Contents
Judgment of the General Court (First Chamber, Extended Composition)11 September 2024note(Common foreign and security policy — Restrictive measures adopted 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 — Inclusion and maintenance of the applicant’s name on the list — Obligation to state reasons — Error of assessment — Definition of supporting, materially or financially, the Government of the Russian Federation — Freedom to conduct a business — Right to property — Proportionality)In Case T‑494/22,NKO AO National Settlement Depository (NSD), established in Moscow (Russia), represented by N. Tuominen, M. Krestiyanova, J.-P. Fierens and C. Gieskes, lawyers,vCouncil of the European Union, represented by M. Bishop, acting as Agent, and by B. Maingain, lawyer,supported byEuropean Commission, represented by J.-F. Brakeland, G. von Rintelen, L. Mantl and M. Carpus Carcea, acting as Agents,THE GENERAL COURT (First Chamber, Extended Composition),composed of D. Spielmann, President, M. Brkan (Rapporteur), I. Gâlea, T. Tóth and S.L. Kalėda, Judges,Registrar: I. Kurme, Administrator,having regard to the written part of the procedure, in particular– the application lodged at the Registry of the General Court on 12 August 2022,– the orders of 31 March 2023, NSD v Council (T‑494/22, not published, EU:T:2023:196), and of 31 March 2023, NSD v Council (T‑494/22, not published, EU:T:2023:197), by which the applications to intervene lodged by Mr Lipatov and Maritime Bank JSC were dismissed,– the statement of modification lodged by the applicant at the Court Registry on 25 April 2023,– the statement of modification lodged by the applicant at the Court Registry on 24 November 2023,further to the hearing on 23 January 2024,gives the following
Judgment
1By its action under Article 263 TFEU, the applicant, NKO AO National Settlement Depository (NSD), seeks annulment of (i) Council Decision (CFSP) 2022/883 of 3 June 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 153, p. 92), and of Council Implementing Regulation (EU) 2022/878 of 3 June 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 153, p. 15; together, ‘the initial acts’); (ii) 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 maintaining acts of March 2023’); and (iii) 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 maintaining acts of September 2023’), in so far as all of those acts (‘the contested acts’) include and maintain the applicant’s name on the lists annexed to those acts.
I. Background to the dispute
2The applicant is a company, incorporated under Russian law, that is a licensed depository providing securities record-keeping and custody services as the central depository and which also provides financial services, in particular as a non-bank credit institution licensed to provide bank settlement services.
3The present case arises in the context of restrictive measures adopted by the European Union in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine.
4On 17 March 2014, the Council of the European Union adopted, under Article 29 TEU, Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 16).
5On the same day, the Council adopted, under Article 215 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).
6On 25 February 2022, in view of the gravity of the situation in Ukraine, the Council adopted, first, Decision (CFSP) 2022/329 amending Decision 2014/145 (OJ 2022 L 50, p. 1) and, second, Regulation (EU) 2022/330 amending Regulation No 269/2014 (OJ 2022 L 51, p. 1), in order, 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.
7Article 2(1) and (2) of Decision 2014/145, as amended (‘Decision 2014/145, as amended’), provides: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 benefitting from the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine; ……2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in the Annex.’
8The detailed rules for the freezing of those funds are set out in the subsequent paragraphs of Article 2 of Decision 2014/145, as amended.
9Regulation No 269/2014, in the version as amended by Regulation 2022/330 (‘Regulation No 269/2014, as amended’), requires measures to be adopted for the freezing of funds and lays down the detailed rules governing that freezing of funds in terms which are identical, in essence, to those used in Decision 2014/145, as amended. Article 3(1)(a) to (g) of that regulation essentially reproduces Article 2(1)(a) to (g) of that decision.
10On 3 June 2022, in view of the Russian Federation’s continued war of aggression against Ukraine, the Council adopted the contested acts by which it added the applicant’s name to the lists of persons, entities and bodies subject to restrictive measures that appear in the annex to Decision 2014/145, as amended, and in Annex I to Regulation No 269/2014, as amended (‘the lists at issue’).
11The reasons for including the applicant’s name on the lists at issue are as follows:‘[The applicant] is a Russian non-bank financial institution and Russia’s central securities depository. It is the largest securities depository in Russia by market value of equity and debt securities held in custody and the only one which has access to the international financial system.[The applicant] is recognised as a systemically important Russian financial institution by the Government and the Central Bank of Russia. It plays an essential role in the functioning of Russia’s financial system and its connection to the international financial system, thus directly and indirectly enabling the Russian Government in its activities, policies and resources.[The applicant] is almost fully owned by Moscow Exchange, whose mission is to provide exhaustive access to the Russian financial markets. Moscow Exchange is in turn, through its role and shareholders, under a high degree of control of the Russian Government. [The applicant] is therefore an entity or body supporting, materially or financially, the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine.’
12The Council published a notice for the attention of the persons, entities and bodies subject to the restrictive measures adopted in the initial acts, in the Official Journal of the European Union of 3 June 2022 (OJ 2022 C I 219, p. 1). That notice stated, inter alia, that the persons concerned could submit a request to the Council, together with supporting documentation, asking that the decision to include their names on the lists at issue be reviewed.
13By letter of 4 August 2022, the applicant asked the Council to provide a statement of reasons and evidence supporting the inclusion of its name on the lists at issue.
14On 10 August 2022, the Council provided the applicant with file WK 7236/2022/EXT 1 (‘the first evidence file’), on which it had based its decision.
II. Facts subsequent to the bringing of the action
15On 14 September 2022, the Council adopted Decision (CFSP) 2022/1530 amending Decision 2014/145 (OJ 2022 L 239, p. 149), and Implementing Regulation (EU) 2022/1529 implementing Regulation No 269/2014 (OJ 2022 L 239, p. 1). It is apparent from Decision 2022/1530 that Decision 2014/145 is applicable until 15 March 2023, and that the individual restrictive measures applicable to the applicant are thus extended, its name being maintained on the lists at issue for the same reasons as those set out in paragraph 11 above.
16By a letter of 22 December 2022, the Council informed the applicant that it intended to maintain the restrictive measures taken against it, sent it file WK 17708/2022 INIT (‘the second evidence file’) and asked the applicant to submit its observations by 12 January 2023 at the latest.
17On 13 March 2023, the Council adopted the maintaining acts of March 2023. It is apparent from Decision 2023/572 that Decision 2014/145 is applicable until 15 September 2023, and that the individual restrictive measures applicable to the applicant are thus extended, its name being maintained on the lists at issue for the same reasons as those set out in paragraph 11 above.
18By a letter of 14 March 2023, the Council informed the applicant of its decision to continue to include the applicant on the lists at issue and asked the applicant to submit its observations by 1 June 2023 at the latest.
19By a letter of 10 July 2023, the Council informed the applicant that it intended to maintain the restrictive measures taken against it, sent it file WK 7807/2023 REV2 (‘the third evidence file’) and asked the applicant to submit its observations by 25 July 2023 at the latest.
20On 13 September 2023, the Council adopted the maintaining acts of September 2023. It is apparent from Decision 2023/1767 that Decision 2014/145 is applicable until 15 March 2024, and that the individual restrictive measures applicable to the applicant are thus extended, its name being maintained on the lists at issue for the same reasons as those set out in paragraph 11 above.
III. Forms of order sought
21The applicant claims that the Court should:– annul the contested acts;– order the Council to pay the costs.
22The Council, supported by the European Commission, contends that the Court should:– dismiss the action for annulment;– order the applicant to pay the costs.
IV. Law
23Before examining the merits of the pleas in law on which the applicant relies, it is necessary to examine the admissibility of the action in so far as it relates to Implementing Regulation 2023/1765.
A. The admissibility of the action, in so far as it relates to Implementing Regulation 2023/1765
24In its observations on the second statement of modification of the application, the Commission argues that that application is manifestly inadmissible in so far as it seeks annulment of Implementing Regulation 2023/1765, inasmuch as that statement of modification does not satisfy the conditions under Article 86(1) of the Rules of Procedure of the General Court. According to the Commission, that implementing regulation neither replaces nor amends the contested acts with regard to the applicant.
25The applicant contends that the second statement of modification of the form of order sought is admissible, inasmuch as its aim is, in so far as concerns the applicant, the annulment of Implementing Regulation 2023/1765.
26In that regard, it must be recalled that Article 86(1) of the Rules of Procedure provides that, where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter, the applicant may, before the oral part of the procedure is closed, or before the decision of the Court to rule without an oral part of the procedure, modify the application to take account of that new factor.
