BSW - management company of "BMC" holding v Council (Common foreign and security policy - Restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine - Judgment) [2025] EUECJ T-1042/23 (19 March 2025)
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BSW - management company of "BMC" holding v Council (Common foreign and security policy - Restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine - Judgment) [2025] EUECJ T-1042/23 (19 March 2025)
URL: http://www.bailii.org/eu/cases/EUECJ/2025/T104223.html Cite as:
[2025] EUECJ T-1042/23,
EU:T:2025:314,
ECLI:EU:T:2025:314
( Common foreign and security policy - Restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine - Freezing of funds - List of persons, entities and bodies subject to the freezing of funds and economic resources - Inclusion of the applicant’s name on the list - Support for the Lukashenko regime - Benefit derived from the Lukashenko regime - Undertaking belonging to the State - Error of assessment - Right to property - Freedom to conduct a business )
In Case T‑1042/23,
AAT Byelorussian Steel Works – management company of ‘Byelorussian Metallurgical Company’ holding (BSW – management company of ‘BMC’ holding), established in Jlobine (Belarus), represented by N. Montag and M. Krestiyanova, lawyers,
applicant,
v
Council of the European Union, represented by A. Boggio-Tomasaz and A. Antoniadis, acting as Agents, and by E. Raoult, lawyer,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos, President, N. Półtorak (Rapporteur) and H. Cassagnabère, Judges,
Registrar: M. Zwozdziak-Carbonne, Administrator,
having regard to the written part of the procedure,
further to the hearing on 21 November 2024,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, AAT Byelorussian Steel Works – management company of ‘Byelorussian Metallurgical Company’ holding (BSW – management company of ‘BMC’ holding), seeks annulment of, first, Council Implementing Decision (CFSP) 2023/1592 of 3 August 2023 implementing Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine (OJ 2023 L 195I, p. 31) and, second, Council Implementing Regulation (EU) 2023/1591 of 3 August 2023 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine (OJ 2023 L 195I, p. 1) (together, ‘the contested acts’), in so far as they concern it.
Background to the dispute
2 The applicant is a Belarusian company active in the field of iron and steel products.
3 The present case has been brought in the context of the restrictive measures adopted by the European Union since 2004 in view of the situation in Belarus with regard to democracy, the rule of law and human rights and the involvement of Belarus in the Russian aggression against Ukraine.
4 The Council of the European Union adopted, on 18 May 2006, on the basis of Articles 75 and 215 TFEU, Regulation (EC) No 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2006 L 134, p. 1) and, on 15 October 2012, on the basis of Article 29 TEU, Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1).
5 In the version applicable on the date of adoption of the contested acts, Article 4(1)(b) of Decision 2012/642 and Article 2(1) and (5) of Regulation No 765/2006 provide for the freezing of all funds and economic resources owned, held or controlled by, inter alia, natural or legal persons, entities or bodies benefiting from or supporting the Lukashenko regime.
6 On 24 February 2022, the Russian Federation launched a military attack on Ukraine.
7 As is apparent from recital 2 of the contested acts, those acts were adopted in view of the gravity of the situation in Belarus and of that country’s involvement in the Russian aggression against Ukraine.
8 By the contested acts, the applicant’s name was included in entry 37 of Table B of the list of persons, entities and bodies subject to the restrictive measures set out the Annex to Decision 2012/642 and in Annex I to Regulation No 765/2006 (together, ‘the lists at issue’).
9 The inclusion of the applicant’s name on the lists at issue was justified on the following grounds:
‘OJSC BSW – management company of “BMC” holding is a unique [State] enterprise in the metallurgical industry in Belarus and among the largest companies in the country. As such, it is a substantial source of revenue for the Lukashenk[o] regime. The Belarusian State is directly profiting from the earnings made by OJSC BSW – management company of “BMC” holding. Furthermore, the company receives large government grants and political support from the Lukashenk[o] regime. The general director of OJSC BSW – management company of “BMC” holding was personally appointed by President Lukashenk[o].
Employees of OJSC BSW – management company of “BMC” holding who protested and went on strike in the wake of the 2020 presidential elections in Belarus were dismissed. Since then, the enterprise continues to take measures against employees who attempt to organise strikes through threats and dismissals. Therefore, OJSC BSW – management company of “BMC” holding is benefiting from and supporting the Lukashenk[o] regime. Furthermore, it is responsible for the repression of civil society in Belarus.’
10 On 4 August 2023, the Council published in the Official Journal of the European Union a notice for the attention of the persons and entities subject to the restrictive measures provided for in the contested acts (OJ 2023 C 275, p. 21). The persons and entities concerned by that notice had the possibility, pursuant to that notice, of submitting to the Council, by 30 November 2023, a request for reconsideration of the decision to include their name on the lists at issue.
11 On 5 August 2023, the applicant requested access to the information and evidence supporting that inclusion.
12 On 11 August 2023, the Council sent the applicant the working document bearing the reference WK 10044/2023 INIT and containing the information taken into account with a view to including the applicant’s name on the lists at issue.
