in particular, breach of the right to be heard. It argues that the Council should have consulted it before adopting the initial acts as there was no need to create a surprise effect. In that regard, first, the applicant submits that the financial instruments of the Fortenova Group held by it continued to be assets located in the European Union even in the event of a change of ownership and that there was therefore no risk of those instruments being removed from the European Union and from the scope of Regulation No 269/2014, as amended by Regulation 2022/330.
107 Secondly, the applicant claims that the financial instruments had already been frozen by the Fortenova Group when it was owned by Sberbank. According to the applicant, affording it the opportunity to submit comments before the initial inclusion of its name on the lists at issue would not therefore have been prejudicial and would not have led to any asset flight out of the European Union.
108 In its statement of modification concerning the September 2023 maintaining acts, the applicant argues that a decision to maintain a person's name on the lists at issue must be preceded by disclosure of the incriminating evidence and by affording the person concerned an opportunity to be heard. However, the Council failed to contact it before deciding to maintain its name on the lists at issue.
109 The applicant asserts that the same is true of the March 2024 maintaining acts, which it claims the Council adopted in breach of its obligation to conduct a periodic review.
110 The Council, supported by the Commission, disputes the applicant's arguments.
111 It should be recalled that the right to be heard in all proceedings, laid down in Article 41(2)(a) of the Charter, which is inherent in respect for the rights of the defence, guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of a decision in relation to that person that is liable to affect his or her interests adversely (see judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 75 and the case-law cited).
112 In proceedings relating to the adoption of the decision to include a person's name on a list contained in the annex to an act imposing restrictive measures, respect for the rights of the defence requires that the competent EU authority disclose to the person concerned the grounds and the evidence against that person on which that authority proposes to base its decision. When that disclosure takes place, the competent EU authority must ensure that that person is placed in a position in which he or she may effectively make known his or her views on the grounds advanced against him or her (see, to that effect, 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, paragraphs 111 and 112).
113 Article 52(1) of the Charter nevertheless allows limitations on the exercise of the rights enshrined in the Charter, subject to the conditions that the limitation concerned respects the essence of the fundamental right in question and, subject to the principle of proportionality, that it is necessary and genuinely meets objectives of general interest recognised by the European Union (see 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 101 and the case-law cited).
114 In that regard, the Court of Justice has held on a number of occasions that the rights of the defence might be subject to limitations or derogations, including in the sphere of the restrictive measures adopted in the context of the common foreign and security policy (CFSP) (see, to that effect, judgment of 21 December 2011, France v People's Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 67 and the case-law cited).
115 Further, the question whether there is a breach of the rights of the defence must be examined by reference to the specific circumstances of each particular case, including the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question (see 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 102 and the case-law cited).
116 It should also be noted that the Courts of the European Union distinguish between, on the one hand, the initial inclusion of a person's name on the lists at issue and, on the other, the maintenance of that person's name on those lists (see, to that effect, judgment of 30 April 2015, Al-Chihabi v Council, T‑593/11, EU:T:2015:249, paragraph 40).
117 It is in the light of those case-law principles that the applicant's arguments must be examined.
– The initial acts
118 In the field of restrictive measures, it should be borne in mind that, in the case of an initial decision, the Council is not obliged to inform the person or entity concerned beforehand of the grounds on which it intends to rely in order to include that person or entity's name on the lists at issue. So that its effectiveness may not be jeopardised, such a measure must, by its very nature, be able to take advantage of a surprise effect and to apply immediately. In such a case, it is, as a rule, enough if the institution notifies the person or entity concerned of the grounds and affords it the right to be heard at the same time as, or immediately after, the decision is adopted (see, to that effect, judgments of 21 December 2011, France v People's Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 61, and of 14 October 2009, Bank Melli Iran v Council, T‑390/08, EU:T:2009:401, paragraphs 92 and 93).
119 Furthermore, it should be pointed out that neither the relevant provisions of Decision 2014/145, as amended by Decision 2022/329, and of Regulation No 269/2014, as amended by Regulation 2022/330, nor the general principle of respect for the rights of the defence gives the persons concerned the right to a formal hearing, the opportunity to submit their observations in writing being sufficient (see, by analogy, judgment of 15 November 2023, OT v Council, T‑193/22, EU:T:2023:716, paragraph 97 and the case-law cited).
120 In the present case, the applicant's name was included on the lists at issue for the first time by the initial acts. As is clear from paragraph 11 above, the grounds for including the applicant's name on the lists at issue were communicated in a notice published in the Official Journal on 19 December 2022.
121 In accordance with the case-law cited in paragraph 118 above, the Council was not required, in the circumstances of the present case, to obtain the applicant's observations before adopting the initial acts.
122 That conclusion is not called into question by the applicant's arguments that the surprise effect was not necessary given that its funds had already been frozen.
123 In the instant case, although the applicant's funds within the Fortenova Group had already been frozen before its name was included on the lists at issue following Sberbank's listing, account should also be taken of the fact that one of the consequences of the transaction in question was precisely to unfreeze the applicant's funds. At the hearing, the applicant acknowledged that the funds it held in the Fortenova Group should have been unfrozen following the transaction dated 31 October 2022 by which it was sold by Sberbank to an Emirati investor. That is also confirmed by the email dated 20 November 2022 sent by the Emirati investor to the Fortenova Group, included in the first WK file in the 'Further exhibits' section, in which it was stated that, on that date, the applicant was no longer controlled by an entity subject to restrictive measures and in which that investor asked, in essence, to be able to participate in and exercise voting rights at future meetings of the Fortenova Group. Accordingly, even though the Council itself did not recognise that sale, it could not be certain that that would also be the case for all economic operators who were required to freeze the funds in question. In view of the risk of the funds being unfrozen, the Council rightly took the view that a surprise effect was necessary in the present case in order to ensure the effectiveness of the restrictive measures.
