Pumpyanskiy v Council (Common foreign and security policy - Restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine - Judgment) [2025] EUECJ T-272/24 (02 April 2025)
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Pumpyanskiy v Council (Common foreign and security policy - Restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine - Judgment) [2025] EUECJ T-272/24 (02 April 2025)
URL: http://www.bailii.org/eu/cases/EUECJ/2025/T27224.html Cite as:
EU:T:2025:351,
[2025] EUECJ T-272/24,
ECLI:EU:T:2025:351
( Common foreign and security policy - Restrictive measures 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 - Maintenance of the applicant's name on the list - Article 2(1)(f) and (g) of Decision 2014/145/CFSP - Article 3(1)(f) and (g) of Regulation (EU) No 269/2014 - Error of assessment )
In Case T‑272/24,
Dmitry Alexandrovich Pumpyanskiy, residing in Ekaterinburg (Russia), represented by G. Lansky, P. Goeth and A. Egger, lawyers,
applicant,
v
Council of the European Union, represented by B. Driessen and E. Kübler, acting as Agents, and by B. Maingain and S. Remy, lawyers,
defendant,
THE GENERAL COURT (First Chamber),
composed of R. Mastroianni, President, M. Brkan and T. Tóth (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1 By his action under Article 263 TFEU, the applicant, Mr Dmitry Alexandrovich Pumpyanskiy, seeks annulment of 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 of 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 contested acts'), in so far as those acts maintain his name on the lists annexed thereto.
Background to the dispute
2 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, acting on the basis of Article 29 TEU, adopted 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).
5 On the same date, the Council, acting on the basis of Article 215(2) TFEU, adopted 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).
6 On 25 February 2022, in view of the gravity of the situation in Ukraine, the Council adopted, first, Decision (CFSP) 2022/329 amending Decision 2014/145 (OJ 2022 L 50, p. 1) and, second, Regulation (EU) 2022/330 amending Regulation No 269/2014 (OJ 2022 L 51, p. 1), in order, in particular, to amend the criteria on the basis of which natural or legal persons, entities or bodies could be subject to the restrictive measures at issue.
7 Article 2(1) and (2) of Decision 2014/145, as amended by Decision 2022/329, is worded 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.
2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in the Annex.'
8 The detailed rules governing that freezing of funds are laid down in the subsequent paragraphs of that article.
9 Article 1(1)(d) and (e) of Decision 2014/145, as amended by Decision 2022/329, prohibits the entry into, or transit through, the territories of Member States of natural persons meeting criteria in essence identical to those laid down in Article 2(1)(f) ('the (f) criterion') and in Article 2(1)(g) of that decision.
10 Regulation No 269/2014, as amended by Regulation 2022/330, requires the adoption of measures to freeze funds and lays 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.
11 By Council Decision (CFSP) 2022/397 of 9 March 2022 amending Decision 2014/145 (OJ 2022 L 80, p. 31) and Council Implementing Regulation (EU) 2022/396 of 9 March 2022 implementing Regulation No 269/2014 (OJ 2022 L 80, p.1) ('the initial acts'), the applicant's name was added, respectively, to the list annexed to Decision 2014/145 and to the list contained in Annex I to Regulation No 269/2014 ('the lists at issue').
12 On 14 September 2022, the Council adopted Decision (CFSP) 2022/1530 amending Decision 2014/145 (OJ 2022 L 239, p. 149), and Implementing Regulation (EU) 2022/1529 implementing Regulation No 269/2014 (OJ 2022 L 239, p. 1), by which it maintained the applicant's name on the lists at issue until 15 March 2023 ('the first set of maintaining acts').
13 On 13 March 2023, the Council adopted Decision (CFSP) 2023/572 amending Decision 2014/145 (OJ 2023 L 75 I, p. 134), and Implementing Regulation (EU) 2023/571 implementing Regulation No 269/2014 (OJ 2023 L 75 I, p. 1), by which it maintained the applicant's name on the lists at issue until 15 September 2023 ('the second set of maintaining acts').
