Rashnikov v Council (Common foreign and security policy - Restrictive measures taken in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine - Judgment) [2023] EUECJ T-305/22 (13 September 2023)

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Rashnikov v Council (Common foreign and security policy - Restrictive measures taken in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine - Judgment) [2023] EUECJ T-305/22 (13 September 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/T30522.html Cite as: EU:T:2023:530, ECLI:EU:T:2023:530, [2023] EUECJ T-305/22

(Common foreign and security policy – Restrictive measures taken in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine – Freezing of funds – Listing and maintenance of the applicant’s name on the lists of persons, entities and bodies concerned – Notion of ‘leading businessperson’ – Obligation to state reasons – Error of assessment – Proportionality)

Viktor Filippovich Rashnikov, residing in Magnitogorsk (Russia), represented by D. Rovetta, M. Campa, M. Moretto, V. Villante, M. Pirovano and A. Ronco, lawyers,

Council of the European Union, represented by J. Rurarz and P. Mahnič, acting as Agents,

composed of D. Spielmann, President, I. Gâlea and T. Tóth (Rapporteur), Judges,

1 By his action under Article 263 TFEU, the applicant, Mr Viktor Filippovich Rashnikov, seeks the annulment (i) of Council Decision (CFSP) 2022/429 of 15 March 2022 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 87I, p. 44) and Council Implementing Regulation (EU) 2022/427 of 15 March 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 87I, p. 1) (together, ‘the initial acts’), (ii) of Council Decision (CFSP) 2022/1530 of 14 September 2022 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 239, p. 149) and Council Implementing Regulation (EU) 2022/1529 of 14 September 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 239, p. 1) (together, ‘the first set of maintaining acts’), and (iii) of Council Decision (CFSP) 2023/572 of 13 March 2023 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2023 L 75I, p. 134) and Council Implementing Regulation (EU) 2023/571 of 13 March 2023 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2023 L 75I, p. 1) (together, ‘the second set of maintaining acts’ and, taken together with the initial acts and the first set of maintaining acts, ‘the contested acts’), in so far as those acts list and maintain his name on the lists annexed to those acts.

3 On 17 March 2014, the Council of the European Union adopted, on the basis of Article 29 TEU, Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 16).

4 On the same date, the Council adopted, on the basis of Article 215(2) TFEU, Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 6).

5 On 23 February 2022, the Council adopted a first package of restrictive measures prohibiting, inter alia, the financing of the Russian Federation, its government and its Central Bank.

6 On 24 February 2022, the President of the Russian Federation announced a military operation in Ukraine and, on the same day, Russian armed forces attacked Ukraine at a number of places in the country.

7 On 25 February 2022, the Council adopted a second package of restrictive measures applicable, inter alia, in the fields of finance, defence, energy, the aviation sector and the space industry.

8 On the same date, 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, inter alia, to amend the criteria by which natural or legal persons, entities or bodies could be made subject to the restrictive measures at issue. According to recital 11 of Decision 2022/329, the Council considered that the criteria of designation should be amended to include persons and entities supporting and benefiting from the Government of the Russian Federation as well as persons and entities providing a substantial source of revenue to it, and natural or legal persons associated with listed persons or entities.

9 Article 2(1) and (2) of Decision 2014/145, as amended by Decision 2022/329 (‘Decision 2014/145, as amended’), is worded as follows:

‘1. All funds and economic resources belonging to, or owned, held or controlled by:

(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,

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.’

10 The detailed rules governing that freezing of funds are laid down in the subsequent paragraphs of that article.

11 Article 1(1)(e) of Decision 2014/145, as amended, prohibits the entry into or transit through the territories of the Member States of natural persons who satisfy essentially the same criteria as those set out in Article 2(1)(g) of that decision.

12 Regulation No 269/2014, as amended by Regulation 2022/330 (‘Regulation No 269/2014, as amended’), 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. Article 3(1)(a) to (g) of that regulation essentially reproduces the content of Article 2(1)(a) to (g) of that decision.

13 In that context, on 15 March 2022, the Council adopted the initial acts, on the basis of Article 29 TEU and Article 215 TFEU.

14 By those two acts, the name of the applicant, Mr Viktor Filippovich Rashnikov, was added, respectively, to the list annexed to Decision 2014/145, as amended, and to that contained in Annex I to Regulation No 269/2014, as amended (‘the lists at issue’), on the following grounds:

‘[The applicant] is a leading Russian oligarch who is owner and chairman of the Board of Directors of the Magnitogorsk Iron & Steel Works (MMK) company. MMK is one of Russia’s largest taxpayers. The tax burden on the company increased lately, resulting in considerably higher proceeds to the Russian State budget.

He is therefore a leading Russian businessperson 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.’

15 The Council published a notice in the Official Journal of the European Union of 16 March 2022 (OJ 2022 CI 121, p. 1) concerning the restrictive measures provided for in the initial acts. That notice stated, inter alia, that the persons concerned could submit a request to the Council, together with supporting documentation, that the decision to include their names on the lists annexed to those acts should be reviewed.

16 By email of 13 April 2022, the applicant challenged the merits of the inclusion of his name on the lists at issue and requested the Council to grant him access to the documents on the basis of which the restrictive measures relating to him had been adopted.

17 By letter of 28 April 2022, the Council replied to the applicant’s request referred to in paragraph 16 above and sent the information contained in the file bearing the reference WK 3631/2022, dated 12 March 2022 (‘the first WK file’).

19 On 14 September 2022, the Council adopted the first set of maintaining acts, which extended the measures taken against the applicant until 15 March 2023, without amending the grounds for including the applicant’s name on the lists at issue.

20 By letter of 15 September 2022, the Council replied to the applicant’s request for review of 31 May 2022, refusing that request and notifying him of its decision to maintain his name on the lists at issue.

21 By letter of 16 September 2022, the applicant asked the Council to send him the file on the basis of which the first set of maintaining acts had been adopted. By letter of 27 October 2022, the Council replied that it did not have any new evidence in addition to that contained in the first WK file.

22 By letter of 31 October 2022, the applicant requested a review of the first set of maintaining acts.

23 By letter of 22 December 2022, the Council informed the applicant of its intention to maintain the restrictive measures against him and forwarded the information in the file bearing the reference WK 1760/2022, dated 14 December 2022 (‘the second WK file’).

25 By letter of 14 March 2023, the Council sent the applicant its observations and informed him that, on 13 March 2023, the Council adopted the second set of maintaining acts which extended the measures taken against him until 15 September 2023, without amending the grounds for the inclusion of his name on the lists at issue as compared with those set out in the first set of maintaining acts.

28 In support of the action, the applicant raises five pleas in law, alleging, in essence, first, infringement of the right to effective judicial protection and infringement of the obligation to state reasons; second, manifest error of assessment and failure to discharge the burden of proof; third, infringement of the principle of proportionality and infringement of fundamental rights; and, fourth, infringement of the principle of non-discrimination. In addition, in the two statements of modification, the applicant raises a fifth plea against the first and second sets of maintaining acts, alleging infringement of the right to be heard and infringement of the Council’s obligation to review its decision.