124 It follows from the foregoing that the Council did not breach the applicant's right to be heard in the context of the adoption of the initial acts.
– The September 2023 maintaining acts
125 In relation to decisions maintaining restrictive measures against a person already subject to such measures, the Council is required to disclose to that person the evidence available to it and relied on as the basis of its decision, and must ensure that that person is placed in a position in which he or she may effectively make known his or her views on the grounds advanced against him or her before that decision is adopted. Compliance with that dual procedural obligation must precede the adoption of that decision (see, to that effect, judgments of 21 December 2011, France v People's Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 62 and the case-law cited, and 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, paragraphs 111 to 113 and the case-law cited).
126 However, it should be observed that the right to be heard prior to the adoption of acts which maintain restrictive measures against persons already subject to those measures applies where the Council has admitted new evidence against those persons and not where those measures are maintained on the basis of the same grounds as those that justified the adoption of the initial act imposing the restrictive measures in question (judgments of 28 July 2016, Tomana and Others v Council and Commission, C‑330/15 P, not published, EU:C:2016:601, paragraph 67, and of 7 June 2023, Shakutin v Council, T‑141/21, not published, EU:T:2023:303, paragraph 74).
127 Where the maintenance of the name of the person or entity concerned on a list of persons or entities subject to restrictive measures is based on the same reasons as those which justified the adoption of the initial act without any new evidence being admitted in that person or entity's regard, the Council is not required, in order to respect that person or entity's right to be heard, to disclose to him, her or it the incriminating evidence again (judgment of 22 June 2022, Haswani v Council, T‑479/21, not published, EU:T:2022:383, paragraph 85; see also, to that effect, judgment of 7 April 2016, Central Bank of Iran v Council, C‑266/15 P, EU:C:2016:208, paragraphs 32 and 33).
128 In the present case, the Council informed the applicant, by letter of 15 September 2023, of the maintenance of its name on the lists at issue. In that regard, since the statement of reasons for the September 2023 maintaining acts vis-à-vis the applicant did not change and since the Council did not produce any new incriminating evidence to supplement the documentary basis for maintaining its name on the lists at issue, it was not required, on its own initiative and in the absence of a request to that effect from the applicant, to disclose the incriminating evidence to it again and to give it the opportunity to submit observations.
129 Consequently, the second plea in law must be dismissed as regards the September 2023 maintaining acts.
– The March 2024 maintaining acts
130 As is clear from paragraph 21 above, the March 2024 maintaining acts maintained the applicant's name on the lists at issue on grounds that were unchanged. Furthermore, it should be noted that, in adopting those acts, the Council did not rely on any new incriminating evidence. Therefore, in accordance with the case-law cited in paragraphs 125 to 127 above, the Council was not required, in order to respect the applicant's right to be heard, to disclose the same incriminating evidence to it again and to hear it before adopting the March 2024 maintaining acts.
131 In addition, contrary to what the applicant claims, the fact that the Council did not hear it prior to maintaining its name on the lists at issue, in accordance with the case-law cited in paragraphs 125 to 127 above, cannot constitute an infringement of the Council's obligation to conduct a review.
132 In the light of all of the foregoing considerations, the plea in law alleging breach of the right to be heard must be dismissed.
Plea in law alleging error of assessment
– Preliminary observations
133 As a preliminary point, while it is true that the Council has a degree of discretion to determine on a case-by-case basis whether the legal criteria on which the restrictive measures at issue are based are met, the fact remains that the Courts of the European Union must ensure the review, in principle the full review, of the lawfulness of all EU acts (see, to that effect, judgments of 3 July 2014, National Iranian Tanker Company v Council, T‑565/12, EU:T:2014:608, paragraphs 54 and 55, and of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 61 and the case-law cited).
134 Moreover, it must be noted that the effectiveness of the judicial review guaranteed by Article 47 of the Charter requires, inter alia, that the Courts of the European Union 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 (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 119, and of 5 November 2014, Mayaleh v Council, T‑307/12 and T‑408/13, EU:T:2014:926, paragraph 128).
135 That assessment must be carried out by examining the evidence and information not in isolation, but in their context. The Council discharges the burden of proof borne by it if it presents to the Courts of the European Union a sufficiently specific, precise and consistent body of evidence to establish that there is a sufficient link between the entity subject to a measure freezing its funds and the regime or, in general, the situations, being combated (see judgment of 20 July 2017, Badica and Kardiam v Council, T‑619/15, EU:T:2017:532, paragraph 99 and the case-law cited).
136 It is the task of the competent EU authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded. It is necessary that the information or evidence produced should support the reasons relied on against the person concerned (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, paragraphs 121 and 122, and of 3 July 2014, National Iranian Tanker Company v Council, T‑565/12, EU:T:2014:608, paragraph 57).
137 In that regard, the Court points out that the context of the measures at issue must be taken into account and the standard of proof which may be required of the Council must be adapted in the light of the difficulty of obtaining evidence and objective information (see judgment of 1 June 2022, Prigozhin v Council, T‑723/20, not published, EU:T:2022:317, paragraph 102 and the case-law cited).
138 It should also be noted that the activity of the Courts of the European Union is governed by the principle of the unfettered assessment of the evidence, and it is only the reliability of the evidence before the Court which is decisive when it comes to the assessment of its value. In order to assess the probative value of a document, regard should be had to the credibility of the account it contains and, in particular, to the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears to be sound and reliable (see judgment of 31 May 2018, Kaddour v Council, T‑461/16, EU:T:2018:316, paragraph 107 and the case-law cited).