27The assessment of the admissibility of the action brought against Implementing Regulation 2023/1765 must be carried out in the light of the Council’s obligation to conduct a periodic review of the list set out in Annex I to Regulation No 269/2014, in accordance with Article 14(4) of that regulation. In that connection, it should be observed that the implementing regulations adopted further to reviews, including Implementing Regulation 2023/1765, simply refer to amendments made to and deletions from the lists at issue following such a review, with the result that, pursuant to those implementing regulations, those listings which are neither amended nor deleted are extended (see, by analogy, judgment of 28 April 2021, Sharif v Council, T‑540/19, not published, EU:T:2021:220, paragraph 48).
28According to the case-law, even in the case in which the person concerned is not mentioned by a subsequent act amending the list on which his or her name has been entered, and even if that subsequent act does not alter the ground on which that person’s name was initially entered on the list, such an act must be understood as evidence of the Council’s intention to maintain the name of the person concerned on the list, which has the consequence that his or her funds remain frozen, given that the Council has a duty to examine that list at regular intervals (see judgment of 8 July 2020, Neda Industrial Group v Council, T‑490/18, not published, EU:T:2020:318, paragraph 52 and the case-law cited).
29Furthermore, in accordance with Article 14(3) of Regulation No 269/2014, where observations are submitted, or where substantial new evidence is presented, the Council is to review its decision to include a person on the lists at issue. In the present case, by its letter of 15 September 2023, the Council informed the applicant that, further to the latter’s request of 25 July 2023 for reconsideration of its inclusion in the lists at issue, the Council had decided to maintain the restrictive measures taken against it by way of the adoption of Decision 2023/1767 and of Regulation No 269/2014, as amended by Implementing Regulation 2023/1765. Consequently, it must be held that both Decision 2023/1767 and Implementing Regulation 2023/1765 are the result of a reconsideration of the applicant’s situation.
30Moreover, while it is true that the grounds for including the applicant on the lists at issue were not amended by the maintaining acts of September 2023, it must nonetheless be observed that those acts are based on additional evidence produced by the Council in the third evidence file.
31In the light of the foregoing, it must be found that the present action is admissible inasmuch as it seeks annulment of Implementing Regulation 2023/1765 in so far as it concerns the applicant.
B. Substance
32In support of its action, the applicant puts forward four pleas in law, alleging (i) infringement of the obligation to state reasons; (ii) manifest error of assessment; (iii) disproportionate infringement of the applicant’s fundamental rights; and (iv) failure to meet the requisite standard of proof.
1. The first plea in law, alleging infringement of the obligation to state reasons
33The applicant claims that the statement of reasons for the contested acts does not meet the requirements laid down by the case-law relating to Article 296 TFEU. It argues that the Council simply restated the listing criterion used as the basis for including the applicant’s name on the lists at issue. Furthermore, the applicant takes the view that the contested acts do not contain precise and concrete reasons and fail to state how and when the applicant would have supported the Russian Government to enable the latter in its activities, policies and resources; nor are any specific transactions identified. Moreover, according to the applicant, the reason alleging that it is indirectly under the control of the Russian Government is incorrect.
34The applicant also takes issue with the Council for failing to explain why the restrictive measures taken against it involved freezing its clients’ assets.
35The Council, supported by the Commission, disputes that line of argument.
36It must be recalled that the purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, secondly, to enable those Courts to review the legality of that act (judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 49).
37The statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the act in question, the nature of the reasons given and the interest which the addressees of the act, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. In particular, it is not necessary for the reasoning to go into all the relevant facts and points of law or to provide a detailed answer to the considerations set out by the person concerned when consulted prior to the adoption of that same act, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. Consequently, the reasons given for an act adversely affecting a person are sufficient if that act was adopted in a context which was known to that person and which enables him or her to understand the scope of the act concerning him or her (judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraphs 53 and 54; see, also, judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 48 and the case-law cited).
38Thus, the degree of precision of the statement of the reasons for a measure must be weighed against practical realities and the time and technical facilities available for taking the measure (see judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 104 and the case-law cited).
39Furthermore, it has been made clear in the case-law that the statement of reasons for an act of the Council which imposed a restrictive measure had not only to identify the legal basis for that measure but also the actual and specific reasons why the Council considered, in the exercise of its discretion, that such a measure had to be adopted in respect of the person concerned (see judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 105 and the case-law cited).
40In the present case, the initial acts and the maintaining acts of March 2023 and of September 2023 all specify the context, in the respective recitals thereof, together with the legal bases for the adoption of those acts. In particular, it is apparent from the respective preambles to the contested acts that the gravity of the situation in Ukraine, together with the pursuit of actions undermining or threatening that country’s territorial integrity, sovereignty and independence, justify including and maintaining the designated persons on the lists at issue.
41In addition, the wording of the factual circumstances, as recalled in paragraph 11 above, constitutes a sufficiently clear and precise statement of reasons to enable the applicant to understand why its name was included, then maintained, on the lists at issue, and to allow the Court to exercise its power of review. Contrary to the applicant’s claims, it is apparent from the contested acts that these do not simply reformulate the listing criterion laid down in Article 2(1)(f) of Decision 2014/145, as amended. More specifically, the grounds for listing state that the applicant is Russia’s central securities depository, that it has access to the international financial system, and that it is recognised as a systemically important financial institution that plays an essential role in the functioning of Russia’s financial system, thus directly and indirectly enabling the Russian Government in its activities, policies and resources. Furthermore, the grounds for inclusion also refer to the fact that the applicant is under the control of the Russian Government.
42Moreover, since it is not necessary for the statement of reasons to go into all the relevant facts and points of law or to provide a detailed answer to the considerations put forward by the person concerned when consulted prior to the adoption of that same act, the argument that the contested acts fail to identify how and when the applicant would have supported the Russian Government, or mention any specific transactions, cannot succeed.
43In so far as concerns the argument alleging that the wording of the grounds for inclusion is incorrect inasmuch as it is stated that the applicant is indirectly under the control of the Russian Government, it should be recalled that to state reasons on which an act is based is an essential procedural requirement, to be distinguished from the question whether the reasons given are correct, which goes to the substantive lawfulness of the contested act. The reasoning on which an act is based consists in a formal statement of the grounds on which that act is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the act, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect (judgments of 5 November 2014, Mayaleh v Council, T‑307/12 and T‑408/13, EU:T:2014:926, paragraph 96, and of 22 June 2022, Haswani v Council, T‑479/21, not published, EU:T:2022:383, paragraph 57). It follows that the applicant’s argument must be rejected.
44As to the applicant’s argument alleging that the Council failed to state the reasons why the restrictive measures at issue involved the freezing of its clients’ assets and that it ought to have identified all those who, amongst those clients, were affected by those measures, and ascertained whether each of those clients individually met the conditions laid down by the listing criteria, it should be observed that, as the Council contends, the obligation to state reasons does not entail the obligation to go into all of the consequences of adopting the contested acts on other people, any more than it requires that the Council identify all of the persons liable to be affected indirectly by the restrictive measures against the applicant.
45Accordingly, the first plea in law must be rejected.
2. The second and fourth pleas in law, alleging manifest error of assessment and failure to meet the requisite standard of proof
46It should be noted that the line of argument put forward in support of the fourth plea in law is confined, in essence, to claiming that the grounds for inclusion are not supported by sufficient evidence. Since the examination of the error of assessment includes ascertaining whether the factual basis relied on by the Council is sufficient, it is necessary to examine the fourth plea in conjunction with the second plea, which alleges manifest error of assessment.
47The second plea in law is in three parts, alleging (i) manifest error of assessment, in that it is stated that the applicant is an important institution for Russia’s financial system and enables the Russian Government in its activities, policies and resources; (ii) manifest error of assessment, in that it is stated that the applicant is under the control of the Russian Government; and (iii) manifest error of assessment, in that the Council failed to establish the existence of a sufficient link between the applicant and the Russian Government.
(a)Preliminary observations
48In the first place, it should be pointed out that the second plea in law raised by the applicant 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 met, the fact remains that the Courts of the European Union must ensure the review, in principle the full review, of the lawfulness of all European Union acts (see judgment of 15 November 2023, OT v Council, T‑193/22, EU:T:2023:716, paragraph 121 and the case-law cited).
49The effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) 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 involves assessing the facts alleged in the statement of reasons on which the decision is based, 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 the question whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, are substantiated (see, to that effect, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119, and of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 62).
50That assessment must be carried out by examining the evidence and information not in isolation, but in their context. The Council discharges its burden of proof if it presents to the Courts of the European Union a body of sufficiently specific, precise and consistent evidence to establish that there is a sufficient link between the entity subject to a measure freezing its funds and the regime or, in general, the situations being combated (see judgment of 20 July 2017, Badica and Kardiam v Council, T‑619/15, EU:T:2017:532, paragraph 99 and the case-law cited; judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraphs 63 and 66).