15 In support of its action, the applicant relies on two pleas in law, the first, alleging ‘manifest’ error of assessment and, the second, alleging infringement of the right to property and of the freedom to conduct a business.
First plea in law, alleging error of assessment
16 The first plea is divided into three parts, the first, alleging that the applicant is not a substantial source of revenue for the Lukashenko regime, the second, claiming that it neither benefits from nor supports that regime and, the third, alleging that it is not responsible for the repression of civil society in Belarus.
17 In the present case, the Court considers it appropriate to begin by examining the grounds of the contested acts which relate to the fact that the applicant supports and benefits from the Lukashenko regime.
18 The applicant claims that it neither benefits from nor supports the Lukashenko regime.
19 In that regard, in the first place, so far as concerns the ground based on its support for the Lukashenko regime, the applicant claims that it does not support that regime. It also observes that, as set out in the contested acts, that ground refers only to ‘a substantial source of revenue’, the accuracy of which has not been established, and not to ‘quantitatively or qualitatively significant support’ or ‘strategic support’.
20 The applicant submits that it is not a substantial source of revenue for the Lukashenko regime. Moreover, its profits were low in 2021 and 2022. It submits that, in respect of the period from 2018 to 2022, the value of the dividends it paid to the State was insignificant and that, according to the Council’s file, the applicant required State support.
21 The applicant adds that, as a State-owned undertaking, it is required by law to pay dividends to the State, which may be collected by the tax authorities, and, in accordance with Decree No 637 of the President of the Republic of Belarus of 28 December 2005 on the procedure for entry in the budget of part of the profits of State enterprises, State associations which are commercial organisations, as well as income from shares (stakes in the share capital) of business entities owned by the State or municipalities, and on the formation of a State special-purpose budget fund for national development (National Register of Legal Acts of the Republic of Belarus No 1/7075 of 29 December 2005) (‘Edict No 637’), business entities defined as State-owned business entities are to transfer their profits to the budget of the Republic of Belarus in proportion to the number of shares held by the State and the administrative and territorial units in the share capital of those business entities.
22 The applicant states that neither the payment of taxes nor the payment of compulsory dividends can be classified as support for a regime, since they are legal obligations.
23 The applicant adds that the mere ownership of an undertaking by a State is not sufficient to satisfy the criterion of support for a regime.
24 In the second place, concerning the ground alleging that the applicant benefits from the regime, it states that the President of the Republic of Belarus did not appoint its general director. In addition, the benefit derived from the regime by that director does not amount to a benefit derived by the applicant itself.
25 The applicant adds that the ability to issue bonds under market conditions does not constitute proof of financial support from the regime.
26 The applicant also claims that the reimbursement of interest for the use of bank loans for the implementation of an investment project was subject to performance conditions. That repayment involved a selection procedure and the applicant was not the only recipient thereof. Moreover, one of the aid measures at issue was paid to a bank and not to the applicant.
27 Furthermore, as regards the awards that the applicant or its general director received as did other persons, the applicant states that they were awarded by private companies on the basis of transparent criteria linked to merit alone.
28 Finally, all of the accolades given to the applicant, its general director and its products were statements made by public figures to a number of Belarusian companies, even loss-making companies.
29 The Council disputes the applicant’s line of argument.
30 In the present case, first, it must be observed that the first plea must be regarded as alleging an error of assessment, and not a manifest error of assessment. 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 in question 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 judgment of 6 September 2023, Pumpyanskiy v Council, T‑291/22, not published, EU:T:2023:499, paragraph 40 and the case-law cited).
31 Moreover, it should be recalled that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) requires, inter alia, that, as part of the review of the lawfulness of the grounds which are the basis of the decision to list or to maintain the name of a person or entity on the lists of persons subject to restrictive measures, the Courts of the European Union is to ensure that that decision, which affects that person or entity individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (judgment of 13 September 2023, Synesis v Council, T‑97/21 and T‑215/22, not published, EU:T:2023:531, paragraph 35).
32 That is because it is the task of the competent EU authority to establish, in the event of challenge, that the reasons relied on against the person or entity concerned are well founded, and not the task of that person or that entity to adduce evidence of the negative, that those reasons are not well founded (see judgment of 13 September 2023, Synesis v Council, T‑97/21 and T‑215/22, not published, EU:T:2023:531, paragraph 37 and the case-law cited).
33 If the competent EU authority provides relevant information or evidence, the Courts of the European Union must then determine whether the facts alleged are made out in the light of that information or evidence and assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person or entity concerned (see judgment of 13 September 2023, Synesis v Council, T‑97/21 and T‑215/22, not published, EU:T:2023:531, paragraph 38 and the case-law cited).
34 It should also be noted that the grounds relating to the benefit which the applicant derives from the Lukashenko regime and the support it gives it are based on the criteria laid down in Article 4(1)(b) of Decision 2012/642, to which Article 2(5) of Regulation No 765/2006 refers. It is clear from Article 4(1)(b) of Decision 2012/642 that ‘support’ for the Lukashenko regime is a criterion for listing on the lists at issue that is distinct from the criterion of ‘benefit’ derived from that regime (see judgment of 18 October 2023, Belaz-upravljajusaja kompanija holdinga Belaz Holding v Council, T‑533/21, not published, EU:T:2023:657, paragraph 40 and the case-law cited).