14 On 5 June 2023, the Council adopted Decision (CFSP) 2023/1094 amending Decision 2014/145 (OJ 2023 L 146, p. 20), and Regulation (EU) 2023/1089 amending Regulation No 269/2014 (OJ 2023 L 146, p. 1).
15 Article 2(1)(g) of Decision 2014/145, in the version amended by Decision 2023/1094, ('the amended (g) criterion'), as largely reproduced by Article 3(1)(g) of Regulation No 269/2014, as amended by Regulation 2023/1089, was replaced by the following:
'1. All funds and economic resources belonging to, or owned, held or controlled by:
…]
(g) leading businesspersons operating in Russia and their immediate family members, or other natural persons, benefitting from them, or businesspersons, 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.'
16 Regulation 2023/1089 amended Regulation No 269/2014 in a similar way.
17 On 13 September 2023, the Council adopted Decision (CFSP) 2023/1767 amending Decision 2014/145 (OJ 2023 L 226, p. 104), and Implementing Regulation (EU) 2023/1765 implementing Regulation No 269/2014 (OJ 2023 L 226, p. 3) ('the third set of maintaining acts), which extended the restrictive measures taken in respect of the applicant until 15 March 2024, for the following reasons:
'[The applicant] is a Russian leading businessperson operating in Russia. He is Vice-President, member of the Bureau of the Board of the Russian Union of Industrialists and Entrepreneurs (RSPP), Co-Chairman of the RSPP Committee on Industrial Policy and Technical Regulation. He is a Member of the Council of [the] Chamber of Commerce and Industry (CCI) of the Russian Federation and President of the Sverdlovsk regional Union of Industrialists and Entrepreneurs (SOSPP).
He held senior positions at large Russian metallurgical [companies]. He is [the] former Chairman of the board of directors of [the company] TMK … and [the] former President and a [former] board member of Group Sinara. In those capacities, he supported and benefitted from cooperation with authorities of the Russian Federation and State-owned enterprises, including Russian railways, Gazprom and Rosneft. He is therefore 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.
On 24 February 2022, in the aftermath of the initial stages of Russia's war of aggression against Ukraine, [the applicant], along with 36 other businesspersons, met with [President] Vladimir Putin and other members of the Russian [Government] to discuss the impact of the course of action in the wake of Western sanctions. The fact that he was invited to attend this meeting shows that he is a member of the closest circle of [President] Vladimir Putin and that he is supporting or implementing actions or policies which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine, as well as stability and security in Ukraine.
Additionally, he was awarded the Order of Merit for the Fatherland, IV degree, the Order of Honor. He was among the leading Russian businesspersons who participated in the congress of the [RSPP] in March 2023, where [President] Vladimir Putin gave a speech and urged billionaires to put “patriotism before profit”. Those elements show that he is a leading businessperson operating in Russia and a businessperson involved in economic sectors providing a substantial source of revenue to the Government of Russia, which is responsible for annexation of Crimea and destabilisation of Ukraine.'
18 The applicant brought an action before the General Court, registered as Case T‑740/22, seeking annulment of the first to third sets of maintaining acts in so far as those acts concerned him. That action was upheld by judgment of 26 June 2024, Pumpyanskiy v Council (T‑740/22, not published, EU:T:2024:418).
19 On 22 December 2023, the Council informed the applicant of its intention to maintain the restrictive measures against him and sent the file bearing the reference WK 16829/2023 INIT.
20 On 8 February 2024, the Council reiterated its intention to maintain the restrictive measures in respect of the applicant and sent him the file bearing the reference WK 5142/2023 ADD 2.
21 On 12 March 2024, the Council adopted the contested acts, which extended the restrictive measures taken in respect of the applicant until 15 September 2024, without modifying the grounds for including the applicant's name on the lists at issue compared with those contained in the third set of maintaining acts.
– declare the inapplicability, first, of Article 2(1)(f) and (g) of Decision 2014/145, as amended by Decision 2022/329, and of Article 3(1)(f) and (g) of Regulation No 269/2014, as amended by Regulation 2022/330, and, second, of Article 2(1)(g) of Decision 2014/145, as amended by Decision 2023/1094, and of Article 3(1)(g) of Regulation No 269/2014, as amended by Regulation 2023/1089;
– annul the contested acts, in so far as they concern him;
– annul, either in combination with one of the first two heads of claim or in the alternative, entry No 722 on the list extended by the third set of maintaining acts;
24 It must be noted that the third head of claim seeks, in essence, annulment of the third set of maintaining acts, in so far as those acts concern the applicant.