139 Moreover, it should be borne in mind that restrictive measures are measures of a precautionary and, by definition, provisional nature, the validity of which always depends on whether the factual and legal circumstances which led to their adoption continue to apply and on the need to persist with them in order to achieve their objective. It is thus for the Council, in the course of its periodic review of those restrictive measures, to conduct an updated assessment of the situation and to appraise the impact of such measures, in order to determine whether they have made it possible to attain the objectives pursued by the initial inclusion of the names of the persons and entities concerned on the lists at issue or whether the same conclusion in respect of those persons and entities can still be drawn (judgment of 12 February 2020, Amisi Kumba v Council, T‑163/18, EU:T:2020:57, paragraphs 58 and 59).
140 Lastly, the Court recalls that, in accordance with settled case-law, the legality of an EU act must be assessed on the basis of the facts and the law as they stood at the time when the act was adopted (see judgments of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 22 and the case-law cited, and of 4 September 2015, NIOC and Others v Council, T‑577/12, not published, EU:T:2015:596, paragraph 112 and the case-law cited).
141 It is in the light of those considerations that it is necessary to ascertain whether the Council committed errors of assessment in deciding to include, and then maintain, the applicant's name on the lists at issue.
142 In the present case, it should be observed that, in order to justify the inclusion and subsequent maintenance of the applicant's name on the lists at issue, the Council relied on the evidence contained, respectively, in the first WK file and in the second and third WK files.
143 The first WK file contains the following evidence:
– a judgment of the rechtbank Amsterdam (District Court, Amsterdam, Netherlands) dated 6 September 2022 (exhibit No 1);
– a document from Kroll Issuer Services Ltd dated 5 April 2022 (exhibit No 2);
– a screenshot from the website of the Fortenova Group (exhibit No 3);
– an extract from the Russian Unified State Register of Legal Entities dated 14 September 2022 (exhibit No 4);
– an extract from the Russian Unified State Register of Legal Entities dated 3 November 2022 (exhibit No 5);
– an article from the news agency Reuters published on 3 November 2022 (exhibit No 6);
– a press article from Euractiv published on 8 November 2022 (exhibit No 7);
– a press article from Bloomberg News published on 21 November 2022 (exhibit No 8);
– a press release published on the website of the Fortenova Group on 12 March 2021 (exhibit No 9);
– a screenshot from the website of the Fortenova Group (exhibit No 10);
– a screenshot from the website of the GFC Media Group (exhibit No 11);
– an article from the newspaper Večernji list published on 8 November 2022 (exhibit No 12).
144 The first WK file also contains several documents grouped under the heading 'Further exhibits' containing the following:
– pleadings lodged in proceedings between an Emirati investor and, inter alia, the Fortenova Group before the rechtbank Amsterdam (District Court, Amsterdam) and the annexes thereto, namely a letter from the Croatian Ministry of Foreign and European Affairs dated 25 November 2022, an extract from the Russian Unified State Register of Legal Entities concerning the applicant dated 31 October 2022, a receipt dated 31 October 2022 recording a payment made to Sberbank by the special purpose vehicle used by the Emirati investor, an extract from the Russian Unified State Register of Legal Entities concerning that special purpose vehicle dated 22 November 2022, a statement by the Emirati investor dated 22 November 2022, a letter from the Fortenova Group to the applicant dated 22 November 2022, and the 2021 annual report of Fortenova Group TopCo;
– an email dated 20 November 2022 from the Emirati investor to Fortenova Group STAK;
– a memorandum from a law firm dated 14 December 2022 addressed to the Fortenova Group and the annexes thereto, including an agreement for the transfer of the applicant between, of the one part, SBC Aktiv and SBK Uranium and, of the other part, the Emirati investor, a loan agreement between the Emirati investor and the special purpose vehicle used to conclude the transaction, extracts from the Russian Unified State Register of Legal Entities concerning the applicant dated 31 October 2022 and 15 November 2022, a rights of claim assignment agreement dated 31 October 2022 between Sberbank and the Emirati investor, a receipt dated 31 October 2022 recording a payment made to Sberbank by the special purpose vehicle used by the Emirati investor, extracts from the Russian Unified State Register of Legal Entities concerning that special purpose vehicle dated 8 November 2022 and 24 November 2022, and a notice of performance of the obligation by a third party sent by the Emirati investor to Sberbank.
145 The second WK file contains only a judgment of the Gerechtshof Amsterdam (Court of Appeal, Amsterdam, Netherlands) dated 29 December 2022.
146 The third WK file contains only a summary of classified evidence which reads as follows: 'Evidence based on official company registers, confirming that SBK Art LLC is a controlled subsidiary of the government of the Russian Federation'.
– Reliability of the evidence adduced by the Council
147 The applicant questions the reliability of the evidence contained in the first WK file on which the Council relied in order to include its name on the lists at issue, arguing that that evidence comes from unreliable sources, namely low-quality press and blog articles published on the internet. In particular, the applicant submits that the media articles contained in the first WK file merely reproduce official statements made by the Chief Executive Officer (CEO) of Fortenova Croatia. The applicant also questions the evidential value of the document originating from a law firm, which it claims lacks information, in particular about its author, and was drawn up in the interests of the Fortenova Group.
148 The Council disputes the applicant's arguments. It contends that it did not confine itself to press articles but also gathered evidence from official documents and legal proceedings before the courts of the Netherlands.
149 It should be recalled that, in the absence of investigative powers in third countries, the assessment of the EU authorities must rely on publicly available sources of information, reports, articles in the press, intelligence reports or other similar sources of information. According to the case-law, press articles may be used in order to corroborate the existence of certain facts if they are sufficiently specific, precise and consistent as regards the facts there described. In that regard, it would be excessive and disproportionate to require the Council itself to investigate on the ground the accuracy of facts which are relayed by numerous media (see judgment of 1 June 2022, Prigozhin v Council, T‑723/20, not published, EU:T:2022:317, paragraph 59 and the case-law cited).
150 As a preliminary point, it should be noted that the applicant challenges the reliability of the evidence contained solely in the first WK file.
