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

JUDGMENT OF THE GENERAL COURT (First Chamber)

26 June 2024 (*)

(Common foreign and security policy – Restrictive measures taken in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine – Freezing of funds – List of persons, entities and bodies subject to the freezing of funds and economic resources – Maintaining the applicant’s name on the list – Concept of ‘leading businessperson’ – Article 2(1)(f) and (g) of Decision 2014/145/CFSP – Article 3(1)(f) and (g) of Regulation (EU) No 269/2014 – Error of assessment)

In Case T‑740/22,

Dmitry Alexandrovich Pumpyanskiy, residing in Ekaterinburg (Russia), represented by G. Lansky, P. Goeth, A. Egger and E. Steiner, lawyers,

applicant,

v

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

defendant,

THE GENERAL COURT (First Chamber),

composed of D. Spielmann, President, R. Mastroianni and T. Tóth (Rapporteur), Judges,

Registrar: M. Zwozdziak-Carbonne, Administrator,

having regard to the written part of the procedure,

further to the hearing on 21 February 2024,

gives the following

Judgment

1        By his action pursuant to Article 263 TFEU, the applicant, Mr Dmitry Alexandrovich Pumpyanskiy, seeks the annulment (i) of Council Decision (CFSP) 2022/1530 of 14 September 2022 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 239, p. 149) and of Council Implementing Regulation (EU) 2022/1529 of 14 September 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 239, p. 1) (together, ‘the first set of maintaining acts’); (ii) of Council Decision (CFSP) 2023/572 of 13 March 2023 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2023 L 75I, p. 134) and of Council Implementing Regulation (EU) 2023/571 of 13 March 2023 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2023 L 75I, p. 1) (together, ‘the second set of maintaining acts’); and (iii) of Council Decision (CFSP) 2023/1767 of 13 September 2023 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2023 L 226, p. 104) and of Council Implementing Regulation (EU) 2023/1765 of 13 September 2023 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2023 L 226, p. 3) (together, ‘the third set of maintaining acts’), in so far as those acts (together, ‘the contested acts’) maintain his name on the lists annexed to those acts.

I.      Background to the dispute

A.      On the initial inclusion of the applicant’s name on the lists of persons subject to the restrictive measures

2        The present case has been brought in connection with the restrictive measures adopted by the European Union in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine.

3        The applicant is a Russian national.

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

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

6        On 25 February 2022, in view of the gravity of the situation in Ukraine, the Council adopted Decision (CFSP) 2022/329 amending Decision 2014/145 (OJ 2022 L 50, p. 1) and Regulation (EU) 2022/330 amending Regulation No 269/2014 (OJ 2022 L 51, p. 1), in order, inter alia, to amend the criteria according to which natural or legal persons, entities or bodies could be subject to the restrictive measures at issue.

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

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

…

(f)      natural or legal persons, entities or bodies supporting, materially or financially, or benefiting from the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine; or

(g)      leading businesspersons or legal persons, entities or bodies involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine,

and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.

2.      No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in the Annex.’

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

9        Article 1(1)(d) and (e) of Decision 2014/145, in the version amended by Decision 2022/329, prohibits the entry into, or transit through, the territories of Member States of natural persons meeting criteria in essence identical to those laid down in Article 2(1)(f) and (g) of that decision.

10      Regulation No 269/2014, as amended by Regulation 2022/330, requires the adoption of measures to freeze funds and lays down the detailed rules governing that freezing in terms essentially identical to those of Decision 2014/145, as amended by Decision 2022/329. Article 3(1)(a) to (g) of that regulation essentially reproduces Article 2(1)(a) to (g) of that decision.

11      By Council Decision (CFSP) 2022/397 of 9 March 2022 amending Decision 2014/145 (OJ 2022 L 80, p. 31) and Council Implementing Regulation (EU) 2022/396 of 9 March 2022 implementing Regulation (EU) No 269/2014 (OJ 2022 L 80, p.1) (‘the initial acts’), the applicant’s name was added, respectively, to the list annexed to Decision 2014/145 and to the list contained in Annex I to Regulation No 269/2014 (‘the lists at issue’) on the following grounds:

‘[The applicant] is the Chairman of the board of directors of PJSC Pipe Metallurgic Company [TMK] and the President and a board member of Group Sinara. He thus supports and benefits from cooperation with authorities of Russian Federation and State-owned enterprises, including Russian railways, Gazprom and Rosneft. He is therefore involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine.

On 24 February 2022, in the aftermath of the initial stages of Russian aggression against Ukraine, Dmitry Alexandrovich Pumpyansky, along with other 36 businesspeople, met with President Vladimir Putin and other members of the Russian [Government] to discuss the impact of the course of action in the wake of Western sanctions. The fact that he was invited to attend this meeting shows that he is a member of the closest circle of [President Vladimir Putin] and that he is supporting or implementing actions or policies which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine, as well as stability and security in Ukraine. It also shows that he is one of the leading businesspersons involved in economic sectors providing a substantial source of revenue to the Government of Russia, which is responsible for annexation of Crimea and destabilisation of Ukraine.’

12      The Council published a notice in the Official Journal of the European Union of 10 March 2022 (OJ 2022 C 144I, p. 1) for the attention of the persons subject to the restrictive measures provided for in the contested acts. That notice stated, inter alia, that the persons concerned could submit a request to the Council, together with supporting documentation, that the decision to include their names on the lists annexed to those acts should be reconsidered.

13      By email of 19 April 2022, the applicant requested access to all the documents produced and held by the Council and the European External Action Service (EEAS), which had served as the basis for the adoption of restrictive measures concerning him, with a view to preparing a request that the decision be reconsidered.

14      By letter of 28 April 2022, the Council replied to the request from the applicant referred to in paragraph 13 above and communicated the information contained in the file bearing the reference WK 3051/2022 INIT, dated 8 March 2022 (‘the first WK file’).

15      The applicant brought an action before the General Court of the European Union, registered as Case T‑270/22, seeking annulment of the initial acts in so far as those acts concerned him. That action was dismissed by judgment of 6 September 2023, Pumpyanskiy v Council (T‑270/22, not published, under appeal, EU:T:2023:490).

B.      The retention of the applicant’s name on the lists at issue until 15 March 2024

16      On 14 September 2022, the Council adopted the first set of maintaining acts, which extended the validity of the initial acts until 15 March 2023, without modifying the grounds for including the applicant’s name on the lists at issue in relation to those contained in the initial acts.

17      On 24 November 2022, the applicant brought the present action, registered as Case T‑740/22, seeking annulment of the first set of maintaining acts, in so far as those acts concerned him.

18      By letter of 22 December 2022, the Council informed the applicant of its intention to maintain the restrictive measures against him and forwarded the information in the file bearing the reference WK 17688/2022, dated 15 December 2022 (‘the second WK file’). The applicant replied to that letter on 11 January 2023.

19      By letter of 6 February 2023, the Council again informed the applicant of its intention to maintain the restrictive measures imposed on him. The applicant replied to that letter on 14 February 2023.