35 In the present case, in the first place, as regards the ground relating to the applicant’s support for the Lukashenko regime, in the first paragraph of the grounds set out in paragraph 9 above, it is stated that the applicant is a unique State enterprise in the metallurgical industry in Belarus and among the largest companies in the country. As such, it is a substantial source of revenue for the Lukashenko regime from which the latter profits directly.
36 That ground is based on the criterion of ‘support’ for the Lukashenko regime laid down in Article 4(1)(b) of Decision 2012/642, to which Article 2(5) of Regulation No 765/2006 refers.
37 It is therefore necessary to examine, as a first step, whether the facts as described by the Council and set out in paragraph 35 above are established and, if necessary, as a second step, whether they come within the scope of Article 4(1)(b) of Decision 2012/642.
38 First, as regards whether those factual elements are established, first of all, it is common ground that the applicant is State-owned, since all of its capital is held by the Republic of Belarus.
39 Furthermore, it is apparent from the Council’s file that the applicant is recognised by President Lukashenko as one of the ‘flagships’ of Belarus and is one of the five largest companies in the country exporting its manufacturing output to more than 60 countries worldwide. That statement by President Lukashenko is supported by the article published on the ‘belta.by’ website of the State news agency of the Republic of Belarus on 3 July 2021, which is included in the Council’s file and according to which ‘Belarus’ production sector … entirely determines the image, the status of the country and represents the foundation of its economic and political sovereignty’ and which refers to the applicant as a ‘giant industrial [enterprise]’. In addition, the applicant states that it employed 11 633 people on 30 September 2023, that it was one of the main Belarusian exporters of iron and steel products and that its geographical export area used to cover over 100 countries worldwide, including several EU Member States.
40 Last, in its written pleadings, the applicant states that it paid dividends to the Belarusian State in the amount of 2 817 224.38 Belarusian roubles (BYN) (approximately EUR 1 171 208.27) for 2018, BYN 0 for 2019, BYN 406 004.70 (approximately EUR 146 265.83) for 2020, BYN 1 432 841.50 (approximately EUR 476 819.10) for 2021 and BYN 1 741 862.61 (approximately EUR 632 737.33) for 2022. In addition, the applicant does not deny having paid, in 2021, as is apparent from item of evidence No 3 in the Council’s file, (i) income tax in the amount of 11.6 million United States dollars (USD), (ii) contributions to the social protection fund in the amount of USD 27.9 million and (iii) real estate and land tax in the amount of USD 6.78 million.
41 Accordingly, the Council did not err in considering that the applicant is a unique State enterprise in the metallurgical industry in Belarus and among the largest companies in the country and that, as such, it is a substantial source of revenue for the Lukashenko regime from which the latter profits directly.
42 Second, as regards the applicant’s argument that the elements set out in paragraphs 38 to 40 above do not demonstrate the existence of ‘support for the regime’ for the purposes of Article 4(1)(b) of Decision 2012/642, it should be recalled that, as is apparent from recitals 1 to 5 and 8 of Decision 2012/642, the restrictive measures against Belarus were adopted and extended as a result of the persistent failure to respect human rights, democracy and the rule of law in that country. Those measures are, therefore, directed against persons responsible for fraud and violations of international electoral standards in connection with certain electoral or referendum procedures in Belarus, and against persons responsible for serious human rights violations and the repression of peaceful protesters after those proceedings.
43 In addition, as is apparent from recital 6 of Decision 2012/642, given the gravity of the situation, measures were also imposed on, inter alia, persons and entities benefiting from or supporting the Lukashenko regime, in particular persons and entities providing financial or material support to the regime.
44 Thus, by making, in Article 4(1)(b) of Decision 2012/642, support for the Lukashenko regime a criterion justifying the inclusion of a name on the lists at issue, the Council, in view of the serious and persistent nature of the breach of human rights, democracy and the rule of law and the repression of civil society and democratic opposition in Belarus, sought to increase pressure on that regime by broadening the circle of persons and entities subject to EU restrictive measures. In that respect, the Council has provided for the possibility of applying measures freezing funds and economic resources to persons and entities supporting the Lukashenko regime and, in particular, those providing financial support to it (see, to that effect, judgments of 18 October 2023, MAZ-upravljajusaja kompanija holdinga Belavtomaz v Council, T‑532/21, not published, EU:T:2023:656, paragraph 60, and of 18 October 2023, Belaz-upravljajusaja kompanija holdinga Belaz Holding v Council, T‑533/21, not published, EU:T:2023:657, paragraph 57).
45 In the light of those considerations, it must be noted that, contrary to the applicant’s claims, the Council did not merely base its finding that the applicant supports the Lukashenko regime on the fact that it is owned by the Belarusian State, as is apparent from paragraphs 39 and 40 above.