25 The acts comprising that third set of maintaining acts were in fact annulled by judgment of 26 June 2024, Pumpyanskiy v Council (T‑740/22, not published, EU:T:2024:418).
26 The third head of claim must therefore be rejected.
The claim for annulment of the contested acts
27 In support of his action, the applicant raises, in essence, five pleas in law, alleging (i) an infringement of the rights of the defence; (ii) an error of assessment; (iii) an infringement of the duty to state reasons; (iv) an infringement of the principle of proportionality and of fundamental rights; and (v) the illegality under Article 277 TFEU of the listing criteria relied on in the contested acts.
28 The Court considers it appropriate to begin by examining the second plea in law, alleging an error of assessment.
29 The applicant alleges that the Council made an error of assessment of the facts by maintaining his name on the lists at issue on the basis of the (f) criterion and of the amended (g) criterion.
30 In essence, the applicant argues that, in the contested acts, the Council does not adduce, in accordance with the burden of proof that it bears, specific, precise and consistent evidence capable of constituting a sufficient factual basis to support the maintenance of his name on the lists at issue pursuant to the (f) criterion and to the amended (g) criterion.
31 The Council contests the merits of that plea in law.
32 It should be emphasised that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires, in particular, 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).
33 There is no requirement that the Council produce before the Courts of the European Union all the information and evidence underlying the reasons alleged in the act of which annulment is sought. It is however necessary that the information or evidence produced should support the reasons relied on against the person concerned (see, to that effect, 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 122, and of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 67).
34 The assessment of whether the factual basis adopted by the Council is sufficiently solid 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 concrete, 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). 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 (see judgment of 14 March 2018, Kim and Others v Council and Commission, T‑533/15 and T‑264/16, EU:T:2018:138, paragraph 108 and the case-law cited).
35 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 however 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).
36 It must also be pointed out 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 incumbent on 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 achieve the objectives pursued by the initial inclusion of the names of the persons and entities concerned on the list 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; see also judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 67 and the case-law cited).
37 In order to justify maintaining a person's name on the list, the Council is not prohibited from basing its decision on the same evidence as that which justified the initial inclusion, the re-inclusion or a previous maintenance of the name of the person concerned on the list, provided that (i) the grounds for listing remain unchanged and (ii) the context has not changed in such a way that that evidence is now out of date. That context includes not only the situation of the country in respect of which the system of restrictive measures was established, but also the particular situation of the person concerned (see judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 78 and the case-law cited).
38 It is in the light of those case-law principles that the Court must determine whether the Council made an error of assessment in considering that, in the present case, there was a sufficiently solid factual basis capable of justifying maintenance of the applicant's name on the lists at issue pursuant to the (f) criterion and the amended (g) criterion.
The application of the amended (g) criterion to the applicant
39 It is apparent from paragraph 15 above that the amended (g) criterion is aimed at several categories of person, including 'leading businesspersons operating in Russia' ('the first part of the amended (g) criterion') and 'businesspersons involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation' ('the third part of the amended (g) criterion').
40 It must be noted that it is common ground that the Council found the applicant to satisfy the first and third parts of the amended (g) criterion. Furthermore, it is clear that the factual basis of the grounds relied on in the contested acts in respect of the applicant which relates to the amended (g) criterion, refers, first of all, to his positions within three bodies, namely the Russian Union of Industrialists and Entrepreneurs (RSPP), the Chamber of Commerce and Industry (CCI) of the Russian Federation and the Sverdlovsk Regional Union of Industrialists and Entrepreneurs (SOSPP); next, to his former positions as Chairman of the board of directors of the company TMK and as President and a board member of Group Sinara (see paragraph 17 above); and, last, to the fact that the applicant attended the meeting of 24 February 2022, participated in the RSPP congress in March 2023 ('the March 2023 congress') and was awarded the 'Order of Merit for the Fatherland', IV degree. Conversely, contrary to the Council's claim made in the defence, the contested acts make no reference to the 'evidence on the applicant's new business activities which the applicant communicated'.