20      On 13 March 2023, the Council adopted the second set of maintaining acts, which extended the measures taken in respect of the applicant until 15 September 2023. The grounds for including the applicant’s name on the lists at issue were amended as follows:

‘[The applicant] is a Russian leading businessperson. Member of the Council of Chamber of Commerce and Industry (CCI) of the Russian Federation and President of the Sverdlovsk regional Union of Industrialists and Entrepreneurs (SOSPP). He is former Chairman of the board of directors of TMK … and former President and a board member of Group Sinara. In those capacities, he supported and benefitted from cooperation with authorities of the Russian Federation and State-owned enterprises, including Russian railways, Gazprom and Rosneft. He is therefore involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine.

On 24 February 2022, in the aftermath of the initial stages of Russian aggression against Ukraine, [the applicant], along with other 36 businesspeople, met with President Vladimir Putin and other members of the Russian [Government] to discuss the impact of the course of action in the wake of Western sanctions. The fact that he was invited to attend this meeting shows that he is a member of [President] Vladimir Putin’s closest circle and that he is supporting or implementing actions or policies which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine, as well as stability and security in Ukraine. It also shows that he is one of the leading businesspeople involved in economic sectors providing a substantial source of revenue to the Government of Russia, which is responsible for the annexation of Crimea and the destabilisation of Ukraine.’

21      The amendment in respect of the initial acts and the first set of maintaining acts therefore consisted in updating the positions held by the applicant. The grounds state, first, that he is a member of the Council of the Chamber of Commerce and Industry of the Russian Federation (‘CCI’) and President of the Sverdlovsk Regional Union of Industrialists and Entrepreneurs (‘SOSPP’), and, secondly, that he is former Chairman of the board of directors of TMK and former President and a board member of Group Sinara.

22      By letter of 14 March 2023, the Council notified the applicant of Decision 2023/572, informing him that ‘[it had] concluded, after having considered [his] observations, that they [did] not cast doubt on [its] assessment that restrictive measures should be applied against [him]’.

23      By letter of 21 April 2023, the Council confirmed that all the relevant information as regards maintaining the applicant’s name on the lists at issue under the second set of maintaining acts was contained in the second WK file.

24      On 5 June 2023, the Council adopted Decision (CFSP) 2023/1094 amending Decision 2014/145 (OJ 2023 L 146, p. 20) and Regulation (EU) 2023/1089 amending Regulation No 269/2014 (OJ 2023 L 146, p. 1).

25      Decision 2023/1094 amended, with effect from 7 June 2023, the criteria for listing the names of the persons subject to the freezing of funds, with the text of Article 2(1)(g) of Decision 2014/145 being replaced with the following text:

‘(g)      leading businesspersons operating in Russia and their immediate family members, or other natural persons, benefitting from them, or businesspersons, legal persons, entities or bodies involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine; or’

26      Regulation 2023/1089 amended Regulation No 269/2014 in the same way.

27      On 19 June 2023, the Council informed the applicant of its intention to maintain the restrictive measures in respect of him and sent him the file bearing the reference WK 8176/2023 INIT (‘the third WK file’).

28      On 10 July 2023, the Council again informed the applicant of its intention to renew the restrictive measures imposed in respect of him on the basis of the files bearing the references WK 5142/2023 INIT, WK 8998/2023 INIT and WK 8835/2023 INIT.

29      On 18 August 2023, the Council reiterated its intention to maintain the restrictive measures in respect of the applicant and sent him the file bearing the reference WK 5142/2023 ADD 1.

30      On 13 September 2023, the Council adopted the third set of maintaining acts, which extended the restrictive measures taken in respect of the applicant until 15 March 2024. The grounds for including the applicant’s name on the lists at issue were amended as follows:

‘[The applicant] is a Russian leading businessperson operating in Russia. He is Vice-President, member of the Bureau of the Board of the Russian Union of Industrialists and Entrepreneurs (RSPP), Co-Chairman of the RSPP Committee on Industrial Policy and Technical Regulation. He is a Member of the Council of [CCI] and President of the [SOSPP].

He held senior positions at large Russian metallurgical [companies]. He is [the] former Chairman of the board of directors of TMK … and [the] former President and a board member of Group Sinara. In those capacities, he supported and benefitted from cooperation with authorities of the Russian Federation and State-owned enterprises, including Russian railways, Gazprom and Rosneft. He is therefore involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine.

On 24 February 2022, in the aftermath of the initial stages of Russia’s war of aggression against Ukraine, [the applicant], along with 36 other businesspersons, met with [President] Vladimir Putin and other members of the Russian [Government] to discuss the impact of the course of action in the wake of Western sanctions. The fact that he was invited to attend this meeting shows that he is a member of the closest circle of [President] Vladimir Putin and that he is supporting or implementing actions or policies which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine, as well as stability and security in Ukraine.

Additionally, he was awarded the Order of Merit for the Fatherland, IV degree, the Order of Honor. He was among the leading Russian businesspersons who participated in the congress of the Russian Union of Industrialists and Entrepreneurs [(RSPP)] in March 2023, where [President] Vladimir Putin gave a speech and urged billionaires to put “patriotism before profit”. Those elements show that he is a leading businessperson operating in Russia and a businessperson involved in economic sectors providing a substantial source of revenue to the Government of Russia, which is responsible for annexation of Crimea and destabilisation of Ukraine.’

31      By letter of 15 September 2023, the Council, referring to the observations submitted by the applicant in the letters of 31 May, 13 June, 3 July, 24 July and 31 August 2023, informed the applicant that, in its view, those observations did not cast doubt on the assessment that restrictive measures should be maintained against him and that, consequently, it had decided to maintain his name on the lists at issue.

II.    Forms of order sought

32      Following the modifications of the application, the applicant claims, in essence, that the Court should:

–        declare the inapplicability, first, of Article 2(1)(f) and (g) of Decision 2014/145, as amended by Decision 2022/329, and of Article 3(1)(f) and (g) of Regulation No 269/2014, as amended by Regulation 2022/330, and, secondly, of Article 2(1)(g) of Decision 2014/145, as amended by Decision 2023/1094, and of Article 3(1)(g) of Regulation No 269/2014, as amended by Regulation 2023/1089;

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

–        order the Council to pay the costs.

33      After making observations on the modifications of the application, the Council contends, in essence, that the Court should:

–        dismiss the application;

–        reject as inadmissible or, in the alternative, as unfounded the second request to modify the application;

–        order the applicant to pay the costs.

34      At the hearing, in answer to a question put by the Court, the Council stated that it withdrew its second head of claim, and formal note of that withdrawal was taken in the minutes of the hearing.

III. Law

A.      The application for joinder

35      In its defence, the Council makes a request for the present case to be joined with Cases T‑270/22, Pumpyanskiy v Council, T‑272/22, Pumpyanskaya v Council, T‑291/22, Pumpyanskiy v Council, T‑734/22, Pumpyanskiy v Council, and T‑737/22, Pumpyanskaya v Council, for the purposes of the oral part of the proceedings and the decision closing the proceedings.

36      At the hearing, in answer to a question put by the Court, the Council stated that it withdrew that request, and formal note of that withdrawal was taken in the minutes of the hearing.

B.      The claims for annulment

37      In support of his action, the applicant raises, in essence, five pleas in law, alleging (i) an infringement of the rights of the defence; (ii) an error of assessment; (iii) an infringement of the duty to state reasons; (iv) an infringement of the principle of proportionality and of fundamental rights; and (v) the illegality under Article 277 TFEU of the listing criteria used in the contested acts.