151 First of all, the Court must reject the applicant's assertion that, in order to include its name on the lists at issue, the Council relied only on low-quality press and blog articles. It should be noted that the press articles come from digital information sources of various origins, such as Reuters (exhibit No 6), Euractiv (exhibit No 7) and Bloomberg News (exhibit No 8). As regards the reliability of the evidence adduced by the Council, it should be recalled – as pointed out in paragraph 149 above – that, in the absence of investigative powers in third countries, the assessment of the EU authorities must rely on publicly available sources of information, reports, articles in the press or other similar sources of information. In addition, the applicant has not produced any other elements capable of casting doubt on the reliability of that evidence.
152 Next, the applicant claims that the press articles merely reproduce the statements of a representative of the Fortenova Group. In that connection, exhibit No 6 in the first WK file, which is an article by Reuters, and exhibit No 7, which is an article by Euractiv, do not refer to the statements of a representative of the Fortenova Group. Exhibit No 8, which is an article by Bloomberg News, does indeed quote a representative of the Fortenova Group and also relays the comments made by a representative of Sberbank. However, the mere fact that an article in the press quotes a company representative is not in itself capable of casting doubt on the probative value of that item of evidence, which also contains other information. Furthermore, it should be noted that the applicant has not adduced any elements to show that the statements and information contained therein are incorrect.
153 In the light of the foregoing, and in the absence of any evidence put forward by the applicant capable of calling into question the reliability of the sources used by the Council, those sources must be regarded as sound and reliable within the meaning of the case-law cited in paragraph 138 above.
154 Lastly, as regards the document from a law firm included by the Council in the first WK file under the heading 'Further exhibits', it must be stated, as the Council did, that that legal opinion prepared at the request of the Fortenova Group is of little evidential value.
– Application to the applicant of the association criterion
155 The applicant submits, in essence, that the Council did not provide specific, precise and consistent evidence constituting a sufficient factual basis to support the inclusion of its name on the lists at issue under the association criterion. The applicant denies that Sberbank continues to control it and claims that the Council failed to adduce proof of such effective control. First, the applicant challenges the part of the grounds for listing stating that Sberbank allegedly sold it, claiming that such a sale is governed by Russian law and the Council failed to prove that it did not take place.
156 Secondly, the applicant submits that the fact that one of the Fortenova Group's directors – who was also employed by Sberbank – remained in post after the applicant was sold by Sberbank is not evidence of Sberbank's control over the applicant, particularly since the applicant's assets and voting rights within the Fortenova were frozen and would not have permitted it to replace that director.
157 Thirdly, the applicant disputes the analysis set out in the document of a law firm included in the first WK file, which concluded that the law firm in question did not have sufficient information to give an opinion on the compatibility with EU law of the sale of the applicant by Sberbank and on the circumstances of that sale. The applicant maintains that the circumstances of the sale and the financing of the transaction by means of a loan from a Russian bank were not unusual.
158 Fourthly, the applicant argues that the evidence contained in the first WK file does not prove that Sberbank controlled it when the initial acts were adopted.
159 In particular, the applicant objects to a document contained in the first WK file originating from the Croatian Ministry of Foreign and European Affairs, according to which the applicant remains under Sberbank's control because, inter alia, no request for authorisation of its sale was made to the Croatian authorities. The applicant submits that the Croatian authorities did not have to authorise that sale, since Article 17(e) of Regulation No 269/2014 – under which that regulation is to apply 'to any legal person, entity or body in respect of any business done in whole or in part within the Union' – was not applicable.
160 In its reply, first, the applicant adds that the Council's position calling into question the validity of the transaction by which it was sold by Sberbank to an Emirati investor is unfounded. It submits that that transaction, which involved a Russian seller (Sberbank), a Russian asset (the applicant) and an Emirati buyer, did not fall within the scope of Article 17 of Regulation No 269/2014. According to the applicant, Sberbank was free to sell it without having recourse to the derogation provided for in Article 6b(2b) of Regulation No 269/2014.
161 Secondly, the applicant disputes the Council's argument regarding circumvention, claiming that a transaction concluded outside the European Union relating to foreign assets and involving a foreign buyer cannot constitute circumvention for the purposes of Article 9 of Regulation No 269/2014.
162 In the statements of modification concerning the September 2023 and March 2024 maintaining acts, the applicant reiterates its argument that the Council failed to adduce any evidence conclusively proving the existence of an association between it and Sberbank.
163 The Council, supported by the Republic of Croatia, the Kingdom of the Netherlands and the Commission, disputes the applicant's arguments.
164 It should be noted that the grounds for the contested acts are based on the association criterion laid down in Article 2(1), in fine, of Decision 2014/145, as amended by Decision 2022/329, and in Article 3(1), in fine, of Regulation No 269/2014, as amended by Regulation 2022/330.
165 In that regard, while the concept of 'association' is often used in Council acts relating to restrictive measures, it is not, as such, defined and its meaning depends on the context and circumstances at issue. That being so, such a concept may be regarded as covering natural or legal persons who are, generally speaking, linked by common interests without, however, requiring a link by means of an economic activity, but which nonetheless cannot be based exclusively on a family relationship (judgment of 25 October 2023, QF v Council, T‑386/22, not published, EU:T:2023:670, paragraph 54; see also, to that effect, judgment of 8 March 2023, Prigozhina v Council, T‑212/22, not published, EU:T:2023:104, paragraphs 93, 103 and 104 and the case-law cited).
166 The association criterion may therefore be interpreted as referring to any natural or legal person, or any entity, having a link, as defined in paragraph 165 above, with a person who is subject to restrictive measures under one of the listing criteria laid down in Decision 2014/145, as amended by Decision 2022/329, and Regulation No 269/2014, as amended by Regulation 2022/330.
