Provisional text

11 September 2024 (*1)

( Common foreign and security policy – Restrictive measures taken in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine – Freezing of funds – List of persons, entities and bodies subject to the freezing of funds and economic resources – Maintaining the applicant’s name on the list – Definition of ‘association’ – Article 2(1), in fine, of Decision 2014/145/CFSP – Definition of ‘benefiting from a leading businessperson operating in Russia’ – Article 2(1)(g) of Decision 2014/145 – Error of assessment – Non-contractual liability )

In Case T‑744/22,

Maya Tokareva, residing in Moscow (Russia), represented by T. Bontinck, A. Guillerme, L. Burguin and M. Brésart, lawyers,

applicant,

Council of the European Union, represented by M.-C. Cadilhac and V. Piessevaux, acting as Agents, and by B. Maingain, lawyer,

defendant,

supported by

European Commission, represented by C. Giolito, C. Georgieva and L. Puccio, acting as Agents,

intervener,

THE GENERAL COURT (First Chamber, Extended Composition),

composed of D. Spielmann, President, R. Mastroianni and M. Brkan (Rapporteur), I. Gâlea and S.L. Kalėda, Judges,

Registrar: H. Eriksson, Administrator,

having regard to the written part of the procedure, in particular:

– the application lodged at the Registry of the General Court on 25 November 2022,

– the first statement of modification lodged at the Court Registry on 22 May 2023,

– the second statement of modification lodged at the Court Registry on 25 September 2023,

further to the hearing on 27 February 2024,

gives the following

1 By her action pursuant to Article 263 TFEU, the applicant, Ms Maya Tokareva, seeks, first, annulment of (i) Council Decision (CFSP) 2022/1530 of 14 September 2022 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 239, p. 149), and Council Implementing Regulation (EU) 2022/1529 of 14 September 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 239, p. 1) (together, ‘the maintaining acts of September 2022’); (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 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 those acts (together, ‘the contested acts’) maintain her name on the lists annexed to the acts; and, second, pursuant to Article 268 TFEU, compensation in respect of the damage which she claims to have suffered as a result of the adoption of the maintaining acts of September 2022.

2 The applicant is a Russian national.

3 The present case arises in the context of the restrictive measures adopted in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine and, in particular, in respect of the Russian Federation’s military aggression against Ukraine on 24 February 2022.

4 On 17 March 2014, the Council of the European Union adopted, on the basis of Article 29 TEU, Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 16). On the same date, it adopted, on the basis of Article 215(2) TFEU, Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 6).

5 On 25 February 2022, the Council adopted Decision (CFSP) 2022/329 amending Decision 2014/145 (OJ 2022 L 50, p. 1) and Regulation (EU) 2022/330 amending Regulation No 269/2014 (OJ 2022 L 51, p. 1). Article 2(1) and (2) of Decision 2014/145, in the version amended by Decision 2022/329, provides as follows:

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

[…]

(d) natural or legal persons, entities or bodies supporting, materially or financially, or benefiting from Russian decision-makers responsible for the annexation of Crimea or the destabilisation of Ukraine;

[…]

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

[…]

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

6 Article 1(1)(b) and (d) of Decision 2014/145, as amended, prohibits the entry into, or transit through, the territory of the Member States of natural persons who satisfy essentially the same criteria as those set out in Article 2(1)(d) and (f) of that decision.

7 Regulation No 269/2014, in the version amended by Regulation 2022/330, requires the adoption of measures for the freezing of funds and sets out the detailed rules for such freezing in terms essentially identical to those of Decision 2014/145, as amended. Article 3(1)(a) to (g) of that regulation, as amended, essentially reproduces the content of Article 2(1)(a) to (g) of Decision 2014/145, as amended.

8 Against that background, the Council adopted Decision (CFSP) 2022/337 of 28 February 2022 amending Decision 2014/145 (OJ 2022 L 59, p. 1) and Implementing Regulation (EU) 2022/336 of 28 February 2022 implementing Regulation No 269/2014 (OJ 2022 L 58, p. 1), acts by which the applicant’s father was included on the list annexed to Decision 2014/145, as amended, and the list contained in Annex I to Regulation No 269/2014, as amended (‘the lists at issue’), for the following reasons:

‘Nikolay Tokarev is CEO of Transneft, [a] major Russian oil and gas company. He is Vladimir Putin’s long-time acquaintance and close associate. He served together with Putin in the KGB in [the] 1980s. Mr Tokarev is one of the Russian state oligarchs who assumed control over large state assets in the 2000s as President Putin consolidated power, and who operate in close partnership with the Russian state. Mr Tokarev has been in charge of Transneft, one of Russia’s most important government-controlled companies, which transports [a] considerable amount of Russian oil through a well-developed oil pipelines network.

Nikolay Tokarev’s Transneft is one of the main sponsors of the palace complex near Gelendzhik which is widely considered to be personally used by President Putin. He benefits from his proximity to the Russian authorities. Close relatives and acquaintances of Mr Tokarev enriched themselves thanks to contracts signed with the state-owned companies.

Therefore, he actively supported materially or financially and benefited from Russian decision-makers responsible for the annexation of Crimea and the destabilisation of Ukraine.’

9 By Council Decision (CFSP) 2022/1272 of 21 July 2022 amending Decision 2014/145 (OJ 2022 L 193, p. 219) and Council Implementing Regulation (EU) 2022/1270 of 21 July 2022 implementing Regulation No 269/2014 (OJ 2022 L 193, p. 133), the applicant’s name was added to the lists at issue, for the following reasons:

‘[The applicant] is the daughter of Nikolay Tokarev, the CEO of Transneft, a major Russian oil and gas company. [The applicant] and her ex-husband Andrei Bolotov own luxury real estate in Moscow, Latvia and Croatia worth more than $50 million, which can be linked to Nikolay Tokarev. She also has links with the company Ronin, which manages the pension fund for Transneft. When she applied for Cypriot citizenship, she listed the address of Ronin as her own. Additionally, [the applicant] has received state contracts worth 8 billion Roubles through the company Irvin-2, which she owns with Stanislav Chemezov, the son of Rostec CEO, Sergei Chemezov. [The applicant] is therefore a natural person associated with listed persons, namely her father Nikolay Tokarev and Stanislav Chemezov.’

10 By the same acts, the name of Mr Stanislav Chemezov was added to the lists at issue, for the following reasons:

‘Stanislav Sergeyevich Chemezov is the son of Sergei Chemezov, a member of the Supreme Council of “United Russia” and chairman of the Rostec conglomerate, the leading Russian state-controlled defence and industrial manufacturing corporation. Stanislav Chemezov owned an offshore company called Erlinglow Ltd that was benefiting from the construction of a $550-million national fiber-optic superhighway by Rostec. Additionally[,] he co-owns various offshore companies with [the applicant], the daughter of Nikolay Tokarev, including Irvin-2, which has received contracts worth 8 billion Roubles [RUB]. [The applicant] is therefore a natural person associated with a listed person.’

11 The Council published in the Official Journal of the European Union of 22 July 2022 a notice for the attention of the persons, entities and bodies subject to the restrictive measures provided for in Decision 2022/1272 and Implementing Regulation (EU) 2022/1270, (OJ 2022 C 281I, p. 7). That notice stated, in particular, that the persons concerned could submit a request to the Council, together with supporting documentation, that the decision to include their names on the lists annexed to the contested acts be reconsidered.

12 By email of 2 September 2022, the applicant requested access to all the documents, produced and held by the Council and the European External Action Service (EEAS), which had served as the basis for the adoption of the restrictive measures concerning her, with a view to preparing a request that the decision be reconsidered.

13 On 14 September 2022, by the maintaining acts of September 2022, the Council maintained the applicant’s name on the lists at issue for the same reasons as set out in paragraph 9 above.

14 On 30 September 2022, the Council responded to the applicant’s request referred to in paragraph 12 above and sent the information in the file bearing the reference WK 10502/2022 INIT of 8 March 2022 (‘the initial evidence file’).

15 By email of 31 October 2022, the applicant asked the Council to reconsider the decision.

II. Facts subsequent to the bringing of the action

16 By the maintaining acts of March 2023, the applicant’s name was maintained on the lists at issue for the following reasons:

‘[The applicant] is the daughter of Nikolay Tokarev, the CEO of Transneft, a major Russian oil and gas company. [The applicant] and her ex-husband Andrei Bolotov own luxury real estate in Moscow, Latvia and Croatia worth more than USD 50 million, which can be linked to Nikolay Tokarev. She also has links with the company Ronin, which manages the pension fund for Transneft. When she applied for Cypriot citizenship, she listed the address of Ronin Europe as her own in the press announcement. Furthermore, she is linked to the Ronin Trust, which manages the Transneft pension fund, through her real estate company Ostozhenka 19 (formerly called RPA Est[ate]). [The applicant] is therefore a natural person associated with listed persons, namely her father Nikolay Tokarev and Stanislav Chemezov.’

17By email of 14 March 2023, the Council informed the applicant that her name would be maintained on the lists at issue, and submitted observations in response to the arguments the applicant had raised in her request for reconsideration of 31 October 2022.

18By email of 31 March 2023, the Council sent a letter to the applicant informing her that the evidence on which it had relied to justify maintaining her name on the lists at issue was contained in the files bearing the references WK 1128/2023 INIT, WK 1128/2023 ADD 1 and WK 1128/2023 ADD 2, dated 25 January, 27 January and 30 January 2023 respectively (together, ‘the January 2023 evidence files’).

19On 5 June 2023, the Council adopted Decision (CFSP) 2023/1094 amending Decision 2014/145 (OJ 2023 L 146, p. 20). By that decision, it amended Article 2(1)(g) of Decision 2014/145 as follows:

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

[…]

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

20By letter of 19 June 2023, the Council informed the applicant that it intended to maintain the restrictive measures taken against her on the basis of a statement of reasons differing from the reasons set out in the maintaining acts of March 2023. The Council enclosed with that letter the file bearing the reference WK 8181/2023 INIT of 15 June 2023 (‘the June 2023 evidence file’) and invited the applicant to submit her observations on the proposed renewal of the restrictive measures against her.

21By letter dated 10 July 2023, the Council informed the applicant that it intended to maintain the restrictive measures on the basis of a draft statement of reasons differing from the draft sent to her on 19 June 2023. The Council also enclosed with that letter the file WK 5142/2023 INIT of 4 July 2023, relating to additional information concerning the applicant (‘the July 2023 evidence pack’) and the file WK 5142/2023 INIT of 20 April 2023, containing evidence concerning the business environment and economy of the Russian Federation, and invited the applicant to submit her observations on the proposed renewal of the restrictive measures against her.

22By letter dated 18 August 2023, the Council sent the applicant the file WK 5142/2023 ADD 1 of 16 August 2023, containing evidence concerning the business environment and economy of the Russian Federation, and invited the applicant to submit observations.