38      The Court considers it appropriate to begin by examining the second plea in law, alleging an error of assessment.

39      As regards the first and the second set of maintaining acts, the applicant alleges the Council committed a manifest error of assessment of the facts in maintaining his name on the lists at issue on the basis of criteria concerning:

–        ‘natural or legal persons … supporting, materially or financially, or benefitting from the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine’ (‘criterion (f)’) (the criteria laid down in Article 2(1)(f) of Decision 2014/145, as amended by Decision 2022/329, and in Article 3(1)(f) of Regulation No 269/2014, as amended by Regulation 2022/330, and, in essence, in Article 1(1)(d) of Decision 2014/145, as amended by Decision 2022/329);

–        ‘leading businesspersons involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine’ (‘the initial (g) criterion’) (the criterion laid down in Article 2(1)(g) of Decision 2014/145, as amended by Decision 2022/329, and in Article 3(1)(g) of Regulation No 269/2014, as amended by Regulation 2022/330, and, in essence, in Article 1(1)(e) of Decision 2014/145, as amended by Decision 2022/329).

40      As regards the third set of maintaining acts, the applicant alleges that the Council made a manifest error of assessment in maintaining his name on the lists at issue on the basis of the criteria concerning ‘leading businesspersons operating in Russia … or businesspersons … involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine’ (‘the amended (g) criterion’) (the criterion laid down in Article 2(1)(g) of Decision 2014/145, as amended by Decision 2023/1094, and in Article 3(1)(g) of Regulation No 269/2014, as amended by Regulation 2023/1089, and, in essence, in Article 1(1)(e) of Decision 2014/145, as amended by Decision 2023/1094).

41      In essence, the applicant argues that, in the contested acts, the Council does not adduce, in accordance with the burden of proof that it bears, specific, precise and consistent evidence that may constitute a sufficient factual basis to support maintaining his name on the lists at issue pursuant to criteria (f) and (g).

42      The Council contests the merits of that plea in law.

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

44      Furthermore, it should be emphasised that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires, in particular, that the Courts of the European Union ensure that the decision by which restrictive measures were adopted or maintained, which affects the person or entity concerned individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119, and of 5 November 2014, Mayaleh v Council, T‑307/12 and T‑408/13, EU:T:2014:926, paragraph 128).

45      There is no requirement that the Council produce before the Courts of the European Union all the information and evidence underlying the reasons alleged in the act the annulment of which is sought. It is however necessary that the information or evidence produced should support the reasons relied on against the person concerned (see, to that effect, the judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 122, and of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 67).

46      The assessment of whether the factual basis adopted by the Council is sufficiently solid must be carried out by examining the evidence and information not in isolation but in their context. The Council discharges the burden of proof borne by it if it presents to the EU Courts a set of indicia sufficiently specific, precise and consistent to establish that there is a sufficient link between the entity subject to a measure freezing its funds and the regime or, in general, the situations being combated (see judgment of 20 July 2017, Badica and Kardiam v Council, T‑619/15, EU:T:2017:532, paragraph 99 and the case-law cited). According to the case-law, press articles may be used in order to corroborate the existence of certain facts if they are sufficiently specific, precise and consistent as regards the facts there described (see judgment of 14 March 2018, Kim and Others v Council and Commission, T‑533/15 and T‑264/16, EU:T:2018:138, paragraph 108 and the case-law cited).

47      It is the task of the competent EU authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded. It is nevertheless necessary that the information or evidence produced should support the reasons relied on against the person concerned (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 121 and 122, and of 3 July 2014, National Iranian Tanker Company v Council, T‑565/12, EU:T:2014:608, paragraph 57).

48      In addition, it should be borne in mind that restrictive measures are of a precautionary and, by definition, provisional nature, the validity of which always depends on whether the factual and legal circumstances which led to their adoption continue to apply and on the need to persist with them in order to achieve their aims. It is thus incumbent on the Council, in the course of its periodic review of those restrictive measures, to conduct an updated assessment of the situation and to appraise the impact of such measures, in order to determine whether they have made it possible to achieve the objectives pursued by the initial inclusion of the names of the persons and entities concerned on the list at issue or whether the same conclusion in respect of those persons and entities can still be drawn (judgment of 12 February 2020, Amisi Kumba v Council, T‑163/18, EU:T:2020:57, paragraphs 58 and 59; see also judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 67 and the case-law cited).

49      In order to justify maintaining a person’s name on the list, the Council is not prohibited from basing its decision on the same evidence justifying the initial inclusion, re-inclusion or previous retention of the name of the person concerned on the list, provided that the grounds for inclusion remain unchanged and the context has not changed in such a way that that evidence is now out of date. That context includes not only the situation of the country in respect of which the regime of restrictive measures has been set, but also the particular situation of the person concerned (see judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 78 and the case-law cited).

50      It is in the light of those case-law principles that the Court must determine whether the Council made an error of assessment in considering that, in the present case, there was a sufficiently solid factual basis capable of justifying the applicant’s name being maintained on the lists at issue.

51      In that regard, a distinction must be made between the various sets of maintaining acts. The first refer to the applicant in his capacity as Chairman of the board of directors of TMK and President and a board member of Group Sinara, the second refer to him in his capacity as member of the CCI, President of the SOSPP, former Chairman of the board of directors of TMK and former President and board member of Group Sinara (see paragraph 20 above), and the third refer to him in his capacity as Vice-President and member of the Bureau of the Board of the Russian Union of Industrialists and Entrepreneurs (‘the RSPP’), Co-Chairman of the RSPP Committee on Industrial Policy and Technical Regulation, member of the Council of the CCI, President of the SOSPP, former Chairman of the board of directors of TMK and former President and a board member of Group Sinara (see paragraph 30 above).

(a)    The first set of maintaining acts

52      As a preliminary point, it should be noted that it is common ground between the parties that, first, the grounds for maintaining the applicant’s name on the lists at issue remained the same as those for the initial acts and that, secondly, the Council relied on the same evidence as that contained in the first WK file, all of which was dated earlier than 9 March 2022. It should be observed that the information in question is publicly available, namely links to websites, press articles and screenshots relating to the applicant.

53      It is therefore necessary to ascertain whether that evidence adduced by the Council discharges the burden of proof borne by it and constitutes a set of indicia that is sufficiently specific, precise and consistent to substantiate the grounds for listing of the first set of maintaining acts.

(1)    The application of the initial (g) criterion to the applicant

54      As regards the interpretation of this criterion, it should be recalled that the initial (g) criterion implies the concept of influence in connection with the exercise of an activity ‘in economic sectors providing a substantial source of revenue to the [Government of the Russian Federation]’, without any further condition concerning a link with the regime. By that criterion, the Council seeks to exploit the influence that the category of persons concerned is likely to exert on the Russian regime in the present case, by prompting them to put pressure on that government to change its policy. Moreover, the Court finds that the concept of ‘leading businessperson’ must be understood as referring to the importance of those persons in the light, inter alia, of their occupational status, the importance of their economic activities, the extent of their capital holdings or their functions within one or more of the companies in which they pursue those activities (judgments of 13 September 2023, Rashnikov v Council, T‑305/22, not published, under appeal, EU:T:2023:530, paragraph 67, and of 15 November 2023, OT v Council, T‑193/22, EU:T:2023:716, paragraph 143).