The first plea, alleging infringement of the right to effective judicial protection and infringement of the obligation to state reasons

29 The applicant submits, in essence, that the statement of reasons adopted in the contested acts does not enable him to defend himself or to understand the criteria which the Council intends to apply, or even how and why those criteria are supposed to apply to him. The statement of reasons, he submits, is either almost absent or contradictory, or does not conform to the requirements for specificity, and is in any event incomplete. Furthermore, the statement of reasons for the contested acts and the documents contained in the two WK files also do not enable the applicant to ascertain the individual, specific and concrete reasons such as to give him sufficient information to ascertain whether the contested acts are well founded.

30 First, the applicant submits that the Council did not explain what is meant by ‘substantial revenues’, did not identify the economic sector providing substantial revenues to the Government of the Russian Federation and did not provide evidence that such revenues are provided. Second, the applicant asserts that the Council relied exclusively on evidence concerning Magnitogorsk Iron & Steel Works (MMK), and not on the economic sector in which he operates. However, he argues that, according to ‘the literal wording of the legal ground used for the applicant’s designation, it is the economic sector that should provide a substantial source of revenue to the Government of the Russian Federation, rather than any individual company’. He adds that, in any event, the evidence is unreliable, contradictory and not credible.

32 According to settled case-law, the right to effective judicial protection, affirmed in Article 47(3) of the Charter of Fundamental Rights of the European Union (‘the Charter’), requires that the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him or her is based, either by reading the decision itself or by requesting and obtaining disclosure of those reasons. This is without prejudice to the power of the court having jurisdiction to require the authority concerned to disclose that information, so as to make it possible for him or her to defend his or her rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his or her applying to the court having jurisdiction, and in order to put the latter fully in a position to review the lawfulness of the decision in question (see judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 100 and the case-law cited; judgment of 21 January 2016, Makhlouf v Council, T‑443/13, not published, EU:T:2016:27, paragraph 38).

33 In addition, it should be borne in mind that the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure for the purpose of assessing whether it is well founded and to enable the court having jurisdiction to exercise its power of review (judgment of 1 June 2022, Prigozhin v Council, T‑723/20, not published, EU:T:2022:317, paragraph 25 and the case-law cited).

34 The statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. In particular, it is not necessary for the reasoning to go into all the relevant facts and points of law or to provide a detailed answer to the considerations set out by the person concerned when consulted prior to the adoption of that same measure, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. Consequently, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him or her to understand the scope of the measure concerning him or her (see judgment of 1 June 2022, Prigozhin v Council, T‑723/20, not published, EU:T:2022:317, paragraph 26 and the case-law cited).

35 Finally, it is important to note that the question of the statement of reasons, which concerns an essential procedural requirement, is separate from that of the evidence of the alleged conduct, which concerns the substantive legality of the act in question and involves assessing the truth of the facts set out in that act and the characterisation of those facts as evidence justifying the use of restrictive measures against the person concerned (see judgment of 6 October 2015, Chyzh and Others v Council, T‑276/12, not published, EU:T:2015:748, paragraph 111 and the case-law cited).

36 In the present case, the statement of reasons adopted in relation to the applicant in the contested acts coincides with that set out in paragraph 14 above.

37 In the first place, it should be noted that the general context, which led the Council to adopt the restrictive measures at issue, is set out in the recitals of the contested acts. Similarly, it follows from those acts that the legal basis for the measures adopted by the Council is Article 29 TEU and Article 215 TFEU respectively.

38 In the second place, it should be noted that the applicant does not dispute that it is clear from a reading of the statement of reasons for the contested acts that the Council included and maintained his name on the lists at issue on the basis of the criterion relating to ‘leading businesspersons … 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 … associated with them’ (criterion laid down in Article 2(1)(g) of Decision 2014/145, as amended, in Article 3(1)(g) of Regulation No 269/2014, as amended, and, in essence, in Article 1(1)(e) of Decision 2014/145, as amended; ‘criterion (g)’).

39 In the third place, contrary to what the applicant asserts, it must be held that the actual and specific reasons which led the Council to include and maintain the applicant’s name on the lists at issue are set out in a sufficiently clear manner to enable him to understand them. It is true that the reasons mention, inter alia, that MMK is one of Russia’s largest taxpayers and that the tax burden on that company has recently increased, which has led to a considerable increase in revenue for the Russian State budget. However, the reasons for the contested acts also make it clear that the applicant must be regarded as a leading businessperson involved in economic sectors which constitute a substantial source of revenue for the Government of the Russian Federation. The fact that he is the owner and chairman of the Board of Directors of MMK is a clear indication of his status as a leading businessperson, having regard to the importance of that company in Russia.

40 Accordingly, contrary to what the applicant claims, a combined reading of the reasons set out in paragraph 14 above, the wording of criterion (g) and the evidence of the two WK files communicated to him by the Council made it easy for him to understand what he was accused of and to defend himself. This is, moreover, fully confirmed by the pleas and arguments raised by the applicant in his written pleadings, from which it is apparent, first, that he was put in a position to know the justifications for the measures taken against him in order to be able to challenge them usefully before the Courts of the European Union and, second, that the context in which those measures were taken was known to him.

41 In the fourth place, the fact that the Council has not provided a definition or clarification of certain concepts used cannot lead to a finding that it has infringed its obligation to state reasons. In accordance with the case-law referred to in paragraph 34 above, the Council is not required to specify all the relevant matters of fact and law, and the applicant was also placed in a position to understand the scope of the measures taken against him.

42 Lastly, in the fifth place, since the applicant’s arguments that the Council relied exclusively on evidence concerning MMK, and not on the economic sector, and that certain evidence is not credible do not specifically call into question the sufficiency of the statement of reasons for the maintaining acts, but rather the substantive legality of those acts, they must be examined in the context of the second plea, alleging a manifest error of assessment.

43 It must be concluded that the statement of reasons for the contested acts is comprehensible and sufficiently precise to enable the applicant to know the reasons which led the Council to consider that the inclusion and retention of his name on the lists at issue were justified, and to challenge their legality before the Courts of the European Union and to enable the latter to exercise their power of review, in accordance with the rules referred to in paragraphs 32 to 34 above.

44 The applicant’s arguments that the statement of reasons for the contested acts is either almost absent or contradictory, or imprecise or incomplete, thus infringing his right to effective judicial protection and the obligation to state reasons, must therefore be rejected.

The second plea, alleging a manifest error of assessment and failure to comply with the burden of proof

46 The applicant argues, in essence, that the Council does not adduce, in accordance with the burden of proof borne by it, specific, precise and consistent evidence to constitute a sufficient factual basis to support the inclusion and retention of his name on the lists at issue pursuant to criterion (g).

48 It is important to note that the second plea must be regarded as alleging an error of assessment and not a manifest error of assessment. While it is admittedly true that the Council has a degree of discretion to determine on a case-by-case basis whether the legal criteria on which the restrictive measures at issue are based are met, the fact remains that the Courts of the European Union must ensure the review, in principle the full review, of the lawfulness of all EU acts (see, to that effect, judgments of 3 July 2014, National Iranian Tanker Company v Council, T‑565/12, EU:T:2014:608, paragraphs 54 and 55, and of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 61 and the case-law cited).