51It 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 that person to adduce evidence of the negative, that those reasons are not well founded. For that purpose, 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 in respect of which annulment is sought. It is necessary that the information or evidence produced should support the reasons relied on against the person or entity 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 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraphs 66 and 67; see, also, judgment of 1 June 2022, Prigozhin v Council, T‑723/20, not published, EU:T:2022:317, paragraph 73 and the case-law cited).
52In such a situation, it is for the Courts of the European Union to verify the material accuracy of the facts alleged in the light of the data or evidence and assess the probative value of the latter in the light of the circumstances of the case and taking into account any observations submitted on them by the person or entity concerned (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 124).
53As regards, more specifically, the review of legality carried out with regard to the maintenance of the name of the person concerned on the lists at issue, it should be recalled that restrictive measures are of a precautionary and, by definition, provisional nature, and their validity always depends on whether the factual and legal circumstances which led to their adoption continue to apply, and on the need to persist with them in order to achieve their objective. Thus, when periodically reviewing those measures, it is for the Council to carry out an updated assessment of the situation and to take stock of the effects of those measures, with a view to determining 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 lists at issue or whether it is still possible to reach the same conclusion in relation to those persons and entities (see judgment of 27 April 2022, Ilunga Luyoyo v Council, T‑108/21, EU:T:2022:253, paragraph 55 and the case-law cited; judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 67).
54It follows that, in order to justify maintaining a person’s name on the list of persons and entities subject to restrictive measures, the Council is not prohibited from basing its decision on the same evidence justifying the initial inclusion, re-inclusion or previous maintenance of that person’s name on that list, provided that (i) the grounds for listing remain unchanged and (ii) the context has not changed in such a way that that evidence is now out of date (see, to that effect, judgment of 23 September 2020, Kaddour v Council, T‑510/18, EU:T:2020:436, paragraph 99). On that basis, changes in the context include the taking into consideration of, first, the situation in the country in respect of which the system of restrictive measures has been established as well as the specific situation of the person concerned (judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 78; see also, to that effect, judgment of 23 September 2020, Kaddour v Council, T‑510/18, EU:T:2020:436, paragraph 101) and, second, all of the relevant circumstances and, in particular, the achievement of the objectives pursued by the restrictive measures (judgment of 27 April 2022, Ilunga Luyoyo v Council, T‑108/21, EU:T:2022:253, paragraph 56; see also, to that effect and by analogy, judgment of 12 February 2020, Amisi Kumba v Council, T‑163/18, EU:T:2020:57, paragraphs 82 to 84 and the case-law cited).
55In the second place, it should be observed that the applicant’s name was included on the lists at issue pursuant to the criterion laid down in Article 2(1)(f) of Decision 2014/145, as amended, which targets, in particular, legal persons, entities or bodies supporting, materially or financially, the Government of the Russian Federation (‘the criterion of material or financial support to the government’).
56The purpose of the restrictive measures is to exert maximum pressure on the Russian authorities so that they bring an end to their actions and policies destabilising Ukraine and the military aggression against that country (see, to that effect and by analogy, judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 163 and the case-law cited), in particular by increasing the cost of the Russian Federation’s actions to undermine the territorial integrity, sovereignty and independence of Ukraine (see, to that effect, judgment of 13 September 2018, Rosneft and Others v Council, T‑715/14, not published, EU:T:2018:544, paragraph 157).
57It should be stated that the criterion of material or financial support to the government does not require that the persons or entities concerned provide support that is directly or indirectly linked to the annexation of Crimea or to the destabilisation of Ukraine. Material or financial support within the meaning of that criterion must be understood as any support that is capable, by its quantitative or qualitative importance, to provide that government with resources or facilities of a material or financial nature allowing it to pursue its actions to destabilise Ukraine (see, by analogy, judgment of 7 April 2016, Central Bank of Iran v Council, C‑266/15 P, EU:C:2016:208, paragraph 44).
58It is in the light of those principles that it is necessary to ascertain whether the Council committed an error of assessment in deciding to include, then maintain, the applicant’s name on the lists at issue on the basis of the criterion of material or financial support to the government.
(b)The material contained in the Council’s evidence files
59In the present case, in order to justify the inclusion and maintenance of the applicant’s name on the lists at issue, the Council produced three evidence files.
60In order to justify including the applicant’s name on the lists at issue, the Council produced the first evidence file containing publicly available information, namely links to websites, screenshots and press articles. These include, in particular, the following exhibits:– a screenshot of a presentation page concerning the applicant, taken from its website, accessed on 29 April 2022 (Exhibit No 1);– a screenshot of another presentation page concerning the applicant, taken from its website, accessed on 12 May 2022 (Exhibit No 2);– an excerpt from a technical note entitled ‘Financial Sector Assessment Program – Russian Federation, Financial Infrastructure’, published in July 2016, available on the website ‘worldbank.org’, accessed on 12 May 2022 (Exhibit No 7);– an excerpt from a report on the applicant’s financial performance results for Q2 2021, published on 2 September 2021, on the website of the Association of Eurasian Central Securities Depositories, accessed on 12 May 2022 (Exhibit No 8);– an article titled ‘Russia paid coupons on seven OFZ bond issues – finance ministry’, published on 31 March 2022 on the news website ‘reuters.com’, accessed on 2 May 2022 (exhibit No 11).
61In order to justify maintaining the applicant’s name on the lists at issue on the basis of the maintaining acts of March 2023, the Council also relied on the items of evidence produced in the second evidence file containing publicly available information, namely links to websites, screenshots and press articles. These include, in particular, the following exhibits:– an excerpt from the Annual Report 2021 of the Moscow Exchange (‘MOEX’), published on 4 March 2022, available on the website of that undertaking, accessed on 22 November 2022 (Exhibit No 2);– a press release concerning the applicant’s financial rating, published on the latter’s website on 15 November 2022, accessed on 22 November 2022 (Exhibit No 3);– an article headed ‘The Ministry of Finance transferred 4.9 billion r[o]ubles to NSD to pay the coupon on the Eurobonds Russia 2042’, published on 5 October 2022 on the news website ‘interfax.ru’, accessed on 25 November 2022 (Exhibit No 5);– an article headed ‘The Ministry of Finance paid coupons in r[o]ubles on two issues of Eurobonds’, published on 16 September 2022 on the news website ‘ria.ru’, accessed on 17 November 2022 (Exhibit No 8);– an article headed ‘The Ministry of Finance paid the coupon on Eurobonds falling due in 2035 in roubles’, published on 29 September 2022 on the news website ‘ria.ru’, accessed on 17 November 2022 (Exhibit No 9);– a screenshot of a publication on the official website of the Russian Minister of Finance, relating to the successful payment of coupons on Eurobonds, accessed on 25 November 2022 (Exhibit No 10).
62In the present case, since the reasons for including and maintaining the applicant on the lists at issue have remained unchanged, it is not necessary to make a distinction between the initial acts, on the one hand, and the maintaining acts of March 2023 and of September 2023, on the other, given that the verification of the information alleged in the statement of reasons as well as in the exhibits, which are set out in the evidence files, relates, in essence, to the same factual circumstances.
(c)The evidence in annex to the Council’s pleadings
63At the hearing, the applicant argued that the evidence produced by the Council, in annex to the defence and the rejoinder, should be declared inadmissible.
64In the first place, as regards the evidence in annex to the rejoinder, the applicant claims that that evidence was produced out of time, in breach of Article 85(1) of the Rules of Procedure.
65In that regard, it should be recalled that Article 85(1) of the Rules of Procedure provides that evidence produced or offered is to be submitted in the first exchange of pleadings. Article 85(2) adds that in reply or rejoinder the main parties may still produce or offer further evidence in support of their arguments, provided that the delay in the submission of such evidence is justified.
66Furthermore, Article 85(2) of the Rules of Procedure must be read in the light of Article 92(7) of those rules, which expressly provides that evidence may be submitted in rebuttal and previous evidence may be amplified. Consequently, as is clear from settled case-law, evidence in rebuttal and the amplification of previous evidence, submitted in response to evidence in rebuttal put forward by the opposing party, are not covered by the time-bar rule in Article 85(2) of those rules (judgments of 18 September 2017, Uganda Commercial Impex v Council, T‑107/15 and T‑347/15, not published, EU:T:2017:628, paragraph 72, and of 13 September 2023, ITD and Danske Fragtmænd v Commission, T‑525/20, EU:T:2023:542, paragraph 78).
67In the present case, it is apparent from the rejoinder that Annexes D.1 to D.6 thereto are evidence of the importance of central security depositories (‘CSDs’) and of the applicant to the proper functioning of the financial system. It should be observed that that evidence has been produced by the Council in response to the applicant’s arguments in its reply disputing the reliability of the material submitted in the defence.
68Annex D.7 to the rejoinder, concerning systemically important payment systems, has been produced by the Council in response to the argument set out in the reply, by which the applicant disputes the contention that, in its capacity as the operator of a systemically important payment system, it has favoured the Russian Government.