55      That interpretation is borne out by the fact that the objective of the restrictive measures is to put pressure on the Government of the Russian Federation and to increase the costs of its actions to undermine Ukraine’s territorial integrity, sovereignty and independence (judgments of 13 September 2023, Rashnikov v Council, T‑305/22, not published, under appeal, EU:T:2023:530, paragraph 68, and of 8 November 2023, Mazepin v Council, T‑282/22, not published, under appeal, EU:T:2023:701, paragraph 55).

56      The objective referred to in the preceding paragraph implies that, by the expression ‘providing a substantial source of revenue to the Government of the Russian Federation’, it is the economic sectors and not businesspersons that are referred to, which corresponds to one of the objectives pursued by the restrictive measures, namely to affect economic sectors which constitute a substantial source of revenue for the Russian Federation (judgments of 13 September 2023, Rashnikov v Council, T‑305/22, not published, under appeal, EU:T:2023:530, paragraph 69, and of 8 November 2023, Mazepin v Council, T‑282/22, not published, under appeal, EU:T:2023:701, paragraph 56).

57      Accordingly, the initial (g) criterion must be interpreted as meaning that it is intended to apply, on the one hand, to leading businesspersons in the sense described in paragraph 54 above and, on the other hand, that it is the economic sectors in which those persons operate which must constitute a substantial source of revenue for the Government of the Russian Federation (judgments of 13 September 2023, Rashnikov v Council, T‑305/22, not published, under appeal, EU:T:2023:530, paragraph 70, and of 8 November 2023, Mazepin v Council, T‑282/22, not published, under appeal, EU:T:2023:701, paragraph 57).

58      The merits of the grounds for retention relied on in the first set of maintaining acts must therefore be assessed in the light of that interpretation of the initial (g) criterion.

59      The applicant disputes that this criterion may be applied to him. He considers, in essence, that the first set of maintaining acts are vitiated by an error of assessment since, first, the Council failed to draw any consequences from the changes to his personal situation and, secondly, those acts are solely based on past, outdated and incorrect facts. In particular, he complains that the Council persists in wrongly alleging in the grounds that he is still Chairman of the board of directors of TMK and the President and a board member of Group Sinara, although he left those positions on 9 March 2022, which is more than six months before the adoption of the first set of maintaining acts. He indicates, in essence, that that is all the more surprising as the Council acknowledged, both in the initial Case T‑270/22, Pumpyanskiy v Council, and in the present case, that he had in fact resigned from those positions in March 2022. That is also borne out by the grounds of the second set of maintaining acts which expressly state that those were formerly held positions. According to the applicant, the fact that he no longer holds those positions within TMK and Group Sinara, which was the basis for his initial inclusion on the lists at issue, precludes him from being classified as a leading businessperson within the meaning of the initial (g) criterion.

60      The Council contests the applicant’s arguments. In essence, it contends that, while it seems to be true that following the inclusion of the applicant’s name on the lists at issue by the initial acts the applicant resigned from his positions within TMK and Group Sinara on 9 March 2022, all the available evidence tends to indicate that he retained influence over both those companies and could easily be reappointed to those positions. According to the Council, he has not completely withdrawn from TMK and Group Sinara by concluding transactions for the sale and transfer of his shares and he therefore retains effective ownership of those two companies. The Council adds that, even if the applicant had left his positions within both those companies, that would not avail him since a person cannot automatically escape being relisted by a simple resignation. That is also the case if the person has already resigned at the time of the adoption of an act listing him or her as holding the position referred to. In the present case, there is complete uncertainty as to the extent to which the applicant still controls TMK and Group Sinara, and if he currently does not, as to how quickly he could be reinstated by the current owners of those companies who are not the beneficial owners.

61      In the present case, it must be recalled that the applicant’s name was initially included on the lists at issue by the initial acts on the grounds, in essence, that he was a leading businessperson within the meaning of the initial (g) criterion by reason, first, of the positions he held as Chairman of the board of directors of TMK and as President and a board member of Group Sinara and, secondly, of his attendance at the meeting of 24 February 2022 with President Vladimir Putin. The General Court held that those grounds were established in the judgment of 6 September 2023, Pumpyanskiy v Council (T‑270/22, not published, under appeal, EU:T:2023:490, paragraphs 47 to 69).

62      The first set of maintaining acts did not contain any changes compared with the initial acts (see paragraphs 16 and 52 above). It must therefore be held that the factual basis of the ground relied on in those acts as regards the applicant, which relates to the initial (g) criterion, refers solely to his positions within TMK and Group Sinara as well as to the meeting held on 24 February 2022.

63      In that context, it is therefore necessary to ascertain whether, in accordance with the case-law referred to in paragraph 48 above, the Council could, following its updated assessment of the situation carried out in the context of the review of the restrictive measures at issue, continue to refer to facts already relied on in the initial acts concerning the applicant in order to justify maintaining those restrictive measures against him. To that end, it is necessary to examine whether it is apparent from the first WK file that the applicant could be regarded, on the date of adoption of the first set of maintaining acts, as being a leading businessperson for the purposes of the initial (g) criterion as defined in paragraph 54 above.

64      In that regard, it should be noted at the outset that, while it is true that the general context of the situation in Ukraine, as regards threats to its territorial integrity, sovereignty and independence, has remained unchanged since the initial acts were adopted, the same is not true of the applicant’s situation.

65      It is apparent from the documents submitted by the applicant annexed to the application, consisting of a notice of resignation issued by him, a page taken from TMK’s website, a company register and an opinion of a law firm, that the latter no longer held, at the date on which the first set of maintaining acts were adopted, either the positions of President and a board member of Group Sinara nor of member of the board of directors of TMK. That is moreover fully borne out by the Council’s written submissions in the present case in which the Council expressly acknowledges that the applicant had resigned from those positions on 9 March 2022.

66      The conclusion must therefore be drawn that the factual basis of the ground relied on in the first set of maintaining acts as regards the applicant, which relates to the initial (g) criterion, is incorrect in that it refers to positions that he no longer held. The applicant is therefore correct to submit that the Council made an error of assessment in finding that, at the date on which the first set of maintaining acts were adopted, he could be classified as a leading businessperson within the meaning of the initial (g) criterion on the basis of the positions of President and board member of Group Sinara as well as that of member of the board of directors of TMK.

67      That conclusion cannot be called into question by the arguments put forward by the Council referred to in paragraph 60 above.

68      In the first place, the argument that the applicant retained an influence over those two companies and could easily be reappointed to those positions must be rejected.

69      It should be recalled that it is the task of the competent EU authority to establish, in the event of challenge, that the reasons relied on against the person or entity concerned are well founded, and not the task of the latter to adduce evidence of the negative, that those reasons are not well founded (see paragraph 47 above). Furthermore, in accordance with settled case-law, 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. Accordingly, the Council cannot rely, before the Court, on factors on which it did not rely when adopting the contested acts in order to justify the inclusion of the applicant’s name on the lists at issue and its retention (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).