41 The applicant disputes that the first and third parts of the amended (g) criterion can be applied to him. First, as regards his positions within the RSPP and the CCI, he criticises the Council for failing to take account of the fact that he had resigned on 2 and 4 September 2023, of which he informed the Council on 5 September 2023, that is to say, more than six months before the contested acts were adopted. Second, his former positions within TMK and Sinara were too far in the past. The same is true of the award of the 'Order of Merit for the Fatherland', IV degree, which occurred in 2014, and his participation in the March 2023 congress. Third, he claims that the sole position as president or chairman that he still held on the date on which the contested acts were adopted, that is to say, his position within the SOSPP, is insignificant and insufficient to find that he meets the first and third parts of the amended (g) criterion.
42 In addition, in his response to a measure of organisation of procedure, the applicant claims, in essence, that, on the basis of the judgment of 26 June 2024, Pumpyanskiy v Council (T‑740/22, not published, EU:T:2024:418), by which the third set of maintaining acts was annulled, the Court should also annul the contested acts since they contain identical grounds to those in the third set of maintaining acts.
43 The Council contests the applicant's arguments. According to the Council, the fact that the applicant founded TMK and Sinara, that he was a director of those corporations, that he was sufficiently prominent to attend the 24 February 2022 meeting with President Putin as a member of the RSPP, that he was awarded the 'Order of Merit for the Fatherland' and that he continues to be engaged in business in Russia, as is apparent from the application in the present case, are all circumstances which are not out of date and which prove that the applicant is still a leading businessperson within the meaning of the first part of the amended (g) criterion and justify maintaining his name on the lists at issue. As regards whether the position held by the applicant within the SOSPP is insufficient for the first and third parts of the amended (g) criterion to be applied to him, the Council considers it appropriate to assess the evidence globally rather than to take each item in isolation, as the applicant does.
44 In that regard, it should be noted at the outset that the general context of the situation in Ukraine, as regards the threats to its territorial integrity, sovereignty and independence, has remained unchanged since the initial acts were adopted.
45 It is therefore necessary to examine whether, in accordance with the case-law cited in paragraphs 36 and 37 above, the Council duly took into account changes in the applicant's situation in deciding to maintain his name on the lists at issue and whether, in particular, following its updated assessment of the situation carried out in the context of the review of the restrictive measures at issue and on the basis of new evidence, it was entitled to continue to refer in part to past situations already relied on both in the initial acts and in the first to third sets of maintaining acts. To that end, it is therefore necessary to examine whether it is apparent from all the WK files that the applicant could, on the date of adoption of the contested acts, be regarded as being a 'leading businessperson operating in Russia' or as a 'businessperson involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation', within the meaning of the amended (g) criterion.
46 For the purposes of that examination, it should be noted, first, that the first part of the amended (g) criterion relates to leading businesspersons operating in Russia. In that regard, the expression 'leading businesspersons' must be understood as referring to the importance of those persons in the light, in particular, of their professional status, the importance of their economic activities, the extent of their capital holdings or their positions within one or more undertakings in which they pursue those activities (see judgment of 15 November 2023, OT v Council, T‑193/22, EU:T:2023:716, paragraph 143 and the case-law cited).
47 It should be noted, second, as regards the third part of the amended (g) criterion, that only businesspersons engaged in an economic sector providing a substantial source of revenue to the Russian Government are likely to be caught by that criterion. Admittedly, by contrast to the wording of criterion (g) as it appeared in Article 2(1) and (2) of Decision 2014/145, as amended by Decision 2022/329, which used the adjective 'leading', the third part of the amended (g) criterion no longer applies only to 'leading' persons. However, the expression 'businesspersons' cannot refer to all economic operators and refers rather to those pursuing a qualitatively or quantitatively non-negligible economic activity in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, in respect of whom the inclusion of their names on the list at issue is therefore likely to increase pressure on the Russian Federation and to increase the costs of its actions to undermine the territorial integrity, sovereignty and independence of Ukraine.