23By the maintaining acts of September 2023, the Council maintained the applicant’s name on the lists at issue for the following reasons:

‘[The applicant] is the daughter of Nikolay Tokarev, the CEO of Transneft, a major Russian oil and gas company. [The applicant] and her ex-husband Andrei Bolotov own luxury real estate in Moscow, Latvia and Croatia worth more than USD 50 million, which can be linked to Nikolay Tokarev. She also has links with the company Ronin, which manages the pension fund for Transneft. When she applied for Cypriot citizenship, she listed the address of Ronin Europe as her own in the press announcement. Furthermore, she is linked to the Ronin Trust, which manages the Transneft pension fund, through her real estate company Ostozhenka 19 (formerly called RPA Est[ate]). [The applicant] is therefore an immediate family member benefitting from Nikolay Tokarev, a leading businessperson operating in Russia.’

III. Forms of order sought

24The applicant requests the General Court to:

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

– order the Council to pay her the sum of EUR 1 000 000 in respect of the non-material damages suffered by the applicant as a result of the adoption of the maintaining acts of September 2022;

– order the Council to pay the costs.

25The Council, supported by the Commission, requests the General Court to:

– dismiss the action for annulment;

– in the alternative, in the event that the General Court should annul the restrictive measures adopted in respect of the applicant, order that the effects of Decisions 2022/1530, 2023/572 and 2023/1767 be maintained until the annulment in part of Implementing Regulations 2022/1529, 2023/571 and 2023/1765 takes effect;

– dismiss the claim for damages;

– order the applicant to pay the costs.

26In support of her action, the applicant relies on six pleas in law.

27In her application, the applicant puts forward four pleas in law. The first alleges infringement of the right to effective judicial protection and of the obligation to state reasons. The second alleges an error of law and manifest errors of assessment. The third alleges infringement of the principle of proportionality and of fundamental rights. The fourth alleges infringement of the principle of legal certainty and equal treatment. In her first statement of modification, the applicant raises a fifth plea, alleging infringement of the right to be heard. In her second statement of modification, the applicant raises a sixth plea, alleging illegality of the criterion for listing persons benefitting from a leading businessperson operating in Russia, set out in the second part of Articles 1(1)(e) and 2(1)(g) of Decision 2014/145, as amended by Decision 2023/1094 [‘the second part of criterion (g), as amended’].

28The Court considers it appropriate to examine first the second plea, alleging an error of law and manifest errors of assessment.

29In her application and in her first statement of modification, the applicant submits that, by adopting the maintaining acts of September 2022 and March 2023, the Council committed an error of law and manifest errors of assessment by maintaining her name on the lists at issue on the basis of the associated person criterion, laid down in Article 2(1), in fine, of Decision 2014/145, as amended. In addition, in her application she challenges the possible inclusion of her name on the basis of the criterion laid down in Article 2(1)(d) of that decision.

30In her second statement of modification, the applicant submits that, in the maintaining acts of September 2023, the Council committed a manifest error of assessment in that the inclusion of her name on the lists at issue was maintained on the basis of the second part of criterion (g), as amended.

(a) Preliminary observations

31It should be noted that, in so far as the present plea alleges manifest errors of assessment, it must be regarded as alleging errors of assessment. While it is true that the Council has a degree of discretion to determine, on a case-by-case basis, whether the legal criteria on which the restrictive measures at issue are based are satisfied, the fact remains that the Courts of the European Union must ensure the review, in principle the full review, of the lawfulness of all EU acts (see judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 61 and the case-law cited).

32The effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires, in particular, that the Courts of the European Union are to ensure that the decision by which restrictive measures were adopted or maintained, which affects the person or entity concerned individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (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).

33Such an 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 person or 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; see, to that effect, judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraphs 63 and 66).

34It 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 or entity 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).

35In such a situation, it is for the Courts of the European Union to determine whether the facts alleged are made out in the light of that information or evidence and to assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person or entity concerned (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).

36As 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. It is thus incumbent on the Council, in the course of its periodic review of those measures, to conduct an updated assessment of the situation and to appraise the impact of such measures, in order to determine whether they have made it possible to achieve the objectives pursued by the initial inclusion of the names of the persons and entities concerned on the list at issue or whether the same conclusion in respect of those persons and entities can still be drawn (see, to that effect, judgment of 27 April 2022, Ilunga Luyoyo v Council, T‑108/21, EU:T:2022:253, paragraph 55 and the case-law cited; and of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 67).

37It follows that, in order to justify maintaining a person’s name on a 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 retention of the applicant’s name on the list in question, provided that (i) the grounds for inclusion remain unchanged and (ii) the context has not changed in such a way that that evidence is now out of date (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 includes 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 (see, to that effect, judgments of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 67).

38In this respect, it should be noted that the applicant has raised six pleas in law in support of her action, which the Court will examine in turn.

39In conclusion, the Court finds that the Council has not established that the applicant is a natural person associated with listed persons, and therefore the restrictive measures against her cannot be justified.

40The Court therefore annuls the decision of the Council to maintain the applicant’s name on the lists at issue.

41The applicant is entitled to the costs of the proceedings, including those incurred in the course of the administrative procedure.

Costs

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

Article 1(1) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as meaning that, in the context of the takeover by an economic entity of an activity the pursuit of which requires substantial operating resources, under a procedure for the award of a public contract, the fact that that entity does not take over those resources, which are the property of the economic entity previously engaged in that activity, on account of legal, environmental and technical constraints imposed by the contracting authority, cannot necessarily preclude the classification of that takeover of activity as a transfer of an undertaking, since other factual circumstances, such as the taking‑over of the majority of the employees and the pursuit, without interruption, of that activity, make it possible to establish that the identity of the economic entity concerned has been retained, this being a matter for the referring court to assess.

[Signatures]

* * *

(*1) Language of the case: English.

v <i>Council</i>, T‑714/20, not published, EU:T:2022:674, paragraph 78, and of 23 September 2020, <i>Kaddour</i> v <i>Council</i>, T‑510/18, EU:T:2020:436, paragraph 101), and, second, all of the relevant circumstances and, in particular, the fact that the objectives pursued by the restrictive measures have not been achieved (see, to that effect, judgment of 27 April 2022, <i>Ilunga Luyoyo</i> v <i>Council</i>, T‑108/21, EU:T:2022:253, paragraph 56; see also, to that effect and by analogy, judgment of 12 February 2020, <i>Amisi Kumba</i> v <i>Council</i>, T‑163/18, EU:T:2020:57, paragraphs 82 to 84 and the case-law cited).

38In the present case, it is clear from the reasons for listing set out in the maintaining acts of September 2022 and March 2023 that the applicant’s name was maintained on the lists at issue solely on the basis of the associated person criterion laid down in Article 2(1), <i>in fine</i>, of Decision 2014/145, as amended. The Council has confirmed that the criterion laid down in Article 2(1)(d) of that decision did not form the legal basis for listing the applicant’s name or maintaining the listing. It follows that the arguments challenging the maintenance of the applicant’s name on the basis of the criterion laid down in Article 2(1)(d) of Decision 2014/145, as amended, are ineffective.

39It is in the light of those introductory considerations that it is necessary to determine whether the Council made an error of assessment in deciding, first, to maintain, by adopting the maintaining acts of September 2022 and of March 2023, the applicant’s name on the lists at issue on the basis of the associated person criterion laid down in Article 2(1), <i>in fine</i>, of Decision 2014/145, as amended, and, second, to maintain, by adopting the maintaining acts of September 2023, her name on those lists on the basis of the second part of criterion (g), as amended.

40It is apparent from the maintaining acts of September 2022 and of March 2023 that the applicant’s name was included on the basis of the associated person criterion, on the ground that she had an association, on the one hand, with her father, Mr Nikolay Tokarev, and, on the other, with Mr Stanislav Chemezov.

The Court considers it appropriate to examine, in the first place, the argument alleging, in essence, an error of law in that the applicant was included on the lists at issue as a person associated with Mr Stanislav Chemezov, who is also included on the lists at issue as an associated person.

(b) <i><b>Error of law, based on the inclusion of the applicant on the list as a person associated with </b><b>Mr </b><b>Stanislav Chemezov</b><b> </b></i>

42The applicant maintains that the Council erred in law by including her on the lists at issue as a person associated with Mr Stanislav Chemezov, in particular on the ground that he had also been included on the lists at issue as a person associated with his own father, Mr Sergei Chemezov. According to the applicant, the rules do not provide for the possibility of a person’s name being included on the lists at issue on the ground that that person is associated with a person whose name is also listed on the basis of the associated person criterion. The applicant argues that the associated person criterion only allows a person to be included on those lists as associated with a person referred to in Article 2(1)(a), (b), (c), (d), (e) or (f) of Decision 2014/145. In addition, in her first statement of modification of the form of order sought, the applicant submits that the impossibility of including a person on the lists at issue as an associate of a person also included on those lists as an associate is consistent with the case-law that requires the existence of a sufficient link between the entity subject to measures freezing its funds and the regime or, in general, the situations being combated.

43As a measure of organisation of procedure, the Court asked the Council to indicate the grounds on which a person could be included on the lists at issue as a person associated with another person who is also included on those lists as a person associated with a third person.

44At the hearing, the Council maintained that it could not be ruled out that the designation of a person associated with a person who had himself been designated as a person associated with a person included on the lists at issue could be justified provided that such designation was proportionate to the attainment of the objectives pursued by the restrictive measures. In the Council’s view, that would be the case where there was a pattern characterised by a network of relationships between a number of persons in which the main association of two persons, themselves associated with other persons, formed part of a ‘more global network’: it is justified to cover those persons through the restrictive measures in order to prevent, in particular, the circumvention of those restrictive measures.

45In that regard, in respect of the associated person criterion, laid down in Article 2(1), <i>in fine</i>, of Decision 2014/145, as amended, it must be pointed out that, although the criterion of ‘association’ is often used in Council acts relating to restrictive measures, it is not, as such, defined and its meaning depends on the context and circumstances of the case (see, to that effect, judgments of 28 July 2016, <i>Tomana and Others</i> v <i>Council and Commission</i>, C‑330/15 P, not published, EU:C:2016:601, paragraph 48; of 4 September 2015, <i>NIOC and Others</i> v <i>Council</i>, T‑577/12, not published, EU:T:2015:596, paragraph 114; and of 21 July 2016, <i>Bredenkamp and Others</i> v <i>Council and Commission</i>, T‑66/14, EU:T:2016:430, paragraphs 35 to 37). It may nevertheless be accepted that associated persons are persons who are, generally speaking, linked by common interests (see, to that effect, judgment of 8 March 2023, <i>Prigozhina</i> v <i>Council</i>, T‑212/22, not published, EU:T:2023:104, paragraph 93 and the case-law cited).

46In so far as concerns the scope of the associated person criterion, it follows from the wording of Article 2(1) of Decision 2014/145, as amended, that funds and economic resources belonging, on the one hand, to the persons designated on the basis of the criteria of designation provided for in Article 2(1)(a) to (h) and, on the other hand, to the natural and legal persons, entities or bodies associated with them, are to be frozen. It should be noted that the expression ‘associated with them’ used in the associated person criterion refers only to persons, entities or bodies designated on the basis of one of the criteria of designation provided for in Article 2(1)(a) to (h) of that decision.

47Thus, it follows from a literal interpretation of Article 2(1) of Decision 2014/145, <i>in fine</i>, as amended, that, as the applicant correctly submits, a natural or legal person, entity or body may be included on the lists at issue only on the ground of an association with another natural or legal person, entity or body included on those lists on the basis of one or more of the criteria of designation laid down in Article 2(1)(a) to (h) of that decision.

