Judgment_paragraph 2 · Vadzim Ipatau v Council of the European Union (C-535/14 P)

2The background to the dispute is summarised by the General Court as follows:1 The applicant, Mr Vadzim Ipatau, is a Belarussian national and Deputy Chairperson of the Central Electoral Commission (“the CEC”).2 Council Common Position 2006/276/CFSP of 10 April 2006 concerning restrictive measures against certain officials of Belarus and repealing Common Position 2004/661/CFSP (OJ 2006 L 101, p. 5) states that, following the disappearance of well-known persons in Belarus, the fraudulent elections and referendum, and the severe human rights violations in the repression of peaceful demonstrators in the aftermath of those elections and that referendum, a decision was made to take restrictive measures against various persons in Belarus, such as the prevention of entry into, or transit through, the European Union, and the freezing of funds and economic resources.3 The Union implementing measures were set out in Council Regulation (EC) No 765/2006 of 18 May 2006 concerning restrictive measures in respect of Belarus (OJ 2006 L 134, p. 1). Those measures were subsequently amended on several occasions and Article 8a(1) of that regulation, as amended, states that, where the Council of the European Union decides to subject a natural or legal person, entity or body to the measures referred to in Article 2(1) of that regulation, it is to amend the annex containing the list in which that person is included accordingly.4 The restrictive measures laid down in Common Position 2006/276 were extended until 15 March 2010 by Council Common Position 2009/314/CFSP of 6 April 2009 amending Common Position 2006/276/CFSP concerning restrictive measures against certain officials of Belarus, and repealing Common Position 2008/844/CFSP (OJ 2009 L 93, p. 21). However, the travel restrictions imposed on certain leading figures in Belarus, with the exception of (i) those involved in the disappearances which occurred in 1999 and 2000 and (ii) the President of the CEC, were suspended until 15 December 2009.5 On 15 December 2009, the Council adopted Decision 2009/969/CFSP extending the restrictive measures against certain officials of Belarus laid down in Common Position 2006/276/CFSP, and repealing Common Position 2009/314/CFSP (OJ 2009 L 332, p. 76). It extended the restrictive measures laid down in Common Position 2006/276 and the suspension of the travel restrictions imposed on certain leading figures in Belarus until 31 October 2010.6 Following a review of Common Position 2006/276, the Council, by Decision 2010/639/CFSP of 25 October 2010 concerning restrictive measures against Belarus (OJ 2010 L 280, p. 18), renewed the restrictive measures laid down in Common Position 2006/276 and the suspension of the travel restrictions imposed on certain leading figures in Belarus until 31 October 2011.7 By [Decision 2011/69/CFSP], it was decided, in view of the fraudulent presidential elections of 19 December 2010 and the violent crackdown on political opposition, civil society and representatives of independent mass media in Belarus, to terminate the suspension of the travel restrictions and to implement other restrictive measures. Article 1(1) of Decision 2010/639 was supplemented as follows:(d) [responsible] for the violations of international electoral standards in the presidential elections in Belarus on 19 December 2010, and the crackdown on civil society and democratic opposition, and those persons associated with them, as listed in Annex IIIA.’8 Decision 2011/69 replaced Article 2 of Decision 2010/639 as follows:‘Article 21.All funds and economic resources belonging to ... persons who are responsible:...(b) for the violations of international electoral standards in the presidential elections in Belarus on 19 December 2010, and the crackdown on civil society and democratic opposition, and those natural or legal persons, entities or bodies associated with them, as listed in Annex IIIA; shall be frozen....’9 The applicant’s name was mentioned in Annex V to Decision 2011/69, which adds Annex IIIA to Decision 2010/639 (Annex IIIA, list of persons referred to in Article 1(1)(d) and Article 2(1)(b)). The applicant’s name, which appears as entry No 10, is accompanied by the following description: ‘Deputy Chairperson, [CEC]’.10 [Implementing Regulation No 84/2011] replaced, inter alia, Article 2 of Regulation No 765/2006 with the following text:‘Article 21. All funds and economic resources belonging to, owned, held or controlled by the natural or legal persons, entities and bodies listed in Annex I or in Annex IA shall be frozen.2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of the natural or legal persons, entities or bodies listed in Annex I or in Annex IA....5. Annex IA shall consist of the natural or legal persons, entities and bodies referred to in Article 2(1)(b) of [Decision 2010/639] as amended.’11 The applicant’s name, together with the description given in paragraph 9 above, was added to that annex by means of Annex II to Implementing Regulation No 84/2011 (Annex IA to Regulation No 765/2006, containing the list of natural and legal persons, entities or bodies referred to in Article 2(1), 2(2) and 2(5)).12 On 2 February 2011, a notice for the attention of the persons to which measures provided for in Council Decision 