167 Furthermore, where an entity belongs to, or is controlled by, an entity subject to restrictive measures under one of the listing criteria laid down in Decision 2014/145, as amended by Decision 2022/329, and Regulation No 269/2014, as amended by Regulation 2022/330, the shareholding link or relationship of control between those two entities clearly constitutes a link as referred to in paragraph 165 above, since there is a not insignificant danger of the parent entity in question exerting pressure on the entity belonging to or controlled by it in order to circumvent the effect of the measures applying to it (see, by analogy, judgment of 4 September 2015, NIOC and Others v Council, T‑577/12, not published, EU:T:2015:596, paragraph 114).
168 It should be borne in mind that the grounds on which the applicant's name was included on the lists at issue are set out in paragraph 10 above and they remained unchanged in the March 2023, September 2023 and March 2024 maintaining acts. It follows, in essence, that the applicant's name was included and subsequently maintained on the lists at issue as an entity associated with Sberbank on account of its status as a subsidiary of Sberbank, specifically established for the purpose of holding Sberbank's interests in the Fortenova Group, and on account of the effective control which Sberbank retained over the applicant, notwithstanding the purported transfer of its shares to a businessman from the United Arab Emirates.
169 Against that background, it is necessary to ascertain whether the evidence submitted by the Council with a view to adopting the contested acts discharges the burden of proof borne by it and constitutes a sufficiently specific, precise and consistent body of evidence to substantiate the grounds for including the applicant's name on the lists at issue under the association criterion.
170 In the present case, in relation to the applicant's status as a subsidiary of Sberbank, for the purpose of holding Sberbank's interests in the Fortenova Group, it is common ground between the parties that Sberbank wholly owned the applicant through its subsidiaries SBK Uranium and SBC Aktiv when Sberbank's name was added to the lists at issue by Decision 2022/1272 and Implementing Regulation 2022/1270. Furthermore, the applicant does not deny that it was established on 10 December 2021 as a special purpose vehicle in order to hold the depositary receipts and convertible bonds held by Sberbank in the Fortenova Group, namely in the Netherlands-based company Fortenova Group TopCo. Nor does the applicant dispute that, on 5 April 2022, Sberbank transferred those depositary receipts and convertible bonds to it.
171 On 21 July 2022, the Council adopted Decision 2022/1272 and Implementing Regulation 2022/1270 by which it included Sberbank's name on the lists at issue under entry number 108. Pursuant to Article 2 of Regulation No 269/2014, on the date of inclusion of Sberbank's name on the lists at issue, namely 21 July 2022, all funds and economic resources which Sberbank owned, held or controlled in the European Union were frozen and no funds or economic resources could be made available, directly or indirectly, to Sberbank, which included, inter alia, the depositary receipts and convertible bonds in the Netherlands-based Fortenova Group TopCo held indirectly by Sberbank through the applicant. In addition, the voting and shareholding rights associated with those depositary receipts and convertible bonds were also frozen as from that date, inasmuch as they constituted economic resources within the meaning of Article 1(d) of Regulation No 269/2014.
172 Consequently, the applicant's sole function was to hold – as a special purpose vehicle – Sberbank's depositary receipts and convertible bonds in the Netherlands-based Fortenova Group TopCo which had been frozen following the inclusion of Sberbank's name on the lists at issue.
173 The applicant does not deny that the depositary receipts and convertible bonds which it holds in the Netherlands-based Fortenova Group TopCo were frozen immediately upon the inclusion of Sberbank's name on the lists at issue. However, the applicant claims that it ceased to be a subsidiary of Sberbank with effect from 31 October 2022, when it was sold by the subsidiaries of Sberbank which owned it, namely SBK Uranium and SBC Aktiv, to an Emirati investor, and maintains that, in consequence, on the date on which its name was included on the lists at issue, namely 16 December 2022, and on the date on which the March 2023, September 2023 and March 2024 maintaining acts were adopted, it was no longer a subsidiary of Sberbank.
174 With regard to that sale, the first WK file contains the agreement for the sale and purchase of the applicant, signed by SBK Uranium, SBC Aktiv and an Emirati investor, and the assignment agreement between Sberbank and that Emirati investor the subject matter of which were the rights of claim held by Sberbank following the transfer to the applicant, on 5 April 2022, of the depositary receipts and convertible bonds in Fortenova Group TopCo. The first WK file also contains the loan agreement concluded between the special purpose vehicle (used by the Emirati investor in order to acquire the applicant) and a Russian bank, as well as proof of the transfer made by that bank to that special purpose vehicle on 31 October 2022 and of the transfer made by that special purpose vehicle to Sberbank on the same date in payment of those rights of claim.
175 The Council, supported by the Republic of Croatia, the Kingdom of the Netherlands and the Commission, submits that that sale has no effect in the European Union, since it was not authorised by a competent national authority in accordance with the derogation provided for in Article 6b(2b) of Regulation No 269/2014.
176 In that regard, it should be recalled that it is clear from paragraph 171 above that, immediately upon the inclusion of Sberbank's name on the lists at issue on 21 July 2022, the depositary receipts and convertible bonds held by the applicant in the EU-based Fortenova Group TopCo were frozen pursuant to Article 2 of Regulation No 269/2014.
177 Article 1(f) of Regulation No 269/2014 defines 'freezing of funds' as 'preventing any move, transfer, alteration, use of, access to, or dealing with funds in any way that would result in any change in their volume, amount, location, ownership, possession, character, destination or any other change that would enable the funds to be used, including portfolio management'.
178 Consequently, as is apparent from the application of Article 1(f) of Regulation No 269/2014, in the present case, the depositary receipts and convertible bonds held by the applicant could no longer – as from the date of inclusion of Sberbank's name on the lists at issue, namely 21 July 2022 – be moved, transferred, altered, used or accessed in any way that would have resulted, inter alia, in any change in their ownership or possession or any other change that might have enabled them to be used.
179 The only way to unfreeze those depositary receipts and convertible bonds held by the applicant was either to remove Sberbank's name from the lists at issue or to apply one of the derogations provided for in Regulation No 269/2014.
