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

JUDGMENT OF THE GENERAL COURT (First Chamber)

7 June 2023 (*)

(Common foreign and security policy – Restrictive measures taken in view of the situation in Belarus – Freezing of funds – Lists of persons, entities and bodies subject to the freezing of funds and economic resources – Inclusion and maintenance of the applicant’s name on the lists – Obligation to state reasons – Right to be heard – Right to effective judicial protection – Error of assessment)

In Case T‑141/21,

Aleksandr Vasilevich Shakutin, residing in Minsk (Belarus), represented by B. Evtimov, lawyer,

applicant,

v

Council of the European Union, represented by S. Van Overmeire, T. Haas and B. Driessen, acting as Agents,

defendant,

THE GENERAL COURT (First Chamber),

composed, at the time of the deliberations, of H. Kanninen (Rapporteur), N. Półtorak and M. Stancu, Judges,

Registrar: M. Zwozdziak-Carbonne, Administrator,

having regard to the written part of the procedure,

further to the hearing on 8 November 2022,

gives the following

Judgment

1        By his action under Article 263 TFEU, the applicant, Mr Aleksandr Vasilevich Shakutin, seeks annulment of, first, Council Implementing Decision (CFSP) 2020/2130 of 17 December 2020 implementing Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2020 L 426I, p. 14) and Council Implementing Regulation (EU) 2020/2129 of 17 December 2020 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2020 L 426I, p. 1) (‘the initial acts’); second, Council Decision (CFSP) 2021/353 of 25 February 2021 amending Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2021 L 68, p. 189) and Council Implementing Regulation (EU) 2021/339 of 25 February 2021 implementing Article 8a of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2021 L 68, p. 29) (‘the first set of maintaining acts’); and, third, Council Decision (CFSP) 2022/307 of 24 February 2022 amending Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus (OJ 2022 L 46, p. 97) and Council Implementing Regulation (EU) 2022/300 of 24 February 2022 implementing Article 8a of Regulation (EC) No 765/2006 concerning restrictive measures in view of the situation in Belarus (OJ 2022 L 46, p. 3) (‘the second set of maintaining acts’, and, together with the initial acts and the first set of maintaining acts, ‘the contested acts’), in so far as those acts concern the applicant.

 Background to the dispute and facts subsequent to the bringing of the action

2        The applicant is a Belarusian businessman.

3        The present case has arisen in the context of the restrictive measures adopted, from 2004 onwards, in view of the situation in Belarus with regard to democracy, the rule of law and human rights.

4        On 18 May 2006, the Council of the European Union adopted, on the basis of Articles [75 and 215 TFEU], Regulation (EC) No 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2006 L 134, p. 1), the title of which was replaced, under Article 1(1) of Council Regulation (EU) No 588/2011 of 20 June 2011 (OJ 2011 L 161, p. 1), by the heading ‘Council Regulation (EC) No 765/2006 of 18 May 2006 concerning restrictive measures in respect of Belarus’.

5        On 15 October 2012, the Council adopted Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1), on the basis of Article 29 TEU.

6        According to Article 4(1)(a) and (b) of Decision 2012/642 and Article 2(4) and (5) of Regulation No 765/2006, as amended by Council Regulation (EU) No 1014/2012 of 6 November 2012 (OJ 2012 L 307, p. 1), the latter provisions referring to the former, all funds and economic resources owned, held or controlled by, inter alia, persons, entities or bodies responsible for serious violations of human rights or the repression of civil society and democratic opposition, or whose activities otherwise seriously undermine democracy or the rule of law in Belarus, or natural and legal persons, entities and bodies that benefit from or support the Lukashenko regime, are to be frozen.

7        Pursuant to Article 1 of Council Decision (CFSP) 2020/214 of 17 February 2020 amending Decision 2012/642 (OJ 2020 L 45, p. 3), the application of Decision 2012/642 was extended until 28 February 2021.

8        On 17 December 2020, the Council adopted the initial acts.

9        It follows from recital 2 of the initial acts that ‘on 9 August 2020, [the Republic of] Belarus conducted presidential elections, which were found to be inconsistent with international standards and marred by the repression of independent candidates and a brutal crackdown on peaceful protesters in the wake of those elections’, that ‘on 11 August 2020, the High Representative of the Union for Foreign Affairs and Security Policy issued a declaration on behalf of the Union, assessing that the elections were neither free nor fair’, and that ‘it was also stated that measures against those responsible for violence, unjustified arrests and falsification of election results could be taken’.

10      Under recitals 5 and 6 of the initial acts, ‘on 19 November 2020, the Council agreed to proceed with the preparation of a further round of sanctions, as a response to the brutality of the Belarusian authorities and in support of the democratic rights of the Belarusian people’ and ‘in view of the ongoing repression of civil society in Belarus, 29 persons and 7 entities should be included in the list of natural and legal persons, entities and bodies subject to restrictive measures set out in the Annex to Decision 2012/642/CFSP’.

11      By the initial acts, the applicant’s name was inserted in line 87 of table A listing the natural and legal persons, entities and bodies referred to in Article 3(1) and Article 4(1) of Decision 2012/642 contained in the annex to that decision and in line 87 of table A listing the natural and legal persons, entities and bodies referred to in Article 2(1) of Regulation No 765/2006 contained in Annex I to that regulation (together, ‘the lists at issue’).

12      In the initial acts, the Council referred to the applicant as a ‘businessman, owner of Amhodor holding’ and justified the adoption of the restrictive measures against him, providing the following reasons:

‘He is one of the leading businessmen operating in Belarus, with business interests in construction, machine building, agriculture and other sectors.

He is reported to be one of the persons who benefited most from the privatisation during Lukashenko’s tenure as President. He is also a member of the presidium of the pro-Lukashenk[o] public association “Belaya Rus” and a member of the Council for the Development of Entrepreneurship in the Republic of Belarus.

As such he is benefiting from and supporting the Lukashenk[o] regime.

In July 2020 he made public comments condemning the opposition protests in Belarus, thereby contributing to the repression of civil society and democratic opposition.’

13      On 18 December 2020, the Council published in the Official Journal of the European Union a notice for the attention of the persons and entities subject to the restrictive measures provided for in the initial acts (OJ 2020 C 437, p. 15). In that notice, the persons and entities concerned were informed inter alia that they could submit a request to the Council for reconsideration of the inclusion of their names on the lists at issue.

14      By letter of 23 December 2020, the applicant challenged the validity of the inclusion of his name on the lists at issue and requested that the Council reconsider its decision. He also requested access to the information and evidence supporting that listing.

15      By letter of 5 February 2021, the Council sent the applicant documents WK 13841/2020 INIT and WK 14796/2020 EXT 3 containing the evidence used in order to adopt the initial acts.

16      On 25 February 2021, the Council adopted the first set of maintaining acts, by way of which the restrictive measures against the applicant were maintained until 28 February 2022. The identifying information relating to the applicant, referring to him as the ‘owner of Amhodor holding’, was replaced to state ‘owner of Amkodor Holding’. The grounds justifying his continued listing were not altered, with the exception of the statement that ‘as such he [was] benefiting from and supporting the Lukashenk[o] regime’, which was replaced by ‘he [was] therefore benefiting from and supporting the Lukashenk[o] regime’.

17      By letter of 26 February 2021, the Council informed the applicant that none of the observations contained in his letter of 23 December 2020 cast doubt on its view that there were sufficient reasons for maintaining his name on the lists at issue and referred, as regards certain items of evidence, to documents WK 13841/2020 INIT and WK 1772/2021 INIT annexed to that letter of 26 February 2021. The applicant received that letter on 20 March 2021.

18      By letter of 17 January 2022, the Council notified the applicant of its intention to renew the restrictive measures against him on the basis of a new statement of reasons and relying on documents WK 15381 2021 REV 1, WK 15436 2021 EXT 5 and WK 15436 2021 ADD 1 annexed to that letter.

19      By letter of 25 January 2022, the applicant replied that the new grounds and the documents forwarded by the Council did not justify the continued inclusion of his name on the lists at issue.

20      On 24 February 2022, the Council adopted the second set of maintaining acts, by way of which it maintained the restrictive measures against the applicant, giving the following reasons:

‘He is one of the leading businessmen operating in Belarus, with business interests in construction, machine building, agriculture and other sectors.

He is reported to be one of the persons who benefited most from the privatisation during Lukashenk[o]’s tenure as President. He is also a former member of the presidium of the pro-Lukashenk[o] public association “Belaya Rus” and a former member of the Council for the Development of Entrepreneurship in the Republic of Belarus.

In July 2020 he made public comments condemning the opposition protests in Belarus, thus supporting the Lukashenk[o] regime’s policy of repression towards peaceful protesters, democratic opposition and civil society.

He maintains business interests in Belarus.’

21      By letter of 25 February 2022, the Council replied to the letter of 25 January 2022 and informed the applicant of its decision to maintain his name on the lists at issue.

 Forms of order sought

22      In the application, lodged on 5 March 2021, the applicant sought annulment of the initial acts and of the first set of maintaining acts in so far as they concern him. By way of a statement of modification lodged at the Registry of the General Court on 2 May 2022, the applicant amended the form of order sought so that it also covered the second set of maintaining acts in so far as they concern him.

23      The applicant thus claims that the Court should:

–        annul the contested acts in so far as they concern him;

–        order the Council to pay the costs.

24      The Council contends that the Court should:

–        dismiss the action as manifestly unfounded;

–        order the applicant to pay the costs;

–        in the alternative, should the Court annul the restrictive measures adopted against the applicant, order that the effects of Decision 2022/307 be maintained as regards the applicant until the annulment in part of Implementing Regulation 2022/300 takes effect.