48Admittedly, as the Council observes, that the associated person criterion covers any person who has an association with a person included on the lists at issue on the basis of one or more of the criteria provided for in Article 2(1)(a) to (h) of Decision 2014/145, as amended, on account of the existence of a non-negligible risk that, in order to circumvent the restrictive measures against them, the persons sanctioned on the basis of one or more of those criteria might exert pressure on the persons with whom they are associated (see, by analogy, judgments of 4 September 2015, <i>NIOC and Others</i> v <i>Council</i>, T‑577/12, not published, EU:T:2015:596, paragraph 114, and of 18 May 2022, <i>Foz</i> v <i>Council</i>, T‑296/20, EU:T:2022:298, paragraph 174).

49However, the Council’s argument, based on the risk of circumvention and the need to cover a number of persons in a global ‘network’, cannot in itself justify extending the scope of the association criterion to the point that it may be applied to association with a person who is not himself or herself listed on the basis of one of the criteria laid down in Article 2(1)(a) to (h) of Decision 2014/145, as amended.

50Indeed, such an interpretation would give an excessively broad scope to association-based links and would not take account of the wording of Article 2(1), <i>in fine</i>, of Decision 2014/145, as amended, or of the requirement of a sufficient link between the persons concerned and the third country targeted by the restrictive measures adopted by the European Union, within the meaning of paragraph 64 of the judgment of 13 March 2012, <i>Tay Za</i> v <i>Council</i>, (C‑376/10 P, EU:C:2012:138). It follows that, in the present case, since Mr Stanislav Chemezov was included on the lists at issue as a person associated with his father, Mr Sergei Chemezov, the Council was not entitled to include the applicant on the lists at issue as a person associated with Mr Stanislav Chemezov.

51It follows from the foregoing considerations that, by the maintaining acts of September 2022 and March 2023, the Council erred in law in maintaining the applicant’s name on the lists at issue on the basis of an association with Mr Stanislav Chemezov.

52It should be noted that that error of law committed by the Council cannot, in itself, lead to the annulment of the maintaining acts of September 2022 and March 2023. According to the case-law, with regard to the review of the lawfulness of a decision adopting restrictive measures, and having regard to the preventive nature of such measures, if the Courts of the European Union consider that, at the very least, one of the reasons mentioned is sufficiently detailed and specific, that it is substantiated and that it constitutes in itself a sufficient basis to support that decision, the fact that the same cannot be said of other such reasons cannot justify the annulment of that decision (see judgment of 28 November 2013, <i>Council</i> v <i>Manufacturing Support &amp; Procurement Kala Naft</i>, C‑348/12 P, EU:C:2013:776, paragraph 72 and the case-law cited).

53It should therefore be ascertained whether the Council made an error of assessment in concluding that the applicant was a person associated with her father, Mr Tokarev.

(c) <i><b>Error of assessment in so far as the applicant was listed as a person associated with her father</b></i>

54The maintaining acts of September 2022 and the maintaining acts of March 2023 should be examined separately, in so far as they were adopted on different dates and do not rest on strictly identical statements of reasons or an identical documentary basis.

55By her arguments, the applicant disputes the reliability of certain documents in the initial evidence file and the possibility of taking Annex B.5 into account, and submits that the factual basis is insufficient to justify maintaining her listing as a person associated with her father.

(i) <i>The reliability of the evidence in the initial evidence file</i>

56The applicant challenges the reliability of Exhibit No 6 in the initial evidence file on the ground that the assertion that her father entrusted her ex-husband with the management of the company Katina is incorrect. She also takes the view that Exhibit Nos 12 and 15 of the initial evidence file are unreliable on account of the fact that the allegations made are vague and based on evidence that does not appear to be sufficiently solid to support them, such as telephone numbers or information published on the internet. Furthermore, the applicant claims that the articles published by the <i>Moscow Post</i> are unreliable on account of the fact that media outlet is known for publishing defamatory material, as is apparent from recent court convictions.

57The Council, supported by the Commission, disputes that line of argument.

58In that regard, it must be recalled that, in accordance with settled case-law, the activity of the Courts of the European Union is governed by the principle of the unfettered evaluation of evidence, and that the only criterion for assessing the value of the evidence produced is its credibility. In that regard, in order to assess the probative value of a document, regard should be had to the credibility of the information it sets out and, in particular, to the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears to be sound and reliable (see judgments of 31 May 2018, <i>Kaddour</i> v <i>Council</i>, T‑461/16, EU:T:2018:316, paragraph 107 and the case-law cited, and of 12 February 2020, <i>Amisi Kumba</i> v <i>Council</i>, T‑163/18, EU:T:2020:57, paragraph 95, not published, and the case-law cited).

59In the absence of investigative powers in third countries, the assessment of the EU authorities must rely on publicly available sources of information, reports, articles in the press, intelligence reports or other similar sources of information (judgments of 14 March 2018, <i>Kim and Others</i> v <i>Council</i> and Commission, T‑533/15 and T‑264/16, EU:T:2018:138, paragraph 107, and of 1 June 2022, <i>Prigozhin</i> v <i>Council</i>, T‑723/20, not published, EU:T:2022:317, paragraph 59).

60Furthermore, it must be noted that the conflict situation involving the Russian Federation and Ukraine makes it particularly difficult in practice to access certain sources, to specify the primary source of some information and, where appropriate, to collect testimonies from persons who agree to be identified. The ensuing investigation difficulties can thus be a factor in preventing specific evidence and objective information being provided (see, to that effect, judgment of 15 November 2023, <i>OT</i> v <i>Council</i>, T‑193/22, EU:T:2023:716, paragraph 116 and the case-law cited).

In the present case, in order to justify the continued inclusion of the applicant’s name on the lists at issue by the maintaining acts of September 2022, the Council provided the initial evidence file. It should be noted that, as regards the link between the applicant and her father, the Council relied on publicly available information, in particular:

–an article published on 5 March 2022 on the website of Total Croatia News, entitled ‘US blocks company of Russian oligarch’s daughter, who owns villa on Lošinj’, accessed on 5 April 2022 (Exhibit No 1);

–a press release issued by the United States Department of the Treasury on 3 March 2022 concerning sanctions against Russian individuals and institutions, accessed on 5 April 2022 (Exhibit No 2);

–an article published on 10 March 2022 on the website of the Evening Standard, entitled ‘Which Russian oligarchs have been added to the UK sanctions list?’, accessed on 7 April 2022 (Exhibit No 3);

–a page from the website of the Australian Department of Foreign Affairs and Trade, published on 13 March 2022, relating to the sanctions applied to Russia, accessed on 7 April 2022 (Exhibit No 4);

–an article published on 6 March 2022 on the website of the World Law Group, entitled ‘United States: US Imposes Additional Sanctions and Export Controls on Russia and Belarus’, accessed 7 April 2022 (Exhibit No 5);

–an article published on 4 March 2022 on the website of Imperijal, entitled ‘Blacklisted Russians do business next to Plenković and HDZ, they also have an imperial villa in Mali Lošinj’, accessed on 7 April 2022 (Exhibit No 6);

–a page from the website of the Government of Canada, published on 24 February 2022, relating to the additional economic measures adopted in response to Russia’s aggression against Ukraine, accessed on 11 April 2022 (Exhibit No 8);

–a page on the website ‘acompromat.com’, relating to the applicant, accessed on 11 April 2022 (Exhibit No 9);

–an article published on 15 March 2022 on the website Infobae, entitled ‘United Kingdom announces sanctions against 350 other Russian individuals and entities’, accessed on 5 April 2022 (Exhibit No 11);

–an extract from an investigation by the Organised Crime and Corruption Reporting Project (OCCRP), published on 24 December 2016, entitled ‘Pals Prosper from Proximity to Putin’s Power’, accessed on 5 April 2022 (Exhibit No 12);

–an article published on 29 December 2016 on the website of LSM, entitled ‘Jurmala apartment block link to Putin pal’, accessed 5 April 2022 (Exhibit No 13);

–a page from the website Russian Asset Tracker relating to the company Katina, accessed on 12 April 2022 (Exhibit No 14);

–an article published on 27 November 2016 on the news website Meduza, entitled ‘Very rich son-in-law. How the business of the relatives of the head of Transneft Nikolai Tokarev is arranged’, accessed on 17 May 2022 (Exhibit No 15);

–an article published on 28 August 2020 on the website News Rambler, entitled ‘Shmatko’s exit to the Gelendzhik “meridian”’, accessed on 20 May 2022 (Exhibit No 16);

–an article published on 15 October 2019 on the website of the Moscow Post, entitled ‘Nikolai Tokarev and his company Transneft failed to shift responsibility for the quality of oil onto their opponents’, accessed on 20 May 2022 (Exhibit No 17).

Thus Exhibit No 6 in the initial evidence file is a press article published on the website Imperijal, entitled ‘Blacklisted Russians do business next to Plenković and HDZ, they also have an imperial villa in Mali Lošinj’. That exhibit relates in particular to the company Katina, which has its registered office in Zagreb and owns a villa known as Karolina located in Mali Lošinj (Croatia) (‘Villa Karolina’). It should be noted that the applicant’s argument that the article contains an error does not, as such, call into question the probative value thereof. Such an argument falls within the scope of the assessment of whether the factual basis on which the Council relies is sufficient to justify the applicant’s listing.

The applicant argues that the allegations made in Exhibit No 12, namely the OCCRP’s investigation entitled ‘Pals Prosper from Proximity to Putin’s Power’, and Exhibit No 15, namely the article published on the news website Meduza, entitled ‘Very rich son-in-law. How the business of the relatives of the head of Transneft Nikolai Tokarev is arranged’, are vague and based on evidence which does not appear to be sufficiently solid to support those allegations. That argument cannot call into question the probative value of that evidence. In view of the difficulties in accessing the information referred to in paragraph 60 above, the fact that investigations or articles may be based on data such as telephone numbers or information available on websites is not such as to deprive Exhibit Nos 12 and 15 of probative value.

Similarly, the argument that, in essence, the articles published by the Moscow Post are unreliable on the grounds that that media outlet has been the subject of several recent convictions for defamation cannot succeed. The fact that a media outlet has been the subject of several convictions for defamation does not mean that all of the items it has published are unreliable. Furthermore, in the present case, it should be noted that the judgments produced by the applicant do not relate to Exhibit No 17, namely the Moscow Post article entitled ‘Nikolai Tokarev and his company Transneft failed to shift responsibility for the quality of oil onto their opponents’. It follows that that item of evidence cannot be deemed to be devoid of probative value.

In the light of the foregoing, having regard to the context characterising the situation in the Russian Federation and in the absence, on the part of the Council, of investigative powers in third countries (see paragraphs 59 and 60 above), the probative value of Exhibit Nos 6, 12, 15 and 17 of the initial evidence file cannot be discounted.

(ii) Annex B.5 to the statement of defence

The applicant disputes the possibility of taking account of Annex B.5 to the defence, which contains the entire contents of the investigation, an extract of which is reproduced in Exhibit No 12 of the initial evidence file, on the ground that taking that annex into account would amount to altering the content of the initial evidence file.

The Council, supported by the Commission, disputes that line of argument.

According to settled case-law, 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).