180 In that regard, it must be stated that, at the time of the inclusion of Sberbank's name on the lists at issue, the Council, by Decision 2022/1272, inserted into Article 2(15) of Decision 2014/145, as amended by Decision 2022/329, a specific derogation for Sberbank, listed under entry number 108, providing for the release of frozen funds or economic resources under certain conditions. Furthermore, Article 6b(2b) of Regulation No 269/2014, as amended by Regulation 2022/330, includes the same derogation worded in terms identical to those of Article 2(15) of Decision 2014/145, as amended by Decision 2022/329.
181 It should be recalled that the applicant holds depositary receipts and convertible bonds in the Netherlands-based Fortenova Group TopCo. Furthermore, it is common ground between the parties that no authorisation was sought from the competent national authority of the Netherlands, or indeed from any other national authority of a Member State, in connection with the sale of the applicant to the Emirati investor. That is confirmed by exhibits Nos 7, 8 and 9 in the first WK file, which are articles published by Reuters, Euractiv and Bloomberg News, respectively, according to which the transfer of the applicant by Sberbank to the Emirati investor was not the subject of a request for authorisation submitted to the Croatian or Netherlands authorities.
182 According to the applicant, Article 6b(2b) of Regulation No 269/2014 applies only if a transaction falls within the scope of Article 17 of Regulation No 269/2014, which is not the case here as the transaction in question concerned the transfer of ownership of a Russian entity, namely the applicant itself, in accordance with Russian law, and involved natural or legal persons who were not EU nationals and were not established in the European Union.
183 In the first place, it is necessary to determine whether Regulation No 269/2014 was applicable to the transaction by which Sberbank, through its subsidiaries SBC Aktiv and SBK Uranium, sold the applicant to the Emirati investor.
184 In that regard, it should be recalled that Article 17(a) of Regulation No 269/2014 provides that that regulation is to apply 'within the territory of the Union, including its airspace'.
185 In the present case, the transaction in question was carried out between Sberbank, through its subsidiaries SBC Aktiv and SBK Uranium established in Russia, and an Emirati investor and concerns the sale of a company established in Russia, namely the applicant. However, as is apparent from exhibit No 1 in the first WK file, the applicant was constituted as a special purpose vehicle with the sole function of holding Sberbank's interests in the Fortenova Group, namely the depositary receipts and convertible bonds in the Netherlands-based Fortenova Group TopCo, which were transferred to the applicant on 5 April 2022. Consequently, although the applicant is a company established in Russia, it holds funds located in the European Union in the form of depositary receipts and convertible bonds in a company established in the European Union.
186 Given that the sale of the applicant by Sberbank to the Emirati investor would result in the transfer of those funds located within the territory of the European Union, in accordance with Article 17(a) of Regulation No 269/2014, that regulation was applicable to the sale of the applicant by Sberbank to the Emirati investor.
187 In the second place, it is necessary to determine whether the derogation provided for in Article 6b(2b) of Regulation No 269/2014 was applicable to the transaction in question by which the applicant was sold to the Emirati investor.
188 According to settled case-law of the Court of Justice, in interpreting a provision of EU law, regard should be had not only to its wording but also to the context in which it occurs and the objectives pursued by the rules of which it forms part (see judgment of 29 April 2021, X (European arrest warrant – Ne bis in idem), C‑665/20 PPU, EU:C:2021:339, paragraph 69 and the case-law cited).
189 It should be borne in mind that Article 6b(2b) of Regulation No 269/2014 provides that 'by way of derogation from Article 2, the competent authorities of a Member State may, under such conditions as they deem appropriate, authorise the release of certain frozen funds or economic resources, or the making available of certain funds or economic resources to the entity listed under entry number 108 in Annex I, after having determined that the funds or economic resources are necessary for the completion, by 31 October 2022, of an ongoing sale and transfer of proprietary rights directly or indirectly owned by that entity in a legal person, entity or body established in the Union'.
190 First, it is apparent from the wording of Article 6b(2b) of Regulation No 269/2014 that that derogation applies to the sale of proprietary rights directly or indirectly owned by Sberbank in a legal person, entity or body established in the European Union.
191 The Court must reject the applicant's argument that that derogation is not applicable to the transaction in question because the object of that transaction was a company established in Russia, namely the applicant itself, and did not concern assets located in the European Union. As is clear from paragraph 170 above, on the date of inclusion of Sberbank's name on the lists at issue, Sberbank wholly owned the applicant through its subsidiaries SBK Uranium and SBC Aktiv and the applicant held depositary receipts and convertible bonds in the capital of the Netherlands-based Fortenova Group TopCo. Consequently, those depositary receipts and convertible bonds were proprietary rights held indirectly by Sberbank in a legal person established in the European Union, namely Fortenova Group TopCo, a company established in the Netherlands.
192 Secondly, as regards the systematic interpretation of Article 6b(2b) of Regulation No 269/2014, the derogation laid down in that provision is a derogation from Article 2 of Regulation No 269/2014, which provides for the freezing of funds and economic resources belonging to natural or legal persons, entities or bodies, or natural or legal persons, entities or bodies associated with them. In the absence of authorisation for release such as that provided for in Article 6b(2b) of Regulation No 269/2014, the funds and economic resources frozen pursuant to Article 2(1) of Regulation No 269/2014 may not be unfrozen and the ownership thereof may not be transferred.
193 Thirdly, that finding is borne out by the objective pursued by Regulation No 269/2014. The objective of the derogations laid down in that regulation, such as the derogation set out in Article 6b(2b), is to define clearly the situations in which the entities included on the lists at issue may apply to the competent national authorities for authorisation to sell frozen assets and is thus to ensure the effectiveness of the restrictive measures. Consequently, that derogation falls within the objectives of the legislation governing the restrictive measures at issue, which pursues objectives linked to the need, in view of the gravity of the situation, to exert maximum pressure on the Russian authorities so that they bring an end to their actions and policies destabilising Ukraine and to the military aggression against Ukraine.