 Law

 Preliminary observations on the pleas relied on by the applicant

25      In the application, the applicant relies on two pleas in law, the first alleging infringement of the obligation to state reasons, the second alleging errors of assessment on the part of the Council.

26      In the reply, the applicant raises a third plea, alleging breach of the right to effective judicial protection, divided into two parts, the first alleging late communication by the Council of document WK 1772/2021 INIT, the second alleging late communication by the Council of the criteria justifying the measures taken against him.

27      In the statement of modification, the applicant amended the first and second pleas so as to include the second set of maintaining acts, and raised a fourth plea alleging breach of the principle of sound administration.

28      At the hearing, the applicant claimed that the third plea is directed not only against the initial acts and the first set of maintaining acts, but also against the second set of maintaining acts, and stated that the fourth plea is directed only against the second set of maintaining acts.

29      Furthermore, the applicant complains of an infringement of the right to be heard before the first set of maintaining acts were adopted, and requests that the Court rule on the omission, in the initial acts, of provisions relating to the expiry and review of the inclusion of his name on the lists at issue.

30      The Council disputes the pleas raised by the applicant. It also contests the admissibility of the third and fourth pleas and of the complaints set out in paragraph 29 above.

31      It should be observed, first, that the first part of the third plea and the pleas raised at the hearing set out in paragraph 29 above allege, in essence, infringement of the right to effective judicial protection and infringement of the rights of the defence, respectively, and that it is appropriate to examine them together. Second, in the context of the first plea and the second part of the third plea, the applicant maintains, in essence, that he was not put in a position to understand whether the measures taken against him were based in particular on Article 4(1)(a) of Decision 2012/642. Those arguments should therefore be examined together, in so far as they form a single plea in law alleging infringement of the obligation to state reasons.

32      For the purposes of the present case, it is appropriate to examine (i) the pleas alleging infringement of the right to effective judicial protection and infringement of the rights of the defence; (ii) the plea alleging errors of assessment by the Council; (iii) the plea alleging infringement of the obligation to state reasons; and (iv) the plea alleging breach of the principle of sound administration.

 The pleas alleging infringement of the right to effective judicial protection and infringement of the rights of the defence

33      The first part of the third plea, raised in the reply, alleging late communication by the Council of document WK 1772/2021 INIT, must be examined, first, in so far as it is directed against the initial acts and the first set of maintaining acts and, next, in so far as it is directed against the second set of maintaining acts. In the context of the examination relating to the initial acts and the first set of maintaining acts, it is appropriate also to assess the complaints alleging (i) infringement of the right to be heard and (ii) the omission, in the initial acts, of provisions relating to the expiry and review of the inclusion of the applicant’s name on the lists at issue.

 Regarding the initial acts and the first set of maintaining acts

34      The applicant claims that the Council infringed his right to effective judicial protection under Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). That justifies, in his submission, the annulment of the initial acts and of the first set of maintaining acts.

35      The applicant observes that the Council refers, in the defence, to document WK 1772/2021 INIT dated 8 February 2021, sent to him with the Council’s letter of 26 February 2021, which only reached him on 20 March 2021. He claims that he could not acquaint himself with that document and was not able to comment thereon as at the date on which his action was brought – 5 March 2021 – even though the period for challenging the initial acts and the first set of maintaining acts expired on 15 March 2021. In the reply, the purpose of which is not to respond for the first time to substantive factual allegations, the applicant states that he was unable to develop his arguments concerning the numerous elements contained in that document to the extent allowed in the application, and relies on the fact that he will have no opportunity to reply in writing to the rejoinder.

36      Moreover, the applicant submits, first, that the inclusion of his name on the lists at issue by the initial acts and the first set of maintaining acts is based on identical grounds and relates to the same subject matter. A separate action against the first set of maintaining acts would therefore have been found to be inadmissible, as it would be contrary to the proper administration of justice. Second, even if such a separate action were admissible, the applicant takes the view that, in the present case, the Council should have refrained from relying on document WK 1772/2021 INIT in the defence, since there was no reference to it in the application and the Council knew that that document had been received late.

37      At the hearing, the applicant relied on the very short period between the adoption of the initial acts and the adoption of the first set of maintaining acts, and claimed that those acts corrected errors and made up for omissions vitiating those initial acts taken as a matter of urgency, in particular by the addition of an expiry period and a review date. Such a corrigendum could not therefore have been challenged by an action separate from that brought against the initial acts.

38      The applicant adds that the element of surprise is not necessary when a decision to maintain a freezing of funds is adopted. According to the applicant, the Council is therefore required to disclose the new evidence on which the Council intends to rely in order to take such a decision prior to the adoption thereof. When asked by the Court to clarify his arguments, the applicant claimed, first, that the Council ought to have heard him before adopting the first set of maintaining acts and, second, that, having regard to the circumstances of the present case, document WK 1772/2021 INIT, which the Council had at its disposal from the beginning of February 2021, should have been sent to him before the present action was brought.

39      The Council disputes both the admissibility and the merits of the applicant’s arguments.

–       Admissibility of the pleas

40      Under Article 84(1) of the Rules of Procedure of the General Court, a new plea in law is inadmissible unless it is based on matters of law or of fact which come to light in the course of the procedure.

41      In the first place, in the rejoinder, the Council relies on Article 84(1) of the Rules of Procedure in order to submit that the plea alleging infringement of the right to effective judicial protection is inadmissible, since it was raised out of time at the reply stage.

42      In that regard, the Council claims, first of all, that the applicant could direct the present action, brought on 5 March 2021, only against the initial acts, relying on the material in the file with which he was acquainted at that time, and modify the application thereafter, pursuant to Article 86(1) of the Rules of Procedure, in order to seek annulment of the first set of maintaining acts. The applicant’s litigation strategy, consisting of challenging the initial acts and the first set of maintaining acts in the same application, should not determine the existence of matters of law or of fact which came to light in the course of the procedure.

43      Next, a delay in notifying a measure renewing a listing does not constitute an infringement of the rights of the defence if the grounds for listing have not changed. Moreover, in the present case, the Council could not have known that the letter of 26 February 2021 would not reach the applicant until 20 March 2021.

44      Lastly, on the date on which the application was lodged, the grounds of the initial acts and the first set of maintaining acts were known to the applicant and the evidence justifying the initial acts was available to him.

45      At the hearing, the applicant submitted that the plea alleging infringement of the right to effective judicial protection is admissible.

46      It should be noted that the plea alleging infringement of the right to effective judicial protection was raised for the first time in the reply. It is therefore a new plea within the meaning of Article 84(1) of the Rules of Procedure, which the applicant accepts, since he identifies it as such in the reply.

47      The admissibility of that plea thus depends on whether it is based on matters of law or of fact which came to light in the course of the procedure. In that regard, it is clear from the case-law that, in order for a fact to be classified as a matter of fact which came to light in the course of the procedure within the meaning of Article 84(1) of the Rules of Procedure, it is not sufficient that the applicant became aware of it in the course of the proceedings before the General Court. A further requirement is that the applicant was not in a position to be aware of that matter previously (see, to that effect, judgment of 9 December 2010, Tresplain Investments v OHIM – Hoo Hing (Golden Elephant Brand), T‑303/08, EU:T:2010:505, paragraphs 162 to 169).

48      In the present case, it should be observed that the plea alleging infringement of the right to effective judicial protection is based on the fact that the Council relied on document WK 1772/2021 INIT in the defence, even though that document had not been disclosed to the applicant before the present action was lodged. In that regard, it is true that it was only on the date of service of the defence, 20 July 2021 – therefore during the proceedings before the Court – that the applicant discovered that the Council was relying on document WK 1772/2021 INIT and that he had not been aware of it previously.

49      Consequently, the plea alleging infringement of the right to effective judicial protection is admissible as regards the initial acts and the first set of maintaining acts.

50      In the second place, the Council argues that the plea alleging infringement of the rights of the defence is inadmissible as it was raised out of time at the hearing.

51      The applicant claims, in essence, that the complaint alleging that the Council did not hear him before the first set of maintaining acts were adopted merely amplifies the plea alleging infringement of the right to effective judicial protection.

52      It should be noted that, during the written part of the procedure, the applicant did not complain that the Council had not heard him before the first set of maintaining acts were adopted. In particular, in the context of the first part of the third plea raised in the reply, the applicant relies solely on an infringement of his right to effective judicial protection.

53      It follows that the plea alleging infringement of the rights of the defence, which was raised for the first time at the hearing, is a new plea within the meaning of Article 84(1) of the Rules of Procedure.

54      However, that plea is based on the fact that the Council added document WK 1772/2021 INIT to the file when the first set of maintaining acts were adopted, which constitutes a matter of fact that came to light in the course of the procedure within the meaning of the case-law cited in paragraph 47 above.

55      In the defence, the Council discussed the merits of the grounds of the initial acts and the first set of maintaining acts in the light of documents WK 13841/2020 INIT, WK 14796/2020 EXT 3 and WK 1772/2021 INIT without indicating when those various documents were placed on its file. It was only in the rejoinder that the Council stated that it relied on documents WK 13841/2020 INIT and WK 14796/2020 EXT 3 in order to adopt the initial acts and added document WK 1772/2021 INIT to the file when the first set of maintaining acts were adopted. As regards document WK 14796/2020 EXT 3, the Council stated at the hearing that it was drawn up on 17 December 2020 and that the date of 2 February 2021 on the first page of the document sent to the applicant can be explained by the fact that it is an extraction for the purposes of responding to the request for access to the file.

56      The applicant was not in a position to know, prior to the Council’s explanations in the rejoinder and at the hearing, when document WK 1772/2021 INIT was added to the file.

57      It should be added that, following the explanations in question and when the written part of the procedure was closed, the applicant submitted a request for a hearing in which he stated that he wished to express his views on the paragraph in the rejoinder indicating that document WK 1772/2021 INIT contained ‘new relevant information’.