48 In the present case, as a preliminary point, it is necessary to note, as the applicant does, that by its judgment of 26 June 2024, Pumpyanskiy v Council (T‑740/22, not published, EU:T:2024:418), the Court annulled the third set of maintaining acts, in so far as they concerned the applicant, on the grounds that the evidence submitted by the Council in the WK files did not constitute a sufficiently concrete, precise and consistent body of evidence to establish to the requisite legal standard, on the date on which those acts were adopted, the ground for including the applicant's name on the lists at issue pursuant to the amended (g) criterion.
49 As regards, in the first place, the ground relating to his positions within the three bodies, that is to say, the RSPP, the CCI and the SOSPP, the Court found, in paragraphs 131 to 134 of the judgment of 26 June 2024, Pumpyanskiy v Council (T‑740/22, not published, EU:T:2024:418), that the Council had failed to adduce a sufficiently concrete, precise and consistent body of evidence establishing to the requisite legal standard that that part of the grounds was well founded. First, it stated that the evidence produced contained very little information as to the respective nature, purpose and role in Russia of those three bodies. Second, it stated that, in any event, whatever positions were held by the applicant within those three bodies and even though he participated in the March 2023 congress in his capacity as a member of those three bodies, the Council had entirely failed to explain how, notwithstanding that the applicant had resigned from his positions on the boards of TMK and of Sinara on 9 March 2022, the mere fact of being a member of those bodies made it possible to find that he met the conditions under the first and third parts of the amended (g) criterion.
50 As regards, in the second place, the ground of the contested acts concerning his former positions as Chairman of the board of directors of TMK and as President and a board member of Sinara, the Court found, in paragraphs 124 to 130 of the judgment of 26 June 2024, Pumpyanskiy v Council (T‑740/22, not published, EU:T:2024:418), that the Council had failed to adduce a sufficiently concrete, precise and consistent body of evidence establishing to the requisite legal standard that that part of the grounds was well founded. First, the Court noted, in essence, that the fact that the applicant had been President and a board member of Group Sinara or Chairman of the board of directors of TMK, at the time of the initial inclusion of his name on the lists at issue or a year and a half before the adoption of the third set of maintaining acts, could not be considered capable of constituting sufficient evidence that he continued to have the status of 'leading businessperson' or of 'businessperson' within the meaning of the first and third parts of the amended (g) criterion. It added that the Council had not, in the WK files or in the course of the action, adduced any evidence of probative value relating to the applicant making it possible to explain the reasons on the basis of which the applicant was still to be regarded as satisfying the conditions of the amended (g) criterion. Second, in respect of the Council's argument that the applicant remains very much involved in big business, whether through TMK, Sinara or DRV Invest JSC, the Court stated in paragraphs 128 and 129 that (i) the Council had acknowledged that it had no evidence demonstrating that the applicant retained any influence over TMK and over Sinara and (ii) the Council could not rely on the information relating to DRV Invest JSC because that information, contained in an annex to the application, is unrelated to the grounds of those acts and does not appear in the WK files.
51 As regards, in the third place, the ground relating to the fact that the applicant attended the meeting held on 24 February 2022 and that he was awarded the 'Order of Merit for the Fatherland', IV degree, the Court found, in paragraph 130 of the judgment of 26 June 2024, Pumpyanskiy v Council (T‑740/22, not published, EU:T:2024:418), that the Council had entirely failed to explain how the fact that he attended that meeting, more than a year and a half before the adoption of the third set of maintaining acts, and the fact that he was awarded that order, more than nine years before the adoption of those acts, make it possible to find that the applicant is a 'leading businessperson' or a 'businessperson' within the meaning of the first and third parts of the amended (g) criterion.
52 In the present case, it is clear that the parties agree that the grounds for including the applicant's name on the lists at issue set out in the contested acts are identical to the grounds contained in the third set of maintaining acts and are based almost entirely on the same evidence. In order to justify maintaining the applicant's name on the lists at issue, the Council relied primarily on the evidence contained in the WK files communicated for the purposes of the adoption of the initial acts and of the first to third sets of maintaining acts. All those files are referred to in the judgment of 26 June 2024, Pumpyanskiy v Council (T‑740/22, not published, EU:T:2024:418), and they were all examined by the Court in that judgment.