194 Accordingly, the ownership of frozen funds – such as the assets located within the European Union held by the applicant in the Fortenova Group – cannot be transferred by natural or legal persons whose name is included on the lists at issue to other persons outside the European Union, without recourse to a derogation such as that provided for in Article 6b(2b) of Regulation No 269/2014.
195 The sale by Sberbank of the applicant, the sole function of which is to hold the depositary receipts and convertible bonds in the EU-based Fortenova Group TopCo, would result in the unfreezing and the transfer of those assets which had been frozen following the inclusion of Sberbank's name on the lists at issue.
196 Consequently, contrary to what the applicant claims, Article 6b(2b) of Regulation No 269/2014 was applicable to the sale of the applicant to the Emirati investor, with the result that it was necessary to seek and secure authorisation from the competent Netherlands authority in order to proceed with the transaction in question.
197 If such a transaction were recognised in the European Union, in the absence of authorisation from a competent national authority under a derogation provided for by Regulation No 269/2014, the effects of the restrictive measures to which Sberbank is subject would be rendered nugatory.
198 In that regard, it should be noted that that prior authorisation for that sale was not obtained from a competent national authority in accordance with Article 6b(2b) of Regulation No 269/2014. In the absence of such authorisation, that sale cannot produce any effects under EU law on restrictive measures. The Council was therefore right to describe that sale as a 'purported transfer' in the grounds for including the applicant's name on the lists at issue.
199 It follows that the transfer by Sberbank to an Emirati investor of the depositary receipts and convertible bonds, held by the applicant in Fortenova Group TopCo within the European Union and frozen since the inclusion of Sberbank's name on the lists at issue, without authorisation from a competent national authority, is contrary to the provisions of Regulation No 269/2014 and, therefore, must be regarded as having no effect under EU law.
200 Consequently, from the point of view of EU law, the purported sale of the applicant to an Emirati investor did not alter its situation on the date of adoption of the initial acts and the March 2023, September 2023 and March 2024 maintaining acts as compared with its situation on the date of the inclusion of Sberbank's name on the lists at issue. The applicant continued to hold the depositary receipts and convertible bonds in Fortenova Group TopCo which had been frozen following the inclusion of Sberbank's name on the lists at issue and which, as from that date, could no longer be altered or subject to any transfer of ownership without authorisation for their release being granted by a competent national authority.
201 It follows that the fact that the applicant continued to hold the depositary receipts and convertible bonds in the Netherlands-based Fortenova Group TopCo – receipts and bonds that had been frozen following the inclusion of Sberbank's name on the lists at issue – demonstrates the existence of common interests between the applicant and Sberbank.
202 In the light of all of those considerations, the Court finds that the Council adduced a sufficiently specific, precise and consistent body of evidence capable of demonstrating that the applicant was, on the date of the initial acts and the March 2023, September 2023 and March 2024 maintaining acts, a legal person associated with Sberbank, within the meaning of the association criterion, on account of the fact that it continued to hold Sberbank's interests in the Fortenova Group.
203 According to the case-law, with regard to the review of the lawfulness of a decision adopting restrictive measures, and having regard to their preventive nature, if the Courts of the European Union consider that, at the very least, one of the reasons mentioned 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 judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 72 and the case-law cited).
204 Therefore, the fact that the ground relating to the applicant's status as a subsidiary of Sberbank which holds depositary receipts and convertible bonds in Fortenova Group TopCo is well founded is sufficient, in itself, to justify the dismissal of the second plea, without there being any need to examine whether the other grounds relating to the effective control which, it is claimed, Sberbank continues to exercise over the applicant are well founded.
205 The plea in law alleging error of assessment must therefore be dismissed.
Plea in law alleging breach of the principle of proportionality
206 The applicant submits that the contested acts do not help attain the European Union's objectives. According to the applicant, the inclusion and maintenance of its name on the lists at issue does not seek to increase the cost of the war for the Russian Federation, but in fact serves other objectives linked to the economic interests of the Republic of Croatia in the Fortenova Group, a company which that Member State considers to be strategically important.
207 The applicant argues that the inclusion and maintenance of its name on the lists at issue is unnecessary and disproportionate. Since the inclusion of Sberbank's name on those lists entailed the freezing of all of its subsidiaries' assets located in the European Union, there was no need to impose further sanctions on the applicant if, as the Council claims, Sberbank had never lost control of it.
208 Furthermore, the applicant maintains that the Fortenova Group was required to act as a result of the restrictive measures to which Sberbank was subject. Had the Fortenova Group concluded that the Emirati investor was not purchasing the shares in the applicant on his own account, the financial instruments in question would have remained frozen, even if the Council had not included the applicant's name on the lists at issue.
209 The Council, supported by the Kingdom of the Netherlands and the Commission, disputes the applicant's arguments.
210 The principle of proportionality, which is one of the general principles of EU law and is referred to in Article 5(4) TEU, requires that measures implemented through provisions of EU law be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve them (judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 122).
211 In the present case, it should be observed that the designation of the applicant as a legal person associated with Sberbank pursues one of the objectives of the CFSP. The adoption of restrictive measures against entities associated with natural or legal persons, entities or bodies included on the lists at issue under one of the criteria laid down in Decision 2014/145, as amended by Decision 2022/329, meets the objective set out in Article 21(2)(c) TEU of preserving peace, preventing conflicts and strengthening international security, in accordance with the purposes and principles of the United Nations Charter. As to the appropriateness of the restrictive measures taken against the applicant, it follows that, in the light of the objectives pursued by those measures, they cannot, in themselves, be regarded as inappropriate (see, to that effect and by analogy, judgment of 2 December 2020, Kalai v Council, T‑178/19, not published, EU:T:2020:580, paragraph 171 and the case-law cited).