58      In those circumstances, the applicant was entitled to raise, for the first time at the hearing, a plea alleging infringement of the rights of the defence in that the Council had not heard him before the first set of maintaining acts were adopted.

59      It follows from all of the foregoing that the objections of inadmissibility raised by the Council in so far as concerns the pleas alleging infringement of the right to effective judicial protection and infringement of the rights of the defence must be rejected.

–       The merits of the pleas in law

60      As a preliminary point, it should be noted, without there being any need to rule, in that regard, on the objection of inadmissibility raised by the Council at the hearing, that, contrary to what the applicant claims, the first set of maintaining acts do not constitute a corrigendum to the initial acts.

61      The initial acts consist of Implementing Decision 2020/2130 and Implementing Regulation 2020/2129 which amended the lists at issue contained in Decision 2012/642 and Regulation No 765/2006 in order to add, inter alia, the applicant’s name.

62      The expiry date of the initial inclusion of the applicant’s name on the lists at issue and the date of the review thereof were therefore not undetermined by reason of an omission by the Council, contrary to what the applicant claims, but governed by the relevant provisions of Decision 2012/642 and Regulation No 765/2006. In that regard, that decision provided that it was to apply until 28 February 2021, as was apparent from Article 8(1) thereof, as amended by Article 1 of Decision 2020/214. As to that regulation, Article 8a(4) thereof provides that the list in Annex I is to be reviewed at regular intervals and at least every 12 months.

63      The Council subsequently adopted the first set of maintaining acts. These comprise Decision 2021/353, Article 1(a) of which amended Article 8(1) of Decision 2012/642 in order to extend the application of the latter decision until 28 February 2022, and Implementing Regulation 2021/339, the second recital of which stated that, on the basis of a review of Decision 2012/642, it was appropriate to extend the restrictive measures until 28 February 2022.

64      It follows that the initial acts are separate legal acts from the first set of maintaining acts. By way of the initial acts, the Council imposed restrictive measures on the applicant as of the entry into force of those acts, on 17 December 2020, until 28 February 2021, while the first set of maintaining acts extended those restrictive measures, further to an annual review, until 28 February 2022.

65      Next, it is necessary to examine the present pleas separately according to whether they are directed against the initial acts or the first set of maintaining acts.

66      In the first place, as regards the initial acts, the applicant maintains that his right to effective judicial protection was infringed by the fact that the Council relied in the defence on document WK 1772/2021 INIT, even though that document had not been disclosed to him before the present action was lodged.

67      In that connection, it should be borne in mind that the right to effective judicial protection, which is affirmed in Article 47 of 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, 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, in full knowledge of the relevant facts, whether there is any point in 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).

68      In the present case, first of all, following the adoption of the initial acts, the applicant was able to prepare the application in the light of documents WK 13841/2020 INIT and WK 14796/2020 EXT 3, which were disclosed to him by the Council on 5 February 2021 in response to his request for access to the file.

69      Next, it is true that, in the defence, the Council relied on document WK 1772/2021 INIT in order to substantiate a large number of its claims. Nevertheless, it also relied on documents WK 13841/2020 INIT and WK 14796/2020 EXT 3. Furthermore, the applicant was able to set out his views on the production of document WK 1772/2021 INIT in his reply, then at the hearing.

70      Lastly, as is clear from the examination of the plea alleging errors of assessment, carried out in paragraphs 114 to 177 below, the analysis of the grounds relied on against the applicant in the initial acts in the light of documents WK 13841/2020 INIT and WK 14796/2020 EXT 3 is sufficient to establish that they are well founded.

71      Accordingly, the production, by the Council, of document WK 1772/2021 INIT at the defence stage neither deprived the applicant of the opportunity to decide, in full knowledge of the relevant facts, whether there was any point in bringing an action before the Court, nor prevented the Court from being fully in a position to review the lawfulness of the acts at issue.

72      The plea alleging infringement of the right to effective judicial protection, in so far as it is relied on in support of the application for annulment of the initial acts, must therefore be rejected.

73      In the second place, as regards the first set of maintaining acts, it is necessary to examine the plea alleging infringement of the right to be heard before the plea alleging infringement of the right to effective judicial protection.

74      First, according to the case-law of the Court of Justice, the right to be heard prior to the adoption of acts which maintain restrictive measures against persons already subject to those measures applies where the Council has admitted new evidence against those persons and not where those measures are maintained on the basis of the same grounds as those that justified the adoption of the initial act imposing the restrictive measures in question (judgment of 28 July 2016, Tomana and Others v Council and Commission, C‑330/15 P, not published, EU:C:2016:601, paragraph 67).

75      In the present case, the grounds of the first set of maintaining acts are, in essence, identical to those of the initial acts, with the result that the Council was under no obligation to hear the applicant before adopting the first set of maintaining acts pursuant to the case-law cited above.

76      Admittedly, it is also clear from the case-law that the question of whether there is an infringement of the rights of the defence must be examined in relation to the specific circumstances of each particular case, including the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question (see judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 102 and the case-law cited). Thus, while the continued inclusion of the applicant’s name on the lists at issue, decided in the contested decision, is based, as in the present case, on the same grounds as those which justified the adoption of the initial act imposing the restrictive measures in question, the Council is required, during the periodic review of the restrictive measures imposed on the applicant, to disclose to him, where appropriate, new evidence on which the Council relies in order to update the information concerning not only his personal situation but also the situation in the third country at issue, and to obtain that person’s comments on that evidence before adopting a retention decision (see, to that effect, judgment of 12 February 2020, Amisi Kumba v Council, T‑163/18, EU:T:2020:57, paragraphs 55 to 64).

77      However, in the present case, document WK 1772/2021 INIT contains, first, 15 documents published prior to the adoption of the initial acts. Second, there are two screenshots of webpages. Although these were retrieved by the Council on 4 February 2021 and the date of their publication is not specified, they do not refer to any factual element relating to the grounds offor the initial acts and arising after the adoption thereof. There is therefore no new evidence on which the Council relied in order to update the information concerning the applicant’s personal situation or the situation in Belarus, within the meaning of the case-law cited above, for the purpose of adopting the first set of maintaining acts.

78      The Council was therefore not required, in the circumstances of the present case, to disclose document WK 1772/2021 INIT to the applicant or to obtain his comments prior to the adoption of the first set of maintaining acts.

79      It follows from the foregoing that the Council did not infringe the applicant’s right to be heard in the context of the adoption of the first maintaining acts. Accordingly, the plea alleging infringement of the right to be heard, relied on in support of the application for annulment of the first set of maintaining acts, must be rejected as unfounded.

80      Second, the applicant takes issue with the Council for not having disclosed document WK 1772/2021 INIT to him before the action was lodged, even though the Council had that document at its disposal at the beginning of February 2021, and claims that this infringed his right to effective judicial protection and his rights of defence in the context of the present proceedings in respect of the first set of maintaining acts, since he learned of that document in the course of the proceedings before the Court.

81      In that regard, in addition to the case-law cited in paragraph 67 above, it should be recalled that, following the adoption of a decision maintaining a person on a list, when sufficiently precise information has been communicated, enabling the person concerned effectively to state his or her point of view on the evidence adduced against him or her by the Council, the principle of respect for the rights of the defence does not mean that the Council is obliged spontaneously to grant access to the documents in its file. It is only on the request of the party concerned that the Council is required to provide access to all non-confidential official documents concerning the measure at issue (see, to that effect, judgment of 10 November 2021, Alkattan v Council, T‑218/20, not published, EU:T:2021:765, paragraph 75 and the case-law cited).

82      In the present case, the grounds for retaining the applicant’s name on the lists at issue were set out in the first set of maintaining acts published in the Official Journal and the applicant stated at the hearing that he became aware of those acts on the day of their publication, 26 February 2021. Thus, sufficiently precise information has been communicated to the applicant as to allow him to defend his rights in the best possible conditions and to decide, in full knowledge of the relevant facts, whether there is any point in his applying to the court having jurisdiction.

83      Furthermore, the applicant was thus placed in a position in which he could effectively make known his views on the evidence adduced against him by the Council in the first set of maintaining acts. In those circumstances, it was for the applicant to apply to the Council for access to the file if he wished to obtain evidence, in particular document WK 1772/2021 INIT, in order to prepare his action against those acts.

84      The applicant chose to challenge the first set of maintaining acts only a few days after these were adopted, in the context of the action brought on 5 March 2021, without first exercising his right of access to the file, as he confirmed at the hearing.

85      In that connection, the applicant wrongly claims that, once the initial acts – against which he considered that he had to act by 15 March 2021 at the latest – were challenged before the Court in the action brought on 5 March 2021, a new action brought subsequently against the first set of maintaining acts would have been dismissed as inadmissible.

86      In fact, following the adoption, on 25 February 2021, of the first set of maintaining acts – which were separate legal acts from the initial acts (see paragraph 64 above) – the applicant had the period provided for in the sixth paragraph of Article 263 TFEU in which to bring an action for annulment.

87      Thus, within the time period laid down in the sixth paragraph of Article 263 TFEU, the applicant could request access to the file underlying the first set of maintaining acts.

88      Since he did not make such a request, the applicant cannot validly complain that he became aware of document WK 1772/2021 INIT during the proceedings before the Court.

89      The applicant is also wrong to claim that, in so far as he was unable to comment on document WK 1772/2021 INIT in the application, the Council infringed his rights of defence in the present proceedings by relying on that document in the defence.