49 Furthermore, it should be emphasised that the effectiveness of the judicial review guaranteed by Article 47 of the Charter requires, inter alia, that the Courts of the European Union are to 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).

50 Such an assessment must be carried out by examining the evidence and information not in isolation but in its context. The Council discharges the burden of proof borne by it if it presents to the Courts of the European Union a set of indicia sufficiently specific, precise and consistent 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).

51 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).

52 It is in the light of those rules of case-law that the merits of the applicant’s arguments must be examined.

The evidence produced by the Council for the purpose of adopting the contested acts

53 In the present case, in order to justify the inclusion and retention of the applicant’s name on the lists at issue in the initial acts and in the first set of maintaining acts, the Council relied on the first WK file, comprising six items of evidence. It should be noted that this concerns publicly available information, namely:

– two pages taken from MMK’s official site, consulted on 2 March 2022, mentioning the applicant’s shareholdings and functions within that company (exhibits 1 and 2);

– information relating to the applicant on the website ‘forbes.com’ of 2 March 2022 (exhibit 3);

– press articles on the websites ‘verstov.info’ of 21 January 2019 (exhibit 4) and ‘vedomosti.ru’ of 9 December 2021 (exhibit 5);

– a page taken from MMK’s official site transcribing an interview of MMK’s CEO on the competitiveness of the company in a new tax environment (exhibit 6).

54 As regards the second set of maintaining acts, the Council produced the second WK file containing 10 items of evidence. It should be noted that this concerns publicly available information, namely:

– press articles on the websites ‘74.ru’ of 3 March 2022 (exhibit 1), ‘magmetall.ru’ of 18 April 2022 (exhibit 5), ‘interfax.ru’ of 1 August 2022 (exhibit 6) and ‘tass.ru’ of 16 November 2022 (exhibit 10);

– five pages taken from MMK’s official site, consulted on 11, 16 and 21 November 2022, mentioning, inter alia, the applicant’s shareholdings, his functions within that company and production and sales indicators (exhibits 2, 3, 7 to 9);

– information relating to the applicant on the website ‘forbes.com’ consulted on 16 November 2022 (exhibit 4).

The relevance of the evidence submitted by the Council for the purposes of the adoption of the second set of maintaining acts

55 In the second statement of modification, the applicant argues in essence that the first WK file was replaced by the second WK file. The applicant disputes the relevance of the evidence submitted by the Council in the second WK file to demonstrate that maintaining his name on the lists at issue, in March 2023, was still well founded.

57 First, it must be observed that the Council does not deny having sent the second WK file containing evidence additional to that contained in the first WK file in order to substantiate the grounds for including the applicant’s name on the lists at issue in the second set of maintaining acts. However, as the Council pointed out in its observations on the second statement of modification and at the hearing, there is nothing to suggest that the Council substituted the second WK file for the first WK file sent to the applicant as the factual basis for the initial listing. It must therefore be held that the second WK file merely supplements the first.

58 Second, and in any event, it must be borne in mind that, as regards restrictive measures, the essential question when reviewing whether to continue to include a person on the lists at issue is whether, since the inclusion of that person on those lists or since the last review, the factual situation has changed in such a way that it is no longer possible to draw the same conclusion in relation to the involvement of that person in activities targeted by the restrictive measures. Furthermore, it has been stated, in the context of restrictive measures adopted against Iran, that the Council is not required to adduce new facts for as long as the facts underpinning the initial inclusion are relevant and sufficient for keeping the party concerned on the list (see, to that effect, judgment of 23 September 2020, Kaddour v Council, T‑510/18, EU:T:2020:436, paragraph 97 and the case-law cited).

59 Furthermore, the Court has ruled that the Council is required to submit new evidence in order to establish that the inclusion of a person’s name is well founded where the criterion and grounds for that inclusion have changed (see judgment of 23 September 2020, Kaddour v Council, T‑510/18, EU:T:2020:436, paragraph 98 and the case-law cited).

60 It follows that, 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 justifying the initial inclusion, re-inclusion or previous retention 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 has been 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).

61 Thus, in the present case, since, as has been mentioned in paragraph 25 above, the grounds for including the applicant’s name in the second set of maintaining acts have not been amended in relation to those of the initial acts and the first set of maintaining acts, it is necessary only to ascertain whether there are elements amongst the information before the Court suggesting that the applicant’s factual situation or that in Ukraine have evolved in such a way that the evidence submitted by the Council to justify the validity of the initial listing and the first retention of the applicant’s name on the lists at issue in 2022 is no longer relevant in justifying the retention of his name on those lists in March 2023 (see, to that effect and by analogy, judgment of 23 September 2020, Kaddour v Council, T‑510/18, EU:T:2020:436, paragraph 101).

62 In the present case, it must be stated that the general context of the situation in Ukraine as regards the threats to its territorial integrity, sovereignty and independence following the unlawful annexation of Crimea has remained unchanged since the adoption of the initial acts and the first set of maintaining acts, as has the applicant’s particular situation.

63 Consequently, without prejudice, at this stage in the Court’s reasoning, to the question of whether the evidence produced by the Council does indeed demonstrate that the grounds for including the applicant’s name on the lists at issue were well founded in March 2023, the Council was not required to adduce evidence in addition to that produced in the first WK file in 2022 on account of changes in the applicant’s situation or the situation in Ukraine, such as to justify removing the applicant’s name from the lists at issue.

64 In the light of the foregoing, and in view of the absence of any change in the grounds for listing and the context, the Council was entitled to rely on the evidence contained in the first WK file in order to adopt the maintaining acts. Moreover, there was nothing to prevent it from supplementing that evidence with evidence produced in the second WK file. The lawfulness of those acts must therefore be assessed in the light of all the evidence in the two WK files.

65 As a preliminary point, it should be noted that the applicant acknowledges, in the application, that it is apparent from the reasons contained in the contested acts that the criterion of ‘leading businessperson’ was applied to him.

66 As regards the difficulties of interpretation linked to that criterion referred to by the applicant, it should be observed that that criterion implies the concept of influence in connection with the exercise of an activity ‘in economic sectors providing a substantial source of revenue to the Russian Government’, without any further condition concerning a link with the regime. By that criterion, the Council seeks to exploit the influence that the category of persons concerned is likely to exert on the Russian regime in the present case, by prompting them to put pressure on that government to change its policy.

67 In the present case, the concept of ‘leading businessperson’ must therefore be understood as referring to the importance of those persons in the light, as the case may be, of their occupational status, the importance of their economic activities, the extent of their capital holdings or their functions within one or more of the companies in which they pursue those activities.

68 Such an interpretation is corroborated by the fact that the objective of the restrictive measures is to put pressure on the Government of the Russian Federation and to increase the costs of the Russian Federation’s actions to undermine Ukraine’s territorial integrity, sovereignty and independence (see, to that effect, judgment of 13 September 2018, Rosneft and Others v Council, T‑715/14, not published, EU:T:2018:544, paragraph 157).

69 The objective referred to in paragraph 68 above implies that, by the expression ‘providing a substantial source of revenue to the Government of the Russian Federation’, it is the economic sectors and not businesspersons that are referred to, which corresponds to one of the objectives pursued by the restrictive measures, namely to affect economic sectors which constitute a substantial source of revenue for the Russian Federation.