69Annexes D.8 and D.9 to the rejoinder, concerning the Central Bank of the Russian Federation, are a response to the arguments, contained in the reply, that that financial institution is independent from the Russian federal authorities. Annex D.10 to the rejoinder, relating to the Russian bank Sberbank, has been produced in response to the line of argument, contained in the reply, referring to the independence of that financial institution vis-à-vis the Russian Government. Annexes D.11 and D.12 to the rejoinder, which relate to VEB.RF, are intended to respond to the line of argument, put forward in the reply, by which it is claimed that that financial institution manages its assets independently.
70It must thus be held that the annexes to the rejoinder, the aim of which is to refute the arguments or items of evidence submitted by the applicant in the reply, constitute evidence in rebuttal within the meaning of Article 92(7) of the Rules of Procedure.
71Accordingly, the annexes to the rejoinder are admissible.
72In the second place, the applicant argues that the Court cannot take into consideration the evidence annexed to the defence and the rejoinder, on the ground that these were not contained in the first evidence file.
73It is settled case-law that the legality of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (judgments of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 22, and of 8 March 2023, Prigozhina v Council, T‑212/22, not published, EU:T:2023:104, paragraph 80).
74It should also be borne in mind that the review of substantive legality thus incumbent on the General Court must be carried out, as regards in particular cases involving restrictive measures, in the light not only of the material set out in the statements of reasons for the acts at issue, but also in the light of the material provided by the Council, in the event of challenge, to the General Court in order to establish that the facts alleged in those statements are made out (judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 64).
75Admittedly, as the applicant observes, in the case that gave rise to the judgment of 1 June 2022, Prigozhin v Council (T‑723/20, not published, EU:T:2022:317), the Court ruled that the Council had to have material at its disposal in order to establish that the facts alleged in the statement of reasons were made out when it adopted those acts (paragraph 52 of that judgment). However, in ruling thus, it was not the Court’s intention to preclude any possibility of taking into account, when conducting its review of the legality of the contested acts, additional evidence that was not contained in the evidence file and which is produced to confirm that the facts alleged in the statement of reasons are made out as long as that evidence (i) substantiates material that the Council had at its disposal and (ii) relates to events prior to the adoption of the contested acts in question.
76In the present case, as regards Annexes B.1 to B.6 to the defence, namely biographical material relating to certain members of the board of directors of MOEX, it should be observed that several exhibits relate to persons who were not members of the board of directors in office when the initial acts were adopted. Consequently, the evidence produced in Annexes B.1 to B.6 to the defence cannot be taken into consideration in ascertaining whether the initial acts are well founded.
77As to the annexes to the rejoinder, as is clear from paragraphs 67 to 69 above, these have been produced by the Council not to substantiate the claim that the facts alleged in the grounds for listing are made out, but rather to respond to the arguments raised by the applicant in its reply. Since this is not evidence produced in order to substantiate the claim that the facts alleged in the grounds for listing are made out, the principles stated in paragraphs 73 to 75 above do not apply. Thus, in the present case, the evidence produced at the rejoinder stage can be taken into consideration by the Court in reviewing the merits of the applicant’s claims.
(d)The first part of the second plea, alleging that the applicant does not enable the government in its resources
78The applicant submits that the assertion that it is the only securities depository in Russia with access to the international financial system is incorrect, since other depositories in Russia hold securities accounts with international CSDs.
79The applicant states that, as a CSD within the meaning of Russian law, it is a constituent part of an international securities settlement chain and is involved in the operation, maintenance, settlement and payments relating to various securities. It maintains that most of its activities as a CSD are intended for private market actors, and not for the Russian Government. In so far as concerns the bonds issued by the Russian Ministry of Finance, the applicant points out that it is only one of numerous financial institutions participating in bond issues. In addition, the applicant states that, as a CSD, it acts solely on behalf and on the instructions of clients and that it does not invest its own assets in its accounts with foreign CSDs, which it holds only in a fiduciary capacity on behalf of its clients. The applicant also maintains that, as a CSD, its relations with entities linked to the Russian Government are arm’s-length commercial relations that are indistinguishable from those with its other clients in the public and private sectors. It therefore disputes the contention that its relations with entities linked to the Russian Government can be regarded as material or financial support to that government. Moreover, in its observations on the Commission’s statement in intervention, the applicant argues that the Russian Ministry of Finance can issue bonds without using its services.
80Furthermore, the applicant disputes the importance of the payment system it operates and, in any event, takes the view that the Council has failed to prove that being an operator of a nationally and systemically important payment system is an equivalent of enabling the Russian Government in its activities, policies and resources. In that connection, the applicant submits that, in its capacity as a payment system operator, it had arm’s-length commercial relationships with entities linked to the Russian Government, such that the provision of services in that capacity does not amount to material or financial support to that government. Furthermore, the applicant points out that the objective of undermining the operation of the Russian economy has not been achieved, because there is no shortage of other important payment systems capable of performing the same functions.
81The Council, supported by the Commission, disputes that line of argument.
82In the first place, it is necessary to ascertain whether the Council made an error of assessment by finding that the applicant was a systemically important financial institution and played an essential role in the functioning of Russia’s financial system.
83In that connection, according to Exhibit No 1 in the first evidence file, the applicant is regarded as ‘a key component of the Russian financial infrastructure’ It is apparent from Exhibit No 2 in that file that the Central Bank of the Russian Federation regards the applicant as ‘a systemically important financial market infrastructure: a systemically important central securities depository, settlement depository, trade repository and registrar of financial transactions’. Moreover, in Exhibit No 2 in the first evidence file, it is stated that the payment system operated by the applicant is of systemic and national importance. That exhibit also refers to the applicant’s connections to the international financial system, given that it is presented as having securities accounts with other CSDs and international CSDs in eight countries, accounts with foreign custodian banks, as well as correspondent accounts with major foreign and Russian banks. Further, according to Exhibit No 2 in the first evidence file, the value of assets held in custody by the applicant had risen to 63.6 trillion Russian roubles (RUB) (that is, approximately EUR 636 billion).
84It should be observed that Exhibit No 7 in the first evidence file also refers to the applicant’s connection to the international financial system, and that Exhibit No 8 in that file confirms the scale of the assets – the securities for which are held in custody by the applicant – the value of which, by the end of Q2 2020, had reached RUB 69.5 trillion (that is, approximately EUR 695 billion).
85Thus, it must be held that the Council had, from the time the initial acts were adopted, a sufficient factual basis for considering that the applicant was an important financial institution for Russia’s financial system and had connections to the international financial system.
86Furthermore, Exhibit No 3 in the second evidence file confirms, at the stage of adoption of the maintaining acts of March 2023 and September 2023, the importance of the applicant to Russia’s financial system, given that it is described as being of ‘critical importance’ as a CSD and as playing an ‘exceptional role in the Russian financial services market in ensuring the proper functioning of the market infrastructure’.
87The applicant’s arguments are not such as to cast doubt on that finding.
88First, the applicant disputes the importance of CSDs in the financial system and their links to governments. However, it is apparent from the clarification provided by the Council in its written pleadings, and by the Commission at the hearing, that CSDs are regarded as systemically important entities that are critical, in particular, for the effective implementation of monetary policy, the credibility of a government’s debt management programme, collateral management, and safe and efficient securities markets. The applicant’s claims are contradicted not only by the Working Paper of the International Monetary Fund (Annex D.1 to the rejoinder), but also by the information from the Bundesbank (Federal Bank of Germany) (Annex D.3 to the rejoinder) and the Banka Slovenije (Central Bank of Slovenia) (Annex D.4 to the rejoinder). It is clear that the applicant has failed to adduce any evidence capable of calling the reliability of that information into question.
89Second, as regards the applicant’s line of argument seeking to dispute the importance of the payments system that it operates, it should be observed that the applicant has failed to adduce any evidence to support its assertion that, in essence, its payments system has been recognised as being of systemic importance solely on account of the fact that it processes payment operations in the context of organised trading. In fact, as the Council rightly observes, Article 22(1) of Russian Federal Law No 161-FZ of 27 June 2011 on the national payment system, submitted by the applicant, lays down the criteria for designating a payment system as being of systemic importance but does not state that the applicant is designated as such on the basis of the criterion relating to the processing of operations in the context of organised trading. Moreover, contrary to the applicant’s claim, its payment system is not regarded as being of national importance solely because the IT infrastructure that it used was located in Russia. Admittedly, under Article 22(13) of that law, read in conjunction with the note from the Central Bank of the Russian Federation dated 25 July 2014 on the requirements on information technologies used by operators of payment systems for the purposes of recognising the payment system as a nationally important payment system, placed on the file by the applicant, one of the criteria for recognition as a nationally important establishment relates to the requirement that the IT infrastructure be located in Russia. However, that provision also requires that another criterion be met: that relating to it being demonstrated that the Russian Federation, the Central Bank of the Russian Federation or citizens of the Russian Federation control, directly or indirectly, the operator of the payment system and of the operators of payment infrastructure services. In any event, it is clear that neither Russian Federal Law No 161-FZ of 27 June 2011 on the national payment system nor the aforementioned note from the Central Bank of the Russian Federation is capable of calling into question the importance of the payment system operated by the applicant, or the fact that it is a systemically important financial institution in Russia. Moreover, it should be observed that it is apparent from Annex C.6 to the reply that the applicant’s payment system is, in particular, used by the Central Bank of the Russian Federation in the refinancing of credit institutions or open market operations which allow cash to be placed or managed on the market. Consequently, the applicant cannot claim that the payment system that it operates is wholly unimportant since it is used, in particular, in the implementation of Russian monetary policy.