53 For the purposes of the adoption of the contested acts, the Council, admittedly, also relied on the publicly available evidence contained, first, in file WK 16829/2023 INIT, comprising seven items of evidence and, second, in file WK 5142/2023 ADD 2, comprising a 184-page document entitled 'Ukraine territorial integrity – information – ADD 2'.
54 However, it is clear that the seven items of evidence in file WK 16829/2023 INIT relate exclusively to the RSPP and the SOSPP and contain little relevant information as to the respective nature, purpose and role in Russia of those two bodies and as to the role that the applicant performs in them. As regards the SOSPP, that evidence merely refers to (i) the existence of a charitable project organised at the applicant's initiative since 2011; (ii) the fact that the applicant was congratulated on Metallurgists' Day in July 2023; (iii) information provided by the Russian Government relating to measures to support undertakings in the military and industrial complex; (iv) undated general information according to which the SOSPP is a regional non-profit association that includes the majority of large and medium-sized enterprises operating in the region of Sverdlovsk (Russia) and 15 regional industry unions and; (v) the fact that the regional employers' association in the region of Chelyabinsk (Russia) held a general meeting and a conference, which the applicant attended. As regards the RSPP, both the items of evidence contained in file WK 16829/2023 INIT merely refer, first, to the applicant's former positions within TMK and Sinara and, second, to the fact that the applicant had headed a committee responsible for scientific and educational innovation policy in the year preceding a cooperation agreement concluded between the RSPP and the Russian Academy of Sciences on 15 June 2023.
55 The WK 5142/2023 ADD 2 file, comprising a 184-page document entitled 'Ukraine territorial integrity – information – ADD 2', is background information that does not relate to the applicant. It must be added, furthermore, that the Council has not relied on any specific piece of information in that file to justify maintaining the applicant's name on the lists at issue.
56 Accordingly, since the grounds of the contested acts are identical to those of the third set of maintaining acts and have their basis almost entirely in the same evidence as that already examined by the Court in the judgment of 26 June 2024, Pumpyanskiy v Council (T‑740/22, not published, EU:T:2024:418), or in evidence having the same content, the applicant is correct to submit, in essence, that the contested acts must be annulled.
57 That conclusion cannot be called into question by the Council's arguments.
58 In the first place, the Council reiterates its position that the applicant remains, in one way or another, very much involved in big business, whether through TMK, Sinara or DRV Invest JSC.
59 However, as regards the applicant's alleged involvement in TMK and Sinara, suffice it to note that the Council has still not adduced any evidence in the present case capable of demonstrating that the applicant retained any influence over TMK and over Sinara.
60 The argument that it is clear from an annex to the application in Case T‑740/22, Pumpyanskiy v Council, that the applicant is very much involved in business through DRV Invest JSC, can only be rejected.
61 It must be recalled that 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 the latter to adduce evidence of the negative, that those reasons are not well founded (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). Furthermore, it is settled case-law that the legality of an EU act must be assessed on the basis of the elements of fact and law existing on the date on which the act was adopted. Accordingly, the Council cannot rely, before the Court, on factors on which it did not rely when adopting the contested acts in order to justify the inclusion and maintenance of the applicant's name on the lists at issue (see, to that effect, judgment of 14 April 2021, Al-Tarazi v Council, T‑260/19, not published, EU:T:2021:187, paragraph 69 and the case-law cited).
62 It is clear that, even though the Council claims that it was aware of the piece of information in question at the time of the adoption of the contested acts, since it was contained in the application in Case T‑740/22, Pumpyanskiy v Council, it appears nowhere either in the grounds of those acts or in the WK files. In the grounds and the WK files, the Council merely mentions TMK, Sinara and the three bodies, that is to say, the RSPP, the CCI and the SOSPP, in order to justify maintaining the applicant's name on the lists at issue. Accordingly, unless a substitution of grounds is admitted, the Council cannot rely on facts relating to DRV Invest JSC.