90      Contrary to the applicant’s arguments, he was in fact able effectively to defend his rights before the Court, since he was entitled, in the context of the written part of the present judicial proceedings, to use his reply to contradict the factual allegations set out in the defence. That applies a fortiori inasmuch as document WK 1772/2021 INIT, which the applicant described as ‘very voluminous and detailed’, was annexed to the letter of 26 February 2021 which he received on 20 March 2021. Thus, the applicant was aware of the existence and the content of that document four months before service of the defence, which took place on 20 July 2021, and more than five months before expiry of the time limit for lodging the reply, which was set at 31 August 2021.

91      Accordingly, the plea alleging infringement of the right to effective judicial protection, in so far as it is relied on in support of the application for annulment of the first set of maintaining acts, must be rejected.

92      It follows from the foregoing that, as regards the initial acts and the first set of maintaining acts, the pleas alleging infringement of the right to effective judicial protection and infringement of the rights of the defence must be rejected in their entirety.

 The second set of maintaining acts

93      At the hearing, the applicant claimed to have raised the plea alleging infringement of the right to effective judicial protection in the modification of the application in order to challenge the lawfulness of the second set of maintaining acts.

94      The Council contended that the modification of the application contains no reference to the plea alleging infringement of the right to effective judicial protection.

95      In that connection, it should be borne in mind that, in accordance with Article 86(1) of the Rules of Procedure, where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter, the applicant may, before the oral part of the procedure is closed, or before the decision of the General Court to rule without an oral part of the procedure, modify the application to take account of that new factor. Furthermore, Article 86(4)(b) of those rules provides that the statement of modification is to contain, where appropriate, the modified pleas in law and arguments.

96      According to the case-law, where a subsequent measure challenged by way of the modification of the application is essentially the same as the measure initially challenged, or where it differs from that measure only in purely formal respects, it is conceivable that, by failing to accompany his request for modification by pleas in law and arguments which are themselves modified, the applicant impliedly and specifically relies on the pleas and arguments in his originating application (judgment of 24 January 2019, Haswani v Council, C‑313/17 P, EU:C:2019:57, paragraph 37).

97      It is also apparent from the case-law that the pleas in law and arguments relied on against the act justifying the modification of the application must be set out in that statement in sufficiently clear and precise terms as to enable the defendant to prepare its defence and to enable the Court to rule on that modification. Thus, the applicant must, in principle, explain why the pleas in law and arguments previously relied on are transposable to the act referred to in his or her statement of modification. In the absence of explanation from the applicant, the pleas which the applicant put forward in the application are admissible as regards the act referred to in his or her statement of modification only in so far as they may be transposed to the specific context of that act without any explanation being needed (see judgment of 28 April 2021, Sharif v Council, T‑540/19, not published, EU:T:2021:220, paragraphs 185 and 186 and the case-law cited).

98      In the present case, the plea alleging infringement of the right to effective judicial protection alleges that the applicant discovered after service of the defence that the Council was relying on document WK 1772/2021 INIT before the Court, even though he was unaware of that document when he brought his action against the initial acts and the first set of maintaining acts.

99      However, when the applicant lodged the statement of modification, in order also to challenge the lawfulness of the second set of maintaining acts, he knew, in the light of the defence and the rejoinder, that the Council had placed document WK 1772/2021 INIT on the file when the first set of maintaining acts were adopted, and was relying on that document before the Court.

100    Consequently, if the applicant intended to rely on the plea alleging infringement of the right to effective judicial protection in support of the application for annulment of the second set of maintaining acts, he was required to explain, in the statement of modification, how his arguments in that connection could be transposed to the specific context of those acts.

101    In the statement of modification, the applicant merely maintains that he does not intend to alter significantly the pleas raised in the application and in the reply, and amends the first and second pleas raised in the application. In so doing, he made no amendment to the plea alleging infringement of the right to effective judicial protection raised in the reply such as to enable the defendant to prepare its defence and to enable the Court to rule in the light of clear and precise arguments that were valid in the specific context of the second set of maintaining acts.

102    Furthermore, when questioned at the hearing as to whether the modification of the application included the pleas raised in the reply, the applicant answered in the affirmative and claimed that, by the second set of maintaining acts, the Council had retained his name on the lists at issue for reasons not substantively different compared to the grounds relied on against him in the initial acts and the first set of maintaining acts, notwithstanding the defects vitiating those acts. However, those factors, which are unrelated to the rights of the defence before the Court, do not explain how the plea alleging infringement of the right to effective judicial protection can be transposed to the specific context of the second set of maintaining acts.

103    It follows that, even if the applicant had implicitly but necessarily intended to rely on the plea alleging infringement of the right to effective judicial protection in the statement of modification in so far as concerns the second set of maintaining acts, such a plea is inadmissible inasmuch as it is raised in support of the application for annulment of those acts.

104    It follows from all the foregoing that the pleas alleging infringement of the right to effective judicial protection and infringement of the rights of the defence must be rejected in their entirety.

 The plea alleging errors of assessment

105    In the context of the second plea raised in the application, the applicant maintains, in essence, that the contested acts, in so far as they concern him, are vitiated by errors of assessment.

106    The Council disputes the applicant’s arguments.

107    It should be recalled, first, that the effectiveness of the judicial review guaranteed by Article 47 of the Charter requires in particular that the EU judicature is 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 (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 119).

108    It is for the Courts of the European Union, in order to carry out that examination, to request that the competent European Union authority, when necessary, produce information or evidence, confidential or not, relevant to such an examination (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 120 and the case-law cited).

109    That is because it is the task of the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person or entity concerned are well founded, and not the task of that person or that entity to adduce evidence of the negative, that those reasons are not well founded (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 121).

110    If the competent European Union authority provides relevant information or evidence, the Courts of the European Union must then determine whether the facts alleged are made out in the light of that information or evidence and assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person or entity concerned (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 124).

111    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 EU judicature/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 12 February 2020, Kanyama v Council, T‑617/18, EU:T:2020:49, paragraph 93 and the case-law cited).

112    Second, having regard to the preventive nature of the restrictive measures at issue, if, in the course of its review of the lawfulness of the contested decision, the Courts of the European Union consider that, at the very least, one of the reasons mentioned in the summary at issue is sufficiently detailed and specific, that it is substantiated and that it constitutes in itself a sufficient basis to support that decision, the fact that the same cannot be said of other such reasons cannot justify the annulment of that decision (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 130).

113    The merits of, first, the initial acts, next, the first set of maintaining acts and, lastly, the second set of maintaining acts must be examined in the light of those principles.

 The initial acts

114    The Court considers it appropriate to begin its examination with the grounds of the initial acts, set out in the first three paragraphs cited in paragraph 12 above, according to which (i) the applicant is one of the leading businesspeople operating in Belarus, with business interests in construction, machine building, agriculture and other sectors; (ii) the applicant is one of the persons who most benefited from privatisation made during Lukashenko’s tenure as President; and (iii) he is a member of the presidium of the pro-Lukashenko public association Belaya Rus (‘the association Belaya Rus’) and of the Council for the Development of Entrepreneurship of the Republic of Belarus (‘the CDE’), and that, as such, he benefits from and supports the Lukashenko regime.

115    The grounds at issue are based on the criteria laid down in Article 4(1)(b) of Decision 2012/642, a provision to which Article 2(5) of Regulation No 765/2006 refers.

116    It is therefore necessary to examine whether the factual evidence on which the grounds at issue are based have been established, and whether the Council erred in finding, on the basis of that evidence, that, at the time when the initial acts were adopted, the applicant benefited from and supported the Lukashenko regime within the meaning of Article 4(1)(b) of Decision 2012/642 and Article 2(5) of Regulation No 765/2006. That examination will be carried out in the light of documents WK 13841/2020 INIT and WK 14796/2020 EXT 3 on which the Council states that it relied when the initial acts were adopted.

–       The assessment that the applicant is one of the leading businessmen operating in Belarus, with business interests in construction, machine building, agriculture and other sectors

117    In so far as concerns the applicant’s position in economic life in Belarus and the extent of his business interests, it should be noted, first, that, on the date on which the application was lodged, the applicant acknowledged that he has had a shareholding, being 62% of the capital in the holding company Amkodor since 2018 – of which he was, moreover, chairman of the board of directors – and a shareholding in the holding company SALEO which he stated he controlled.

118    Second, the applicant acknowledges that the holding companies Amkodor and SALEO are active in the machine-building sector.

119    Accordingly, the Council did not err in considering that, at the time of the adoption of the initial acts, the applicant had ‘business interests in construction, machine building, agriculture and other sectors’, it being understood that the term ‘other sectors’ should be taken as meaning that the Council listed, non exhaustively, the economic sectors in which it regarded the applicant as having business interests.

120    Since the existence of such interests in the machine-building sector has been established, there is no need to examine whether there is any factual evidence to establish that the applicant had business interests in the other economic sectors listed by the Council. Consequently, the arguments by which the applicant denies having business interests in the agricultural and construction sectors cannot succeed.

121    Third, as the Council observes, in the letter of 23 December 2020, in support of the request for review, the applicant himself states that he is ‘the head of the largest privately held industrial holding in Belarus’. Such a spontaneous statement has significant probative force which cannot be diminished by the fact, relied on in the reply, that that letter is not signed by a legal representative of the applicant. Moreover, at the hearing, the applicant confirmed that he was the ‘biggest private entrepreneur in the machine-building sector’.

122    In the light of those factors, it is to no avail that the applicant claims that he is not amongst the ‘leading businessmen of Belarus’.

123    Admittedly, he claims that he is not in the public rankings of the richest men of Belarus and that the holding company SALEO is the subject of insolvency proceedings which have serious consequences for his personal assets. Similarly, in his view, the total value of the companies in Belarus in which he holds shares represents only a de minimis share of the country’s gross domestic product, and the tax contributions of the holding company Amkodor represent only a very small proportion of the revenue of the Republic of Belarus. Lastly, in the reply, he also refers to the number of employees of the holding company Amkodor, in order to claim that he represents only a tiny proportion of the country’s ‘wage bill’, and to the fact that other Belarusian undertakings employ more staff.