70 Accordingly, criterion (g) must be interpreted as meaning that it is intended to apply, on the one hand, to leading businesspersons in the sense described in paragraph 67 above and, on the other hand, that it is the economic sectors in which those persons operate which must constitute a substantial source of revenue for the Government of the Russian Federation.

71 It is therefore in the light of that interpretation of criterion (g) that the merits of the ground for listing and maintaining the listing relied on in the contested acts must be examined.

72 The ground relied on with regard to the applicant which concerns criterion (g) relates to the fact that, because he is the owner and chairman of the Board of Directors of MMK, which is one of Russia’s largest taxpayers, he is a leading businessperson active in economic sectors which constitute a substantial source of revenue for the Government of the Russian Federation (see paragraph 39 above).

73 In that regard, it is necessary to reject at the outset the argument put forward by the applicant in the reply and in the second statement of modification, according to which it is apparent that he was in fact designated not because of his alleged involvement in an economic sector providing a substantial source of revenue to the Russian Federation, but because, in the Council’s view, MKK provided such revenue directly to the Government of the Russian Federation.

74 Without there being any need to rule on the admissibility of that argument, which was raised for the first time at the stage of the reply, it is sufficient to state that it is based on a misreading of the reasons for the contested acts. While it is true that those reasons mention that MMK is one of Russia’s largest taxpayers, the fact remains that they also clearly indicate that the applicant must be regarded as a leading businessperson active in economic sectors which constitute a substantial source of revenue for the Government of the Russian Federation, owing to the fact that he is the owner and chairman of the Board of Directors of MMK. Furthermore, it should be added that, in any event, that argument contradicts the arguments put forward by the applicant in the application which seek to demonstrate, first, that the Council did not determine the economic sector which was supposed to generate substantial revenue and, second, that the sector in which MMK is active cannot be regarded as providing a substantial source of revenue within the meaning of criterion (g).

75 That being the case, it is therefore necessary to ascertain whether all the evidence submitted by the Council for the purpose of adopting the contested acts satisfies the burden of proof borne by it and constitutes a set of indicia sufficiently specific, precise and consistent to support that ground for listing.

76 As regards the concept of ‘leading businesspersons’, it should be borne in mind that it must be understood as referring to the importance of those persons in the light, in particular, of their professional status and economic activities (see paragraph 67 above).

77 In that regard, it is common ground between the parties that the applicant is the owner and chairman of the Board of Directors of MMK, which is a major steel producer, at the very least, on the Russian market. That evidence is confirmed by the application and the reply, and is to be found, in particular, in exhibits 1 to 3 and 6 of the first WK file and in exhibits 2 and 3 of the second WK file.

78 The Council was therefore right to consider that the applicant is a leading businessperson, which, moreover, the applicant does not dispute in any way in his written pleadings. That classification as a leading businessperson may, moreover, be inferred from the economic importance of that company in Russia, as pointed out by the applicant himself in particular in the application.

79 It is therefore necessary to examine whether the Council was entitled, without making an error of assessment, to consider in the contested acts that the applicant is a leading businessperson involved in economic sectors which constitute a substantial source of revenue for the Government of the Russian Federation.

80 The applicant denies that he is involved in economic sectors which constitute a substantial source of revenue for the Government of the Russian Federation and that he is an oligarch. In the application, he submits, in essence, that neither the iron and steel sector nor MMK’s own individual contribution to the budget of the Russian Federation constitutes a substantial source of revenue within the meaning of criterion (g).

81 In the first place, it should be pointed out that, although MMK’s own contribution to the budget of the Russian Federation may be useful in determining the economic importance of that company or the applicant’s status as a leading businessperson, it is not decisive for the purposes of answering the question whether the sector in which the applicant is active constitutes a substantial source of revenue for the Government of the Russian Federation. As the applicant himself rightly points out in the application, and as is apparent from paragraphs 66 to 70 above, it is the economic sector, and not a company in particular, that must constitute a substantial source of revenue for the Government of the Russian Federation.

82 In those circumstances, the applicant’s argument, raised in his second statement of modification, that no evidence in the second WK file confirms that MMK is one of the largest Russian taxpayers, must be rejected as ineffective. The same is true of the argument that exhibit 5 in the second WK file, relating to the taxes paid by MMK, lacks credibility.

83 In the second place, as regards the economic sector at issue in the present case, account must be taken of the metallurgy sector and not only of the iron and steel sector. As the Council rightly points out, in view of the similarity of the activities concerned, companies such as MMK fall within the metallurgy sector.

84 This is, moreover, fully corroborated by exhibits 5 and 6 in the first WK file, which transcribe an interview which took place with MMK’s CEO concerning the competitiveness of the company in a new tax environment and from which it is unambiguously apparent that the CEO refers to MMK as a company active in the metallurgy sector. Exhibit 5 mentions that MMK’s CEO estimates ‘the shortfall in [MMK’s] income from an increase in the tax burden for metallurgists from 2022 … at 200-250 million dollars’. As regards exhibit 6, it shows that MMK’s CEO stated, in relation to a piece of legislation on tax increases, that it ‘will affect the work of metallurgists in the long run’, ‘will impose an additional burden on us, metallurgists’ and ‘will affect our competitiveness in the world market’.

85 In the third place, as regards the question whether the economic sector in which the applicant operates provides a substantial source of revenue to the Government of the Russian Federation, it cannot validly be argued that that is not the case with the metallurgy sector.

86 Such a substantial source of revenue is easily deduced in particular from exhibits 5 and 6 in the first WK file which mention, by way of example, the temporary export duties on metals which were introduced by the Government of the Russian Federation in the summer of 2021. MMK’s CEO considered that the introduction of those duties would result in a loss of revenue for MMK in 2022 and, therefore, in tax revenue for the Russian State, in the order of 200 to 250 million United States dollars (USD). In exhibit 5, it is also stated that the Russian State expected to collect an additional 163 to 164 billion Russian roubles (RUB) in respect of those duties and that, for the period from 2022 to 2024, the Government of the Russian Federation expected to collect more than RUB 500 billion for the budget, in view of the increase in the tax burden for metallurgists.

87 Admittedly, as the applicant rightly submits, it is true that neither Decision 2014/145, as amended, nor Regulation No 269/2014, as amended, defines that concept of ‘substantial source of revenue’. It should be noted, however, that the use of the qualifying adjective ‘substantial’, which relates to the nominal group ‘source of revenue’, implies that that source of revenue must be significant and therefore not negligible. Similarly, the Council has not provided any figures for the income received by that government. However, there is no doubt that the sector of activity in which that company is involved provides, directly or at least indirectly, a substantial source of revenue to the Government of the Russian Federation.

88 That conclusion is, moreover, supported by the position and importance of MMK in the sector at issue. It is important to emphasise that, having regard in particular to the various data contained in exhibit 6 in the first WK file, MMK is a major producer of steel on the Russian and world market. That document mentions, for the year 2021, a capitalisation of USD 9.3 billion, revenue of USD 8.5 billion, a net profit of USD 2.3 billion and a production of 10.1 million tonnes of steel over nine months of the year 2021. It is also stated that MMK has a subsidiary in Türkiye, whose CEO highlights the constant increase in production capacity, as well as its attractiveness.