63 It should be added that neither the judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft (C‑348/12 P, EU:C:2013:776), nor the letter of 13 March 2024 sent to the applicant the day after the contested acts were adopted, which are relied on by the Council in its defence, serve to call that finding into question.
64 First, in relation to the judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft (C‑348/12 P, EU:C:2013:776), it appears that the Council is misinterpreting that judgment by considering, in essence, that it follows from that judgment that the Council may rely on evidence, in all circumstances, wherever it is provided directly by the applicant.
65 In that case, the grounds for listing expressly stated that Kala Naft traded equipment for the oil and gas sector that could be used for Iran's nuclear programme. It was held to be apparent from that company's activity itself that those grounds were well founded, and that that circumstance was corroborated by its statutes and by the information set out by the company in its pleadings. However, it is evident that those statutes and that information clearly related to the grounds of the acts at issue and to the fact that Kala Naft traded equipment for the oil and gas sector. The same is not true in the present case, in which the grounds of the contested acts make no reference to the company DRV Invest JSC.
66 Second, in relation to the letter of 13 March 2024, it must be noted that in that letter the Council stated as follows:
'The Council refers to your letters dated 11 January 2024 and 15 February 2024 on behalf of your client …, in which you requested the Council to reconsider his listing pursuant to [Decision 2014/145] and [Regulation No 269/2014].
We refer to previous correspondence exchanged concerning your client, as well as to the exchanges in the context of litigation brought by him before the General Court and the Court of Justice. All of these exchanges are context known to your client.
As explained in our letter of 14 March 2023, your client continues to be active as an influential businessman. He owns the investment company DRV Investment JSC, which is used to invest his ample resources. He voluntarily participated in the … congress in March 2023, where [P]resident Putin called for the “de-offshorisation” of Russian business. These are several among a set of indicia that confirm your client's status as a leading businessperson. This is irrespective of the question whether he has fully relinquished control over TMK and Sinara (something for which the Council has not seen any real evidence and which is doubted). Our letter of 15 September 2023 registered again that your client [continued] to be an influential businessman.'
67 As the applicant correctly observes in his response to a measure of organisation of procedure, where, as in the present case, it is not mentioned in the grounds or in the WK files, a general and vague reference of that kind in a letter sent the day following the adoption of the contested acts cannot be considered to rank equally to a ground for listing contained in those acts. Furthermore, and in any event, even assuming that the reference in that letter to DRV Invest JSC could be considered to rank equally to a ground of the contested acts, the fact remains that the statement in question is not sufficiently substantiated to demonstrate that the applicant met the conditions of the first and third parts of amended criterion (g). Even assuming that the sole purpose of that company were to manage the funds that the applicant obtained by selling the shares he held in TMK and Sinara and that, as a result, DRV Invest JSC were acting only as the applicant's wealth adviser, as the evidence produced in the present case suggests, the fact remains that the Council has not demonstrated that DRV Invest JSC made significant investments in Russian undertakings or in the Russian economy.
68 In the second place, the Council reiterates its position that, in essence, the fact that the applicant attended the 24 February 2022 meeting and the March 2023 congress, that he was awarded the 'Order of Merit for the Fatherland', IV degree, and that he was a member of the RSPP and of the SOSPP corroborates his status as a leading businessperson within the meaning of the first and third parts of the amended (g) criterion.
69 In that regard, it is sufficient to note that the Court has already found, in essence, that the Council had entirely failed to explain how, notwithstanding that the applicant had resigned from his positions on the boards of directors of TMK and Sinara, he could be considered, on the basis of the set of circumstances referred to above, to remain a 'leading businessperson' or a 'businessperson' within the meaning of the first and third parts of the amended (g) criterion (see paragraphs 50 and 51 above).
70 In that regard, it needs to be added that, contrary to what the Council is suggesting, the Court does not find that the foregoing evidence is inherently irrelevant, in particular because the events were too far in the past, for the purposes of determining whether or not the applicant is still a leading businessperson. Nevertheless, although those circumstances were capable of corroborating the applicant's status as a leading businessperson arising primarily from the positions he occupied on the boards of directors of TMK and Sinara, those circumstances are not sufficient to find that the conditions of the first and third parts of the amended (g) criterion have been met since the applicant left those positions.