46 It must be observed that, according to recital 6 of Decision 2012/642, the criterion of support laid down in Article 4(1)(b) of Decision 2012/642 covers ‘in particular’ persons or entities providing financial support to the Lukashenko regime.
47 It follows that the concept of ‘support for the regime’ includes other forms of support in addition to political support for the Lukashenko regime (see, to that effect, judgment of 21 February 2024, Grodno Azot and Khimvolokno Plant v Council, T‑117/22, not published, under appeal, EU:T:2024:112, paragraph 52).
48 In this respect, as regards the payment of dividends, it must be borne in mind that the fact that the applicant – namely a profit-making undertaking owned by the Belarusian State – pays dividends to the Belarusian State as sole shareholder, which are therefore available to the Lukashenko regime, enables it to be established that it constitutes a source of revenue for that regime and to demonstrate the existence of financial support for that regime (see, to that effect, judgments of 18 October 2023, MAZ-upravljajusaja kompanija holdinga Belavtomaz v Council, T‑532/21, not published, EU:T:2023:656, paragraph 72, and of 18 October 2023, Belaz-upravljajusaja kompanija holdinga Belaz Holding v Council, T‑533/21, not published, EU:T:2023:657, paragraph 69).
49 It is true that the Court held, in the case which gave rise to the judgment of 6 October 2015, Chyzh and Others v Council (T‑276/12, not published, EU:T:2015:748, paragraph 169), that the Council cannot infer ‘support for the regime’ from the mere payment of taxes, since such a payment constitutes a legal obligation applicable to all Belarusian taxpayers.
50 However, in the present case, the applicant’s argument treating dividends in the same way as taxes for the purposes of the case-law cited in paragraph 49 above cannot be accepted.
51 It is apparent from subparagraph 1.1 of Edict No 637 that the undertakings which are required to pay a part of their profits to the State or to infra-State entities are those whose decisions the State or those entities determine. Thus, that obligation concerns only a defined category of economic operators and not all Belarusian taxpayers (see, to that effect, judgments of 18 October 2023, MAZ-upravljajusaja kompanija holdinga Belavtomaz v Council, T‑532/21, not published, EU:T:2023:656, paragraph 79, and of 18 October 2023, Belaz-upravljajusaja kompanija holdinga Belaz Holding v Council, T‑533/21, not published, EU:T:2023:657, paragraph 76).
52 In addition, under subparagraph 1.2 of Edict No 637, the part of the profits of the undertakings concerned which must be paid to the Belarusian public authorities is to be calculated on the basis of the difference between the profits made and, inter alia, charges relating to tax and duties. As a result, the payment in question is formally separate from taxes and are additional thereto. The fact that, as is apparent from subparagraph 3.1 of that edict, the collection of that part of the profits is the responsibility of the tax authorities, following the relevant tax procedures, is not capable of calling that finding into question (see, to that effect, judgments of 18 October 2023, MAZ-upravljajusaja kompanija holdinga Belavtomaz v Council, T‑532/21, not published, EU:T:2023:656, paragraph 80, and of 18 October 2023, Belaz-upravljajusaja kompanija holdinga Belaz Holding v Council, T‑533/21, not published, EU:T:2023:657, paragraph 77).
53 Accordingly, the fact that the applicant is required to pay its profits to the State under Edict No 637 does not contradict the finding that it provides financial support to the Lukashenko regime. On the contrary, such a factor confirms that assessment since, by that same edict, that regime increased the control which it already exercised, as sole shareholder, over the applicant’s resources by ensuring that it regularly has at its disposal the applicant’s profits (see, to that effect, judgments of 18 October 2023, MAZ-upravljajusaja kompanija holdinga Belavtomaz v Council, T‑532/21, not published, EU:T:2023:656, paragraph 81, and of 18 October 2023, Belaz-upravljajusaja kompanija holdinga Belaz Holding v Council, T‑533/21, not published, EU:T:2023:657, paragraph 78).
54 Therefore, the Council did not make an error of assessment in finding that the evidence and facts analysed above relating to the dividends paid by the applicant to the Lukashenko regime constituted evidence enabling it to consider that the applicant had provided support to that regime within the meaning of Article 4(1)(b) of Decision 2012/642.
55 As regards, moreover, the tax payments, it should be noted that, in reaching the view that the applicant supports the regime, the Council also took into account the considerable amounts of tax paid by the applicant to the Belarusian State.
56 In that regard, it is true that the Court has already held, in the judgment of 6 October 2015, Chyzh and Others v Council (T‑276/12, not published, EU:T:2015:748, paragraph 169), that the Council cannot infer ‘support for the regime’ from the mere payment of taxes, since such a payment constitutes a legal obligation applicable to all Belarusian taxpayers (see paragraph 49 above). Nevertheless, it must be stated that the situation in the case which gave rise to that judgment was different from that in the present case, since what was at issue was the support for the regime by natural persons and private legal persons, who are subject to the obligation to pay taxes as a ‘legal obligation applicable to all Belarusian taxpayers’.