89 It should be added that, by the applicant’s own admission, MMK greatly contributes to the economy of the Chelyabinsk region, employing more than 56 000 people and operating in fields other than that of the iron and steel industry. It is also clear from Annex A 12 to the application that at least MMK’s Turkish subsidiary serves industries as varied as construction, machine manufacturing, the automotive industry and the manufacture of household appliances.

90 It must therefore be concluded that, in the contested acts, the Council provided a set of indicia sufficiently specific, precise and consistent to demonstrate that the applicant, by virtue of the fact that he is the owner and chairman of the Board of Directors of MMK, is a leading businessperson active in economic sectors which constitute a substantial source of revenue for the Government of the Russian Federation.

91 That conclusion cannot be called into question by the arguments put forward by the applicant.

92 In the first place, the applicant claims that the metallurgy sector as a whole and, a fortiori, the iron and steel industry, represents only an insignificant tax contribution compared with the total tax revenue of the Russian State budget. However, assuming that that claim is established, the fact remains that, although less significant, other tax revenue such as that derived from the energy sector may prove to be substantial. Moreover, it must be stated that the application of criterion (g) does not necessarily mean that the Council takes into account all the tax revenue of the Russian State budget, but that it checks whether the economic sector in which the applicant operates constitutes a substantial source of revenue for the Government of the Russian Federation.

93 In the second place, the applicant claims that the figures mentioned in exhibits 5 and 6 in the first WK file are irrelevant in so far as they relate to provisional duties in force only between 1 August and 31 December 2021 and are, consequently, revenue collected in the past which cannot therefore be taken into account for the purposes of justifying his inclusion and retention on the lists at issue. Moreover, the figures mentioned are merely forecasts, which it is not certain will come true, since they were drawn up before the Russian military operation was launched. Such an argument cannot succeed. It is sufficient to point out that, irrespective of their provisional or hypothetical nature, the fact remains that the amount of the loss of revenue estimated by MMK’s CEO, as well as the amount of tax revenue expected by the Government of the Russian Federation following the introduction of export duties, are indicative of the importance of the income which that sector may generate for the Russian State budget.

94 In the third place, the applicant submits that those two sectors cannot be regarded as providing a substantial source of revenue on the ground, in essence, that only direct taxes can constitute income within the meaning of criterion (g).

95 In that regard, it is important to note that, even if those taxes are paid solely by consumers, as the applicant points out, the fact remains that they may be a substantial source of revenue, and that there is nothing in the wording of criterion (g) to preclude such taxes from being taken into account. As the Council rightly points out, there appears to be nothing to prevent account being taken of any source of revenue which the Government of the Russian Federation derives from activities in the sector concerned, including value added tax, export and import duties levied on products marketed in that sector, as well as any other income paid directly or indirectly into the budget of the Russian State.

96 That finding cannot, moreover, be called into question by the applicant’s argument raised in the reply and in the second statement of modification that, in essence, the fact of paying mandatory taxes does not amount to support for the regime.

97 It is true that, in the judgments of 9 December 2014, Peftiev v Council (T‑441/11, not published, EU:T:2014:1041, paragraph 188), and of 6 October 2015, Chyzh and Others v Council (T‑276/12, not published, EU:T:2015:748, paragraph 169), the Court held, in essence, that the Council cannot infer from a person’s payment of tax his financial support for the regime, in so far as such a payment constitutes a legal obligation.

98 However, in the judgments of 9 December 2014, Peftiev v Council (T‑441/11, not published, EU:T:2014:1041), and of 6 October 2015, Chyzh and Others v Council (T‑276/12, not published, EU:T:2015:748), a different criterion from that applied in the present case was at issue. In the context of criterion (g) at issue in the present case, it must be recalled that it is the economic sector, and not the businessperson as such, that is identified as the substantial source of revenue for the Russian Federation (see paragraph 81 above). Thus, the payment of taxes by the applicant or by his company is not in itself covered. It should be added that, even if criterion (g) could be regarded as referring in part to the tax paid in respect of the businessperson’s activity, it refers above all to all the income generated by the sector of activities in which that businessperson is involved, and therefore includes, inter alia, taxes generated by the sector at issue, not necessarily paid by that businessperson.

99 In the fourth place, in the reply and in the second statement of modification, the applicant submits, in essence, that, if the Council’s interpretation of criterion (g) were correct, and it would therefore be sufficient for a person to operate in a particular economic sector in order to satisfy criterion (g) irrespective of his conduct or that of MMK, his role and conduct with regard to Russian policy in Ukraine, he raises a plea alleging that that criterion is unlawful under Article 277 TFEU.

100 In that regard, without there being any need to rule on the admissibility of that argument, which was raised for the first time at the stage of the reply, it cannot be accepted.

101 It should be recalled that, under Article 277 TFEU, any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the European Union is at issue, plead the grounds specified in the second paragraph of Article 263 TFEU in order to invoke before the Court of Justice of the European Union the inapplicability of that act.

102 The Council has a broad discretion as regards the general and abstract definition of the legal criteria and the procedures for adopting restrictive measures (see, to that effect, judgment of 21 April 2015, Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 41 and the case-law cited). Consequently, the rules of general application defining those criteria and those arrangements, such as the provisions of the contested acts providing for the contested criteria referred to in the present plea, are subject to limited judicial review, which is restricted to checking that the rules governing procedure and the statement of reasons have been complied with, that the facts are materially accurate, and that there has been no manifest error of assessment of the facts or misuse of power (see, to that effect, judgments of 9 July 2009, Melli Bank v Council, T‑246/08 and T‑332/08, EU:T:2009:266, paragraphs 44 and 45, and of 15 September 2021, Boshab v Council, T‑107/20, not published, EU:T:2021:583, paragraph 201).

103 It should be added that the legality of restrictive measures is not dependent on their being found to have immediate effects; all that is required is that they are not manifestly inappropriate in regard to the objective that the competent institution seeks to pursue (judgment of 17 September 2020, Rosneft and Others v Council, C‑732/18 P, not published, EU:C:2020:727, paragraph 97).

104 In that regard, first, it should be noted that neither Decision 2014/145, as amended, nor Regulation No 269/2014, as amended, established a presumption of a link between the status of leading businessperson and the Government of the Russian Federation.

105 Accordingly, the application of that criterion to a specific person presupposes that the Council first proves, in particular by means of sufficiently specific, precise and consistent indicia, on the one hand, that the person subject to a restrictive measure is a leading businessperson and, on the other hand, that the person is involved in a sector which provides a substantial source of revenue to the Government of the Russian Federation.

106 Second, it is important to emphasise that the stated objective of the contested acts, and thus of the adoption of criterion (g), is that the European Union remains ‘unwavering in its support for Ukraine’s sovereignty and territorial integrity’ (second recital of the contested acts) and to adopt further restrictive measures ‘that will impose massive and severe consequences on Russia for its actions’ (fourth recital thereof). The aim is therefore to increase the pressure on the Russian Federation and the cost of the latter’s actions to undermine the territorial integrity, sovereignty and independence of Ukraine, and to promote a peaceful settlement of the crisis (see, to that effect, judgment of 17 September 2020, Rosneft and Others v Council, C‑732/18 P, not published, EU:C:2020:727, paragraphs 85, 97 and 98). Such an objective is consistent with the objective of maintaining peace and international security, in accordance with the objectives of the Union’s external action set out in Article 21 TEU (judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 115).