It should also be borne in mind that the review of the substantive legality which is incumbent on the General Court must be carried out, in particular as regards disputes concerning restrictive measures, in the light not only of the material set out in the statements of reasons of 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).

It should be noted that, as the applicant acknowledges, Annex B.5 contains a reproduction of the entirety of the investigation conducted by the OCCRP, published on 24 December 2016, entitled ‘Pals Prosper from Proximity to Putin’s Power’, an extract of which is reproduced in Exhibit No 12 of the initial evidence file. As is apparent from that file, the Council had access to that investigation on 5 April 2022, and among the elements identifying the source of that document is a complete hyperlink allowing access to its entire content. In those circumstances, the applicant cannot contest the possibility of taking into account Annex B.5 to the defence (see, by analogy, judgment of 1 June 2022, Prigozhin v Council, T‑723/20, not published, EU:T:2022:317, paragraph 55).

It follows that Annex B.5 to the defence may be taken into consideration in assessing the merits of the decision to maintain the applicant on the lists at issue as a person associated with Mr Tokarev.

(iii) The merits of the decision to maintain the applicant on the lists at issue as a person associated with her father

The applicant takes the view that the Council erred in its assessment of the value of her immovable property and that, in any event, its value is not relevant to establishing association with her father. In addition, she argues that the Council’s documentary basis is not sufficient to demonstrate that her immovable property can be linked to her father. Moreover, she submits that, even if Ronin Trust had managed some of her immovable property, that company does not make it possible to establish a link with her father. In that regard, she maintains that the fact that Ronin Trust managed Transneft’s non-governmental pension fund constitutes a loose and outdated link.

The Council, supported by the Commission, disputes that line of argument.

In particular, the Council notes that it is apparent from the initial evidence file that the applicant owns or has owned, alone or with her ex-husband, several companies and immovable property worth more than USD 50 million (approximately EUR 45 million) in Moscow (Russia). In any event, according to the Council, the value of the applicant’s assets is not a decisive factor since what matters is the finding that the applicant has become a prosperous businesswoman who has made a fortune. In addition, the Council contends that it is apparent from the initial evidence file that the applicant is associated with her father by virtue of her family relationship and the fact that her wealth and business are also linked to him. In particular, it takes the view that it had a body of specific and precise evidence corroborating the fact that the applicant had made a fortune in the property business by taking advantage of her father’s position as president and CEO of Transneft. In addition, the Council maintains that the applicant is linked to her father’s business through the company Ronin, which is linked to Transneft, as well as through a pattern of family business management.

In that regard, it should be recalled that, as is clear from paragraphs 45 to 47 above, the associated person criterion refers to persons who are linked by common interests to a person who has been included on the lists at issue on the basis of one or more of the criteria of designation provided for in Article 2(1)(a) to (g) of Decision 2014/145, as amended.

It should be stated that those common interests must be understood not only in a strict sense, that is to say, as designating persons whose interests are linked within a common legal structure, but also more broadly and in the case of persons linked by a family relationship, where the objective existence of interrelated common interests, which is not necessarily formalised in a legal structure created for that purpose, is characteristic (see, to that effect and by analogy, judgment of 6 September 2023, Timchenko v Council, T‑361/22, not published, under appeal, EU:T:2023:502, paragraph 76).

Moreover, since the criterion of the associated person is worded in the present tense, the existence of common interests must be established at the time the contested acts are adopted (see, to that effect, judgment of 8 March 2023, Prigozhina v Council, T‑212/22, not published, EU:T:2023:104, paragraph 92).

In the present case, the applicant does not dispute that she is related to her father, Mr Tokarev, who is the president and CEO of Transneft, which is regarded as a major Russian oil and gas company. On the other hand, she maintains that the factual basis on which the Council relies does not contain sufficient elements to establish an association with her father.

It is apparent from the grounds for listing at issue that the common interests between the applicant and her father arise, first, from the fact that her substantial property holdings in Moscow, Croatia and Latvia could be linked to her father and, second, from the links between the applicant and the company Ronin, which was presented as managing the Transneft company pension fund.

In the first place, as regards the link between the applicant and the Ronin Trust, it is apparent, inter alia, from Exhibit No 15 in the initial evidence file that, when the applicant was still married to her ex-husband, the Ronin Trust, which managed the Transneft pension fund, also managed the immovable property of the group of companies known as RPA. According to that evidence, the applicant’s ex-husband owned 100% of the company RPA-Management, while the applicant controlled 75% of the company RPA-Estate and 50% of the company RPA-Hotel Management. It follows that the Council could validly find that, in 2016, there was a link between Ronin Trust and the companies in which the applicant had held shares, namely RPA-Hotel Management and RPA-Estate.

However, it is also apparent from Exhibit No 15 in the initial evidence file that, in the field of pension fund management, Transneft was not the sole or even the main client of Ronin Trust. That finding was supported by extracts from the annual reports of Ronin Trust produced by the applicant (Annex A.11), which show that Ronin Trust did in fact manage the pension funds of companies other than Transneft. Aside from the fact that nothing in the file provides information about the activities and organisation of Ronin Trust, the mere fact that the applicant and Transneft use the services of the same service provider, which provides its services to other third-party companies, is not sufficient to establish the existence of a link between the applicant and Transneft. At the hearing, in its response to a question from the Court asking it to explain how a link could be established between the applicant and her father through the Ronin Trust when that company manages the pension funds of several companies, the Council was unable to elaborate on that link. It did not rely on any evidence of Mr Tokarev’s shareholdings in the capital of Ronin Trust, or of his presence on that company’s management bodies, or of any unusual business relationship between Ronin Trust and Transneft that would distinguish those relationships from those existing between Ronin Trust and the other companies that formed part of its clientele.

82Consequently, the applicant is justified in claiming that the loose link between Ronin Trust and Transneft is not sufficient to establish the existence of a link between her activities and those of her father.

83Furthermore, the fact set out in the grounds for listing, that Ronin Europe’s address had been mentioned in connection with the applicant’s naturalisation proceedings with a view to obtaining Cypriot nationality, is also not capable of establishing the existence of common interests between the applicant and Mr Tokarev. At the hearing, in response to a question from the Court seeking clarification on the links between Ronin Europe and Ronin Trust, the Council stated, in essence, that it has taken the view that the two companies could be considered to be linked. In addition, it should be observed that the Council has not relied on any evidence capable of establishing a link between Ronin Europe and Mr Tokarev. Consequently, for the same reasons as those set out in paragraph 81 above, the link between the applicant and Ronin Europe cannot prove the existence of a link between the applicant and her father through Transneft.

84Thus, the Council wrongly relied on the applicant’s business relations with Ronin Trust and Ronin Europe to establish a link with Mr Tokarev through Transneft.

85In the second place, it must be ascertained whether the initial evidence file contains a body of sufficiently specific, precise and consistent evidence to establish the existence of links between the applicant’s property holdings and Mr Tokarev when the maintaining acts of September 2022 were adopted.

86As a preliminary point, it should be noted that the main parties disagree as to the value of the applicant’s property holdings. In the grounds for listing at issue, the Council estimated that the property holdings of the applicant and her ex-husband were worth more than USD 50 million (approximately EUR 45 million) for the property located in Moscow, Croatia and Latvia. However, apart from the fact that the applicant does not dispute the fact that the combined value of her assets and those of her ex-husband may exceed the value of USD 50 million (approximately EUR 45 million), it should be noted that the value of the applicant’s assets is not decisive in justifying maintaining her name on the lists at issue. It is a contextual element intended to indicate, as the Council submits, that the applicant is a prosperous businesswoman who has made a fortune in the property sector, as is apparent in particular from Exhibit Nos 9 and 16 of the initial evidence file. It follows that any inaccuracy as to the value of her assets cannot, in itself, lead to the annulment of the maintaining acts of September 2022.

87It should be noted that the applicant acknowledges that she is the owner of the company Ostozhenka 19, which owns a historic house in Moscow, an apartment on Brusov Street in Moscow and the company Katina, which owns a villa known as Karolina located in Mali Lošinj in Croatia. The initial evidence file shows that each of those properties is worth several million Russian roubles (RUB). According to Exhibit No 15, the historic house in Moscow was acquired in 2016 for RUB 390 million (approximately EUR 3.9 million); according to Exhibit No 14, the villa in Croatia was valued at USD 4.1 million (approximately EUR 3.8 million); and, according to Exhibit No 9, the flat on Brusov Street is located in a building where some of the apartments are worth at least RUB 315 million (approximately EUR 3.15 million). In view of the value of that property, which amounted to several million euros, the Council could validly take the view that the applicant owned substantial property holdings. However, as the applicant rightly maintains, in the present case, the value of her immovable property alone is not sufficient to establish an association with her father. Thus, it must be ascertained whether the factual basis relied on by the Council supports the finding that the applicant’s property holdings could be linked to her father at the time of the adoption of the maintaining acts of September 2022.

88First, as regards the property in Jūrmala in Latvia, which was jointly owned by the applicant and her ex-husband when they were married, it should be noted that the Council does not rely on any evidence that would make it possible to link that property to Mr Tokarev. In addition, the applicant has produced an extract from an addendum to the postnuptial agreement dated 14 February 2019, stating that, following the divorce, all the shares in Dzintaru 34, which owned that property, were to be transferred to her ex-husband. The applicant was divorced in June 2019, which the Council does not dispute. Consequently, the applicant must be regarded as having shown that, from June 2019, she no longer had any connection with the property in Latvia. It follows that, since the existence of common interests must be established at the time the contested acts are adopted (see paragraph 77 above), in order to demonstrate the existence of such interests between the applicant and her father through the property she owns, the Council cannot rely on the property in Latvia since, at the time of the adoption of the maintaining acts of September 2022, the applicant had not owned it for several years.

89Second, with regard to Villa Karolina located in Čikat Bay in Mali Lošinj in Croatia, it should be noted that the applicant has produced a historical excerpt from the register of the Trgovački Sud u Zagrebu (Commercial Court, Zagreb) concerning the company Katina (Annex A.20), which owns that villa. It is apparent from that document that the applicant is the company’s sole shareholder and that her father has never held any shares therein. It follows that, as regards that property, the Council cannot rely on the existence of a direct link between the applicant and her father. Furthermore, while it is true that Exhibit No 6 in the initial evidence file may constitute evidence of the existence of family management of that property because Mr Tokarev had entrusted the management of the Katina company to his former son-in-law, such evidence cannot, in itself, be sufficient to establish a link between the applicant’s father and Villa Karolina for the period after 2019. Since the applicant got divorced in June 2019, her ex-husband resigned from his positions at the company Katina in the same year, as is apparent from Annex A.20. Mr Tokarev’s involvement in the appointment of his former son-in-law as a member of the board of directors of the company Katina must therefore have taken place well before 2019. Thus, in the absence of other evidence relating to more recent facts capable of establishing the continuation of a family management of Villa Karolina involving Mr Tokarev, it must be held that the Council had no evidence to establish the existence, at the time when the maintaining acts of September 2022 were adopted, of a link between the applicant’s father and Villa Karolina.