124    However, those claims do not call into question the grounds relied on by the Council, which considered that the applicant was, at the time when the initial acts were adopted, one of the leading businessmen operating in Belarus, without referring either to the applicant’s personal wealth, the number of employees of the undertakings which he controls, or the size of the tax contribution of those undertakings, particularly since the applicant himself stated that he was the head of the largest privately held industrial holding in Belarus. Furthermore, as regards the total value of Amkodor and SALEO, the applicant merely compares it to Belarus’s gross domestic product, which is not in itself a relevant factor for assessing whether the applicant is one of those leading businessmen.

125    It follows from the foregoing that the Council did not err in considering that, at the time when the initial acts were adopted, the applicant was one of the leading businessmen operating in Belarus, with business interests in construction, machine building, agriculture and other sectors.

–       The assessment that the applicant is one of the persons who benefited most from privatisation during Lukashenko’s tenure as President

126    As regards the privatisation carried out during Lukashenko’s tenure as President, it should be observed at the outset that the applicant does not dispute that the holding company Amkodor acquired certain State-owned undertakings when such privatisation was carried out.

127    The applicant thus refers to the acquisition of control of ‘N. Gastello Experimental Plant JSC’ in 2008, ‘Minsk Instrument [Plant]’, ‘RUE Zavod EPOS’ and ‘Dzerzhinsk plant Agromash’ in 2011 as well as ‘[Kochanowski] Excavator Plant’ and ‘Dzerzhinsk Experimental Mechanical Plant’ in 2014. That information is drawn from the document annexed to the application by the applicant in relation to the commitments associated with the privatisation, which document also refers to the takeover, by the holding company SALEO, of ‘[Kobrin] Hydromash’ and ‘[Gomel] Gidroprivod’ in 2014.

128    Furthermore, the Council relies on an article published on the website ‘belmarket.by’ on 28 October 2020, from which it is apparent that the applicant is part of the small group of businessmen which benefited most from the privatisation of State-owned undertakings, and that he was present at President Lukashenko’s inauguration ceremony.

129    Several factors demonstrate that the content of that article is sound and reliable. First of all, the applicant confirms, in the application, that he was present at President Lukashenko’s inauguration ceremony in 2020.

130    Next, it is apparent from the article in question that the applicant invested in the holding company Amkodor and acquired State undertakings particularly in the machine-building sector, which cannot be disputed in the light of the applicant’s own statements in the application. That article also contains a list of privatised undertakings which matches that drawn up by the applicant (see paragraph 127 above), namely ‘N. Gastello Experimental Plant JSC’, ‘Minsk Instrument [Plant]’, ‘Dzerzhinsk Experimental Mechanical Plant’ and ‘Dzerzhinsk plant Agromash’, in so far as concerns assets acquired by the holding company Amkodor, and ‘[Kobrin] Hydromash’ and ‘Gomel Gidroprivod’ as regards the undertakings held by the holding company SALEO.

131    Finally, first, the applicant himself refers in his written pleadings to the article in question in order to claim that he has no current financial interests in the agricultural sector, which suggests that he regards that article as containing reliable information. Second, when questioned at the hearing on the information contained in that article, the applicant did not dispute that information.

132    Accordingly, the applicant has failed to demonstrate that the Council erred in finding that he was one of the persons who benefited most from privatisation during Lukashenko’s tenure as President.

–       The assessment that the applicant is a member of the CDE

133    As regards the CDE, the Council claims that this is a permanent body under the Belarusian public authorities, the advisory tasks of which are important and which has real influence on Belarusian legislation.

134    In that regard, first, in the application, the applicant acknowledges that he is a member of the CDE.

135    Admittedly, in the reply, he maintains that he is no longer a member of that body. However, since that fact manifestly shows a change in the applicant’s situation subsequent to the adoption of the initial acts, it cannot be relied on as being relevant, since the legality of an EU act must be assessed on the basis of the elements of fact and law existing at the date on which the act was adopted (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).

136    Second, the applicant argues that the CDE is not a public body, but rather an organisation defending the interests of undertakings and employers which acts in an advisory capacity to the President of the Republic of Belarus, and the opinions of which are regularly rejected or not acted upon.

137    In that regard, it should be noted that it is apparent from a document entitled ‘General information’, published on the CDE website and placed on the file by the Council, that the CDE is a permanent advisory body under the Council of Ministers, chaired by the First Deputy Prime Minister of the Republic of Belarus, and the articles of association of which were approved by decree of the President of the Republic of Belarus.

138    It is apparent from the document in question that the CDE’s objective is to ensure effective interaction between business circles and government agencies and bodies, as well as the participation of its representatives in developing public, in particular regulatory, measures. This is reflected in the CDE’s right, in its sphere of competence, to communicate proposals relating to legislation and to submit draft legal acts to public authorities, interact with them and involve members of those authorities in its work.

139    As regards the CDE’s influence on Belarusian legislation, the Council has produced an interview with the Head of the Executive Directorate of the CDE, taken from that body’s website and dated 6 November 2019, from which it is apparent that the CDE was directly involved in a significant number of legal reforms in 2019 in the fields of taxation, criminal law and the regulation of economic activities.

140    Third, as the applicant himself states in his written pleadings, the CDE comprises only 20 members, including himself. That demonstrates that the applicant’s membership of the CDE is a status reserved in particular to a small group of businessmen.

141    The foregoing considerations are thus sufficient to establish that the Council did not err in finding that, at the time when the initial acts were adopted, the applicant was a member of the CDE. Moreover, it follows that membership of the CDE is a status reserved in particular to a small group of businessmen, and involves close and constant links with the authorities of the Lukashenko regime – in particular high-ranking members of the government – with the aim of helping to shape public policy and legislation.

–       The assessment that the applicant is a member of the presidium of the association Belaya Rus

142    In so far as concerns the association Belaya Rus, the Council states in the initial acts that the applicant ‘is a member of the presidium of the [association Belaya Rus]’. The use of the present tense suggests that this is a fact regarded by the Council as existing on the date on which those acts were adopted.

143    In that connection, the applicant submits that he has not been a member of the presidium or of other elected bodies of the association Belaya Rus since 2018. He has produced before the Court a letter from the Vice-President of that association dated 2 February 2021, according to which ‘as of 2018 [the applicant was no longer] a member of the presidium or of other elected bodies of the association’.

144    Admittedly, the Council relies, in order to counter that evidence, on the applicant’s biography published on the website of the holding company Amkodor, which the Council retrieved on 28 October 2020 and which refers to the applicant’s membership of the association Belaya Rus. It must, however, also be observed that, in its observations on the statement of modification, the Council states that it took into account information brought to its attention by the applicant during the judicial proceedings on the subject of his membership of that association and, as a consequence, amended the grounds of the second set of maintaining acts in order to indicate that he is a former member of that association.

145    The Council, which bears the burden of proof, cannot both dispute and accept the relevance of the evidence produced by the applicant before the Court.

146    Nor can the Council’s argument – which consists, in essence, in relying on the applicant’s past membership of the association Belaya Rus in order to justify the adoption of restrictive measures against the applicant in the initial acts – succeed. Since that membership was wrongly regarded as a fact existing at the time when those acts were adopted, the Council, by such an argument, invites the Court to replace the grounds on which those acts are based, which the Court cannot accept (see, to that effect, judgment of 9 June 2021, Borborudi v Council, T‑580/19, EU:T:2021:330, paragraph 80).

147    It follows that the Council erred in finding that, at the time when the initial acts were adopted, the applicant was a member of the presidium of the association Belaya Rus.

–       Whether the facts established by the Council demonstrate that the applicant benefits from or supports the Lukashenko regime

148    It follows from the foregoing considerations that the Council did indeed err in finding that, at the time when the initial acts were adopted, the applicant was a member of the presidium of the association Belaya Rus.

149    However, that finding is not sufficient to conclude that the initial acts should be annulled, since the Council rightly found, moreover, that, at the time when the initial acts were adopted, the applicant was one of the leading businessmen operating in Belarus, with business interests in construction, machine building, agriculture and other sectors, that he is one of the persons who benefited most from the privatisation carried out during Lukashenko’s tenure as President, and that he was a member of the CDE.

150    In order to establish that those elements justify the adoption of restrictive measures against the applicant in the initial acts, the Council refers to document WK 14796/2020 EXT 3 and claims that, in a country such as Belarus, activities which are sustained over time on the scale of those of the applicant are not possible without the endorsement of the regime.

151    In that connection, it should be observed that, as at the date on which the initial acts were adopted, it was apparent from Article 4(1)(b) of Decision 2012/642 and Article 2(5) of Regulation No 765/2006 that these essentially concerned persons benefiting from or supporting the Lukashenko regime, as well as legal persons, entities or bodies owned or controlled by them. However, neither that decision nor that regulation contained definitions of the concepts of ‘benefit’ derived from the Lukashenko regime or of ‘support’ for that regime. Nor did they contain any details regarding how those matters are to be proved. Consequently, neither that decision nor that regulation established a presumption that the heads of the leading businesses of Belarus support the Lukashenko regime. Consequently, it cannot be inferred from the mere fact that he is one of the leading businessmen operating in Belarus that the applicant supports the Lukashenko regime or benefits from it (see, to that effect, judgment of 21 April 2015, Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraphs 43 and 44).

152    However, the items of evidence produced by the Council concerning the conditions under which economic activities are exercised in Belarus may be taken into account in the examination of the evidence not in isolation, but in the context to which it belongs, in accordance with the case-law cited in paragraph 111 above.