90As to the applicant’s argument that the objective of undermining the functioning of the Russian economy has not been attained, in particular on account of the fact that there are 54 other payment systems capable of performing the same functions as the system that the applicant operates, it must be observed that the latter has failed to adduce any evidence of the existence of those other payments systems or any evidence to suggest that these are systemically important systems. Furthermore, the argument that the restrictive measures have not attained their objective is not such as to call into question the finding that the applicant operates a systemically important payment system. Such an argument is in fact wholly unrelated to the systemic importance of that payment system.
91Third, the applicant does not dispute having connections to the international financial system, but argues that other Russian security depositaries also have access to the international financial system. In particular, it observes that two other financial institutions hold securities accounts directly with Euroclear. Consequently, it maintains that the Council made an error of assessment by finding in the grounds for listing that the applicant was the only Russian depositary to have access to the international financial system. In that regard, it should be observed that the inclusion of the applicant on the lists at issue is justified by its role in the functioning of Russia’s financial system, in particular as a central securities depository, and by its connection to the international financial system. Consequently, even if the Council had made an error in finding that the applicant was the only securities depository in Russia to have a connection to the international financial system, such an error cannot, alone, be such as to affect the lawfulness of the contested acts. The fact that there may be other securities depositories with access to the international financial system does not invalidate the finding that the applicant was the only central depository in Russia and that it played an essential role in the functioning of Russia’s financial system.
92It follows from the foregoing considerations that the applicant has failed to demonstrate that the Council made an error of assessment in finding that the applicant was a systemically important financial institution playing an essential role in the functioning of Russia’s financial system.
93In the second place, it must be determined whether, having regard to the significant role played by the applicant in Russia’s financial system, the Council wrongly found that the applicant directly or indirectly enabled the Russian Government in its activities, policies and resources.
94First, it is apparent from Exhibit No 2 in the first evidence file that, in 2020, the bonds issued by the Russian Ministry of Finance accounted for 22% of the total assets held in custody by the applicant, which thus corresponded to an amount of approximately RUB 12.72 trillion (that is, approximately EUR 127.2 billion). According to Exhibit No 8 in the same evidence file, by the end of Q2 2021, the value of government bond balances held in custody by the applicant had increased, reaching RUB 15.2 trillion (that is, approximately EUR 152 billion). Furthermore, the applicant manages government bonds given that, as is apparent from Exhibit No 11 in the first evidence file, it receives payments from the Russian Ministry of Finance in order to process interest payments to investors in government bonds.
95Thus, as regards the initial acts, with the first evidence file, the Council had a sufficient factual basis for finding that, through the services that it offered to the Russian Government as a CSD in the issuing, custody and management of government bonds, the applicant enabled that government in its activities, policies and resources.
96That finding was confirmed at the stage of adoption of the maintaining acts of March 2023 and of September 2023. It is in fact apparent from Exhibit No 2 in the second evidence file that, by the end of 2021, the value of government bond balances held in custody by the applicant had reached RUB 15.5 trillion (that is, approximately EUR 155 billion). Furthermore, the second evidence file contains items of evidence indicating amounts of several billion roubles transferred to the applicant by the Russian Ministry of Finance in order to pay the coupons on certain bonds, in particular on the ‘Russia-2042’ Eurobonds (Exhibit No 5) and on the Eurobonds reaching maturity in 2023 and in 2043 (Exhibit No 8), in 2035 (Exhibit No 9), and in 2027 and 2032 (Exhibit No 10).
97The applicant’s arguments cannot call that finding into question.
98First of all, contrary to the applicant’s claims, the fact that it does not acquire the bonds issued by the Russian Ministry of Finance on its own behalf, but instead acts solely on behalf and on the orders of clients, does not call into question the finding that, through the financial services that it offers as a CSD to the Russian Government in the context of the latter’s bond issues, the applicant contributes – as the Council and the Commission rightly contend – to the credibility of that government’s debt management programme. Thus, by way of its role as a financial intermediary in the custody and management of government bonds, the applicant enables the Russian Government in its financial resources. In the same vein, it should be borne in mind that, according to Exhibit No 2 in the first evidence file and Exhibit No 2 in the second evidence file, the applicant holds in custody and manages a quantitatively significant sum in government bonds, in respect of which it ensures the integrity and the payment of coupons to investors on behalf of the Russian Government.
99Next, while it is true that, in the issuing of bonds by the Russian Ministry of Finance, the applicant takes part in the aforementioned bond issues along with other international financial institutions and law firms, the crucial role of the services which the applicant provides in the context of the Russian Federation’s debt management must nevertheless be taken into account. The monitoring and custody of government bonds, along with the applicant’s involvement in interest payments to creditors, contribute – as has been observed in paragraph 98 above – to the credibility of the Russian Government’s debt management programme, which sets the applicant apart from other financial institutions involved in government bond issues. In that connection, in so far as concerns the argument that the Russian Ministry of Finance could issue bonds using the services of other Russian or foreign securities depositories, it is clear that that argument is not supported by any evidence. In any event, such an argument cannot succeed. Even if the Russian Government were to use other operators, that fact alone would not be such as to call into question the importance acquired by the applicant in the issuing and management of government bonds, given that government bonds in the amount of several trillion roubles, namely RUB 15.5 trillion (that is, approximately EUR 155 billion), were held in custody by the applicant at the end of 2021. Furthermore, it is apparent from Exhibit No 2 in the first evidence file that, in 2020, the Russian Government used the applicant’s services in the issuing of government bonds for an amount of RUB 4.7 trillion (that is, approximately EUR 47 billion). According to Exhibit No 2 in the second evidence file, between 2020 and 2021, the balance of government bonds held in custody by the applicant had increased by 13.3%. Such factors may confirm the importance of the services offered by the applicant to the Russian Government in the issuing of government securities. Moreover, the circumstance that the applicant, as a CSD, also provided services to private undertakings cannot call into question the fact that the services provided to that government in the context of government debt management enabled the latter in its resources.
100Finally, as regards the line of argument that the applicant’s relations with entities linked to the Russian Government are arm’s-length commercial relations comparable to relations with the applicant’s private clients, it should be observed that such a fact alone cannot call into question the importance of the services offered by the applicant in the context of the issuing, custody and management of government bonds, since that fact has no bearing on the importance of those services. Moreover, according to Exhibit No 11 in the first evidence file, in March 2022, the applicant informed investors that, in accordance with an order of the Central Bank of the Russian Federation, foreign holders of government bonds were barred from receiving coupon payments on those bonds. Consequently, on account of the fact that the applicant had to comply with the order of the Central Bank, the Council could, when the initial acts were adopted, consider that the applicant was no longer operating in line with normal commercial standards. It should be noted that the applicant does not dispute that fact given that, in its observations on the Commission’s statement in intervention, it confirmed that, on 28 February 2022, the Central Bank of the Russian Federation issued a mandatory order that all depositories temporarily suspend operations debiting securities of Russian issuers from the securities accounts of foreign nominee holders and/or foreign owners. It follows that, as from the implementation, by the applicant, of the order of the Central Bank of the Russian Federation of 28 February 2022, the applicant no longer had any basis to claim that its relations with entities linked to the Russian Government were arm’s-length commercial relations comparable to relations with its private clients.