107 Criterion (g) covers ‘leading businesspersons … 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’, that is to say, persons in respect of whom the adoption of the restrictive measures at issue is likely to increase pressure on the Russian Federation and the costs of its actions in Ukraine. That criterion thus responds to the Council’s desire to exert pressure on the Russian authorities to put an end to their actions and policies destabilising Ukraine.

108 There is therefore a rational connection between the targeting of leading businesspersons operating in economic sectors providing substantial revenue to the government, in view of their importance and the importance of those sectors for the Russian economy, and the objective of the restrictive measures in the present case, which is to increase pressure on the Russian Federation as well as the costs of its actions to undermine Ukraine’s territorial integrity, sovereignty and independence (see, to that effect, judgment of 13 September 2018, Rosneft and Others v Council, T‑715/14, not published, EU:T:2018:544, paragraph 157).

109 Accordingly, it must be held that, contrary to what the applicant claims, criterion (g) contains conditions relating to the personal conduct of the persons concerned, namely their influence, due to their economic activities in certain sectors, which makes it possible to establish a sufficient and subjective link between those persons and the third country concerned, in this case the Russian Federation.

110 Lastly, in the fifth place, the applicant claims, in the two statements of modification, that the Council committed a manifest error of assessment in maintaining his name on the lists at issue, given that it was clear, when the maintaining acts were adopted, that the restrictions targeting him had no impact on the objective which they were supposed to pursue. In particular, he criticises the Council for failing to produce any evidence to show that, at the end of the various review periods, and several months after his name had been included on the lists at issue, there was a sufficient link between him and the Russian regime, in terms of actions or policies threatening the territorial integrity of Ukraine.

111 Such an argument cannot succeed. As has been recalled in paragraph 60 above, in order to justify maintaining a person’s name on the lists at issue, the Council is not prohibited from basing its decision on the same evidence justifying the initial inclusion, re-inclusion or previous retention of the name of the person concerned on the list, provided that (i) the grounds for inclusion 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.

112 In the present case, it is sufficient to note, first, that it is apparent from the explanations given above that the applicant has not succeeded in demonstrating that the Council had made an error of assessment as regards the initial acts and, second, that the general context of Ukraine’s situation as regards threats to its territorial integrity, sovereignty and independence, following the unlawful annexation of Crimea, has remained unchanged since the adoption of the initial acts, as has the applicant’s particular situation.

113 In the light of all the foregoing, it must be held that the reason for the inclusion and retention of the applicant’s name on the lists at issue in the contested acts, on account of his status as a leading businessperson within the meaning of criterion (g), is sufficiently substantiated.

114 Consequently, without it being necessary to rule on the question whether the applicant may be classified as an oligarch, or on the question whether certain evidence in the second WK file lacks credibility, the second plea must be rejected.

The third plea, alleging infringement of the principle of proportionality and infringement of fundamental rights

115 The applicant claims, in essence, that the inclusion and retention of his name on the lists at issue constitute an unjustified and disproportionate restriction of his fundamental rights, including, in particular, the freedom to conduct a business and the right to property. In essence, first, he observes that the Council’s interpretation of criterion (g) is disproportionate, in that it amounts to considering that all persons who carry out a significant economic activity in Russia and who fulfil their tax obligations should, on that ground alone, be penalised. Second, he maintains that the restrictions to which he is subject are abusive, since the same objective of harming the iron and steel sector has already been achieved by the imposition of sectoral penalties. Third, he highlights the negative consequences of the contested acts on MMK’s efforts to protect the environment, as well as on the activities of a Turkish company in the MMK group which are fundamental to remedying the consequences of the earthquake that took place in Türkiye at the beginning of 2023. Fourth, he claims that the conditions laid down in Article 52(1) of the Charter, under which his fundamental rights may be limited, are not satisfied.

117 It should be borne in mind that the freedom to conduct a business is among the general principles of EU law and is enshrined in Article 16 of the Charter. The right to property is enshrined in Article 17 of the Charter.

118 In the present case, the restrictive measures at issue constitute precautionary measures, which are not supposed to deprive the persons concerned of their property or their freedom to conduct a business. However, they undeniably entail a restriction of the exercise of the applicant’s right to property and freedom to conduct a business (see, to that effect and by analogy, judgment of 12 March 2014, Al Assad v Council, T‑202/12, EU:T:2014:113, paragraph 115 and the case-law cited).

119 However, it has consistently been held that in EU law those fundamental rights do not have absolute protection, but must be viewed in relation to their function in society (see judgment of 12 March 2014, Al Assad v Council, T‑202/12, EU:T:2014:113, paragraph 113 and the case-law cited).

120 In that regard, it should be noted that, according to Article 52(1) of the Charter, ‘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, moreover, ‘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 Union or the need to protect the rights and freedoms of others’.

121 Consequently, in order to comply with EU law, a limitation on the exercise of the fundamental rights at issue must satisfy four conditions. First, it must be ‘provided for by law’, in the sense that the EU institution adopting measures liable to restrict the fundamental rights of a natural or legal person must have a legal basis for that purpose. Second, the limitation at issue must respect the essential content of those rights. Third, that limitation must refer to an objective of general interest, recognised as such by the European Union. Fourth, the limitation at issue must be proportionate (see, to that effect, judgments of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraphs 69 and 84 and the case-law cited, and of 13 September 2018, VTB Bank v Council, T‑734/14, not published, EU:T:2018:542, paragraph 140 and the case-law cited).

122 In the present case, contrary to what the applicant claims, those four conditions are satisfied as regards the contested acts.

123 In the first place, the restrictive measures at issue are ‘provided for by law’, since they are set out in acts of general application that have a clear legal basis in EU law and since they have a sufficient statement of reasons as regards their scope and the reasons justifying their application to the applicant (see paragraphs 37 to 45 above) (see, by analogy, judgment of 5 November 2014, Mayaleh v Council, T‑307/12 and T‑408/13, EU:T:2014:926, paragraph 176 and the case-law cited). Furthermore, in the context of the review of the second plea, it has been established that the statement of reasons for the initial acts led to the conclusion that the Council could legitimately enter and maintain the applicant’s name on the lists at issue (see paragraph 113 above).

124 In the second place, as regards the question whether the limitation at issue respects the ‘essential content’ of those fundamental rights, it must be held that the restrictive measures imposed are limited in time and are reversible (see, to that effect, judgment of 14 July 2021, Oblitas Ruzza v Council, T‑551/18, not published, EU:T:2021:453, paragraph 96 and the case-law cited).

125 First of all, under Article 6 of Decision 2014/145, as amended, the lists at issue are subject to periodic review so as to ensure that the persons who, and entities which, no longer meet the necessary criteria are removed from those lists.