70      In the present case, it must be held that the alleged influence that the applicant retained is not substantiated by evidence contained in the first WK file, and that it does not relate to the grounds which are solely based on the positions of President and board member of Group Sinara as well as of member of the board of directors of TMK. It should be added that the Council itself conceded, in its defence, that there was complete uncertainty as to the extent to which the applicant continues to control TMK and Group Sinara. Likewise, at the hearing, the Council acknowledged that it did not have any evidence demonstrating that the applicant retained any such influence. Furthermore, it must be observed that, even if it were established that the applicant could in fact be reappointed to those positions, it remains the case that he no longer held those positions on the date on which the first set of maintaining acts were adopted.

71      In the second place, the argument according to which, in essence, the applicant has not completely withdrawn from TMK and Group Sinara by concluding transactions for the sale and transfer of his shares and that he therefore retains effective ownership of those two companies must be rejected as ineffective. Irrespective of whether the applicant actually transferred his shares in TMK and Group Sinara in March 2022, it must be recalled that it was because of his position within TMK and Group Sinara that the Council concluded that he was a leading businessperson within the meaning of the initial (g) criterion and that it was necessary for him to be retained on the lists at issue by the first set of maintaining acts. Contrary to what the Council might suggest, the grounds for the first set of maintaining acts are not based on the control of TMK or Group Sinara by the applicant, or on the fact that he was its shareholder. Therefore, even if the applicant had actually transferred his shares in those two companies, that would have no effect on the legality of the first set of maintaining acts (see, to that effect and by analogy, the judgment of 6 September 2023, Pumpyanskiy v Council, T‑270/22, not published, under appeal, EU:T:2023:490, paragraph 63).

72      In the third place, it is not possible to uphold the argument that, even if the applicant had left his positions within both those companies, that would not avail him since a person cannot automatically escape being relisted by simply resigning.

73      First, it must be observed that that argument does not relate to the grounds of the first set of maintaining acts and is not contained either in the grounds of those acts or in the first WK file. Secondly, and in any event, while the Council might rely on such an argument, it must be held that the applicant’s former positions within TMK and Group Sinara are insufficient to justify, in themselves, the retention of his name on the lists at issue, which are based on a periodic review of the restrictive measures in order to enable the Council to take account of any changes in circumstances concerning, in particular, the individual situation of the persons subject to them. The first set of maintaining acts represent the outcome of that periodic review exercise.

74      First, the Council cannot presume from the sole fact that the applicant was the President and a board member of Group Sinara or a member of the board of directors of TMK at the time of the initial inclusion of his name on the lists at issue that he may be classified as a leading businessperson involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, even several months after having left those positions. That would result in freezing the applicant’s situation and depriving the exercise of the periodic review provided for, in particular, in the third paragraph of Article 6 of Decision 2014/145 and Article 14(4) of Regulation No 269/2014, as amended, of any useful effect (see, to that effect and by analogy, judgment of 15 September 2021, Ghaoud v Council, T‑700/19, not published, EU:T:2021:576, paragraph 85 and the case-law cited).

75      Secondly, it also cannot be considered that the mere fact that the applicant held those positions not long before the adoption of the first set of maintaining acts may constitute sufficient evidence that his status as a leading businessperson continued. It is clear from the case-law referred to in paragraph 46 above that the appropriateness of maintaining the applicant’s name on the lists at issue must be examined in its overall context and not in isolation.

76      While it is true that it has been held in the case-law that the fact that a person has ceased to hold a position within a structure does not, in itself, mean that that former position is irrelevant, since past activities could influence that person’s behaviour. The case-law makes clear however that, taken in isolation, a person’s former positions cannot justify the inclusion of that person’s name on the lists at issue. Therefore, if the Council wishes to rely on the former positions held by the applicant, it is incumbent upon it to put forward sound and consistent evidence from which it might reasonably be inferred that he retained, at the date on which the first set of maintaining acts were adopted, links with TMK and Group Sinara, justifying the inclusion of his name on those lists after he ceased to hold the positions of President and member of the boards in those two companies (see, by analogy, judgments of 6 September 2013, Bateni v Council, T‑42/12 and T‑181/12, not published, EU:T:2013:409, paragraphs 64 and 65, and of 18 February 2016, Jannatian v Council, T‑328/14, not published, EU:T:2016:86, paragraph 40).

77      In the present case, as regards the first set of maintaining acts, the Council admits that it does not have any new evidence compared with that contained in the first WK file and upon which it relied for the adoption of the initial acts. It is therefore common ground that the Council has not produced sound and consistent evidence, within the meaning of the case-law referred to in paragraph 76 above, from which it might reasonably be inferred that he retained, at the date on which the first set of maintaining acts were adopted, links with TMK and Group Sinara as well as with economic sectors providing a substantial source of revenue to the Government of the Russian Federation.

78      In the fourth place, the argument that the applicant was still a member of the RSPP must be rejected. Unless a substitution of grounds is admitted, the Council cannot be permitted to rely on that information since it was not included the first WK file and does not relate to the grounds of the first set of maintaining acts.

79      Finally, in the fifth place, it is also necessary to reject the argument based on the applicant’s attendance at the meeting held on 24 February 2022 with President Vladimir Putin. It must be held that the Council entirely fails to explain how, at the date on which the first set of maintaining acts were adopted and months after the meeting of 24 February 2022, which was an isolated event, the fact of his having attended that meeting makes it possible to find that the applicant is a leading businessperson involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation within the meaning of the initial (g) criterion.

80      It follows from the foregoing considerations that the first ground for listing given in the first set of maintaining acts, which relates to the initial (g) criterion, is not sufficiently substantiated.

81      It is therefore necessary to examine the second ground for listing.

(2)    The application of criterion (f) to the applicant

82      The applicant submits that this criterion is not sufficiently reflected in the first set of maintaining acts and in any event disputes that it can be applied to him. In essence, he considers that, as with the initial (g) criterion, the fact that he had sold the shares he held in TMK and Group Sinara and that he had resigned from his positions on the boards of those two companies precludes criteria (f) from being applied to him.

83      The Council disputes that line of argument contending, in essence, that criterion (f) is sufficiently reflected in the grounds of the first set of maintaining acts and that the argument advanced in the context of the initial (g) criterion applies.

84      Without it being necessary to rule on whether or not criterion (f) is sufficiently reflected in the first set of maintaining acts, it should be noted that the factual basis of the ground relied on in those acts with regard to the applicant, which relates to criterion (f), refers exclusively to the positions he held within TMK and Group Sinara.

85      In that regard, the Council’s argument must be rejected for the same reasons as those given in paragraphs 64 to 79 above, in the context of the initial (g) criterion, which apply mutatis mutandis to criterion (f).

86      Since the grounds of the first set of maintaining acts, which relate to criterion (f), refer to positions that the applicant no longer held, the Council made an error of assessment in finding that, at the date on which those acts were adopted, the applicant could be classified as a natural person supporting, materially or financially, the Government of the Russian Federation. As was the case for the initial (g) criterion, it should be added that the Council cannot presume, from the sole fact that the applicant was the President and a board member of Group Sinara or a member of the board of directors of TMK at the time of the initial inclusion of his name on the lists at issue, that he may be classified as a natural person supporting, materially or financially, the Government of the Russian Federation, even several months after having resigned from those positions. It is also not possible to find that the mere fact that the applicant held those positions shortly before the adoption of the first set of maintaining acts may constitute sufficient evidence that his possible material or financial support of the Government of the Russian Federation continued.