57 Furthermore, the Court of Justice has held that the classification as a tax or dividend on the basis of which the sums are paid to the government is not decisive for the purpose of identifying ‘support for the government’. Both cases involve sums paid to the State by a public entity such as that at issue, pursuant to State legislation imposing that payment. To exclude such payments from that concept of ‘support for the government’, on the sole ground that the sums due are classified as taxes, could make it possible to circumvent the EU rules by increasing the rate of tax on profits made by such entities, in return for a reduction in the amount of the dividends which national legislation requires State-owned companies to pay to the State (see, by analogy, judgment of 12 May 2016, Bank of lndustry and Mine v Council, C‑358/15 P, not published, EU:C:2016:338, paragraph 80).
58 In the present case, it should be recalled, as is apparent from paragraph 38 above, that it is common ground that the applicant is, unlike the persons at issue in the judgment of 6 October 2015, Chyzh and Others v Council (T‑276/12, not published, EU:T:2015:748), a State-owned legal person, all of its capital being held by the Republic of Belarus.
59 In that regard, unlike the income and profits of private natural and legal persons, the State may dispose of the applicant’s by using both instruments of public law, such as taxes, and instruments derived from property law, such as dividends. The form in which the applicant’s resources will be transferred to the State also depends on the State, as legislator and owner. So far as concerns the resources received to support the regime, it is of little importance whether the State receives them in the form of taxes paid by a State-owned undertaking or of dividends, that is to say, a share of the profits of that undertaking after tax. In view of the fact that the applicant is wholly owned by the Belarusian State, it follows that, in the absence of evidence to the contrary in the file, it does not take its decisions on the financial support which it provides to the regime independently of the Belarusian State.
60 Moreover, as is apparent from the grounds for including the applicant’s name on the lists at issue, the applicant ‘is a unique [State] enterprise in the metallurgical industry in Belarus and among the largest companies in the country’ and, ‘as such, it is a substantial source of revenue for the Lukashenk[o] regime’. It follows that all revenue or profits generated by the applicant are likely to be paid to the State, irrespective of the form such support may take.
61 Consequently, in the case of an undertaking the entire capital of which is held by the State, the payment of dividends, as well as taxes, may be taken into consideration in order to establish whether it is a substantial source of revenue for the regime in the context of the analysis of possible support for that regime. In the present case, in 2021, as is apparent from item of evidence No 3 in the Council’s file – the numerical data contained therein the applicant does not dispute – the applicant paid (i) corporation tax in the amount of USD 11.6 million, (ii) contributions to the social protection fund in the amount of USD 27.9 million and (iii) real estate and land tax in the amount of USD 6.78 million.
62 Therefore, it must be concluded that the Council did not make an error of assessment in finding that the applicant is a substantial source of revenue for the Lukashenko regime, and for the Belarusian State which profits directly from that revenue, and that, consequently, it supports the Lukashenko regime within the meaning of Article 4(1)(b) of Decision 2012/642.
63 In the second place, as regards the ground alleging that the applicant benefited from the Lukashenko regime, set out in the first paragraph of the grounds referred to in paragraph 9 above, it is stated that the applicant receives large government grants and political support from the Lukashenko regime and that its general director was personally appointed by President Lukashenko.
64 That ground is based on the criterion of ‘benefit’ from the Lukashenko regime laid down in Article 4(1)(b) of Decision 2012/642, to which Article 2(5) of Regulation No 765/2006 refers.
65 It is therefore necessary to examine, as a first step, whether the facts as described by the Council and set out in paragraph 63 above are established and, if necessary, as a second step, whether they fall within the scope of Article 4(1)(b) of Decision 2012/642.
66 As regards, on the one hand, the material accuracy of the facts, it should be noted, first, that it is apparent from the article published on the ‘belta.by’ website of the State news agency of the Republic of Belarus on 3 July 2021, included as item of evidence No 7 in the Council’s file, that, in 2023, the Belarusian Government decided to compensate the losses suffered by a Belarusian bank on the export loans granted to the applicant, in the amount of 2.65 billion Russian roubles (RUB) (approximately EUR 25 million), with an interest rate of 2/3 of the Central Bank of Russia’s key rate and subject to export risk insurance or export risk insurance with State support. In that regard, while the applicant, which does not dispute that fact, claims that it did not receive State support but a bank did, the fact remains that it was the final beneficiary of the aid at issue, which enabled it not to bear the financial burden of a large loan, which was moreover granted on preferential terms and with the support of the State.
67 Similarly, it is apparent from a press article of 19 February 2021 taken from the website of the newspaper Nasha Niva, included as item of evidence No 33 in the Council’s file, that part of the applicant’s debts were transferred to the State and converted into public debt, when the company was experiencing difficulties in honouring its loans or meeting its loan repayment obligations. In that connection, while the applicant claims that that evidence is based on ‘unfounded data and figures related to an alleged mysterious [State] support’, the fact remains that it is sufficient to support the existence of financial support from the Belarusian State.