212 In the circumstances of the present case, it should also be noted that, in recitals 2 to 10 of Decision 2022/329, the Council referred to the continuing deterioration of the situation in Ukraine which culminated, on 24 February 2022, in the Russian Federation's aggression against Ukraine in blatant violation of the territorial integrity, sovereignty and independence of the latter State. Thus, it is on account of the worsening of the situation in Ukraine, characterised by the outbreak of the war of aggression waged by the Russian Federation, that the Council deemed it necessary to widen the circle of persons and entities subject to restrictive measures, in order to achieve the objectives pursued. It follows from that approach, which is based on the progressive impairment of rights according to the effectiveness of the measures, that the proportionality of those measures is established (see, by analogy, judgments of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 126, and of 25 January 2017, Almaz-Antey Air and Space Defence v Council, T‑255/15, not published, EU:T:2017:25, paragraph 104).
213 In addition, by applying also to natural or legal persons, entities or bodies associated with persons included on the lists at issue under one of the criteria laid down in Article 2(1) of Decision 2014/145, as amended by Decision 2022/329, the Council could legitimately expect that the actions of the Russian Federation would cease or become more costly for those engaging in them, in order to promote an end to the blatant violation of the territorial integrity, sovereignty and independence of Ukraine (see, to that effect, judgment of 13 September 2018, Rosneft and Others v Council, T‑715/14, not published, EU:T:2018:544, paragraph 157). Therefore, contrary to what the applicant claims, there is a connection between the inclusion of its name on the lists at issue and the objective pursued by the restrictive measures.
214 In that regard, it should be recalled that the importance of the objectives pursued by an EU act establishing a system of restrictive measures is such as to justify negative consequences, even of a substantial nature, for some operators, including those who are in no way responsible for the situation which led to the adoption of the measures in question (see, by analogy, judgments of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 361, and of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 150).
215 The inclusion of the applicant's name on the lists at issue as a legal person associated with Sberbank and the resulting restrictive measures are also necessary in order to achieve and implement the objectives referred to in Article 21 TEU, since alternative and less onerous measures, such as a system of prior authorisation or an obligation to justify, a posteriori, how the funds transferred were used, are not as effective in achieving the goal pursued, particularly given the possibility of circumventing the restrictions imposed (see, to that effect, judgments of 21 January 2016, Makhlouf v Council, T‑443/13, not published, EU:T:2016:27, paragraph 112, and of 25 January 2017, Almaz-Antey Air and Space Defence v Council, T‑255/15, not published, EU:T:2017:25, paragraph 106). Besides, the applicant has not demonstrated that less onerous alternative measures would have been as effective in attaining those objectives.
216 In addition, it must be noted that Decision 2014/145, as amended by Decision 2022/329, and Regulation No 269/2014, as amended by Regulation 2022/330, provide for the possibility of granting specific authorisation to unfreeze funds, other financial assets or other economic resources and of periodically reviewing the inclusion of the names of the persons or entities concerned on the lists at issue, so that persons and entities no longer meeting the criteria for inclusion on those lists can be removed from them.
217 As regards the applicant's argument that the inclusion of its name on the lists at issue is unnecessary because the assets it holds had already been frozen following Sberbank's listing, first, it should be noted that the possibility of also including on the lists at issue natural or legal persons, entities or bodies associated with sanctioned persons derives from Article 2(1) of Decision 2014/145, as amended by Decision 2022/329, and from Article 3(1) of Regulation No 269/2014, as amended by Regulation 2022/330.
218 Secondly, such inclusion may also be aimed at avoiding a risk of circumvention of the restrictive measures. As is apparent from the case-law, where the funds of an entity are frozen, there is a not insignificant danger that that entity may exert pressure on the entities it owns or controls in order to circumvent the effect of the measures applying to it, with the result that the freezing of the funds of those 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 13 March 2012, Melli Bank v Council, C‑380/09 P, EU:C:2012:137, paragraph 58, and of 22 September 2016, NIOC and Others v Council, C‑595/15 P, not published, EU:C:2016:721, paragraph 89).
219 Thus, contrary to what the applicant states, the adoption of the contested acts including and maintaining its name on the lists at issue was not unnecessary even though the assets it held in the European Union had already been frozen following the inclusion of Sberbank's name on those lists. In that regard, it is apparent, in particular, from an email dated 20 November 2022 sent by the Emirati investor to the Fortenova Group, included in the first WK file in the 'Further exhibits' section, that that investor was of the view that, on that date, the applicant was no longer controlled by an entity subject to restrictive measures and asked to be able to participate in and exercise voting rights at future meetings of the Fortenova Group.
220 Furthermore, the applicant's argument that the inclusion of its name on the lists at issue is a way of protecting the interests of the Republic of Croatia must also be rejected. Article 3(1) of Decision 2014/145, as amended by Decision 2022/329, provides that 'the Council, acting by unanimity upon a proposal by a Member State … shall decide to establish and amend the list in the Annex'. Thus, it was the Council acting by unanimity, and not the Republic of Croatia, which took the decision to include the applicant's name on the lists at issue in order to pursue the objectives of the CFSP.
221 It follows that the plea in law alleging breach of the principle of proportionality must be dismissed, as must, therefore, the action in its entirety.
Costs
222 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.
223 In addition, under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs.
224 In the present case, as the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Council, in accordance with the form of order sought by the latter, including the costs relating to the proceedings for interim measures. The Republic of Croatia, the Kingdom of the Netherlands and the Commission must bear their own costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Dismisses the action;
2. Orders SBK Art OOO to bear its own costs and to pay those incurred by the Council of the European Union, including the costs relating to the proceedings for interim measures;
3. Orders the Republic of Croatia, the Kingdom of the Netherlands and the European Commission to bear their own costs.
Mastroianni
Brkan
Tóth
Delivered in open court in Luxembourg on 30 April 2025.