87      It must be concluded that, regarding the first set of maintaining acts, the Council could not rely on the positions held by the applicant in order to demonstrate that the conditions of criterion (f) were satisfied.

88      Consequently, the second plea in law must be upheld and the first set of maintaining acts must be annulled in so far as they concern the applicant, without it being necessary to rule on the other arguments or on the other pleas in law put forward by the applicant in relation to them, or on the first head of claim.

(b)    The second set of maintaining acts

89      As a preliminary point, it should be recalled that the grounds of the second set of maintaining acts were changed compared with the grounds of the initial acts and of the first set of maintaining acts since they thereafter refer to the applicant in his capacity as member of the CCI, President of the SOSPP, former Chairman of the board of directors of TMK and former President and a board member of Group Sinara (see paragraphs 20 and 51 above). In addition, it must be emphasised that, in order to justify retaining the applicant’s name on the lists at issue in the second set of maintaining acts, the Council relied, in addition to the evidence contained in the first WK file, on the evidence contained in the second WK file, comprising nine items of evidence from publicly available information. That evidence consists of links to websites of the two companies, TMK and Group Sinara, of the CCI and of the SOSPP, as well as of press articles (see paragraphs 20 and 23 above).

90      It is therefore necessary to ascertain whether that evidence adduced by the Council discharges the burden of proof that it bears and constitutes a set of indicia that is sufficiently specific, precise and consistent to substantiate the grounds for listing of the second set of maintaining acts.

(1)    The application of the initial (g) criterion to the applicant

91      At the outset it should be recalled that, for that criterion to be met in the present case, it must be possible, first, to classify the applicant as a ‘leading businessperson’ as defined in paragraph 54 above and, secondly, to demonstrate that he is active in ‘economic sectors providing a substantial source of revenue to the Government of the Russian Federation’.

92      The applicant submits, in essence, that neither his former positions on the boards of TMK and Group Sinara, [confidential] (1) make it possible to regard the conditions of the initial (g) criterion as satisfied. He adds that, since he sold his shares in TMK and Group Sinara in March 2022, he is now merely a private individual and no longer involved in any business activity in Russia or elsewhere, with the result that he cannot be classified as a ‘leading businessperson’ within the meaning of that criterion.

93      The Council contests the applicant’s arguments. In essence, first, it submits that the applicant was invited to the meeting of 24 February 2022 as a result of his high position in the RSPP, which is a body that brings together almost all of the top industrialists in Russia. The fact that the applicant remains a leading figure in the RSPP and that he attended the meeting held on 24 February 2022 confirms that he is a ‘leading businessperson’. Secondly, the Council contends, in essence, that there is nothing to prove that the applicant no longer controls either of the two companies, TMK and Group Sinara, or that he has in fact sold his shares in those companies. Thirdly, the Council emphasises that the applicant does not dispute being a member of the CCI and President of the SOSPP and therefore considers that he remains an important business figure in the Russia.

94      In that context, it is therefore necessary to ascertain whether, in accordance with the case-law referred to in paragraph 48 above, the Council could, following its updated assessment of the situation carried out in the context of the review of the restrictive measures at issue and on the basis of the new evidence, consider that the retention of the restrictive measures against the applicant was justified. To that end, it is necessary to examine whether it is apparent from the first and second WK files that the applicant could be regarded, on the date of adoption of the second set of maintaining acts, as being a leading businessperson involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, within the meaning of the initial (g) criterion as defined in paragraph 54 above.

95      In the present case, it must therefore be held that the factual basis of the ground relied on in those acts as regards the applicant, which relates to the initial (g) criterion, refers solely to his former positions on the boards of TMK and Group Sinara, his attendance at the meeting held on 24 February 2022 and his status as member of the CCI and President of the SOSPP (see paragraph 20 above).

96      In the first place, as regards the applicant’s former positions on the boards of TMK and Group Sinara, it must be held that while those positions could be sufficient in themselves to justify the initial inclusion of the applicant’s name on the lists at issue (see paragraph 61 above), that is not the case as regards maintaining his name on those lists, which are based on a periodic review of the restrictive measures in order to enable the Council to take account of any changes in circumstances concerning, in particular, the individual situation of the persons subject to them.

97      The Council cannot presume from the sole fact that the applicant was the President and a board member of Group Sinara or a member of the board of directors of TMK at the time of the initial inclusion of his name on the lists at issue that he may be classified as a leading businessperson involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation even one year after having left those positions (see paragraph 74 above). Nor is it possible to find that the sole fact that the applicant held those positions a year before the adoption of the second set of maintaining acts may constitute sufficient evidence that his status as a leading businessperson involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation continued (see paragraph 75 above).

98      It is true that it cannot be ruled out at the outset that the former President and member of the boards of TMK and Group Sinara may continue to be classified as a leading businessperson, even after his resignation, all the more so where that resignation coincides with his initial inclusion on the lists at issue. However, where that classification is disputed, it is for the Council to put forward sufficiently conclusive evidence from which it may reasonably be inferred that the person concerned continues to be involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation which justifies the inclusion of his name on the list, even after his resignation (see, to that effect and by analogy, judgment of 3 July 2014, Alchaar v Council, T‑203/12, not published, EU:T:2014:602, paragraph 150 and the case-law cited).

99      The Council has not however provided any conclusive evidence relating to the applicant in the first and second WK files or in the course of the present action making it possible to explain the reasons for which the applicant must still be regarded as a leading businessperson and as being involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation within the meaning of the initial (g) criterion. On the contrary, as the applicant rightly observes, exhibits 1, 2, 8 and 9 of the second WK file, consisting of two press articles and extracts from the website of TMK and of Group Sinara, show that the applicant resigned from his positions from TMK and Group Sinara in March 2022.

100    In its observations on the statement of modification and at the hearing, the Council merely alleged that the applicant remains a leading figure in the RSPP, that he attended the meeting of 24 February 2022 and that there was nothing to prove that he no longer controlled TMK or Group Sinara, or that he had in fact sold the shares that he held in those companies.

101    That claim cannot succeed however.

102    First, even if the applicant’s role within the RSPP could be evidence making it possible to classify him as a ‘leading businessperson’, it cannot be accepted, unless a substitution of grounds is admitted, that the Council may rely on that role since it is unrelated to the grounds of the second set of maintaining acts and it is not contained in any part of the first and second WK files.

103    Secondly, since the grounds of the second set of maintaining acts are not based either on the applicant’s control of TMK or Group Sinara, or on the fact that he was a shareholder of those companies, the argument that, in essence, there is nothing to prove that the applicant no longer controls either of those two companies or that he has in fact sold his shares must be rejected as ineffective. In any event, it should be noted that the Council itself conceded, in its written pleadings, that there was complete uncertainty as to the extent to which the applicant continues to control TMK and Group Sinara. Similarly, at the hearing, the Council acknowledged that it did not have any evidence demonstrating that the applicant retained any such influence over those two companies (see paragraph 70 above).