126 Next, it must be borne in mind that Article 2(3) and (4) of Decision 2014/145, as amended, and Article 4(1), Article 5(1) and Article 6(1) of Regulation No 269/2014, as amended, provide for the possibility of authorising the use of frozen funds in order to meet basic needs or to meet certain commitments, and of granting specific authorisations permitting the release of funds, other financial assets or other economic resources. Furthermore, in so far as the contested acts do not have the effect of confiscating the applicant’s property, it must be held that such measures are not criminal in nature.

127 Finally, in accordance with Article 1(6) of Decision 2014/145, as amended, the competent authority of a Member State may authorise listed persons to enter its territory, inter alia on urgent humanitarian grounds.

128 In the third place, the restrictive measures at issue are intended to exert pressure on the Russian authorities to bring to an end their actions and policies destabilising Ukraine. That is an objective which falls within those pursued under the common foreign and security policy (CFSP) and referred to in Article 21(2)(b) and (c) TEU, such as the consolidation of and support for democracy, the rule of law, human rights and the principles of international law, as well as the preservation of peace, prevention of conflicts and strengthening of international security and the protection of civilian populations.

129 In the fourth place, with regard to the principle of proportionality, it must be noted that, as a general principle of EU law, this 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. Consequently, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraph 178 and the case-law cited).

130 In that respect, the case-law makes clear that, 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. Consequently, the legality of a measure adopted in those areas 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 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraph 179 and the case-law cited).

131 In the present case, as to whether the measures in question are appropriate for attaining the objectives pursued, it should be noted that, in the light of the importance of the objectives pursued by the restrictive measures at issue, the adverse consequences as described by the applicant and resulting from their application are not manifestly disproportionate (see, to that effect and by analogy, judgments of 14 October 2009, Bank Melli Iran v Council, T‑390/08, EU:T:2009:401, paragraph 71, and of 12 March 2014, Al Assad v Council, T‑202/12, EU:T:2014:113, paragraph 116).

132 That is thus all the more so since, in the context of the examination of the second plea, it has been established that the restrictive measures adopted in the context of the contested acts against the applicant were justified, on the ground that his situation supported the conclusion that he satisfied the conditions for the application of criterion (g).

133 Moreover, the fact that the applicant did not have a direct role in actions against Ukraine is irrelevant, since he was not subject to restrictive measures for that reason, but because he is a leading businessperson active in economic sectors which constitute a substantial source of revenue for the Government of the Russian Federation responsible for the annexation of Crimea and the destabilisation of Ukraine.

134 As regards the necessity of the restrictive measures at issue, it should be noted that alternative and less restrictive measures, such as a system of prior authorisation or an obligation to justify, a posteriori, how the funds transferred were used, are not as effective in achieving the objectives pursued, namely bringing pressure to bear on Russian decision-makers responsible for the situation in Ukraine, particularly given the possibility of circumventing the restrictions imposed (see, to that effect, judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraph 182 and the case-law cited). Furthermore, it must be stated that the applicant has failed to indicate which less restrictive measures the Council could have adopted.

135 Next, it must be borne in mind that Article 2(3) and (4) of Decision 2014/145, as amended, and Article 4(1), Article 5(1) and Article 6(1) of Regulation No 269/2014, as amended, provide for the possibility of authorising the use of frozen funds in order to meet basic needs or to meet certain commitments, and of granting specific authorisations permitting the release of funds, other financial assets or other economic resources.

136 Similarly, in accordance with Article 1(6) of Decision 2014/145, as amended, the competent authority of a Member State may authorise listed persons to enter its territory, inter alia on urgent humanitarian grounds.

137 Lastly, the presence of the applicant’s name on the lists at issue cannot be described as disproportionate for being allegedly potentially unlimited. Such lists are subject to periodic review so as to ensure that the persons who, and entities which, no longer meet the necessary criteria are removed from those lists (see, to that effect, judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraph 185 and the case-law cited).

138 It follows that, even if the negative consequences highlighted by the applicant and referred to in paragraph 115 above were established, the restrictions on his fundamental rights resulting from the restrictive measures at issue, adopted in the context of the contested acts, are not disproportionate and cannot lead to their annulment.

139 That conclusion cannot be called into question by the applicant’s argument that the Council’s interpretation of criterion (g) would make it possible to include on the lists at issue all businesspersons who successfully carry out an economic activity in Russia, or by the argument that the objective of harming the iron and steel sector has already been achieved by the imposition of sectoral penalties. Apart from the fact that they are unsubstantiated, it is sufficient to note that the restrictive measures were imposed on the applicant following an individual assessment based on specific evidence, and that their objective is not to harm the Russian iron and steel sector, but to increase the pressure on the Russian Federation as well as the cost of the latter’s actions to undermine the territorial integrity, sovereignty and independence of Ukraine and to promote a peaceful settlement of the crisis. Contrary to what the applicant laconically alleges in the reply, there is nothing in the file to support such a claim.

The fourth plea, alleging, in essence, infringement of the principle of equal treatment

141 The applicant emphasises that the Council’s application of criterion (g) is discriminatory in that it enables the Council to target Russian businesspersons and companies while ignoring foreign companies even though the latter also operate on Russian territory and contribute much larger sums to the financing of the Russian Federation’s budget. He submits, in particular, that other owners and chairpersons of the Board of Directors of foreign groups with substantial operations in Russia, which pay similar or much larger amounts of taxes to the Russian Federation’s budget than him, have not been subject to restrictive measures.

143 In this respect, it should be recalled that, according to the case-law, the principle of equal treatment, which constitutes a fundamental principle of law, prohibits comparable situations from being treated differently or different situations from being treated in the same way, unless such difference in treatment is objectively justified (see judgment of 31 May 2018, Kaddour v Council, T‑461/16, EU:T:2018:316, paragraph 152 and the case-law cited).

144 In the present case, as regards the applicant’s argument that criterion (g) is discriminatory in that it concerns businesspersons and companies of Russian nationality while ignoring foreign businesspersons and companies, it is sufficient to state that that criterion does not relate to the nationality of the designated persons but to all leading natural persons within the meaning of criterion (g). Thus, persons subject to restrictive measures may be of any nationality if they satisfy that criterion.

145 In those circumstances, even if the Council had not adopted measures freezing the funds of certain persons meeting the criterion at issue and had examined, carefully and impartially, all the relevant evidence relating to those persons, the applicant cannot successfully rely on that fact, because the principle of equal treatment and non-discrimination must be reconciled with the principle of legality (see, to that effect, judgment of 3 May 2016, Post Bank Iran v Council, T‑68/14, not published, EU:T:2016:263, paragraph 135 and the case-law cited). In any event, it must be noted that it is apparent from the examination of the second plea that the Council did not make an error of assessment in including the applicant’s name on the lists at issue.

The fifth plea, raised in the two statements of modification, alleging infringement of the right to be heard and of the Council’s obligation to review its decision

147 The applicant submits, in essence, that the maintaining acts infringe his rights of defence and his right to be heard because the Council did not hear him before adopting those acts. Furthermore, he complains that the Council infringed the obligation of periodic review that was incumbent on it. According to the applicant, the Council failed to examine carefully and impartially whether the grounds cited against him were well founded, in the light of the observations made by him in the request for review of 31 May and 31 October 2022, in the application, in the reply and in his observations of 20 January 2023. He also complains that the Council referred to his pleadings in defence before the General Court. Finally, as regards the second set of maintaining acts, the applicant complains that the Council initially granted an extremely short period of time to submit observations on the letter of 22 December 2022 and belatedly extended that period.