90Third, as regards the fact, relied on by the Council, that the Tokarev family had acquired a multi-billion dollar hotel complex also located in Croatia, admittedly Exhibit No 16 of the initial evidence file, namely a press article published in 2020, refers to the existence of information that the Tokarev family had acquired a hotel complex with the help of calls for tenders by Transneft. However, it must be noted that the article neither contains details of the date on which the transaction took place, nor specifies which member of the Tokarev family acquired the property or whether that family member still owned it at the time the article was published in 2020. Furthermore, it should be noted that, contrary to the Council’s contention, it is not obvious from Annex D.1 to the rejoinder, namely an article published on 16 August 2016 on the website of the Moscow Post, entitled ‘“Golden Trumpet” by Nikolai Tokarev?’ that the applicant or members of her family had purchased a hotel complex in exchange for Transneft’s calls for tenders. According to that article, in 2005 the applicant had received income from a company called Caprice-Stell, which indirectly held shares in a hotel company, which was presented as the owner of a hotel complex in Mali Lošinj. Thus, even supposing that the fact that the applicant received remuneration from the company Caprice-Stell could be regarded as constituting evidence of the acquisition of a hotel complex, it should be noted that, according to the article published in the Moscow Post in 2016, the transaction involving calls for tenders by Transneft in connection with the acquisition of immovable property took place several years before the article appeared. It is not apparent from that article that the applicant received any remuneration from Caprice-Stell after 2005. Furthermore, the Council has failed to produce any other evidence to show that the applicant still owned a hotel complex in Croatia. Thus, having regard to the time that has elapsed since the facts related in the evidence produced by the Council actually took place, the Council cannot maintain that, at the time when the maintaining acts of September 2022 were adopted, the applicant was the owner of a hotel complex in Croatia.

91Fourth, the applicant submits that, since her divorce in June 2019, she no longer has any connection with the companies in her ex-husband’s RPA group and that her property holdings in Moscow are limited to a historic house which she owns through the company Ostozhenka 19 (formerly known as RPA-Estate) and an apartment in Brusov Street. Accordingly, in particular as regards the period after her divorce, the applicant contests the link between her immovable property and her father which the Council seeks to establish, on the basis of Exhibit 15 of the initial evidence file, through the companies in the RPA group and Ronin Trust. In that regard, it is sufficient to recall that the Council could not rely on the existence of business relations between the applicant and Ronin Trust to establish a link between the applicant and Mr Tokarev through Transneft (see paragraph 81 above). Accordingly, the fact that the applicant’s immovable property in Moscow had been managed by Ronin Trust cannot constitute evidence that that property could be regarded as being linked to her father. It must be noted that the initial evidence file contains no other evidence that would make it possible to establish a link between the applicant’s assets in Moscow and Mr Tokarev.

92It follows from the foregoing considerations that the statement of reasons is vitiated by an error of assessment in so far as it is found that the applicant’s immovable property could be linked to Mr Tokarev at the time when the maintaining acts of September 2022 were adopted.

93The Council’s arguments do not call that finding into question.

94First, it is true, as the Council rightly points out, that according to Exhibit Nos 2, 3, 6, 9, 13 and 15 of the initial evidence file the applicant’s father is described as being a long-standing close associate of Mr Vladimir Putin and as the president and CEO of one of Russia’s largest public companies. However, although that information constitutes a relevant contextual element, it is not capable of establishing the existence of a link between the applicant’s property holdings and her father.

95Second, Exhibit Nos 1, 2, 3 and 6 in the initial evidence file refer, in general terms and without any further details, to the fact that the members of Mr Tokarev’s family have benefited from his links with Mr Putin or the Russian Government, and Exhibit No 12 of that file, the full content of which is reproduced in Annex B.5 to the statement of defence, states in general terms that his family members have increased their wealth and own valuable immovable property in Europe. However, as the applicant points out, Exhibit Nos 1 and 3 of the initial evidence file, which essentially reproduce the content of a press release from the United States Department of the Treasury (Exhibit No 2), do not contain precise and specific information showing that the applicant’s immovable property was linked to Mr Tokarev, in particular at the time the maintaining acts of September 2022 were adopted. Similarly, it has already been noted that Exhibit No 6 of the initial evidence file did not contain any information enabling such a link to be established at the time those acts were adopted (see paragraph 89 above). As to Exhibit No 12, the content of which is reproduced in its entirety in Annex B.5 to the statement of defence, it should be noted that the information it contains is substantially similar to that contained in Exhibit No 15 of the initial evidence file. Consequently, for the same reasons as set out in paragraph 90 above, Exhibit No 12 of the initial evidence file does not contain any evidence capable of establishing a link between the applicant’s property holdings and Mr Tokarev at the time the maintaining acts of September 2022 were adopted.

96Third, as regards the existence of a pattern of family business management in the property sector, it is true, as the Council submits in its rejoinder, that Annex D.1 contains information seeking to demonstrate the existence of such a pattern in relation to the acquisition by the applicant and her ex-husband of an unidentified property in Croatia in the context of a transaction involving calls for tender by Transneft. Similarly, a pattern of family business management can also be discerned from the information contained in Exhibit No 6 of the initial evidence file due to the involvement of Mr Tokarev in the management of the Katina company, which owns Villa Karolina. However, as pointed out in paragraphs 89 and 90 above, those facts occurred several years before the adoption of the maintaining acts of September 2022. It should be noted that the Council has not adduced any evidence to demonstrate that there was a continuing pattern of family business management of property matters involving the applicant and her father at the time when those acts were adopted.

97As regards the alleged continuing family business management in the property sector, the Council was wrong to rely, at the hearing, on the existence of such a pattern of management in relation to the Gelendzhik Resort Meridian property complex in Russia. The property was not mentioned in the reasons for listing set out in the maintaining acts of September 2022, and therefore the Council cannot rely on that evidence, unless a substitution of reasons were to be accepted. In any event, it is apparent from Exhibit Nos 9 and 16 of the initial evidence file that the applicant holds shares in that property complex with Mr Stanislav Chemezov and the Council has not demonstrated that the property could be linked to Mr Tokarev.

98Fourth, contrary to what the Council maintains, the fact that Mr Tokarev is still linked to Mr Putin, that he still holds the position of president and CEO of Transneft and that the applicant still owns immovable property is not sufficient to justify maintaining her name on the lists at issue on the basis of the associated person criterion. As pointed out in paragraph 77 above, the Council is required to establish the existence of common interests at the time when the contested acts were adopted. It should be noted that the Council has not demonstrated that, at the time of the adoption of the maintaining acts of September 2022, the applicant’s property holdings could be linked to her father.

99

In the third place, as regards Exhibit Nos 2 to 5, 8 and 11 of the initial evidence file, which concern the restrictive measures adopted against the applicant by Australia, Canada, the United Kingdom and the United States, while it is true that such elements may constitute relevant contextual elements, they are not, however, capable in themselves of justifying including and maintaining the applicant’s name on the lists at issue. As the applicant has shown, in those third countries the family members of persons subject to restrictive measures may also be subject to restrictive measures solely on the basis of a family connection. Admittedly, in the context of the restrictive measures in view of the situation in Syria, it has been held that, where the funds of the persons sanctioned were frozen, there was a non-negligible risk that, in order to circumvent the measures against them, they might exert pressure on the persons with whom they were associated (see, to that effect, judgment of 28 April 2021, Sharif v Council, T‑540/19, not published, EU:T:2021:220, paragraph 159). However, it must be noted that, under those arrangements, the listing criterion was different from that applicable in the present case. In the case giving rise to that judgment, the legislation explicitly provided for restrictions and the freezing of the funds of, in particular, ‘leading businesspersons operating in Syria’ and ‘members of the Assad or Makhlouf families’ and ‘persons associated with them’. Within that legal framework, the family connection with those families could suffice to include the names of individuals on the lists in question on the basis of the ‘criterion of association with members of [those] families’. On the other hand, that is not the case where, as in the present case, the legislation does not expressly refer to the members of certain families named in the listing criteria (see, to that effect, judgment of 29 November 2023, Pumpyanskiy v Council, T‑734/22, not published, EU:T:2023:761, paragraph 70).

100It follows from the foregoing considerations that the Council has not demonstrated the existence of common interests linking the applicant to her father at the time of the adoption of the maintaining acts of September 2022. Consequently, the applicant’s name was maintained on the lists at issue de facto solely because of the family relationship with her father, and that cannot be accepted.

101In the light of the foregoing considerations, as regards the maintaining acts of September 2022, since it has been found that the Council erred in law in maintaining the applicant’s name on the lists at issue as a person associated with Mr Stanislav Chemezov (see paragraphs 45 to 52 above) and since the reasons set out in the acts are not supported by a sufficient legal basis as regards the association between the applicant and her father, Mr Tokarev, it must be concluded that maintaining the applicant’s name on the lists at issue was not justified.

102The plea alleging an error of law and errors of assessment must therefore be upheld in so far as it is directed against the maintaining acts of September 2022.

(2) The maintaining acts of March 2023

103In her first statement of modification, the applicant challenges the reliability of an item produced by the Council in evidence file WK 1128/2023 INIT and submits that the evidence files of January 2023 do not constitute a sufficient factual basis to justify maintaining her name on the lists at issue as a person associated with her father.

Reliability of the evidence

104The applicant submits that Exhibit No 4 in evidence file WK 1128/2023 INIT, which states that the Tokarev family acquired a multi-billion US dollar hotel business in Croatia with the help of Transneft’s call for tenders, is unreliable on the ground that it is not based on any evidence. In addition, the applicant observes that the authors of that article rely on a media article in the Moscow Post which does not cite its sources and is not a reliable source on the ground that it has been the subject of several recent convictions for defamation.

105The Council, supported by the Commission, disputes that line of argument.

106In the present case, in order to justify the continued inclusion of the applicant’s name on the lists at issue by the maintaining acts of March 2023, the Council provided the January 2023 evidence files. It should be noted that, as regards the relationship between the applicant and her father, the Council relied on publicly available evidence, namely, in particular in evidence file WK 1128/2023 INIT, on the following:

– a page on the ‘list-org’ website relating to the applicant, the date of publication of which is not specified, accessed on 19 January 2023 (Exhibit No 1);

– a page on the ‘list-org’ website relating to Ostozhenka 19, the date of publication of which is not specified, accessed on 19 January 2023 (Exhibit No 3);

– an article published on 28 August 2020 on the Moscow Post website, entitled ‘Shmatko’s exit to the Gelendzhik “Meridian”: “Gelendzhik resort complex-Meridian” gathered the cream of the business community around former Minister of Energy Sergei Shmatko and the children of Tokarev and Chemezov. Will Manturov join the trio?’ accessed on 19 January 2023 (Exhibit No 4);

– an article published on 20 March 2022 on the Re:Baltica website, entitled ‘Who are the people from Putin’s inner circle with properties in Latvia?’ accessed on 18 January 2023 (Exhibit No 7).

107The WK 1128/2023 ADD 1 file contains an investigation carried out by the OCCRP entitled ‘Pals Prosper from Proximity to Putin’s Power’, published on 24 December 2016 and accessed on 27 January 2023;

108The WK 1128/2023 ADD 2 file contains a summary of a confidential document relating to the companies owned by the applicant and registered in Russia in the commercial register.