68 Second, in publications on the applicant’s official website concerning its consolidated financial statements for the years 2017 to 2019, which appear as items of evidence Nos 10 to 12 in the Council’s file, it is stated that the applicant received, from 2016 to 2019, a number of large government grants, in the sum of BYN 21 976 000 (approximately EUR 6 million), BYN 42 790 000 (approximately EUR 12 million), BYN 24 525 000 (approximately EUR 7 million) and BYN 24 683 000 (approximately EUR 7 million). That evidence is supported by the article published on the ‘belta.by’ website of the State news agency of the Republic of Belarus on 22 December 2021, included as item of evidence No 18 in the Council’s file, in which a statement by President Lukashenko according to which the applicant had received ‘major [State] support’ is reproduced.
69 In that regard, while the applicant mentions that those grants included strict conditions for the development of the machine-building complex of the Republic of Belarus for 2017-2020, which ended in 2020, it does not dispute that it received those grants and does not produce any evidence to counter that provided by the Council. In those circumstances, it has failed validly to dispute the existence and scale of the grants in question. In addition, according to the case-law, the fact that the grounds for including the applicant’s name on the lists at issue refers to facts which occurred before the adoption of the contested acts and which ended on that date does not necessarily mean that the restrictive measures maintained against the person or entity subject to those acts are obsolete. For the purposes of establishing that the applicant benefits from or supports the regime of President Lukashenko, such a reference cannot, as a matter of principle, be regarded as irrelevant on the sole ground that certain actions relate to a more or less remote past (see, to that effect, judgments of 12 February 2020, Boshab v Council, T‑171/18, not published, EU:T:2020:55, paragraph 84 and the case-law cited, and of 7 June 2023, Shakutin v Council, T‑141/21, not published, EU:T:2023:303, paragraph 163).
70 Third, it is apparent from an article published on the ‘lidergoda.by’ website, which appears as item of evidence No 13 in the Council’s file, that the applicant’s general director was awarded the ‘Grand Prix of Leader of the Year 2020’, with the result that consumers’ attention was drawn to the applicant’s goods and services and an emphasis was placed on their high quality. That prize was awarded by decision of a council of experts, made up of representatives of the business community, the ministries and departments concerned and public organisations.
71 Similarly, as is shown by a publication on the applicant’s official website, which appears as item of evidence No 14 in the Council’s file, the applicant obtained a ‘Grand Prix’ in the ‘Leader of the Year 2021’ awards. Those awards are supported by the Ministry of Industry and the Ministry of Health and Education of Belarus, as well as the State Committee for Science and Technology and the Republican Confederation of Entrepreneurship.
72 Likewise, it is apparent from item of evidence No 17 in the Council’s file, which comprises a publication from the website of Gosstandart, a body that is claimed, without being challenged by the applicant, to be an agency of the Belarusian Council of Ministers, that the applicant obtained that agency’s award for the best product.
73 Those three consistent items of evidence thus demonstrate that the applicant received several awards from the Belarusian regime, which, as the Council rightly submits, enable that regime to endorse the applicant’s activities and to promote it to the public, drawing the attention of consumers to its goods and services. While the applicant maintains that those awards seek, at national level, to promote goods manufactured in Belarus, and not its goods specifically, and that those awards are granted by a council of experts, the fact remains that such an argument, which is limited, in essence, to disputing the means by which it received support without calling into question the veracity of the situation described in the evidence provided by the Council, does not enable it to dispute the existence, in its favour, of honorary awards granted by the regime in support of its activities.
74 Fourth, it is apparent from an article published on the ‘primepress.by’ website, included as item of evidence No 8 in the Council’s file, that the appointment of the applicant’s general director, a former Deputy Minister of Industry of Belarus, was approved by President Lukashenko in 2019. Such an appointment, approved by the Head of State, of a member of the government at the helm of the applicant is sufficient to establish the existence of a close link between the applicant and the existing regime, as well as a form of political support. In those circumstances, the applicant’s argument that, first, that change of role cannot be regarded as a promotion and, second, any alleged benefit from the regime to its general director does not amount to proving that the applicant itself benefits from the regime is irrelevant. Furthermore, while the applicant adds that the President of the Republic of Belarus merely approves the appointment of its general director, which is not the same as actually making the appointment, the fact remains that such a procedure demonstrates the president’s final approval of that appointment and, therefore, the regime’s.
75 Therefore, it is apparent from all those considerations that the Council did not make an error of assessment in finding that the applicant had received large government grants and political support from the Lukashenko regime and that its general director had been personally appointed by President Lukashenko.
76 As regards, on the other hand, the question whether the facts on which the Council relied characterise a benefit derived from the regime by the applicant for the purpose of Article 4(1)(b) of Decision 2012/642, it should be noted that, although the applicant considers that that is not the case, it does not put forward any relevant argument or evidence in that regard.