149 In the first place, as regards the alleged infringement of the applicant’s right to be heard, it should be borne in mind that, where maintaining the name of the person or entity concerned on a list of persons or entities subject to restrictive measures is based on the same reasons as those which justified the adoption of the initial act without new evidence being adduced, the Council is not obliged, in order to respect the right of that person or entity to be heard, to notify it again of the evidence against it. There is a requirement to notify incriminating evidence, however, where there is new evidence on which the Council relies in order to update the information concerning the personal situation of the person or entity concerned or the political and security situation in the country against which the restrictive measures regime was adopted (see judgment of 22 June 2022, Haswani v Council, T‑479/21, not published, EU:T:2022:383, paragraph 85 and the case-law cited).

150 It must be stated that that is not the case here, since, as the applicant admits, the reasons for the first and second sets of maintaining acts are the same as those already relied on at the time of the initial listing. The amendments to the lists at issue do not concern the applicant, whose re-inclusion remains identical to the initial listing (see paragraphs 19 and 25 above).

151 Moreover, this is corroborated by the fact that, in his statements of modification, the applicant refers to the pleas raised against the initial listing, without raising any particular new element.

152 The applicant cannot therefore validly claim that, in the first and second sets of maintaining acts, the Council infringed his rights of defence and his right to be heard.

153 In the second place, as regards the alleged infringement of the obligation of periodic review, it should be noted that, after receiving the applicant’s request for review of 31 May 2022, the Council sent him a letter on 15 September 2022, in which it stated that it had examined his observations and concluded, in essence, that they did not call into question its assessment that there were sufficient grounds for maintaining his name on the lists at issue.

154 After recalling, inter alia, the applicable criteria, the Council, first, responded to the applicant’s arguments alleging a manifest error of assessment. It explained that it had not found any error of assessment in the inclusion of the applicant’s name on the lists at issue. That assessment was based on the fact that, in its view, the applicant was, and remained, the majority shareholder with 79.76% of the shares and chairman of MMK’s Board of Directors. It pointed out that MMK is a leading Russian company in the metallurgy sector, which, according to the Russian Federation’s Federal Tax Office, is responsible for 2.36% of the country’s total budget, taking into account only direct taxes. The Council stated that it considered the revenue generated by the metallurgy sector to be substantial. It again pointed out that MMK is a leading company in that sector and one of the largest taxpayers in the Russian Federation. In addition, the Council explained, in response to the argument put forward by the applicant in his request for review, that the exact tax burden of MMK, although characteristic of the contributions of the sector as a whole and, as such, included in the evidence, did not constitute the basis for the designation. The Council also provided further explanations as to why the arguments relating to an alleged infringement of the principle of proportionality or alleged discrimination were irrelevant and therefore had not been taken into account. Second, the Council referred to its statement of defence having regard to the similarity of the arguments presented in the request for review and in the application in that case.

155 Similarly, after receiving the request for review of 31 October 2022 and the observations of 20 January 2023, the Council sent the applicant a letter on 14 March 2023 in which it stated that it had examined his observations and concluded, in essence, that they did not call into question the Council’s assessment that there were sufficient grounds for maintaining the applicant’s name on the lists at issue.

156 It is apparent from that letter that the Council again briefly responded to the applicant’s arguments alleging a manifest error of assessment, infringement of the principle of proportionality and infringement of fundamental rights, raised both in the request for review of 31 October 2022 and in the observations of 20 January 2023. In view of the similarity of the arguments put forward by the applicant in the second request for review and the first request, the Council referred the applicant to its explanations provided in its letter of 15 September 2022 and to the arguments put forward in the present proceedings against the initial acts and the first set of maintaining acts. In particular, it pointed out that there had been no error of assessment when the restrictive measures taken against the applicant were renewed, given that he remained active within MMK. In addition, it stated that, when analysing the request for review of 31 October 2022, it was clear to the Council that the applicant’s situation had not changed since his initial listing and that, consequently, the same arguments could be applied mutatis mutandis. It therefore considered that there was no doubt that the Council had given reasons both for extending the restrictive measures in question for a further period of six months and for rejecting the second request for review.

157 It is therefore clear from the Council’s explanations, set out in paragraphs 154 and 156 above, that the Council not only analysed the two requests for review, but also set out the reasons why it considered that the applicant’s situation had not changed since the adoption of the initial acts. As regards the reference to its statement of defence, it is apparent from the letters of 15 September 2022 and of 14 March 2023 that, because of the similarity of the arguments put forward by the applicant in his requests for review, the Council considered that its previous observations within the context of the present case were applicable. However, contrary to what the applicant claims, that does not mean that it did not carry out an up-to-date assessment. It follows, on the contrary, that the Council considered that the reasons for maintaining the applicant’s name on the lists at issue were the same as those which justified his initial listing.

158 Lastly, it is also necessary to reject the argument that the applicant did not have a reasonable period of time to submit his observations before his name was maintained on the lists at issue in March 2023.

159 In that regard, it must be pointed out that it has already been held that a period of 12 days in which to submit observations in the context of a renewal of restrictive measures was sufficient (see, to that effect, judgments of 8 July 2020, Ocean Capital Administration and Others v Council, T‑332/15, not published, EU:T:2020:308, paragraph 191, and of 27 April 2022, Amisi Kumba v Council, T‑107/21, not published, EU:T:2022:252, paragraph 68).

160 In the present case, the applicant was given a total of more than four weeks in which to submit his observations on the Council’s letter of 22 December 2022, that is to say, almost two months before the adoption of the second set of maintaining acts. Even if the initial period of three weeks were to be regarded as having been extended belatedly, as the applicant maintains, the fact remains that such a period for submitting his observations cannot be regarded as unreasonable. That is all the more so in view of the fact that neither the situation in Ukraine nor that of the applicant had changed since the adoption of the initial acts and that the letter of 22 December 2022 and the second WK file could suggest that the grounds for listing in the maintaining acts to be adopted were similar or identical to those of the acts previously adopted.

161 The applicant’s argument that the Council infringed its obligation of periodic review must therefore be rejected and, consequently, the fifth plea must be dismissed.

162 In the light of all the foregoing considerations, the fifth plea must be dismissed and, consequently, the action must be dismissed in its entirety.

163 The applicant requests the Court to order the Council, by way of a measure of organisation of procedure, to produce the confidential administrative file which led it to include his name on the lists at issue.

164 The Council states that it is not appropriate to grant that request on the ground that all the information concerning the inclusion of the applicant’s name on the lists at issue is that sent to the applicant and included in the WK file.

165 In that connection, it should be recalled that the General Court is the sole judge of any need for the information available to it concerning the cases before it to be supplemented (judgments of 10 July 2001, Ismeri Europa v Court of Auditors, C‑315/99 P, EU:C:2001:391, paragraph 19, and of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 67).

166 In the present case, in view of the fact that the Council asserts that it does not have any evidence other than that in the WK file sent to the applicant, it is not necessary to grant that request.

167 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. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Council.

Court of Justice of the European Communities (including Court of First Instance Decisions)