109As regards the reliability of Exhibit No 4 of the WK 1128/2023 INIT file, namely an article entitled ‘Shmatko’s exit to the Gelendzhik “Meridian”: “Gelendzhik resort complex-Meridian” gathered the cream of the business community around former Minister of Energy Sergei Shmatko and the children of Tokarev and Chemezov. Will Manturov join the trio?’ it should be noted that the applicant’s argument that the article contains no evidence is not sufficient to deprive it of probative value. Moreover, as the applicant acknowledges, that article is based on another article from the Moscow Post which the Council produced in Annex D.1 to its rejoinder. As regards the latter article, the fact that it does not cite its sources cannot, in itself, deprive it of probative value. Moreover, the fact that a media outlet has been the subject of several convictions for defamation does not mean that all its publications are unreliable.

110Having regard to the context characterising the situation in the Russian Federation and in the absence of the Council’s powers of investigation in third countries (see paragraphs 59 and 60 above), the probative value of Exhibit No 4 of the WK 1128/2023 INIT file cannot be discounted.

The merits of the decision to maintain the applicant on the lists at issue as a person associated with her father

123In her second statement of modification, the applicant disputes the reliability of certain items of evidence produced by the Council in the June 2023 evidence file and submits that the June 2023 and July 2023 evidence files do not constitute a sufficient factual basis to justify the inclusion of her name on the basis of the second part of criterion (g), as amended.

Reliability of the evidence

124The applicant contests the reliability of the articles in the Rospres source on the grounds that it is a tabloid known for relaying defamatory allegations, access to which has been restricted due to its refusal to redact defamatory statements in accordance with court rulings. In addition, the applicant reiterates that the Moscow Post publications are unreliable, as are those of the Rosnadzor website, on the ground that they are media outlets known for publishing articles for the sole purpose of damaging people’s reputations.

125The Council, supported by the Commission, disputes that line of argument.

In order to justify the continued inclusion of the applicant’s name on the lists at issue by the acts of September 2023 on the basis of the second part of criterion (g), as amended, the Council provided the June 2023 evidence file and the July 2023 evidence file.

The June 2023 evidence file contains the following elements:

–a news article containing, inter alia, details of the applicant’s assets, published on 20 February 2023 on the Online publication company’s website (whose address is ‘ko.ru’), accessed on 19 May 2023 (Exhibit No 1);

–an article published on 25 April 2022 on the Platzdarm website entitled ‘Chemezov’s Billion-dollar Virology’, accessed on 19 May 2023 (Exhibit No 2);

–an article published on 29 December 2011 on the Rospres website, entitled ‘Transneft family clans: the Chemezovs, Tokarevs and Bolotovs’, accessed on 19 May 2023 (Exhibit No 3)

–an article published on 23 April 2023 on the Platzdarm website, entitled ‘Nikolai Tokarev and his Team of Launderers’, accessed on 19 May 2023 (Exhibit No 4);

–an article published on 30 July on the Rosnadzor website, entitled ‘Rostec, Transneft and Big Business: What Do the Children of Sergey Chemezov and Nikolai Tokarev Have in Common?’ accessed on 19 May 2023 (Exhibit No 5).

The July 2023 evidence file contains the following elements:

–an article published on 22 March 2022 on the Delfi Ärileht website, entitled ‘Who are the people in Putin’s inner circle who own expensive property in Latvia?’ The well-known oligarch set a precedent for his neighbour’, accessed on 27 June 2023 (Exhibit No 1);

–an article published on 3 February 2023 on the Moscow Post website, entitled ‘Laundry by Nikolai Tokarev’, accessed on 28 June 2023 (Exhibit No 2);

–a screenshot from the ‘wise.com’ website relating to Ronin Europe Ltd, accessed on 28 March 2023 (Exhibit No 3);

–an article published on 10 November 2016 on the Moscow Post website, entitled ‘“Transmoney” Tokarev’, accessed on 28 June 2023 (Exhibit No 4);

–an article published on 22 March 2022 on the ‘newsbeezer.com’ website, entitled ‘Villa of Putin’s Friends on the Coast of Croatia Revealed’, accessed on 28 June 2023 (Exhibit No 5);

–an article published on 3 February 2023 on the Acompromat website, entitled ‘Akulov’s “Big Wash” ended in crime’, accessed on 28 June 2023 (Exhibit No 6);

–an article published on 9 October 2021 on the ‘versia.ru’ website, entitled ‘The daughter and former son-in-law of Transneft CEO Nikolai Tokarev appeared in the “Pandora Papers”’, accessed on 28 June 2023 (Exhibit No 7).

As regards the information available on the Rospres website, while it is true that that media outlet has been convicted of defamation, it must be noted that the judgments produced by the applicant do not concern the article reproduced in Exhibit No 3 in the June 2023 evidence file. It should be borne in mind that the fact that a media outlet has been the subject of several convictions for defamation does not mean that all its publications are unreliable. It follows that, in the absence of any other evidence to challenge the reliability of the information on the Rospres website, Exhibit No 3 of the evidence file cannot be regarded as devoid of probative value.

Furthermore, the applicant has not shown that the sole purpose of the articles published on the websites of Moscow Post and Rosnadzor was to damage the reputation of public figures, and therefore they cannot be regarded as devoid of probative value.

As to the arguments seeking to call into question the insufficiently precise or inconsistent nature of some of the evidence in the evidence files, it should be borne in mind that those arguments fall within the scope of the assessment of whether the Council’s factual basis was sufficient to justify the inclusion of the applicant’s name on the lists at issue.

In the light of the foregoing, having regard to the context characterising the situation in the Russian Federation and in the absence of the Council’s powers of investigation in third countries (see paragraphs 59 and 60 above), the probative value of the exhibits in the June and July 2023 evidence files cannot be discounted.

(2) The merits of maintaining the applicant’s name on the list on the basis of the second part of criterion (g), as amended

The applicant considers that the second part of criterion (g), as amended, must be interpreted as not referring, in the abstract, to benefits of any kind, but to benefits in the form of transfers of funds and assets made with the aim of concealing assets and circumventing the restrictive measures adopted against the person initially designated in order for that person to retain control over the resources. Furthermore, the applicant considers that the benefit in question must be contemporaneous with the adoption of the restrictive measures against the person initially designated and that of the immediate family member, otherwise it cannot be considered that there is a risk of the restrictive measures being circumvented.

According to the applicant, the Council did not provide a sufficient factual basis to justify the inclusion of her name on the lists at issue on the basis of the criterion at issue. In particular, she argues that the Council does not demonstrate the existence of a transfer of funds or assets by her father with the aim of concealing his assets, circumventing the restrictive measures and retaining control of the resources at his disposal. The applicant also submits that the Council has failed to demonstrate the existence of a benefit contemporaneous with the maintaining acts of September 2023. With regard to the finding that her immovable property is linked to her father, the applicant submits that the Council has not shown that that property had previously belonged to her father. In addition, she contends that the alleged transactions are far removed from the adoption of the restrictive measures against her father in February 2022, with the result that there can be no intention to circumvent the restrictive measures. Moreover, the applicant argues that the links between Ronin and Transneft are irrelevant to the listing criterion chosen.

The Council, supported by the Commission, disputes that line of argument.

In particular, the Council submits that the second part of criterion (g), as amended, should be understood in a sense similar to the ‘association’ criterion, as interpreted by the General Court. In the Council’s view, that criterion must be interpreted as meaning that it should apply to immediate family members who are linked by ‘common interests’ to leading businesspersons operating in Russia, without requiring a link of an economic nature in view of the fact that, depending on the context and circumstances of each case, that link takes the form of the fact that they are benefiting from those businesspersons.

The Council submits that the benefit derived by the applicant from her father is characterised by the fact that her wealth and business are linked to him. In its view, the applicant had made a fortune in the property sector by taking advantage of her father’s position as president and CEO of Transneft and his relationship with Mr Putin. In addition, the Council argues that it has validly established the existence of common interests resulting from a family business management practice, in particular on the basis of the evidence in the June and July 2023 evidence files. It also submits that, as an element of context, account should be taken of a practice of nepotism in Russia.

It should be noted that, in the maintaining acts of September 2023, the applicant’s name was no longer maintained on the lists at issue as a result of the application of the associated person criterion laid down in Article 2(1), in fine, of Decision 2014/145, as amended. First, those reasons no longer refer to an association with Mr Stanislav Chemezov. Second, by concluding that the applicant is an immediate family member of Mr Tokarev, a leading businessperson operating in Russia, and that she benefits from him, the Council applied to the applicant the criterion laid down in the second part of criterion (g), as amended.

It should be noted that the second part of criterion (g), as amended, allows the inclusion on the lists at issue of, inter alia, immediate family members or other persons benefiting from a leading businessperson operating in Russia.

In that regard, it is important to bear in mind that even though the preamble to an EU act has no binding legal force and cannot be relied on as a ground either for derogating from the actual provisions of the act in question or for interpreting those provisions in a manner that is clearly contrary to their wording, it may explain their content, since the recitals in that preamble constitute important elements for the purposes of interpretation that may clarify the intentions of the author of that act (see judgment of 26 January 2021, Hessischer Rundfunk, C‑422/19 and C‑423/19, EU:C:2021:63, paragraph 64 and the case-law cited).

In the present case, according to recital 5 of Decision 2023/1094, the abovementioned criterion for listing was introduced in order to increase pressure on the Government of the Russian Federation and to avoid the risk of circumvention of the restrictive measures. In particular, it is apparent, in essence, from that recital that the need to designate immediate family members or other persons who benefit from influential businesspersons operating in Russia was justified by the fact that the latter were distributing their funds and assets among their immediate family members and other persons in order, among other things, to hide their assets, to circumvent the restrictive measures and to maintain control over the resources available to them.

Thus, the concept of ‘benefiting’, within the meaning of the second part of criterion (g), as amended, must be interpreted in the light of the objectives referred to in that criterion and set out in paragraph 141 above, which involve increasing the costs of the actions of the Russian Federation seeking to undermine Ukraine’s territorial integrity, sovereignty and independence. Accordingly, a ‘benefit’ within the meaning of that provision refers to any benefit of any kind, which is not necessarily undue, but which must be quantitatively or qualitatively not insignificant. It may therefore be a financial or non-financial benefit, such as a donation, a transfer of funds or economic resources, an intervention in order to promote the award of public contracts, an appointment or a promotion. Moreover, having regard to the objective of avoiding practices that circumvent restrictive measures, expressly referred to in recital 5 of Decision 2023/1094, benefits granted by influential businesspersons operating in Russia in a situation which may lead to the circumvention of the restrictive measures which apply to them may also fall within the second part of criterion (g), as amended.

Accordingly, first, the applicant is wrong to maintain that the concept of ‘benefit’ within the meaning of the second part of criterion (g), as amended, should be limited solely to benefits in the form of transfers of funds made with the aim of circumventing restrictive measures. Restricting the concept of ‘benefit’ to transfers of funds alone would not be consistent with the wording of the criterion and would not make it possible to capture the many forms that a benefit may take. In addition, while a situation that may lead to circumvention may substantiate the existence of a benefit within the meaning of the second part of criterion (g), as amended, proof of such a situation need not be adduced by the Council for the purposes of listing a person’s name on the lists at issue under that criterion. Second, the Council cannot argue that the second part of criterion (g), as amended, should be understood in a sense similar to that of the associated person criterion laid down in Article 2(1) in fine of Decision 2014/145, as amended, in so far as it would cover persons who are connected by common interests. Indeed, such an interpretation would have the effect of depriving the second part of criterion (g), as amended, of practical effect in that it would lose all relevance in relation to the associated person criterion when that criterion is applied in relation to a person listed on the basis of criterion (g).