101Second, it should be noted that, according to Exhibit No 8 in the first evidence file, the Russian Federal Treasury used the applicant’s Collateral Management System for cash placements under repo transactions, the amount of which totalled RUB 40.8 trillion (that is, approximately EUR 408 billion) in 2021. That fact is supported by Exhibit No 2 in the second evidence file in the context of the adoption of the maintaining acts of March 2023. In response to a measure of organisation of procedure, the applicant confirmed that the Russian Federal Treasury used its Collateral Management System. In its response, the applicant expressed reservations by which it sought to claim that the exhibits produced by the Council were not reliable. Suffice it to note, however, that Exhibit No 2 in the second evidence file is a report by MOEX – that is, the company that owns over 99% of the applicant’s share capital – with the result that the latter cannot claim that the information contained therein is not reliable. Furthermore, as regards the statement that the Russian Federal Treasury uses the Collateral Management System on an arm’s-length basis comparable to that applied to private clients, the applicant cannot, for the same reasons as those set out in paragraph 100 above, rely on such a fact in order to dispute the importance of the services that it provides to the Russian Government. Thus, having regard to the cash amounts placed by the Russian Federal Treasury through the applicant’s Collateral Management System, the Council was able to find, without making an error of assessment, that the applicant enabled the Russian Government in its resources.
102Third, it is also apparent from Exhibit No 8 in the first evidence file and from Exhibit No 2 in the second evidence file that the Central Bank of the Russian Federation used the applicant’s Collateral Management System for transactions totalling RUB 2.3 trillion (that is, approximately EUR 23 billion) in 2021. Furthermore, in Exhibit No 8 in the first evidence file, the repo transactions of the Central Bank of the Russian Federation involving recourse to financial services provided by the applicant are described as transactions intended to support the national economy.
103Moreover, as is clear from paragraph 89 above, the Central Bank of the Russian Federation also uses the applicant’s payment system in order to carry out monetary policy operations.
104It must be held, as the Commission stated in reply to a question put by the Court, that cash management is a key component of monetary policy which has an impact on the performance of the Russian economy and indirectly, therefore, on the revenue of the Russian Federation. It follows that the services provided by the applicant to the Central Bank of the Russian Federation could validly be regarded as indirectly enabling the Russian Government in its resources.
105Fourth, as the Council rightly contends, given the applicant’s significant role in Russia’s financial system, which enhances the efficiency of financial markets, the applicant contributes to attracting investment in Russia, thus fostering economic growth and, as a consequence, it contributes to enabling the Russian Government, indirectly, in its resources.
106In the light of the foregoing considerations, it must be held that the Council did not make an error of assessment in finding that the applicant enabled the Russian Government in its activities, policies and resources. Bearing in mind the importance of the financial services provided by the applicant, to both that government and the Central Bank of the Russian Federation, and its wider contribution to the proper functioning of Russia’s financial system, it must be found that the Council could validly consider that, from both a quantitative and a qualitative perspective, the applicant was significantly supporting, materially or financially, the Government of the Russian Federation, by enabling it in its financial resources with the aim of pursuing its actions to destabilise Ukraine.
107Consequently, the first part of the second plea must be rejected.
(e)The second part of the second plea in law, alleging that the applicant is not under the control of the Russian Government
108The applicant disputes the finding that it is controlled by the Russian Government. It claims that both it and MOEX are separate legal entities and that the Council has failed to establish that the applicant is controlled by MOEX. Furthermore, the applicant argues that that government is not in a position to exercise control, either in fact or in law, over MOEX.
109The Council, supported by the Commission, disputes that line of argument.
110It should be noted that the criterion of material or financial support to the government, laid down in Article 2(1)(f) of Decision 2014/145, as amended, does not require that it be established that that government controls the person, entity or body supporting it.
111Since, therefore, it is clear from the examination of the first part of the second plea that the Council had a sufficient factual basis available to it, and did not make an error of assessment in finding that the applicant was supporting, materially or financially, the Government of the Russian Federation, the finding that the applicant is controlled by that government is an additional piece of contextual evidence that cannot be decisive in justifying the inclusion of the applicant’s name on the lists at issue.
112It follows that the applicant’s arguments seeking to challenge the merits of that finding must be rejected as ineffective.
113The second part of the second plea must therefore be rejected.
(f)The third part of the second plea, alleging that there is not a sufficient link between the applicant and the Russian Government
114The applicant essentially submits that the contested acts do not demonstrate how the restrictive measures to which it is subject are being taken against the Russian Federation.
115The Council, supported by the Commission, disputes that line of argument.
116In that connection, it should be noted that the applicant was included on the lists at issue on the basis of the criterion of material or financial support to the government laid down in Article 2(1)(f) of Decision 2014/145, as amended. It is clear from the examination of the first part of the present plea that the Council had at its disposal a body of sufficiently specific, precise and consistent evidence to justify including the applicant on those lists on the basis of that criterion. It follows that the Council has established a sufficient link between the applicant and the Russian Federation; the demonstration of the existence of an additional link which goes beyond the material or financial support laid down by the listing criterion relied upon against the applicant is not necessary.
117Consequently, the third part of the second plea must be rejected.
118Accordingly, the second plea and, having regard to the findings in paragraphs 46 and 47 above, the fourth plea must be rejected in their entirety.
3. The third plea in law, alleging disproportionate breach of fundamental rights
119The applicant claims that the contested acts breach its freedom to conduct a business and its right to property, guaranteed by Articles 16 and 17 of the Charter. It takes the view that the contested acts prevent it from freely carrying out an economic activity and discharging its obligations to its customers, thereby infringing its freedom to conduct a business and its right to property.
120Furthermore, the applicant submits that those acts impair the essential content of its rights guaranteed by Articles 16 and 17 of the Charter. It also regards the measures in question as neither appropriate nor necessary to the aims pursued by the Council. The applicant submits, further, that the Council has failed to demonstrate either that the restrictive measures at issue were the least restrictive available to achieve the objective pursued, or that less restrictive measures could not have been taken.
121Moreover, according to the applicant, there is not a sufficient link between the restrictive measures in question and the objectives pursued, and it cannot be accepted that companies not controlled by the State may be targeted by such measures on the sole ground that they operate in an important economic sector.
122The applicant also claims that the measures taken against it infringe the fundamental rights of its customers, who cannot access their securities, which the applicant holds on a fiduciary basis on its frozen accounts with securities depositories in the European Union.
123The Council, supported by the Commission, disputes that line of argument.
124It should be recalled that the freedom to conduct a business and the right to property are enshrined in Article 16 and Article 17 of the Charter, respectively.
125It should also be recalled that the fundamental rights on which the applicant relies are not absolute and that their exercise may be subject to restrictions justified by objectives of general interest pursued by the European Union, provided that such restrictions in fact correspond to objectives of general interest and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very essence of the rights thus guaranteed (judgments of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 148, and of 25 June 2020, VTB Bank v Council, C‑729/18 P, not published, EU:C:2020:499, paragraph 80).
126In order to comply with EU law, an infringement of the fundamental rights at issue must be provided for by law, respect the essential content of those rights, refer to an objective of general interest, recognised as such by the European Union, and not be disproportionate (see judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 222 and the case-law cited).
127It is in the light of those considerations that it must be determined whether the contested acts constitute a disproportionate infringement of the freedom to conduct a business and the right to property.
128In the first place, it is necessary to examine the line of argument by way of which the applicant claims that the restrictive measures taken against him entailed the freezing of funds or economic resources belonging to its customers in the amount of approximately EUR 1.479 billion, with the result that those measures infringe the right to property of those customers.
129In that connection, it should be noted that the applicant cannot rely, in support of its action for annulment, on a right to property that it does not hold (see, to that effect, judgment of 22 June 2022, Anglo Austria AAB and Belegging-Maatschappij ‘Far-East’ v ECB, T‑797/19, under appeal, EU:T:2022:389, paragraph 285). According to the case-law, the infringement of a subjective right can, in principle, be relied upon solely by the person whose right has allegedly been infringed, and not by third parties (see, by analogy, judgment of 19 September 2019, Zhejiang Jndia Pipeline Industry v Commission, T‑228/17, EU:T:2019:619, paragraph 36 and the case-law cited). In the present case, as the applicant acknowledged at the hearing, its customers have legal remedies available to them before the national courts, before which they may, inter alia, claim infringement of their right to property enshrined in Article 17 of the Charter.
130Furthermore, as regards the applicant’s argument that the derogation, which was laid down in Article 2(15) of Decision 2014/145, as amended, and in Article 6b(5) of Regulation No 269/2014, as amended, did not enable its customers to obtain the unfreezing of their funds or economic resources owing to the inaction of the national authorities or to overly restrictive conditions imposed by those authorities, it should be observed that, by that argument, the applicant does not actually dispute the lawfulness of the derogation laid down by the Council, but rather the lawfulness of the measures taken by national authorities in the implementation of that derogation.
131It must be borne in mind that, according to settled case-law, in the context of an action for annulment under Article 263 TFEU, the Court does not have jurisdiction to carry out a review of the lawfulness of decisions adopted by national authorities or of judgments delivered by national courts (see, to that effect, orders of 5 October 1983, Chatzidakis Nevas v Social Welfare Fund for Lawyers, Athens, 142/83, EU:C:1983:267, paragraph 4, and of 24 August 2010, Grúas Abril Asistencia v Commission, T‑386/09, not published, EU:T:2010:331, paragraph 28). It is settled case-law that it is only for the national courts having jurisdiction to review the validity of national measures implementing EU acts (see, to that effect, judgments of 11 July 1996, Branco v Commission, T‑271/94, EU:T:1996:103, paragraph 53, and of 14 April 2016, Ben Ali v Council, T‑200/14, EU:T:2016:216, paragraph 268).