153    In that connection, amongst the items of evidence set out in document WK 14796/2020 EXT 3, the article published on the website ‘cepa.org’ dated 30 July 2020, the article published on the website ‘naviny.belsat.eu’ dated 15 October 2015, the article published on the website ‘news.tut.by’ dated 13 December 2016, the article published on the website ‘en.belpan.by’ dated 9 July 2020 and the article published on the website ‘russian.rt.com’ on 22 March 2016 are so consistent that the exercise of significant economic activities by businessmen in Belarus is possible only with the endorsement of the Lukashenko regime. Among those articles, the article published on the website ‘naviny.belsat.eu’ and that published on the website ‘news.tut.by’ refer to the applicant as one of the businessmen whose activities benefit from such endorsement.

154    Admittedly, the applicant criticises the items of evidence set out in document WK 14796/2020 EXT 3. However, he merely makes unsubstantiated claims that those documents are ‘general, anecdotal in character … based on conjecture … and not actual’ without providing further details, and maintains that the information in the article published on the aforementioned website ‘news.tut.by’ dates from 2016 or even before, is not actual but speculative and in any event outdated by the events of recent years without, however, putting forward any specific and detailed explanation.

155    It follows that, in the light of the context described in paragraph 153 above, the Council did not err in finding that the applicant’s position in Belarusian economic life, his membership of the CDE, his status as principal shareholder and chairman of the board of directors of the holding company Amkodor and as shareholder of the holding company SALEO, the fact that the assets of those holding companies were added to as a result of the privatisation of State-owned undertakings, together with the fact that the applicant belongs to a small group of Belarusian businessmen who benefited most from that privatisation during Lukashenko’s tenure as President, constituted a sufficiently concrete, precise and consistent body of evidence to establish that he benefits from and supports the regime.

156    It should also be observed that the applicant’s arguments are not sufficient to call that conclusion into question.

157    In the first place, the applicant claims that the privatisation referred to by the Council took place during the period from 2007 to 2014, during which time the applicant had no decisive influence over the holding company Amkodor. In his view, the role of chairman of the board of directors of that holding company, which he has exercised since 2005, is organisational and not decision-making in nature, and his participation in that holding company, whether direct or indirect, was always a minority shareholding between 2007 and 2018. In any event, the privatisation of State-owned undertakings between 2007 and 2014 is outdated information which could not be taken into account at the time when the initial acts were adopted.

158    In that regard, as to whether the applicant is justified in claiming that he did not exercise decisive influence over the decisions of the holding company Amkodor during the period from 2007 to 2014 during which the privatisation of certain State-owned undertakings took place, it should be noted that, according to the applicant’s own statements, the applicant accepts that he has, since 2005, occupied the position of chairman of the board of directors of that holding company and, since that date, has directly or indirectly held an increasing shareholding in that holding company, amounting to at least 35% of the capital thereof in 2014. These are elements which, taken together, undoubtedly gave the applicant power to influence that holding company’s decisions, contrary to what the applicant maintains.

159    Moreover, it is true that the grounds of the initial acts refer to ‘privatisation during Lukashenko’s tenure as President’, which is therefore a past event.

160    However, as regards the possibility for the Council to rely on past events in order to justify the inclusion of a person on the lists at issue, the applicant wrongly refers to the case-law from which it is apparent that a measure freezing funds must identify the ‘actual and specific reasons’ why the Council considers, in the exercise of its discretion, that such a measure must be adopted in respect of the person concerned. That case-law relates to the qualities which the statement of reasons, required by the second paragraph of Article 296 TFEU, must fulfil in order to show clearly and unequivocally the reasoning of the institution which is the author of the act (see, to that effect, judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraphs 50 to 52).

161    In so far as concerns the substantive examination of the relevance – in particular the temporal relevance – of the facts relied on by the Council to justify the inclusion of a person’s name on the lists at issue, reference should be made to the relevant criteria laid down in Article 4(1) of Decision 2012/642 and in Article 2(4) and (5) of Regulation No 765/2006.

162    In that regard, first, it cannot be considered that the use, in Article 4(1) of Decision 2012/642 and in Article 2(4) and (5) of Regulation No 765/2006, of the present participle in the definition of the listing criteria means that the conduct giving rise to the entry of a person’s or entity’s name on the lists at issue must be ongoing when the decision is taken to list or maintain that listing. It has already been held that, as regards inclusion on a list of the names of persons and entities subject to restrictive measures, the present participle refers to the general meaning particular to legal definitions, not to a given period of time (see, to that effect, judgment of 12 February 2020, Boshab v Council, T‑171/18, not published, EU:T:2020:55, paragraph 83 and the case-law cited).

163    Second, the fact that the grounds for including the applicant’s name on the list at issue refer to conduct which occurred before the adoption of the contested decision and which had ended as at that date does not necessarily mean that the restrictive measures maintained against him by that decision are obsolete. For the purposes of establishing that the applicant benefits from or supports the Lukashenko regime, such a reference cannot, as a matter of principle, be regarded as irrelevant solely on the ground that certain actions belong to the more or less distant past (see, to that effect, judgment of 12 February 2020, Boshab v Council, T‑171/18, not published, EU:T:2020:55, paragraph 84 and the case-law cited).

164    That interpretation is supported by Article 8 of Decision 2012/642, under which that decision is to be kept under constant review and is to be renewed or amended, as appropriate, if the Council deems that its objectives have not been met, and by Article 8a(4) of Regulation No 765/2006, from which it is apparent that the list in Annex I to that regulation is to be reviewed at regular intervals and at least every 12 months. If those provisions are not to be rendered redundant, they must be considered to allow the continued inclusion on the lists at issue of the names of persons and entities not having committed any act which shows that they benefit from or support the Lukashenko regime during the period preceding the review, if that continued inclusion is still justified in the light of all the relevant circumstances and, in particular, of the fact that the objectives pursued by the restrictive measures have not been achieved (see, to that effect, judgment of 12 February 2020, Boshab v Council, T‑171/18, not published, EU:T:2020:55, paragraph 85 and the case-law cited).

165    Consequently, contrary to what the applicant claims, the facts which occurred before the initial acts were adopted and which were completed as at that date cannot be disregarded as a matter of principle. Those facts must be assessed on a case-by-case basis, in the context of all the relevant circumstances, in order to determine whether they show that the applicant is one of the individuals benefiting from or supporting the Lukashenko regime.

166    In the light of the foregoing, it must be observed that, on the date on which the application was lodged, the applicant acknowledged that he had held a 62% shareholding in the holding company Amkodor since 2018, of which he was, moreover, chairman of the board of directors. Moreover, the applicant does not claim that the State-owned undertakings that were privatised during Lukashenko’s tenure as President are no longer amongst the assets of that holding company.

167    However, the fact that the assets of the holding company Amkodor which the applicant held at the time when the initial acts were adopted were added to as a result of the privatisation, during Lukashenko’s tenure as President, of certain State-owned undertakings is relevant for the purposes of establishing that the applicant is one of the individuals benefiting from the Lukashenko regime.

168    As to the applicant’s claim that the holding company SALEO, which was also a beneficiary of the privatisation of certain State-owned undertakings during Lukashenko’s tenure as President, is the subject of insolvency proceedings opened in September 2020, in respect of which his personal assets were seized or pledged in security, this is in no way substantiated, since the applicant confines himself to claiming that it is ‘a fact widely publicised in the media’. In any event, the fact that that holding company, controlled by the applicant, was able to acquire State-owned undertakings during privatisation, just as the holding company Amkodor did, is relevant for the purposes of establishing that the applicant is one of the persons benefiting from the Lukashenko regime.

169    In the second place, the applicant claims that the privatisation at issue took place in full compliance with Belarusian legislation, following competitive tendering on the basis of calls for tenders involving significant commitments in terms of protection of employment, development, and modernisation of acquired entities, with the result that they cannot be regarded as preferential treatment on the part of the regime. The reason why State undertakings could be acquired was that these were in a difficult situation and the holding company Amkodor was the only investor able to provide the financial, technical and material resources to render them competitive.

170    In that connection, as the Council observes, the applicant merely refers to Belarusian legislation which is relevant in his view, the existence of calls for tenders and the fact that the holding company Amkodor was the only investor able to acquire privatised State-owned undertakings, without providing any evidence whatever in that regard. He has produced only a series of photographs intended to demonstrate that the premises of the privatised State-owned undertakings were initially in very poor condition and that they have since been the subject of large-scale renovations. However, that does not demonstrate that those undertakings were faced with such difficulties that only that holding company could acquire them following a competitive tendering procedure on the basis of calls for tender.

171    In the third place, the applicant claims that the holding company Amkodor and its shareholders did not benefit from the privatisation of certain State-owned undertakings during Lukashenko’s tenure as President, because those companies were not profitable and no dividends were distributed. The same applies to the holding company SALEO.

172    It should be observed that, in the grounds of the initial acts, the Council did not find that the applicant derived a financial benefit from the regime.

173    Moreover, the acquisition of control of certain undertakings may in itself appear to be a profit, although that may not involve immediate financial profits. In that regard, it is apparent in particular from the application that ‘what [the holding company Amkodor] found particularly valuable in those [State-owned undertakings over which it acquired control], was the experience and know-how of the employees in the privatised entities’.

174    It cannot therefore be argued that the holding companies in question and, consequently, the applicant who manages those companies and holds shares in the capital thereof have derived no profit from the privatisation of State-owned undertakings.

175    In the fourth place, it is to no avail that the applicant relies on an article published on the website ‘Euroradio.fm’ on 22 March 2021 in order to claim that it contains statements from a Belarusian opposition member which are favourable to the applicant. In accordance with the case-law cited in paragraph 135 above, that fact subsequent to the initial acts cannot be taken into account in the examination of the lawfulness of those acts.