Furthermore, contrary to what the applicant maintains, the benefits referred to in the second part of criterion (g), as amended, cannot be limited to the benefits granted, at the same time as their designation on the lists at issue, by leading businesspersons operating in Russia to an immediate family member or to other persons. Such a temporal limitation on the benefits that may be taken into account for the purposes of applying that criterion is not apparent from the wording of that provision. Moreover, such a restrictive interpretation proposed by the applicant would be incompatible with the objectives pursued by the introduction of that criterion, which are to increase pressure on the Government of the Russian Federation and to avoid the risk of circumvention of the restrictive measures, in particular through benefits granted by leading businesspersons before their names are included on the lists at issue.

The fact remains that the circumstances under which the benefit was conferred and the time that elapsed between the grant of a benefit by a businessperson operating in Russia and the date of their inclusion on the lists at issue are factors to be taken into account in assessing the merits of the inclusion, on those lists, of the name of the person who received that benefit. In any event, the benefit received by the person whose name is included on the lists at issue under the second part of the criterion (g), as amended, or at least its consequences, must still exist at the time when the restrictive measures against that person are adopted.

Moreover, the interpretation of the second part of criterion (g), as amended, must be consistent with the principle of legal certainty. It must be borne in mind that the restrictive measures system in respect of the situation in Ukraine was implemented, first, by the adoption of Decision 2014/145, in response to the annexation of Crimea and the destabilisation of eastern Ukraine in late February 2014, and then by a gradual consolidation of that system to adapt it to the gravity of the attacks by the Russian Federation on the territorial integrity, sovereignty and independence of Ukraine. It follows that, given that the restrictive measures at issue form part of the EU’s ongoing reaction to the policies and activities of the Russian authorities in relation specifically to Ukraine, which began with the annexation of Crimea, the Council cannot, under the second part of criterion (g), as amended, rely on benefits which were granted by leading businesspersons to immediate family members or to other persons before the end of February 2014 (see, by analogy, judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraph 92).

It is in the light of that interpretation of the second part of criterion (g), as amended, that it is necessary to examine whether the Council had a sufficient factual basis to justify the application of that criterion to the applicant in the maintaining acts of September 2023.

148

In the present case, keeping the applicant’s name on the lists at issue was justified, on the one hand, by the fact that her property holdings could be linked to her father and, on the other, by the existence of links between her and the Ronin company, which was presented as managing the Transneft company pension fund. Despite the change in the criterion for listing applied to the applicant, the reasons for listing are identical to those in the maintaining acts of March 2023.

149In the first place, it should be borne in mind that the Council could not rely on the existence of the applicant’s business relations with Ronin Trust and Ronin Europe in order to establish the existence of common interests between the applicant and Mr Tokarev through Transneft (see paragraphs 80 to 84 above) and that it did not adduce, in the June and July 2023 evidence files, any evidence capable of calling that conclusion into question. Consequently, those business relationships cannot constitute a benefit deriving from Mr Tokarev within the meaning of the second part of criterion (g), as amended. It follows that the Council’s arguments seeking to demonstrate the existence of a benefit deriving from the link between the applicant and Ronin Europe and those relating to the continued existence of business relations between her and Ronin Trust cannot succeed in justifying the validity of the maintaining acts of September 2023.

150In the second place, in so far as the reasons for listing refer to a link between the applicant’s property holdings and Mr Tokarev, it is necessary to ascertain whether the Council’s factual basis contains evidence capable of demonstrating that that property can constitute a benefit deriving from her father within the meaning of the second part of criterion (g), as amended.

151First, as regards the immovable property located in Jūrmala, Latvia, the applicant has demonstrated that, since her divorce in June 2019, she no longer had a holding in the company Dzintaru 34 which owns that property (see paragraph 88 above). Moreover, that finding is confirmed by Exhibit No 7 in evidence file WK 1128/2023 INIT and Exhibit No 1 in the July 2023 evidence file. Consequently, given that the applicant no longer had that property at the time the maintaining acts of September 2023 were adopted, the property cannot justify her name being kept on the lists at issue on the basis of the second part of criterion (g), as amended.

152Second, as regards the immovable property located in Croatia, it is apparent from Exhibit No 5 of the July 2023 evidence file that Villa Karolina was acquired by the applicant in 2009. Even if that property could be regarded as constituting a benefit deriving from her father, it dates back to a period prior to the annexation of Crimea in February 2014. Consequently, in order to justify maintaining the applicant’s name on the lists at issue on the basis of the second part of criterion (g), as amended, the Council could not rely on the fact, through the company Katina, that she owned Villa Karolina at the time the maintaining acts of September 2023 were adopted. As regards the apartment in Croatia with a value of approximately EUR 700 000 which the applicant owns through the company TGA, it should be noted that the evidence does not specify either the date of acquisition of that property nor any information enabling it to be established that it could constitute a benefit deriving from her father. Thus, the mere fact that the applicant owned that other property situated in Croatia could not justify the continued inclusion of her name on the lists at issue on the basis of the criterion for listing applied to her.

153With regard to the multi-billion US dollar hotel complex allegedly acquired by the Tokarev family in Croatia, the evidence contained in the June and July 2023 evidence files does not overcome the uncertainties arising from the lack of precision of the documents in the initial evidence file and in the file with reference WK 1128/2023 INIT (see paragraphs 90 and 119 above). It should be noted that Exhibit No 4 of the June 2023 evidence file and Exhibit Nos 2, 4, 6 and 7 of the July 2023 evidence file do not contain any information additional to that contained in the initial evidence file and in an article in the Moscow Post published in 2016 (Annex D.1). Admittedly, Exhibit No 4 of the June 2023 evidence file and Exhibit Nos 2 and 4 of the July 2023 evidence file confirm that in 2005 the applicant had received income from a company called Caprice-Stell, which indirectly held shares in a hotel company, which was presented as the owner of a hotel complex in Croatia. However, even if the fact that the applicant had received income from Caprice-Stell could be regarded as evidence of the acquisition of a hotel complex, it must be observed that the facts date back to a distant past prior to the annexation of Crimea in February 2014. Moreover, none of the exhibits in the evidence files indicate that the applicant received any remuneration from Caprice-Stell after 2005, nor do they indicate that she directly or indirectly owned a hotel complex in Croatia at the time the maintaining acts of September 2023 were adopted. On the contrary, it is apparent from Exhibit No 5 of the July 2023 evidence file that, in Croatia, in March 2023 the applicant owned only Villa Karolina, held through the company Katina, and an apartment worth approximately EUR 700 000, held through the company TGA. It follows that the Council cannot rely on the supposed fact that the applicant had acquired a hotel complex in Croatia to justify maintaining her name on the lists at issue on the basis of the second part of criterion (g), as amended.

154Third, as regards the immovable property in Moscow, it should be borne in mind that the links between the companies in the RPA group and Ronin Trust are not capable of establishing a link between the applicant and her father. Therefore, assuming that there is a link between Ronin Trust and Ostozhenka 19, through which the applicant owns the historic house mentioned in paragraph 87 above, that fact would not be relevant for the purpose of establishing that that property constitutes a benefit deriving from Mr Tokarev after the annexation of Crimea in February 2014. Similarly, the Council does not rely on any evidence to support the contention that the apartment on Brusov Street constitutes such a benefit. Moreover, the evidence does not contain sufficiently specific, precise and consistent indicia to establish the existence of links between any of those assets, Transneft or Mr Tokarev capable of demonstrating that any of them constitutes a benefit derived by the applicant from her father within the meaning of the second part of criterion (g), as amended.

155Fourth, in order to find that the applicant benefited from her father in the property sector, the Council cannot rely on the fact that, at the time the maintaining acts of September 2023 were adopted, the applicant held shares in the Gelendzhik Resort Meridian property complex. Since that property is not mentioned among the properties appearing in the reasons for listing set out in the maintaining acts of September 2023, unless a substitution of reasons were to be accepted, the Council cannot rely on the fact that the applicant holds shares in the immovable property to justify the validity of those maintaining acts. In any event, it must be noted that the Council has not demonstrated that that property, which the applicant owns, inter alia, with Mr Stanislav Chemezov, could be linked to Mr Tokarev.

156Thus, having regard to the foregoing considerations, the applicant is right to argue that the Council’s factual basis was not sufficient to demonstrate that, when the maintaining acts of September 2023 were adopted, any of her property holdings constituted a benefit deriving from Mr Tokarev within the meaning of the second part of criterion (g), as amended.

157The Council’s arguments are not capable of calling that conclusion into question.

158First, as regards the argument that the applicant’s business was linked to her father when she owned Irvin 2 because, according to Exhibit Nos 3 and 5 of the June 2023 evidence file, Mr Tokarev had put pressure on a health minister to encourage the award of contracts to that company, it should be noted that that fact concerned the pharmaceutical sector and not the applicant’s property holdings. However, in view of the wording of the reasons for listing, which refer only to the applicant’s property holdings, the Council cannot rely on a benefit obtained by the applicant which has no connection with those holdings. In any event, it must be noted that the fact in question dates back to the distant past, prior to the annexation of Crimea.

159Second, with regard to the fact set out in Exhibit No 7 of the July 2023 evidence file, according to which the applicant’s ex-husband was a beneficiary of companies which had concluded contracts with Transneft, including after the annexation of Crimea, it is true that such an element would be relevant in demonstrating the existence of a pattern of family business management such as to increase the applicant’s wealth during a period appropriate for the purposes of assessing the existence of a benefit within the meaning of the second part of criterion (g), as amended. However, although the reasons for listing identify the applicant’s property holdings as constituting a benefit within the meaning of that criterion, it must be noted that the Council does not rely on any evidence that would make it possible to establish a link between the Transneft contracts from which the applicant’s ex-husband indirectly benefited and a possible increase in the applicant’s property holdings. Furthermore, as is apparent from paragraph 154 above, the evidence in the evidence files does not contain sufficiently specific, precise and consistent indicia to establish such a link.

160Third, in support of its argument on family business management, the Council cannot rely on the information contained in Exhibit No 4 of the June 2023 evidence file or Exhibit No 2 of the July 2023 evidence file. Those documents, which are substantially similar in content, refer to a past business relationship between the applicant and one of her former partners in a company known as Région-Finance. It must be noted that those documents do not establish that Mr Tokarev was involved in that business relationship. Moreover, as the applicant rightly points out, the facts mentioned cannot be linked to the reasons for listing. Exhibit No 2 in the June 2023 evidence file is relied upon by the Council to demonstrate a pattern of family business management involving the Gelendzhik Resort Meridian property complex. However, it must be noted that that document merely states that the applicant holds shares in that complex with Mr Stanislav Chemezov and does not establish any link between the complex and Mr Tokarev. As regards Exhibit No 6 in the July 2023 evidence file, it must be noted that it does not provide any additional information, as compared with the other exhibits in the evidence files concerning the hotel complex in Croatia or the Gelendzhik Resort Meridian complex, to establish the existence of a benefit deriving from Mr Tokarev. Similarly, for the same reasons as set out above, the Council cannot rely on the applicant’s business relationship with her former partner in the company Région-Finance in order to establish a link with her father.