71 In any event, the Council cannot validly argue, in essence, that his status as a member of the RSPP is sufficient in itself to find that the applicant satisfied the conditions of the first and third parts of the amended (g) criterion. First, it should be noted that the significance of the RSPP is not apparent from the evidence produced by the Council in the various WK files. Second, irrespective of whether or not the applicant had left that position in September 2023 and of the fact that that argument is unsubstantiated, the Council has not explained how, notwithstanding the fact that the applicant had resigned from his positions on the boards of directors of TMK and of Sinara, it could be considered on the basis of the fact that he was a member of the RSPP that the applicant was still, at the time the contested acts were adopted, a 'leading businessperson' or a 'businessperson' within the meaning of the first and third parts of the amended (g) criterion.
72 In the absence of any additional evidence capable of substantiating, or even suggesting, that the applicant is a 'leading businessperson' or a 'businessperson' within the meaning of the first and third parts of the amended (g) criterion, it must be held that, assessed as a whole, the evidence on which the Council relied for the purposes of adopting the contested acts cannot be regarded as a sufficiently concrete, precise and consistent body of evidence to substantiate the ground for including the applicant's name on the lists at issue pursuant to that criterion.
The application of the (f) criterion to the applicant
73 At the outset, it must be noted that the factual basis of the ground relating to the (f) criterion relied on in respect of the applicant in the third set of maintaining acts refers solely to his former positions on the boards of directors of TMK and of Sinara.
74 The applicant disputes that the (f) criterion can be applied to him, on the ground, in essence, that the Council concedes that his alleged activity 'supporting, materially or financially' the Government of the Russian Federation constitutes at most a past activity.
75 The Council disputes that line of argument, contending, in essence, that there was nothing to prove that the applicant no longer controlled TMK or Sinara, or that he in fact sold his shares in that company and in that group. It adds that, even if the applicant sold his holdings, he continued to benefit from the Russian Government since those holdings were acquired by virtue of various state contracts.
76 In that regard, it should be found that, since the grounds of the contested acts which relate to the (f) criterion refer only to the applicant's former positions on the boards of directors of TMK and of Sinara, the Council made an error of assessment in finding that, on the date on which those acts were adopted, the applicant could be classified as a natural person supporting, materially or financially, the Government of the Russian Federation. The Council cannot regard the mere fact that, two years before the contested acts were adopted, the applicant held the positions of President and member of the board of directors of Sinara or that of Chairman of the board of directors of TMK as being sufficient to justify maintaining his name on the lists at issue as a person providing material or financial support to the Government of the Russian Federation.
77 It must be concluded that, as regards the contested acts, the Council could not rely on the applicant's former positions in order to demonstrate that the conditions of the (f) criterion were satisfied.
78 In that regard, the line of argument according to which there was nothing to prove that the applicant no longer controlled TMK or Sinara or that he in fact sold the shares which he held in that company and in that group, and that he continued to benefit from those shares, must be rejected as ineffective.
79 It must be borne in mind that it was solely as a result of his former positions on the boards of directors of TMK and of Sinara that the Council found that he materially or financially supported the Government of the Russian Federation and that his name had to be maintained on the lists at issue by the contested acts.
80 The second plea in law must therefore be upheld and the contested acts must be annulled in so far as they concern the applicant, without it being necessary to rule on the other arguments and on the other pleas in law put forward by the applicant in relation to them or on the first head of claim.
Costs
81 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.
82 In the present case, since the Council has been unsuccessful, it must be ordered to bear its own costs and to pay those of the applicant, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Annuls 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, 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, in so far as the name of Mr Dmitry Alexandrovich Pumpyanskiy was maintained on the list of persons, entities and bodies to which those restrictive measures apply;
2. Orders the Council of the European Union to bear its own costs and to pay those incurred by Mr Dmitry Alexandrovich Pumpyanskiy.
Mastroianni
Brkan
Tóth
Delivered in open court in Luxembourg on 2 April 2025.