2011/69/CFSP and in Council Regulation (EU) No 84/2011 amending Regulation (EC) No 765/2006 apply was published in the Official Journal of the European Union (OJ 2011 C 33, p. 17).13 By letter of 2 September 2011, the applicant asked the Council to review the inclusion of his name in the lists concerned.14 By letter of 14 November 2011, the Council refused that request for review ..., stating that the restrictive measures adopted against the applicant were justified. It enclosed a new decision and implementing regulation with that letter.15 In that regard, the Council enclosed Decision [2011/666], in which it replaced the description concerning the applicant indicated in paragraph 9 above with the following note:“Deputy Chairperson, [CEC]. As a Member of the [CEC], he bears shared responsibility for the violations of international electoral standards in the Presidential elections on 19 December 2010.”16 The Council also enclosed Implementing Regulation [No 1000/2011], by means of which the description indicated in paragraph 9 above was also replaced by a note identical to the one appearing in Decision 2011/666 as indicated in paragraph 15 above.17 On 11 October 2011, a notice for the attention of the persons to which restrictive measures provided for in Council Decision 2010/639/CFSP, as amended by Council Decision 2011/666/CFSP, and in Council Regulation (EC) No 765/2006, as implemented by Council Implementing Regulation (EU) No 999/2011 concerning restrictive measures against Belarus apply was published in the Official Journal [of the European Union] (OJ 2011 C 299, p. 4).18 By Decision [2012/642], the Council extended the restrictive measures then in force until 31 October 2013 and integrated the measures imposed by Decision 2010/639 into a single legal instrument. Article 3(1) of Decision 2012/642 states:‘Member States shall take the necessary measures to prevent the entry into, or transit through, their territories of persons:(a) 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 any person associated with them;(b) benefiting from or supporting the Lukashenk[o] regime,as listed in the Annex.’19 Article 4(1) of that decision provides:‘All funds and economic resources belonging to, owned, held or controlled by:(a) 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 any natural or legal persons, entities or bodies associated with them, as well as legal persons, entities or bodies owned or controlled by them;(b) natural or legal persons, entities or bodies benefiting from or supporting the Lukashenk[o] regime, as well as legal persons, entities or bodies owned or controlled by them,as listed in the Annex shall be frozen.’20 The applicant’s name was included in the annex to Decision 2012/642 (list of persons referred to in Articles 3(1) and 4(1)) as entry No 66, together with the following note:‘Deputy Chairperson, [CEC]. As a Member of the CEC, he was responsible for the violations of international electoral standards in the Presidential elections on 19 December 2010.’21 By Regulation (EU) No 1014/2012 of 6 November 2012 (OJ 2012 L 307, p. 1), the Council amended Regulation No 765/2006. It replaced Article 2 of the latter regulation with the following text:1. All funds and economic resources belonging to, or owned, held or controlled by the natural or legal persons, entities and bodies listed in Annex I shall be frozen.2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of the natural or legal persons, entities and bodies listed in Annex I.3. The participation, knowingly and intentionally, in activities the object or effect of which is, directly or indirectly, to circumvent the measures referred to in paragraphs 1 and 2 shall be prohibited.4. Annex I shall consist of a list of the natural or legal persons, entities and bodies who, in accordance with point (a) of Article 4(1) of [Decision 2012/642], have been identified by the Council as being 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 any natural or legal persons, entities and bodies associated with them, as well as legal persons, entities or bodies owned or controlled by them.5. Annex I shall also consist of a list of the natural or legal persons, entities and bodies who, in accordance with point (b) of Article 4(1) of Decision [2012/642], have been identified by the Council as benefiting from or supporting the Lukashenk[o] regime, as well as legal persons, entities and bodies owned or controlled by them.’22 In addition, Regulation No 1014/2012 replaced the references in Regulation No 765/2006, as amended, to “Annexes I, IA and IB” or “Annexes I or ... IA” with references to “Annex I”.23 By Implementing Regulation [No 1017/2012], the Council replaced Annexes I, IA and IB to Regulation No 765/2006 with a single annex. The applicant’s name appears in that single annex as entry No 66, together with a note identical to the one indicated in paragraph 20 above.24 On 7 November 2012, a notice for the attention of the persons and entities to which the restrictive measures provided for in Council Decision 2012/642/CFSP and in Council Regulation (EC) No 765/2006, as amended by Council Regulation (EU) No 1014/2012 and implemented by Council Implementing Regulation (EU) No 1017/2012 concerning restrictive measures against Belarus apply was published in the Official Journal [of the European Union] (OJ 2012 C 339, p. 9).