132Furthermore, it should be borne in mind that, when deciding on a request for release of frozen funds pursuant to the derogations laid down by Decision 2014/145, as amended, and Regulation No 269/2014, as amended, the competent national authority implements EU law. It follows that that authority is required to observe the Charter, as provided for in Article 51(1) thereof (see, to that effect, judgments of 12 June 2014, Peftiev and Others, C‑314/13, EU:C:2014:1645, paragraph 24, and of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraph 266).
133It follows that, for customers of the applicant who are not subject to any restrictive measures and whose funds or economic resources are frozen on account of the restrictive measures taken against the applicant, in the context of the examination of a request for release of frozen funds or economic resources, it is for the national authorities to ensure that the interference with the right to property of those customers is in compliance with the conditions laid down in Article 52 of the Charter.
134In the second place, it should be noted that the applicant’s freedom to conduct a business, together with its right to property relating to the own funds or economic resources belonging to it and deposited with financial institutions established in the European Union, are both limited by the restrictive measures applied to the applicant. Consequently, it is necessary to determine whether the conditions justifying interference with the applicant’s fundamental rights, as recalled in paragraph 126 above, are met.
135First, it should be observed that the restrictive measures at issue are provided for by law, since they are laid down in acts which, in particular, are of general application and have a clear legal basis in EU law, namely Article 29 TEU and Article 215 TFEU, respectively.
136Second, it should be recalled that the effect of the restrictive measures adopted is to freeze the own funds or economic resources belonging to the applicant, as a precautionary measure. Furthermore, the contested acts apply for six months and are subject to constant review, as is provided in Article 6 of Decision 2014/145. Since those measures are temporary and reversible, it must be found that they do not undermine the essence of the applicant’s freedom to conduct a business or of its right to property. It is clear that the applicant has failed to offer any substantiated line of argument capable of calling that finding into question.
137Third, the restrictive measures at issue pursue an objective of general interest, recognised as such by the European Union, such as to justify the possibility that, for certain operators, the consequences may be negative, even significantly so (see, to that effect and by analogy, judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 150). They are, in fact, intended to exert pressure on the Russian authorities to bring to an end their actions and policies destabilising Ukraine. In that connection, in February 2022, the Council wished to weaken the Russian economy strategically, by (i) prohibiting, in particular, the financing of the Russian Federation, its government and its central bank and (ii) applying such measures, in particular, in the fields of finance, defence and energy. It is apparent, moreover, from recital 11 of Decision 2022/329 that the Council considered, in view of the gravity of the situation in Ukraine, that the criteria of designation should be amended. Accordingly, it seems that the European Union seeks to reduce the revenue of the Russian State and put pressure on the Russian Government, in order to reduce the latter’s capacity to finance the former’s actions undermining the territorial integrity, sovereignty and independence of Ukraine and to bring an end to those actions with a view to preserving European and global stability. That is an objective which falls within those pursued under the common foreign and security policy referred to in Article 21(2)(b) and (c) TEU, such as the preservation of peace, prevention of conflicts and strengthening of international security.
138Fourth, it is necessary to ascertain whether the limitation on the applicant’s freedom to conduct a business and on its right to property, in relation to the own funds or economic resources belonging to it, is proportionate to the objective pursued by the restrictive measures.
139First of all, as to the appropriateness of the restrictive measures taken against the applicant, it should be noted that, in the light of objectives of general interest as fundamental for the international community as maintaining peace and international security, those measures cannot, in themselves, be regarded as inappropriate (see, to that effect and by analogy, judgments of 2 December 2020, Kalai v Council, T‑178/19, not published, EU:T:2020:580, paragraph 171 and the case-law cited, and of 3 February 2021, Boshab v Council, T‑111/19, not published, EU:T:2021:54, paragraph 150 and the case-law cited). In the present case, the applicant cannot claim that the restrictive measures taken against it are inappropriate on account of insufficient links to the objective pursued by the contested acts, in that the applicant was included on the lists at issue on the grounds that it was involved in an important sector of the Russian economy. Since the objective of the contested acts consists in reducing Russian State revenue and putting pressure on the Russian Government, in order to diminish the latter’s ability to finance its actions undermining the territorial integrity, sovereignty and independence of Ukraine, the approach of targeting economic operators who, like the applicant, support the Russian Government materially or financially is consistent with that objective and cannot, as a consequence, be regarded as inappropriate with regard to the objective pursued (see, by analogy, judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 147).
140Next, in so far as concerns the necessity of the restrictive measures, while the applicant claims that alternative and less restrictive measures would have allowed the objectives pursued to be achieved, it is, however, clear that the applicant has failed to raise any alternative and less restrictive measure or demonstrate that the Council could have envisaged adopting less restrictive measures that were just as appropriate as those laid down by the contested acts. As the Council observes, it has already been held that alternative and less restrictive measures, such as a system of prior authorisation or an obligation to justify, a posteriori, how the funds transferred were used, are not as effective in achieving the objectives pursued, particularly given the possibility of circumventing the restrictions imposed (judgments of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraph 182, and of 1 June 2022, Prigozhin v Council, T‑723/20, not published, EU:T:2022:317, paragraph 136).
141Lastly, the weighing up of the competing interests shows that the disadvantages of the restrictive measures for the applicant are not disproportionate given the fundamental importance of maintaining peace and international security.
142As the Council and the Commission both observe, the effects of the restrictive measures are confined to the territory of the European Union, with the result that they concern, at most, only a proportion of the own funds or economic resources belonging to the applicant, and do not prevent the latter from engaging in its activities in the country in which it is established or in other third countries.
143It should also be noted that, while it is true that the restrictive measures prevent the applicant from using the funds or economic resources belonging to it, they do not deprive it, however, from the right to receive, in accordance with Article 2(6)(a) of Decision 2014/145 and Article 7(2)(a) of Regulation No 269/2014, interest or other earnings on its frozen accounts in which those funds and resources have been deposited, provided that such interest and other earnings are also frozen.
144Furthermore, the contested acts provide for derogations enabling the national authorities to authorise the release of certain funds or economic resources. Article 4(1) of Regulation No 269/2014 in fact provides for the possibility of authorising the use of frozen funds or economic resources in order to satisfy the basic needs of legal persons, entities or bodies included on the lists at issue, in respect of the reimbursement of incurred expenses associated with the provision of legal services, the payment of fees or service charges for routine holding or maintenance of frozen funds or economic resources, and extraordinary expenses.
145Moreover, Article 2(5) of Decision 2014/145 and Article 6(1) of Regulation No 269/2014 provide for the possibility of releasing certain frozen own funds or economic resources belonging to the applicant in order to allow it to make a payment due under a contract or agreement concluded before the date on which it was included on the lists at issue.
146It follows that the interference with the applicant’s freedom to conduct a business and its right to property cannot be regarded as disproportionate.
147The other arguments put forward by the applicant are not such as to call that conclusion into question.
148First, in so far as concerns the argument alleging, in essence, that the infringement of the applicant’s freedom to conduct a business is all the greater because it is allegedly not possible for the applicant to honour its contractual obligations vis-à-vis its customers on the ground that the derogations did not enable it to return to its customers those bonds that it held in its frozen accounts, it is necessary to examine in turn the derogation provided for in Article 2(5) of Decision 2014/145 and in Article 6(1) of Regulation No 269/2014, and that which was provided for in Article 2(19) of Decision 2014/145, as amended, and in Article 6b(5) of Regulation No 269/2014, as amended.
149On the one hand, it should be noted that, according to the derogation provided for in Article 2(5) of Decision 2014/145, which was applicable when the initial acts were adopted, the freezing of funds or economic resources of a person, entity or body was not to prevent that person, entity or body from making a payment due under a contract entered into prior to the date on which such a person, entity or body was included on the list set out in the annex to that decision, provided that the Member State concerned had determined that the payment was not, directly or indirectly, received by a natural or legal person, entity or body included on that list.
150Thus, in accordance with Article 6(1) of Regulation No 269/2014, the national authorities may authorise the release of certain frozen funds or economic resources of a person, entity or body, provided that, as is clear from Article 6(1)(a), the funds or economic resources are to be used by that person, entity or body, and that, as is apparent from Article 6(1)(b), the payment to be made is not in breach of the prohibition, laid down in Article 2(2) of that regulation, on making funds or economic resources available, directly or indirectly, to persons, entities or bodes included on the lists at issue or to persons, entities or bodies associated with them.