77 As is apparent from paragraphs 66 to 69 above, the applicant does not deny having received the grants in question, but maintains that the award of those grants was subject to strict conditions. That does not call into question the actual award of the grants and the large value of those grants and, therefore, financial support for the applicant. Similarly, the applicant cannot take the view that compensation awarded by the State in respect of losses suffered by a Belarussian bank in relation to its export loans does not constitute financial support from the regime in its favour, since such a measure enables it, thanks to the State, to benefit from a loan on particularly advantageous terms. It is true that, at the hearing, the applicant stated that that measure had not erased its debts, but had temporarily suspended them. However, even if that claim were established, without the applicant having provided the slightest evidence in that connection, a temporary reduction in its deficit constitutes financial support granted by the regime, which shows that it benefits from it.
78 Furthermore, as regards the prizes awarded to the applicant, as is apparent from the considerations set out in paragraphs 70 to 73 above, the applicant does not call into question the fact that it received the prizes in question and does not provide any evidence capable of calling into question the influence of the regime in the award of those prizes. Moreover, the fact that other undertakings received prizes has no bearing on the fact that the applicant was also awarded prizes or on the probative value and relevance of that fact to help demonstrate the regime’s commercial and political support in its favour.
79 Last, as regards item of evidence No 8 in the Council’s file, referred to in paragraph 74 above, it is apparent therefrom that, in 2019, President Lukashenko gave his consent to the appointment of a member of the government as general director of the applicant. While it has indeed not been established that he appointed that person, the applicant has however not claimed nor demonstrated that that agreement was not mandatory, with the result that that consent by President Lukashenko appears to have been the necessary prerequisite, which demonstrates a close link between the regime and the company’s management and, therefore, a form of political support in its favour.
80 It follows from the foregoing that the Council did not make an error of assessment in finding that the applicant had received large government grants and political support from the Lukashenko regime, and that its director general was personally appointed by President Lukashenko, which, taken together, was sufficient evidence for it to be considered that it benefited from that regime for the purpose of Article 4(1)(b) of Decision 2012/642.
81 In addition, the General Court considers that the grounds relating to the applicant’s support for the regime and the benefit it derives from it, which are sufficiently detailed and specific and are free from any error of assessment, constitute in themselves a sufficient basis to justify the inclusion of its name on the lists at issue.
82 In that regard, it should be borne in mind that, having regard to the preventive nature of the restrictive measures in question, if, in the course of its review of the lawfulness of the contested acts, the Courts of the European Union consider that, at the very least, one of the reasons mentioned in the summary in question is sufficiently detailed and specific, that it is substantiated and that it constitutes in itself sufficient basis to support those acts, the fact that the same cannot be said of other such reasons cannot justify the annulment of those acts (see judgment of 18 October 2023, Belaz-upravljajusaja kompanija holdinga Belaz Holding v Council, T‑533/21, not published, EU:T:2023:657, paragraph 38 and the case-law cited).
83 Consequently, the first plea must be rejected, without it being necessary to examine the applicant’s arguments directed against the ground justifying the adoption of the contested acts which alleges that the applicant is responsible for the repression of civil society in Belarus, since the fact that it is not substantiated cannot lead to the annulment of those acts.
The second plea in law, alleging infringement of the right to property and of the freedom to conduct a business
84 The applicant submits that the freezing of funds imposed on it constitutes a restriction on the exercise of the rights and freedoms recognised by the Charter and their essence.
85 In that regard, the applicant submits that, because of an error of assessment, the contested acts are invalid and that the limitations on its fundamental rights resulting from those acts have no legal basis in EU law and are therefore not ‘provided for by law’ within the meaning of Article 52(1) of the Charter.
86 The applicant adds that the restrictive measures adopted against it are neither necessary nor appropriate in the light of their objective. There is no link between the inclusion of its name on the lists at issue and the aim of the contested acts relating to the war in Ukraine, and those acts fail to provide a reasoning in that regard. What is more, the applicant is suffering losses as a result of that war and does not benefit from it.
87 Moreover, the issue of whether the applicant made use of specific derogations from the fund-freezing measure does not show that its rights are not affected by the contested acts.
88 Last, the applicant submits that no explanation has been given as to how the contested restrictive measures will further the aim of the contested acts, which amounts to an infringement of the obligation to state reasons, of the right to a fair hearing and of the right to effective judicial protection.
89 The Council disputes the applicant’s line of argument.
90 As a preliminary point, it should be noted that, at the hearing, the applicant stated, first, that the complaints alleging infringement of the obligation to state reasons, of the right to a fair hearing and of the right to effective judicial protection did not constitute new complaints distinct from those alleging infringement of the right to property and of the freedom to conduct a business and, second, that, in the context of the present plea, it had not relied on the principle of proportionality referred to in Article 5 TEU, but on infringement of Articles 16, 17 and 52 of the Charter.
91 In that connection, it should be borne in mind that the right to property is one of the general principles of EU law and is enshrined in Article 17 of the Charter. Furthermore, the freedom to conduct a business is enshrined in Article 16 of the Charter.
92 In the present case, the restrictive measures imposed on the applicant constitute precautionary measures, which are not supposed to deprive the persons concerned of their property or of their freedom to conduct a business. However, the measures in question undeniably entail a restriction on the exercise of the right to property and affect the applicant’s freedom to pursue an economic activity (see, to that effect, judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraph 167 and the case-law cited).