104    Thirdly, the argument based on the applicant’s attendance at the meeting held on 24 February 2022 must be rejected. It must be held that the Council entirely fails to explain how, at the date on which the second set of maintaining acts were adopted and a year after the meeting of 24 February 2022, which was an isolated event, the fact of his having attended that meeting makes it possible to find that the applicant is a leading businessperson involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation within the meaning of the initial (g) criterion.

105    In the second place, the applicant’s status as member of the CCI and President of the SOSPP does not make it possible, in the circumstances of the present case, and taking into account the fact that he resigned from his positions on the boards of TMK and Group Sinara, to classify him as a ‘leading businessperson’, or to find that he is involved in ‘economic sectors providing a substantial source of revenue to the Government of the Russian Federation’, within the meaning of the initial (g) criterion.

106    It must be observed that the only items of evidence in the first and second WK files relating to the applicant’s status as member of the CCI and President of the SOSPP are exhibits 3, 5 and 7 of the second WK file.

107    While it is true that that evidence is sufficient to establish that the applicant is in fact a member of those two bodies, which is moreover not disputed, it contains very little information as to the respective nature, purpose and role in Russia of those two bodies.

108    In addition, and in any event, it must be held that those three items of evidence do not make it possible, in themselves, to classify the applicant as a ‘leading businessperson’, still less as a ‘leading businessperson’ who is ‘involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation’.

109    It must be recalled that that criterion implies the concept of influence in connection with the exercise of an activity ‘in economic sectors providing a substantial source of revenue to the Government of the Russian Federation’ (see paragraph 54 above). However, the Council entirely fails to explain how, even though the applicant resigned from his positions on the boards of TMK and Group Sinara, the fact of being a member of the CCI and President of the SOSPP makes it possible to find that he is a ‘leading businessperson’ and that he is involved in an economic sector providing a substantial source of revenue to the Government of the Russian Federation.

110    In the absence of any additional proof in the first and second WK files capable of substantiating or even suggesting that the applicant is a ‘leading businessperson’, it must be held that the Council has not adduced, within the meaning of the case-law recalled in paragraph 46 above, and as regards the second set of maintaining acts, a set of indicia that is sufficiently specific, precise and consistent to substantiate the grounds for including the applicant’s name on the lists at issue pursuant to the initial (g) criterion.

111    It is therefore necessary to examine the second ground for listing.

(2)    The application of criterion (f) to the applicant

112    In the same way as for the first set of maintaining acts, the applicant disputes that this criterion may be applied to him, and even more so as it is clear from the second set of maintaining acts that the Council concedes that the alleged ‘support’ for the Government of the Russian Federation constitutes at most a past activity.

113    The Council disputes that line of argument, contending, in essence, that there is nothing to prove that the applicant no longer controls TMK or Group Sinara, or that he has in fact sold his shares in those companies.

114    At the outset, it must be noted that the factual basis of the ground relied on in the second set of maintaining acts as regards the applicant, which relates to criterion (f), refers solely to his former positions within TMK and Group Sinara.

115    In that regard, as stated in paragraph 86 above, it suffices to point out that the Council cannot presume, from the sole fact that the applicant was the President and a board member of Group Sinara or a member of the board of directors of TMK at the time of the initial inclusion of his name on the lists at issue, that he may be classified as a natural person supporting, materially or financially, the Government of the Russian Federation, even one year after having resigned from those positions. It is also not possible to find that the mere fact that the applicant held those positions one year before the adoption of the second set of maintaining acts may constitute sufficient evidence that his possible material or financial support of the Government of the Russian Federation continued. Lastly, it must be added that, since the grounds of the second set of maintaining acts are not based either on the applicant’s control of TMK or Group Sinara, or on the fact that he was a shareholder of those companies, the argument that, in essence, there is nothing to prove that the applicant no longer controls either of those two companies or that he has in fact sold his shares must be rejected as ineffective (see paragraphs 71 and 101 above).

116    It must be concluded that, regarding the second set of maintaining acts, the Council could not rely on the former positions held by the applicant in order to demonstrate that the conditions of criterion (f) were satisfied.

117    Consequently, the second plea in law must be upheld and the second set of maintaining acts must be annulled in so far as they concern the applicant, without it being necessary to rule on the other arguments or on the other pleas in law put forward by the applicant in relation to them, or on the first head of claim.

(c)    The third set of maintaining acts

118    It should be noted that, in order to justify maintaining the applicant’s name on the lists at issue, it is common ground between the parties that the Council relied on criterion (f) and on the amended (g) criterion.

(1)    The application of the amended (g) criterion to the applicant

119    As a preliminary point, it should be noted that it is not disputed that the Council found that the applicant met both of the two hypotheses of the amended (g) criterion, namely that of ‘leading businessperson operating in Russia’ and that of ‘businessperson involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation’. It is also not contested that the factual basis of the grounds relied on in the third set of maintaining acts as regards the applicant, which relate to the amended (g) criterion, refers, first, to the positions he held in the three bodies, namely the RSPP, the CCI and the SOSPP, secondly, to his former positions of Chairman of the board of directors of TMK and of President and a board member of Group Sinara (see paragraph 30 above) and, thirdly, to the fact that the applicant attended the meeting of 24 February 2022, the congress of the RSPP of March 2023 and that he was awarded the Order of Merit for the Fatherland, IV degree.

120    In addition, it should be observed that, in order to justify maintaining the applicant’s name on the lists at issue in the third set of maintaining acts, the Council relied, in addition to the evidence contained in the first two WK files, on the evidence contained in the third to seventh WK files. Those items of evidence consist inter alia of press articles, website extracts and extracts from a company register.

121    The applicant disputes that either of the two hypotheses of the amended (g) criterion can be applied to him. First, as regards his positions within the RSPP and the CCI, he criticises the Council for failing to take account of the fact that he had resigned on 2 and 4 September 2023, of which he informed the Council on 5 September 2023. Secondly, his former positions in TMK and Group Sinara were too far in the past. The same is true as regards the Order of Merit for the Fatherland, IV degree, which dated from 20214, and his participation in the congress of the RSPP in March 2023. Thirdly, he claims that the sole position that he still held at the date of the adoption of the third set of maintaining acts, [confidential] to consider that he meets either of the two hypotheses of the amended (g) criterion.

122    The Council contests the applicant’s arguments. As regards his alleged resignation from his positions in the CCI and the RSPP, it submits that not only did he notify it of his resignation after the deadline set, but that the alleged resignation was also based on the applicant’s assertions, without it being possible to obtain confirmation from an independent source. In addition, the Council contends that, contrary to the applicant’s submissions, the applicant is not merely a private individual who is no longer involved in business in Russia. As to the fact that [confidential], the Council contends that the evidence must be assessed globally and not in isolation as the applicant does.

123    In the present case, it is necessary to ascertain whether, in accordance with the case-law cited in paragraph 48 above, the Council duly took into account changes in the applicant’s situation in deciding to maintain his name on the lists at issue and whether, in particular, it could, following its updated assessment of the situation carried out in the context of the review of the restrictive measures at issue and on the basis of new information, continue to refer in part to past situations already relied on in both the initial acts and the first and second sets of maintaining acts. To that end, it is necessary therefore to examine whether it is apparent from the seven WK files that the applicant could be regarded, on the date of adoption of the third set of maintaining acts, as being a ‘leading businessperson operating in Russia’ or as a ‘businessperson involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation’, within the meaning of the amended (g) criterion.