176    In the light of all the foregoing considerations, the grounds on which, at the time when the initial acts were adopted, the applicant was one of the leading businessmen operating in Belarus, with business interests in construction, machine building, agriculture and other sectors, that he is one of the persons who benefited most from the privatisation carried out during Lukashenko’s tenure as President, and that he was a member of the CDE, and, as such, benefited from and supported the Lukashenko regime, have been substantiated to the requisite legal standard.

177    In accordance with the case-law cited in paragraph 112 above, that finding is sufficient to reject the plea alleging errors of assessment as regards the initial acts, without there being any need to examine the applicant’s arguments directed against the other grounds justifying those acts, since the fact that those grounds may not be substantiated cannot lead to the annulment of those acts.

 The first set of maintaining acts

178    It should be noted that the first set of maintaining acts, like the initial acts, are based on the grounds that the applicant is one of the leading businessmen operating in Belarus, with business interests in construction, machine building, agriculture and other sectors, that he is one of the persons who benefited most from the privatisation carried out during Lukashenko’s tenure as President and that he is a member of the presidium of the association Belaya Rus and the CDE and, as such, benefits from and supports the Lukashenko regime.

179    In the first place, it should be observed that the assessment that, at the time when the first set of maintaining acts were adopted, the applicant was a member of the presidium of the association Belaya Rus is incorrect for the same reasons as those set out in paragraphs 142 to 147 above.

180    Furthermore, it is to no avail that the Council claims that the applicant failed to forward to it the letter dated 2 February 2021 from the Vice-President of the association Belaya Rus before the adoption of the first set of maintaining acts at the time of the request for review of 23 December 2020.

181    The applicant may in fact submit, at any time, observations or new evidence, in accordance with Article 6(3) of Decision 2012/642 and Article 8a(3) of Regulation No 765/2006, as amended, but this is a power vested in the applicant which cannot relieve the Council from the burden of proof incumbent on it before the Court (see, to that effect, judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 73). Accordingly, in the present case, the letter dated 2 February 2021 may legitimately be produced, for the first time, in support of the present action, even though it had not been annexed to the request for review of 23 December 2020.

182    In the second place, as regards the grounds of the first set of maintaining acts set out in paragraph 178 above, other than those relating to the applicant’s membership of the presidium of the association Belaya Rus, it should be noted that, in support of those acts, the Council has produced, inter alia, documents WK 13841/2020 INIT and WK 14796/2020 EXT 3 on which it relied in support of the initial acts. Furthermore, it puts forward the same arguments supported by the same evidence as those put forward in relation to the latter acts. The applicant, for his part, raises arguments and produces identical evidence against the initial acts and the first set of maintaining acts.

183    Consequently, for the same reasons as those set out in paragraphs 117 to 141 and 148 to 176 above, it must be found that the grounds of the first set of maintaining acts – according to which, at the time when those acts were adopted, the applicant was one of the leading businessmen operating in Belarus, with business interests in construction, machine building, agriculture and other sectors, that he is one of the persons who benefited most from the privatisation carried out during Lukashenko’s tenure as President and that he is a member of the CDE and, as such, benefited from and supported the Lukashenko regime – have been substantiated to the requisite legal standard.

184    The foregoing conclusion is all the more valid inasmuch as, with regard to the privatisation of State-owned undertakings from which the applicant benefited, the body of evidence referred to in paragraph 155 above is reinforced by three documents contained in document WK 1772/2021 INIT which was added by the Council to its file at the time when the first set of maintaining acts were adopted:

–        an article published on the website ‘gomel.today’, dated 9 January 2020, from which it is apparent that the undertaking Gidroprivod established in Gomel was acquired by the holding company SALEO under Presidential Decree No 328 of 2014 and that ‘there was no traditional competitive bidding’;

–        an article published on the website ‘news.tut.by’, dated 30 June 2011, according to which the holding company Amkodor was to be allowed to buy, ‘out of competition’, three State-owned undertakings, including ‘Dzerzhinsky Plant Agromash’ and ‘Minsk Instrument-Making Plant’;

–        an article published on the website ‘news.tut.by’, dated 26 August 2013, relating to the acquisition, inter alia, of ‘Dzerzhinsk Experimental Mechanical Plant’ containing the applicant’s statements that ‘[local authorities] approached us with an offer [to buy the factories]’ and ‘we carried out an assessment and agreed. Now a draft decree has been prepared that will allow us to buy out the factories’.

185    It is apparent from the items of evidence at issue that the undertakings controlled by the applicant acquired State-owned undertakings not following calls for tenders open to competition, but as a result of exceptional treatment or proposals made directly by the public authorities, which supports the existence of favour on the part of the regime.

186    When questioned, at the hearing, on the items of evidence at issue, the applicant, in order to explain the absence of a competitive tendering procedure when certain State-owned undertakings were privatised, merely reiterated the argument that these were undertakings experiencing significant difficulties and that the holding company Amkodor was the only private operator in Belarus in a position to acquire them. Such an argument, which is not otherwise substantiated, cannot suffice to counter the evidence produced by the Council.

187    In the light of the foregoing, and in accordance with the case-law cited in paragraph 112 above, the finding that the grounds set out in paragraph 178 above have been substantiated to the requisite legal standard is sufficient to reject the plea alleging errors of assessment in so far as concerns the first set of maintaining acts, without there being any need to examine the applicant’s arguments directed against the other grounds justifying those acts, since the fact that those grounds are unsubstantiated cannot lead to the annulment of those acts.

 The second set of maintaining acts

188    In the first place, it should be noted that the second set of maintaining acts, like the initial acts and the first set of maintaining acts, are based on the grounds that the applicant is one of the leading businessmen operating in Belarus, with business interests in construction, machine building, agriculture and other sectors, and that he is one of the persons who benefited most from the privatisation carried out during Lukashenko’s tenure as President.

189    By contrast, unlike the grounds of the initial acts and the first set of maintaining acts, first, the grounds of the second set of maintaining acts indicate that the applicant is a ‘former’ member of the presidium of the association Belaya Rus and of the CDE.

190    Second, the grounds of the second set of maintaining acts do not state that, as a result of the matters referred to in paragraphs 188 and 189 above, the applicant benefits from and supports the Lukashenko regime.

191    In the first place, it should be noted, as regards the absence of any mention that the applicant benefits from and supports the Lukashenko regime, that the Council, at the hearing, claimed that this is a clerical error.

192    In the present case, it should be observed that the second set of maintaining acts are also based on the criteria laid down in Article 4(1)(b) of Decision 2012/642, a provision to which Article 2(5) of Regulation No 765/2006 refers, namely ‘natural or legal persons, entities or bodies benefiting from or supporting the Lukashenk[o] regime’, which the applicant acknowledges in the statement of modification, since he disputes the allegation that he benefits from and supports the Lukashenko regime.

193    In the second place, as regards the grounds referred to in paragraph 188 above, it should be noted that, in support of the second set of maintaining acts, the Council reiterates the arguments put forward in relation to the initial acts and the first set of maintaining acts and contends that it has proved that these are well founded. It has also placed on the file document WK 15381/2021 REV 1, which contains an extract from the website ‘amkodor.by’ dated 3 January 2022 stating that the applicant remains, as at that date, chairman of the board of directors of the holding company Amkodor.

194    The applicant, for his part, reiterates the arguments and maintains the evidence already produced against the initial acts and the first set of maintaining acts. He does not claim that new facts which have arisen since the first set of maintaining acts would render obsolete the evidence on which the Council relies.

195    Admittedly, first, in the statement of modification, the applicant amplifies his criticism of the evidence of his interests in the agriculture sector by referring to the documents enclosed with the Council’s letter of 17 January 2022. For the reasons set out in paragraphs 119 and 120 above, that argument cannot succeed, since it has been established that the applicant has interests in the machine-building sector.

196    Second, the applicant also relies on the article published on the website ‘Euroradio.fm’ on 22 March 2021, referred to in paragraph 175 above, which can be taken into account with regard to the second set of maintaining acts, since it existed on the day on which those acts were adopted.

197    However, the article at issue merely refers to the statements of a politician and economist, presented by the applicant as a member of the Belarusian opposition. According to those statements, the applicant is not a businessman ‘who work[s] with state resources, suppressing competitors’ but is involved ‘in a competitive field’ and is ‘pressed by ministries, departments, government’. The applicant’s companies’ financial indicators show that he ‘is not playing on the side of the authorities’ and ‘the fact that [he] saves his business, contacts the government or Lukashenko, is hardly a reason for being included on the [lists at issue]’. Such statements do not refer to any specific evidence capable of contradicting the evidence relied on by the Council to justify maintaining the restrictive measures against the applicant in the second set of maintaining acts.

198    Therefore, for the reasons already set out in paragraphs 117 to 132, 149 to 174 and 184 to 186 above, the applicant has failed to establish that the grounds referred to in paragraph 188 above are vitiated by an error of assessment.

199    In the third place, as regards the grounds that the applicant is a former member of the presidium of the association Belaya Rus and of the CDE, the Council states that it took account, during the annual review of the restrictive measures, of the statements made in the application and in the reply, from which it is apparent that the applicant is no longer a member of those entities.

200    In the statement of modification, the applicant claims that, in so doing, the Council relied on facts which were out of date.

201    In that regard, it should be recalled that facts which occurred before the adoption of the second set of maintaining acts and which had ended as at that date cannot be disregarded as a matter of principle. Those facts must be assessed on a case-by-case basis, in the context of all the relevant circumstances, in order to determine whether they show that the applicant is one of the individuals benefiting from or supporting the Lukashenko regime (see paragraph 165 above).

202    In the present case, first of all, as regards the applicant’s membership of the association Belaya Rus, it should be noted that four years elapsed between the applicant ceasing to  occupy a position within that association and the adoption of the second set of maintaining acts, which is a considerable period of time.