93 However, the fundamental rights relied on by the applicant, namely the freedom to conduct a business and the right to property, are not absolute rights and may, therefore, be subject to limitations, as provided in Article 52(1) of the Charter (see judgment of 13 September 2018, Gazprom Neft v Council, T‑735/14 and T‑799/14, EU:T:2018:548, paragraph 161 and the case-law cited).
94 In that regard, it must be borne in mind that, according to Article 52(1) of the Charter, first, ‘any limitation on the exercise of the rights and freedoms recognised by [the] Charter must be provided for by law and respect the essence of those rights and freedoms’, and second, ‘subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the [European] Union or the need to protect the rights and freedoms of others.’
95 Thus, in order to comply with EU law, a limitation on the exercise of the fundamental rights at issue must satisfy three conditions. First, the limitation must be provided for by law. In other words, the measure in question must have a legal basis. Second, the limitation must refer to an objective of general interest, recognised as such by the European Union. Third, the limitation may not be excessive. It must be necessary and proportional to the aim sought, and the ‘essence’, that is, the substance, of the right or freedom at issue must not be impaired (see, to that effect, judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraphs 170 to 173 and the case-law cited).
96 Those three conditions are satisfied in the present case.
97 As regards the first condition, it should be noted that the restrictive measures in question are ‘provided for by law’, since they are set out in acts of general application with a clear legal basis in EU law, namely Article 29 TEU, as regards Implementing Decision 2023/1592, and Article 215 TFEU, as regards Implementing Regulation 2023/1591. Those provisions are sufficiently foreseeable for the persons concerned as regards their purpose in serving as legal bases for the adoption of restrictive measures liable adversely to affect or limit fundamental rights (see judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 149 and the case-law cited).
98 Furthermore, as was found in the context of the examination of the first plea, the Council did not make an error of assessment in including the applicant’s name on the lists at issue.
99 As regards the second condition, in respect of which the applicant does not put forward any argument, it should be noted that the contested acts are consistent, so far as concerns the applicant, with the objective referred to in Article 21(2)(b) and (c) TEU, namely that of consolidating and supporting democracy and the rule of law and preserving peace, preventing conflicts and strengthening international security.
100 Concerning the third condition, it must be recalled that the principle of proportionality, as one of the general principles of EU law, requires that acts adopted by the EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued by the legislation in question (see judgment of 14 July 2021, Cabello Rondón v Council, T‑248/18, EU:T:2021:450, paragraph 123 and the case-law cited).
101 In that respect, with regard to judicial review of compliance with the principle of proportionality, the EU legislature must be allowed a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. Therefore, the legality of a measure adopted in those fields can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see judgment of 14 July 2021, Cabello Rondón v Council, T‑248/18, EU:T:2021:450, paragraph 124 and the case-law cited).
102 As regards the possibility of attaining the objectives pursued by means of the measures at issue, it should be noted that, in the light of objectives of general interest as fundamental for the international community as those referred to in paragraph 99 above, those objectives cannot, as such, be regarded as inappropriate (see, to that effect, judgment of 15 November 2023, OT v Council, T‑193/22, EU:T:2023:716, paragraph 199 and the case-law cited).
103 Furthermore, according to the case-law, the disadvantages caused by the restrictive measures are not disproportionate to the objectives pursued, taking into consideration, first, that those measures are inherently temporary and reversible and do not therefore infringe the ‘essence’ of the right to property and the freedom to conduct a business, and, second, that they may be derogated from in order to cover basic needs, legal costs or even the extraordinary expenses of the persons concerned (judgment of 21 February 2018, Klyuyev v Council, T‑731/15, EU:T:2018:90, paragraph 182; see also, to that effect, judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 225).
104 In that connection, it should be recalled that Article 5(1) of Decision 2012/642 and Article 3 of Regulation No 765/2006 provide for the possibility of authorising the release of certain frozen funds or economic resources in order for the persons concerned to meet basic needs or commitments.
105 Last, it should be noted that the importance of the objective pursued by the contested restrictive measures is such as to justify the possibility that, for certain operators, which are in no way responsible for the situation which led to the adoption of the sanctions, the consequences may be negative, even significantly so (see judgment of 6 March 2024, BSW – management company of ‘BMC’ holding v Council, T‑258/22, not published, EU:T:2024:150, paragraph 118 and the case-law cited).
106 In those circumstances, the interference with the applicant’s right to property and freedom to conduct a business cannot be regarded as disproportionate.
107 It follows that the second plea must be rejected.
108 Consequently, as the first plea has also been rejected, the action must be dismissed in its entirety.
Costs
109 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
110 Since the applicant has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the Council.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Orders AAT Byelorussian Steel Works – management company of ‘Byelorussian Metallurgical Company’ holding (BSW – management company of ‘BMC’ holding) to pay, in addition to its own costs, those incurred by the Council of the European Union.
da Silva Passos
Półtorak
Cassagnabère
Delivered in open court in Luxembourg on 19 March 2025.