124    In the first place, as regards the former positions held by the applicant on the boards of TMK and Group Sinara, the Council’s line of argument must be rejected for the same reasons as those set out in paragraphs 96 and 97 above, which apply mutatis mutandis as regards the two hypotheses of the amended (g) criterion. The Council cannot presume from the sole fact that the applicant had been the President and board member of Group Sinara or a member of the board of directors of TMK at the time of the initial inclusion of his name on the lists at issue that he may be classified as a ‘leading businessperson operating in Russia’ or a ‘businessperson involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation’ one and a half years after having left those positions. Nor can it be considered that the mere fact that the applicant held those positions one and a half years before the adoption of the third set of maintaining acts may constitute sufficient evidence that he continued to have the status of ‘leading businessperson’ or ‘businessperson’ within the meaning of the amended (g) criterion.

125    As was the case for the second set of maintaining acts, it must be held that the Council has not adduced any evidence of probative value relating to the applicant in the seven WK files or in the course of the present action making it possible to explain the reasons on the basis of which the applicant was still to be regarded as a ‘leading businessperson’ or ‘businessperson’ within the meaning of the amended (g) criterion.

126    In its observations on the second statement of modification and at the hearing, the Council alleges, in essence, that the applicant remains very much involved in big business, whether that is through TMK, Group Sinara or DRV Invest JSC. It adds that the fact of having attended the meeting of 24 February 2022 and having received the Order of Merit for the Fatherland, IV degree, also proves that the conditions of the amended (g) criterion are met.

127    That claim cannot succeed however.

128    First, as regards the alleged involvement of the applicant in TMK and Group Sinara, it should be recalled that the Council itself conceded in its written pleadings that there was complete uncertainty as to the extent to which the applicant continues to control TMK and Group Sinara. Likewise, at the hearing, the Council acknowledged that it did not have any evidence demonstrating that the applicant retained any influence over TMK and Group Sinara (see paragraphs 70 and 103 above).

129    Secondly, the argument that an annex to the application made clear that the applicant is very involved in business through DRV Invest JSC must be rejected. It must be held that even though the Council knew that that company existed before it adopted the third set of maintaining acts, that information is unrelated to the grounds of those acts and does not appear in the seven WK files. Consequently, unless a substitution of grounds is admitted, the Council cannot rely on that information contained in an annex to the application to justify the appropriateness of the third set of maintaining acts (see, to that effect and by analogy, judgment of 6 September 2023, Shulgin v Council, T‑364/22, not published, EU:T:2023:503, paragraphs 66, 67, 119 and 120).

130    Thirdly, the argument based on the applicant’s attendance at the meeting held on 24 February 2022 must be rejected. It must be held that the Council entirely fails to explain how, at the date on which the third set of maintaining acts were adopted and one and a half years after the meeting of 24 February 2022, the fact of his having attended that meeting makes it possible to find that the applicant is a ‘leading businessperson’ or a ‘businessperson’ within the meaning of the amended (g) criterion. The same is true for the Order of Merit for the Fatherland, IV degree, which, as the applicant rightly points out, was awarded to him nine years before the adoption of the third set of maintaining acts.

131    In the second place, the positions held by the applicant in the three bodies, namely the RSPP, the CCI and the SOSPP, do not make it possible, as was the case for the second set of maintaining acts (see paragraphs 105 to 110 above), and taking account of the fact that he had resigned from his positions on the boards of TMK and Group Sinara, to classify the applicant either as a ‘leading businessperson operating in Russia’ or as a ‘businessperson involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation’, within the meaning of the amended (g) criterion.

132    The only evidence in the seven WK files relating to the applicant’s positions in those three bodies are exhibits 3, 5 and 7 of the second WK file, exhibits 1 to 9 of the third WK file and exhibit 1 of file WK 8998/2023 INIT.

133    While it is true that those exhibits show that the applicant was in fact a member of those three bodies, they contain very little information as to the respective nature, purpose and role in Russia of those three bodies. As the applicant states, in essence, in his second statement of modification, those exhibits merely refer to meetings of the SOSPP taking place, a cooperation agreement between regional chambers or the applicant’s status as a member of the RSPP and the holding of a congress of the RSPP in March 2023 in which he participated.

134    In addition, and in any event, it must be held that, whatever positions were held by the applicant within those three bodies and even though he participated in the RSPP congress of March 2023 in his capacity as a member, the Council entirely fails to explain how, notwithstanding that the applicant resigned from his positions on the boards of TMK and Group Sinara, the fact of being a member of those three bodies makes it possible to find that he is a ‘leading businessperson’ in any economic sector in Russia or a ‘businessperson’ who is ‘involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation’.

135    In the absence of any additional evidence in the seven WK files capable of substantiating, or even suggesting, that the applicant is a ‘leading businessperson’ or a ‘businessperson’ within the meaning of the amended (g) criterion, it must be held that, assessed in their overall context, the evidence upon which the Council relied for the purposes of adopting the third set of maintaining acts cannot be regarded as a set of indicia that is sufficiently specific, precise and consistent to substantiate the ground for including the applicant’s name on the lists at issue pursuant to that criterion.

(2)    The application of criterion (f) to the applicant

136    The applicant disputes that this criterion may be applied to him on the ground, in essence, that the Council concedes that the alleged ‘support’ for the Government of the Russian Federation constitutes at most a past activity.

137    At the outset, it must be noted that the factual basis of the ground relied on in the third set of maintaining acts as regards the applicant, which relates to criterion (f), refers solely to his former positions within TMK and Group Sinara.

138    In that regard, it suffices to refer back to the reasoning set out in paragraphs 86 and 115 above, which applies mutatis mutandis as regards the third set of maintaining acts and criterion (f).

139    It must be concluded that, as regards the third set of maintaining acts, the Council could not rely on the former positions held by the applicant in order to demonstrate that the conditions of criterion (f) were satisfied.

140    Consequently, the second plea in law must be upheld and the third set of maintaining acts must be annulled in so far as they concern the applicant, without it being necessary to rule on the other arguments or on the other pleas in law put forward by the applicant in relation to them or the first head of claim.

IV.    Costs

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

142    In the present case, since the Council has been unsuccessful, it must be ordered to bear its own costs and to pay those of the applicant, in accordance with the form of order sought by the applicant.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1.      Annuls Council Decision (CFSP) 2022/1530 of 14 September 2022 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, Council Implementing Regulation (EU) 2022/1529 of 14 September 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, Council Decision (CFSP) 2023/572 of 13 March 2023 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, Council Implementing Regulation (EU) 2023/571 of 13 March 2023 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, Council Decision (CFSP) 2023/1767 of 13 September 2023 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, and Council Implementing Regulation (EU) 2023/1765 of 13 September 2023 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, in so far as the name of Mr Dmitry Alexandrovich Pumpyanskiy was maintained on the list of persons, entities and bodies to which those restrictive measures apply;

2.      Orders the Council of the European Union to bear its own costs and to pay those incurred by Mr Alexandrovich Pumpyanskiy.

Delivered in open court in Luxembourg on 26 June 2024.

*      Language of the case: English.

1 Confidential information redacted.

© European Union
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