151It should be noted that the concept of ‘funds’ is the subject of a broad definition in Article 1(g) of Regulation No 269/2014, in that it refers to all ‘financial assets and benefits of every kind’. The same may be said in so far as concerns the concept of ‘economic resources’, which is defined in Article 1(d) of that regulation and covers ‘assets of every kind, whether tangible or intangible, movable or immovable, which are not funds but may be used to obtain funds, goods or services’. Since funds or economic resources can be released in order to enable a person, entity or body to make a ‘payment’ under the terms of a contract or agreement concluded with a third party before inclusion on the lists at issue, the concept of ‘payment’ must necessarily be interpreted broadly and cannot be confined solely to payments in the form of a transfer of a sum of money. Indeed, as the Commission observed at the hearing, a restrictive interpretation of the concept of ‘payment’ would run counter to the possibility of releasing funds or economic resources defined broadly in order to make a payment.
152It follows that, when the initial acts were adopted, the derogation provided for in Article 2(5) of Decision 2014/145 and in Article 6(1) of Regulation No 269/2014 allowed national authorities to authorise the release of the applicant’s funds or economic resources in order to enable the applicant to make a payment taking the form of the return of its customers’ securities/bonds which it held in its frozen accounts with securities depositories established in the European Union.
153Contrary to what the Council and the Commission maintain, in the context of operations to be performed by the applicant in order to make those securities belonging to its customers available to them, pursuant to the derogation referred to in paragraph 152 above, Article 2(2) of Regulation No 269/2014 does not preclude the payment, by those customers, of commissions or fees to the applicant in order for it to carry out those operations. The possibility, for the applicant, of receiving a payment in consideration of a service provided in the context of the performance of a contract or agreement concluded before the applicant was included on the lists at issue is expressly provided for in Article 7(2)(b) of Regulation No 269/2014, provided that those payments made by customers are frozen in accordance with Article 2(1) of that regulation.
154Admittedly, Article 6(1)(b) of Regulation No 269/2014 provides that the payment to be made by the applicant must not infringe Article 2(2) of that regulation, namely the prohibition on making, directly or indirectly, funds or economic resources available to persons, entities or bodies included on the list set out in Annex I to that regulation, or to persons, entities or bodies associated with them. However, that prohibition does not cover payments that may be made, by the applicant’s customers, to the applicant in consideration of the service provided for the return of their securities in performance of a contract or agreement concluded before the applicant was included on that list. The prohibition seeks to prevent the applicant from making a payment – in the present case, the return of securities – to a person subject to restrictive measures. In fact, as is clear from Article 2(5) of Decision 2014/145, in the light of which Article 6(1)(b) of Regulation No 269/2014 must be interpreted (see, to that effect, judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 141), the condition laid down in that provision of Regulation No 269/2014 refers to the obligation on national authorities to ensure that the payment made by the applicant is not received, directly or indirectly, by a person, entity or body included on the lists at issue.
155As regards the line of argument alleging inaction on the part of the national authorities following the applicant’s requests seeking to avail itself of the derogation provided for in Article 2(5) of Decision 2014/145 and in Article 6(1) of Regulation No 269/2014, this cannot succeed. Indeed, as has been recalled in paragraph 131 above, in the context of an action for annulment under Article 263 TFEU, the General Court does not have jurisdiction to examine the lawfulness of acts adopted by the national authorities in implementing EU law.
156Moreover, it should be noted that, before the maintaining acts of March 2023 were adopted, by way of the adoption of Council Decision (CFSP) 2022/1907 of 6 October 2022 amending Decision 2014/145 (OJ 2022 L 259I, p. 98) and of Council Regulation (EU) 2022/1905 of 6 October 2022 amending Regulation No 269/2014 (OJ 2022 L 259I, p. 76), a derogation was inserted, respectively, into Article 2(19) of Decision 2014/145, as amended, and into Article 6b(5) of Regulation No 269/2014, as amended, in order to authorise the release of frozen funds or economic resources belonging to the applicant or the making available to the applicant of funds or economic resources for the termination, by 7 January 2023 at the latest, of operations, contracts or other agreements concluded with, or otherwise involving, the applicant.
157At the hearing, the Council stated that the derogation referred to in paragraph 156 above had been introduced in order to overcome the difficulties encountered in implementing the derogation provided for in Article 2(5) of Decision 2014/145 and in Article 6(1) of Regulation No 269/2014 in respect of operations intended to enable the applicant to return to its customers those securities belonging to them which it held in its frozen accounts with securities depositories established in the European Union.
158It is apparent from the wording of the derogation provided for in Article 2(19) of Decision 2014/145, as amended, and in Article 6b(5) of Regulation No 269/2014, as amended, that that derogation sets out the circumstances in which the national authorities can authorise the release of the applicant’s funds or economic resources in order that its customers may have returned to them the securities held in the applicant’s frozen accounts. In that connection, it should be observed that the applicant does not dispute the lawfulness of that derogation, but rather the lawfulness of the measures taken by the national authorities in implementing that derogation. However, as has been recalled in paragraph 131 above, in the context of an action for annulment under Article 263 TFEU, the General Court does not have jurisdiction to examine the lawfulness of acts adopted by the national authorities in implementing EU law.
159Moreover, it should be noted that, by way of the adoption of Council Decision (CFSP) 2023/1218 of 23 June 2023 amending Decision 2014/145 (OJ 2023 L 159I, p. 526) and of Council Regulation (EU) 2023/1215 of 23 June 2023 amending Regulation No 269/2014 (OJ 2023 L 159I, p. 330), a further derogation was inserted, respectively, into Article 2(25) of Decision 2014/145, as amended, and into Article 6b(5a) of Regulation No 269/2014, as amended. In accordance with Article 2(25) of Decision 2014/145, as amended, the national authorities could, subject to certain conditions, authorise the conversion, by 24 December 2023 at the latest, by nationals or residents of a Member State, or an entity established in the Union, of a depositary receipt with Russian underlying security held with the applicant, for the purpose of selling the underlying security and the making available of funds linked to the conversion of the depositary receipt and to the sale of the underlying security directly or indirectly to the applicant.
160It follows from the foregoing considerations that, in so far as concerns the initial acts and the maintaining acts of March 2023 and of September 2023, the applicant has no basis for claiming any additional infringement of its freedom to conduct a business in that the derogations provided for by Decision 2014/145 and Regulation No 269/2014 were not capable of enabling it to return its customers’ securities, which it held in its frozen accounts with depositories established in the European Union.
161Second, the applicant cannot claim that the application of the restrictive measures taken against it are disproportionate on the ground that it has not committed any infringement. It should be borne in mind that restrictive measures are preventive, targeted measures intended, in particular, in accordance with Article 21(2)(c) TEU, to preserve peace, prevent conflicts and strengthen international security. Furthermore, the provisions of Decision 2014/145 seek neither to punish nor to prevent the repetition of any conduct. The sole purpose of those measures is to preserve the assets held by the persons, entities and bodies referred to in Article 2(1) of that decision, in accordance with the objectives referred to in Article 21(2)(c) TEU (see, by analogy, judgment of 15 February 2023, Belaeronavigatsia v Council, T‑536/21, EU:T:2023:66, paragraphs 34 and 35).
162Third, even if the applicant’s intention were to claim that, by adopting the contested acts, the Council encroached upon the competence of the European Union in the area of common commercial policy, it should be recalled that, in order to attain the objectives referred to in Article 21(2)(c) TEU, the Council is competent, under the provisions of the Treaties relating to common foreign and security policy, in particular Article 29 TEU and Article 215(2) TFEU, to adopt restrictive measures against natural or legal persons and groups or non-State entities. Furthermore, the European Union’s competences under the common foreign and security policy and under other provisions of the FEU Treaty such as those falling within the scope of the common commercial policy, are not mutually exclusive, but are complementary, each having its own scope, and aim to achieve different objectives (see, by analogy, judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 61). However, in the present case, the objectives pursued by the contested acts do not concern common commercial policy, but common foreign and security policy. Consequently, the applicant cannot maintain that the Council encroached upon the competence of the European Union in common commercial policy matters by adopting restrictive measures against the applicant.
163Accordingly, the third plea in law must be rejected.
164It follows from all the foregoing considerations that the action must be dismissed in its entirety.
V. Costs
165Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Council, in accordance with the form of order sought by the latter institution.
166In accordance with Article 138(1) of the Rules of Procedure, institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Commission must bear its own costs.
Operative part
On those grounds,THE GENERAL COURT (First Chamber, Extended Composition)hereby:
1.Dismisses the action;
2.Orders NKO AO National Settlement Depository (NSD) to bear its own costs and to pay those incurred by the Council of the European Union;
3.Orders the European Commission to bear its own costs.
Delivered in open court in Luxembourg on 11 September 2024.
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