203    Furthermore, the Council’s argument that the applicant’s past membership of the association Belaya Rus remains relevant because he continues to support the regime cannot succeed.

204    In that regard, the Council relies on an article published on the website ‘gomel.today’, dated 29 December 2020, from which it is apparent that the applicant stated that ‘[he] very highly appreciate[d] what the President ha[d] done for the country and for the industry of Belarus’ that ‘[the President had] kept production’, that it was necessary to ‘look what [had] happened in this sense in Germany, Lithuania, Latvia, Russia’ and that ‘it [was] a great thing that we have the opportunity to develop!’. First, that statement is unrelated to the applicant’s activities within the association Belaya Rus. Second, a laudatory comment on the economic policy of President Lukashenko cannot, in itself, constitute support for the regime within the meaning of Article 4(1)(b) of Decision 2012/642.

205    It follows that, in view of the applicant’s former membership of the association Belaya Rus, the Council erred in finding that this could justify maintaining the restrictive measures against the applicant in the second set of maintaining acts.

206    As regards the applicant’s status as a former member of the CDE, first, it should be borne in mind that, as the Council has established, that factor may be regarded as relevant in so far as it is a status reserved to a small group of businessmen and that it involves close and constant links with the authorities of the Lukashenko regime, in particular high-level members of the government, with the aim of contributing to the definition of public policies and legislation in the country’s interest (see paragraphs 141 and 155 above).

207    Second, only a few months elapsed between the time when the applicant ceased to occupy a position within the CDE and the adoption of the second set of maintaining acts, with the result that past membership of that entity is not a sufficiently outdated fact as to be excluded. Furthermore, the applicant has adduced no evidence to explain how the fact that he is no longer a member of the CDE at the latest since the reply was lodged on 30 August 2021 makes his former membership of that entity irrelevant.

208    It follows that the Council did not err in relying on the applicant’s status as a former member of the CDE in order to justify maintaining the restrictive measures against the applicant in the second set of maintaining acts.

209    In the light of the foregoing, the grounds of the second set of maintaining acts, according to which, at the time when those acts were adopted, the applicant was one of the leading businessmen operating in Belarus, with business interests in construction, machine building, agriculture and other sectors, that he was one of the persons who benefited most from the privatisation carried out during Lukashenko’s tenure as President and that he was a former member of the CDE, and, as such, benefited from and supported the Lukashenko regime, have been substantiated to the requisite legal standard.

210    Furthermore, in accordance with the case-law cited in paragraph 112 above, the finding that those grounds have been substantiated to the requisite legal standard is sufficient to reject the plea alleging errors of assessment in so far as concerns the second set of maintaining acts, without there being any need to examine the applicant’s arguments directed against the other grounds justifying those acts, since the fact that those arguments are unsubstantiated cannot lead to the annulment of those same acts.

211    In the light of all the foregoing considerations, the present plea must be rejected in its entirety.

 The plea alleging failure to state reasons

212    In the context of the first plea raised in the application and the second part of the third plea raised in the reply, the applicant states that the criterion laid down in Article 4(1)(a) of Decision 2012/642 concerns, in particular, the persons responsible for the repression of civil society and democratic opposition in Belarus, whereas the criterion set out in point (b) of that provision refers, in particular, to persons benefiting from or supporting the Lukashenko regime.

213    In the present case, document WK 13841/2020 INIT which the Council sent to the applicant refers to Article 4(1)(b) of Decision 2012/642 and the items of evidence contained therein are intended to support his listing on that basis.

214    However, only the first part of the grounds of the initial acts and the first set of maintaining acts, which ends with the conclusion that the applicant benefits from and supports the Lukashenko regime, corresponds to the criterion set out in Article 4(1)(b) of Decision 2012/642. By contrast, the last part of those grounds, according to which ‘in July 2020 he made public comments condemning the opposition protests in Belarus, thereby contributing to the repression of civil society and democratic opposition’, might suggest that the criterion laid down in Article 4(1)(a) of that decision is also relevant.

215    Therefore, it is not possible for the applicant to ascertain whether he is included on the lists at issue solely on the basis of the criterion laid down in Article 4(1)(b) of Decision 2012/642 or on the basis of the two criteria laid down in points (a) and (b) of that provision.

216    In the statement of modification, the applicant adds that the grounds of the second set of maintaining acts were amended so as to remove any reference to his responsibility for the repression of civil society, which demonstrates the ambiguity of the grounds of the initial acts and of the first set of maintaining acts.

217    The Council’s response is that, inasmuch as it is set out in the reply, the present plea is a new plea which is inadmissible and that the obligation to state reasons has been observed.

218    In the first place, it has consistently been held that an absence of or an inadequate statement of reasons constitutes an infringement of essential procedural requirements for the purposes of Article 263 TFEU and is a plea involving a matter of public policy which may, and even must, be raised by the EU Courts of their own motion (see judgment of 20 July 2017, Badica and Kardiam v Council, T‑619/15 P, EU:T:2017:532, paragraph 42 and the case-law cited).

219    In those circumstances, the Court may hear the present plea, without it being necessary to examine whether, in accordance with Article 84(1) of the Rules of Procedure, that plea, inasmuch as it is set out in the reply, is based on ‘matters of law or of fact which come to light in the course of the procedure’.

220    In the second place, it should be observed that the applicant’s arguments are directed solely against the final parts of the grounds of the contested acts, which relate to the public comments he made in July 2020, in that the Council created ambiguity as to whether or not they refer to the criterion laid down in Article 4(1)(a) of Decision 2012/642.

221    By contrast, the applicant does not dispute that it is clear from the first three paragraphs of the grounds of the initial acts and the first set of maintaining acts, as well as from the first two paragraphs of the grounds of the second set of maintaining acts, that, in those parts of the grounds, the Council relied on the criteria laid down in Article 4(1)(b) of Decision 2012/642 in order to justify the inclusion of his name on the lists at issue. First, the considerations set out in those parts of the grounds, the clarity of which the applicant does not dispute, are precise and concrete. Second, as is apparent from paragraphs 177, 187 and 210 above, those findings are not vitiated by errors of assessment and that finding is sufficient to justify the contested acts.

222    Consequently, in accordance with the case-law cited in paragraph 112 above, the present plea must be rejected as ineffective.

 The plea alleging infringement of the principle of sound administration

223    In the statement of modification, the applicant relies on the amendments made to the grounds of the second set of maintaining acts as compared with the grounds of the initial acts and of the first set of maintaining acts in order to raise a fourth plea alleging infringement of the principle of sound administration. He claims that, as a result of those amendments, the Council acknowledged that it had made errors in the amended statement of reasons and should have removed his name from the lists at issue. According to the applicant, this is a considerable procedural irregularity, since the contested acts might have been different had they taken into account at the outset the ambiguous nature of the legal basis justifying the inclusion of his name on the lists at issue and the errors of assessment made by the Council.

224    The Council disputes both the admissibility and the merits of the present plea.

225    As a preliminary point, it should be recalled that the present plea is put forward solely in support of the application for annulment of the second set of maintaining acts (see paragraph 28 above).

226    First, as regards the Council’s argument that the fourth plea is inadmissible, it should be borne in mind that Article 86(4)(a) and (b) of the Rules of Procedure provides that, where appropriate, the statement of modification is to contain the modified pleas in law and arguments.

227    It should also be borne in mind that it would be inequitable if the institution in question were able, in order to counter criticisms of a measure, contained in an application to the Courts of the European Union, to amend the contested measure or to substitute another for it and to rely in the proceedings on such an amendment or substitution in order to deprive the other party of the opportunity of extending its original pleadings to the later measure or of submitting supplementary pleadings directed against that decision (see judgment of 28 September 2022, LAICO v Council, T‑627/20, not published, EU:T:2022:590, paragraph 39).

228    Accordingly, in the present case, it was open to the applicant to rely, as he did, on the amendments made to the grounds of the second set of maintaining acts compared with the grounds of the initial acts and the first set of maintaining acts in order to raise an additional plea alleging infringement of the principle of sound administration when modifying his action.

229    Contrary to the Council’s contention, the present plea is therefore admissible.

230    Second, as regards the substance, it should be noted that the present plea is based on the premiss that the initial acts and the first set of maintaining acts are vitiated by errors of assessment such that the applicant’s name should never have been included on the lists at issue.

231    It is clear from the examination of the plea alleging errors of assessment, carried out in paragraphs 105 to 211 above, that the Council did not make an error of assessment when it adopted the initial acts and the first set of maintaining acts. The premiss on which the present plea is based is therefore unfounded.

232    Accordingly, the present plea must be rejected, and the action dismissed in its entirety.

 Costs

233    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 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.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Mr Aleksandr Vasilevich Shakutin to pay the costs.

Delivered in open court in Luxembourg on 7 June 2023.

Table of contents

Background to the dispute and facts subsequent to the bringing of the action

Forms of order sought

Law

Preliminary observations on the pleas relied on by the applicant

The pleas alleging infringement of the right to effective judicial protection and infringement of the rights of the defence

Regarding the initial acts and the first set of maintaining acts

– Admissibility of the pleas

– The merits of the pleas in law

The second set of maintaining acts

The plea alleging errors of assessment

The initial acts

– The assessment that the applicant is one of the leading businessmen operating in Belarus, with business interests in construction, machine building, agriculture and other sectors

– The assessment that the applicant is one of the persons who benefited most from privatisation during Lukashenko’s tenure as President

– The assessment that the applicant is a member of the CDE

– The assessment that the applicant is a member of the presidium of the association Belaya Rus

– Whether the facts established by the Council demonstrate that the applicant benefits from or supports the Lukashenko regime

The first set of maintaining acts

The second set of maintaining acts

The plea alleging failure to state reasons

The plea alleging infringement of the principle of sound administration

Costs

*      Language of the case: English.

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