161Fourth, the Council cannot rely on a context characterised by nepotism or rely on the sole fact that, when the maintaining acts of September 2023 were adopted, the applicant was a prosperous businesswoman with substantial property holdings to justify including her name on the basis of the second part of criterion (g), as amended. Since it is clear from the reasons for listing that the applicant’s property holdings constitute the benefit deriving from Mr Tokarev, it was for the Council to demonstrate that the applicant’s father had contributed to an increase in those property holdings after the annexation of Crimea in February 2014. However, it is apparent from the foregoing that the Council did not present a set of indicia sufficiently specific, precise and consistent to establish such an increase in the applicant’s property holdings. Moreover, the Council has also failed to demonstrate that Mr Tokarev contributed to a significant increase in the applicant’s non-property assets after the annexation of Crimea.

162It follows that the plea alleging an error of assessment must be upheld in so far as it is directed against the maintaining acts of September 2023.

163Accordingly, in the light of all the foregoing considerations, without there being any need to examine the other pleas in law, including the plea of unlawfulness relating to the second part of criterion (g), as amended, the contested acts should be annulled in so far as they concern the applicant.

The effects of the annulment of the contested acts

164The Council requested, in its second head of claim, that, in the event that the Court annuls the contested acts in so far as they concern the applicant, it should order that the effects of Decisions 2022/1530, 2023/572 and 2023/1767 in so far as they concern the applicant be maintained until the partial annulment of Implementing Regulations 2022/1529, 2023/571 and 2023/1765 takes effect.

165In that regard, it should be borne in mind that, by Decisions 2022/1530, 2023/572 and 2023/1767, the Council updated the list of persons subject to the restrictive measures in Annex I to Decision 2014/145, as amended, by maintaining the applicant’s name on the list until 15 March 2024.

166By Decision (CFSP) 2024/847 of 12 March 2024 amending Decision 2014/145 (OJ L 2024/847), the Council updated the list of persons subject to the restrictive measures in Annex I to Decision 2014/145, as amended, by maintaining the applicant’s name on the list until 15 September 2024.

167Therefore, although the annulment of Decisions 2022/1530, 2023/572 and 2023/1767, in so far as they concern the applicant, entails the annulment of the maintenance of her name on the list in Annex I to Decision 2014/145, as amended, for the period from 15 September 2022 to 15 March 2024, such annulment does not, however, extend to Decision 2024/847, which is not the subject of the present action.

168Consequently, since the applicant is now subject to new restrictive measures, the Council’s subsidiary claim relating to the temporal effects of the partial annulment of Decisions 2022/1530, 2023/572 and 2023/1767 has become devoid of purpose.

The action for damages

169The applicant maintained that the renewal of the restrictive measures against her, through the maintaining acts of September 2022, had caused her non-material damage. She submits that those acts have made her an object of opprobrium and suspicion. According to the applicant, the damage to her reputation is all the more significant because she has social relations in the Member States, in particular in Croatia and Cyprus. Since the inclusion of her name on the lists at issue was the subject of extensive publicity and media coverage, the applicant argues that the annulment of the contested acts is not capable of constituting compensation for the damage suffered. Furthermore, in her observations on the Commission’s statement in intervention, the applicant submits that the damage to her reputation also stems from the withdrawal of her Cypriot nationality following the inclusion of her name on the lists at issue.

170The Council, supported by the Commission, disputes that line of argument.

171It is clear from the case-law that in order for the European Union to incur non-contractual liability, a number of conditions must be satisfied, namely the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals, the fact of damage and the existence of a causal link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties (see, to that effect, judgment of 19 April 2012, Artegodan v Commission, C‑221/10 P, EU:C:2012:216, paragraph 80 and the case-law cited).

172

According to settled case-law, the conditions for the European Union to incur non-contractual liability, within the meaning of the second paragraph of Article 340 TFEU, are cumulative (see, to that effect, judgment of 7 December 2010, <i>Fahas</i> v <i>Council</i>, T‑49/07, EU:T:2010:499, paragraph 93, and order of 17 February 2012, <i>Dagher</i> v <i>Council</i>, T‑218/11, not published, EU:T:2012:82, paragraph 34). Accordingly, where one of those conditions is not satisfied, the application must be dismissed in its entirety without it being necessary to examine the other preconditions (see, to that effect, judgments of 9 September 1999, <i>Lucaccioni</i> v <i>Commission</i>, C‑257/98 P, EU:C:1999:402, paragraph 14, and of 26 October 2011, <i>Dufour</i> v <i>ECB</i>, T‑436/09, EU:T:2011:634, paragraph 193).

It follows from well-established case-law that a finding that a legal act of the European Union is illegal, made for example in the context of an action for annulment, regrettable as it may be, is not a sufficient basis for holding that the non-contractual liability of the European Union, arising from illegal conduct on the part of one of its institutions, has automatically arisen. In order for that condition to be met, the case-law requires the applicant to demonstrate that the institution in question has not merely infringed a rule of law, but that the infringement is sufficiently serious and that the rule of law was intended to confer rights on individuals (judgments of 5 June 2019, <i>Bank Saderat</i> v <i>Council</i>, T‑433/15, not published, EU:T:2019:374, paragraph 48, and of 7 July 2021, <i>HTTS</i> v <i>Council</i>, T‑692/15 RENV, EU:T:2021:410, paragraph 53).

The requirement that there be a sufficiently serious breach of a rule of EU law stems from the need to strike a balance between, on the one hand, the protection of individuals against unlawful conduct of the institutions and, on the other, the leeway that must be accorded to the institutions in order not to paralyse action by them. That balancing exercise proves all the more important in the field of restrictive measures, in which the obstacles encountered by the Council in terms of availability of information often make the assessment that it must carry out particularly difficult (judgments of 10 September 2019, <i>HTTS</i> v <i>Council</i>, C‑123/18 P, EU:C:2019:694, paragraph 34, and of 7 July 2021, <i>Bateni</i> v <i>Council</i>, T‑455/17, EU:T:2021:411, paragraph 90).

Furthermore, the requirement for proof of a sufficiently serious infringement is intended to avoid, in the field inter alia of restrictive measures, the institution concerned being obstructed in the exercise of the functions which it is responsible for carrying out, in the general interest of the European Union and its Member States, by the risk of ultimately having to bear losses which the persons concerned by its acts might potentially suffer, without however leaving those individuals to bear the consequences, be they financial or non-material, of flagrant and inexcusable misconduct on the part of the institution concerned (judgments of 5 June 2019, <i>Bank Saderat</i> v <i>Council</i>, T‑433/15, not published, EU:T:2019:374, paragraph 49, and of 7 July 2021, <i>HTTS</i> v <i>Council</i>, T‑692/15 RENV, EU:T:2021:410, paragraph 54).

The wider objective of maintaining peace and international security, in accordance with the objectives of the European Union’s external action set out in Article 21 TEU, is such as to justify negative consequences for economic operators – even significant negative consequences – arising from decisions implementing acts adopted by the European Union with a view to achieving that fundamental objective (judgments of 5 June 2019 in <i>Bank Saderat</i> v <i>Council</i>, T‑433/15, not published, EU:T:2019:374, paragraph 50, and of 7 July 2021, <i>HTTS</i> v <i>Council</i>, T‑692/15 RENV, EU:T:2021:410, paragraph 55).

As regards the requirement that there must be actual damage, according to the case-law, the EU can incur liability only if the applicant has in fact suffered actual and certain loss. It is for the applicant to adduce conclusive proof as to the existence and extent of the damage it alleges (see, to that effect, judgment of 30 May 2017, <i>Safa Nicu Sepahan</i> v <i>Council</i>, C‑45/15 P, EU:C:2017:402, paragraphs 61 and 62 and the case-law cited).

Finally, it should be borne in mind that the existence of actual and certain damage cannot be considered in the abstract by the EU judicature but must be assessed in relation to the specific facts characterising each particular case in point (see judgment of 30 May 2017, <i>Safa Nicu Sepahan</i> v <i>Council</i>, C‑45/15 P, EU:C:2017:402, paragraph 79 and the case-law cited).

In the present case, as regards the alleged damage to the applicant’s reputation, it must be held that that argument has not been substantiated. The applicant merely claims that the contested acts have given rise to opprobrium and suspicion against her, without producing any evidence in support of that allegation. Furthermore, she has not provided any evidence of the existence of social relations in Croatia or Cyprus. Similarly, the applicant has also failed to establish, by providing evidence, that the listing of her name received wide media coverage.

Furthermore, as regards the argument alleging damage to her reputation stemming from the withdrawal of her Cypriot nationality, without there being any need to rule on the admissibility of that argument, raised for the first time in the applicant’s observations on the Commission’s statement in intervention, it should be noted that that damage results from an act adopted by national authorities and not from an act adopted by the EU institutions, with the result that it is not capable of giving rise to non-contractual liability on the part of those institutions. The fact that the withdrawal of Cypriot nationality followed the adoption of restrictive measures against the applicant is not such as to alter that conclusion. The EU institutions cannot incur non-contractual liability for legal acts adopted by the Member States following the inclusion of a person’s name on the lists at issue.

It should be added that the applicant has not adduced any evidence capable of justifying the amount of EUR 1 000 000 claimed by way of compensation for the non-material damage she alleges she sustained, even though it was incumbent on her to do so in accordance with the case-law cited in paragraphs 177 and 178 above.

In the light of the foregoing considerations, it must be concluded that the requirement relating to actual damage is not satisfied in the present case.

In any event, it should be borne in mind that a finding that restrictive measures taken against a person or entity are illegal is capable of constituting a form of reparation for the non-material harm suffered by the person or entity concerned (see, to that effect, judgment of 28 May 2013, <i>Abdulrahim</i> v <i>Council and Commission</i>, C‑239/12 P, EU:C:2013:331, paragraph 72).

In the light of the foregoing considerations, the claim for compensation, which relates to the maintaining acts of September 2022, must be rejected, since the existence and extent of the alleged harm have not been established to the requisite legal standard.

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

In addition, under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs.

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

On those grounds,

hereby:

3. <b>Orders the Council of the European Union to bear its own costs and pay those of Ms Tokareva;</b>

Spielmann

Mastroianni

Brkan

Gâlea

Kalėda

Delivered in open court in Luxembourg on 11 September 2024.

[Signatures]

Contents

II. Facts subsequent to the bringing of the action

III. Forms of order sought

(a) Preliminary observations

(b) Error of law, based on the inclusion of the applicant on the list as a person associated with Mr Stanislav Chemezov

(c) Error of assessment in so far as the applicant was listed as a person associated with her father

(1) The maintaining acts of September 2022

(i) The reliability of the evidence in the initial evidence file

(ii) Annex B.5 to the statement of defence

(iii) The merits of the decision to maintain the applicant on the lists at issue as a person associated with her father

(2) The maintaining acts of March 2023

(i) Reliability of the evidence

(ii) The merits of the decision to maintain the applicant on the lists at issue as a person associated with her father

(d) The application to the applicant of the second part of criterion (g), as amended

(1) Reliability of the evidence

(2) The merits of maintaining the applicant’s name on the list on the basis of the second part of criterion (g), as amended

* * *

(*1) Language of the case: French.