The General Court of the EU has dismissed BelTechExport’s application for its re-listing on the EU’s targeted Belarus sanctions to be annulled. Judgment here: Case T-765/15 BelTechExport ZAO v Council . BelTechExport, an arms manufacturer, was listed on the grounds that it “benefits from the regime as a main exporter of arms and military equipment in Belarus, which requires authorisation from the Belarusian authorities”, but has since been removed from the EU’s sanctions lists (see previous blog).
BelTechExport was previously listed on the basis that “It supports and provides revenue to the Lukashenka regime by its sale of arms”, “benefits from the regime as the main exporter of arms and military equipment owned by the state or produced by state owned companies”, and has ties to a listed individual, Vladimir Peftiyev; the Court annulled that designation (see previous blog).
The General Court of the EU dismissed a case brought by a gold export company Uganda Commercial Impex Ltd to annul its inclusion on the EU’s sanctions on the Democratic Republic of Congo. Judgment here Cases T-107/15 and T-347/15 Uganda Commercial Impex Ltd v Council .
The EU sanctioned Uganda Commercial Impex because the UN Sanctions Committee had said (since 2007) that (inter alia) it “bought gold through a regular commercial relationship with traders in the DRC tightly linked to militias. This constitutes ‘provision of assistance’ to illegal armed groups in breach of the arms embargo”.
The Court said the EU institutions had discharged their duty properly in implementing this UN listing. In particular, the court said listing was justified by the UN panel of expert reports on which it was based (and dismissed grounds for annulment based on the duty give reasons, proportionality and rights of defence). The applicant’s evidence refuting the panel of experts’ report was declared inadmissible because it had not been submitted with the EU court application and because the witness statement was given by one of the company’s directors who therefore has “a direct personal interest in the outcome of the present proceedings” (the Court has taken this approach to witness statements in a few recent sanctions cases).
The Grand Chamber of the ECJ has upheld an application brought by the EU Council to set aside a decision of the General Court to annul the designation of Hamas (see previous blog), and has dismissed the application to set aside the judgment annulling the re-listing of the Liberation Tigers of Tamil Eelam (LTTE) (see previous blog). Case C-79/15 P Council v Hamas and Case C-599/14 P Council v LTTE.
The ECJ said the General Court was wrong to have held that in considering whether a re-listing remained justified on the basis of ongoing terrorist risk, the EU had to decide only on the basis of material that had been assessed by the national authorities.
Because the General Court’s decision to annul Hamas’ listing was solely based on that ground, ECJ referred the case back to the General Court. However, in LTTE’s case the ECJ found that the General Court’s decision to annul was correct on other grounds despite that error; the Council had not included in its reasons an assessment of whether the Indian competent authority protected rights of defence and effective judicial review in a manner equivalent to protection at EU level.
Companies buying and selling diamonds challenged the EU implementation of their UN sanctions listing in 2015 for “providing support for armed groups or criminal networks through the illicit exploitation or trade of natural resources in the Central African Republic”. Badica and Kardiam said the EU had not established that those grounds were correct, and that the EU had simply reproduced the UN Security Council’s reasoning, without performing its own analysis. The EU General Court has rejected their claim, finding that even though there was insufficient evidence to establish support to armed groups through trade in goods, there was sufficient evidence that Badica and Kardiam had continued to buy diamonds from the CAR after the export ban imposed by the Kimberley process. The judgment is here – Case T-619/15 Central African Republic Diamond Purchasing Office v Council and the Court’s press release is here.
The Court of Justice held this month in Case C-505/16 P Olga Yanukovych v Council & Commission that the General Court had been right to reject an application for annulment seeking to annul the re-listing of Viktor Yanukovych, son of the former President of Ukraine, on the EU’s Ukraine misappropriation sanctions, after he had died. Viktor Yanukovych’s widow Olga Yanukovych had tried to continue the application for annulment on his behalf after his death but the ECJ held that she had not done so in the procedurally correct manner and the application was inadmissible.
We reported in January 2016 (here) that the EU Court had annulled the designations of Mykola Azarov and Sergej Arbuzov, both former Prime Ministers of Ukraine, because the only basis for saying that they were “responsible for misappropriating Ukrainian state funds” was a letter in March 2014 from Ukraine’s Prosecutor General that gave no details of the matters alleged against them and the nature of their alleged responsibility for misappropriation of assets.
The EU Court has now upheld their re-listings on the basis that there was sufficient evidence that they are “subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets”. Judgments here; Cases T-221/15 Arbuzov and T-215/15 Azarov. The General Court rejected grounds for annulment based on insufficient reasons, rights of defence, misuse of powers, and disproportionate breach of fundamental rights. It held that the EU Council has to check that the listed person is facing criminal proceedings for misappropriation of state funds in Ukraine, but it does not have to question the evidence underlying those proceedings or the procedure (particularly since Ukraine is a member of the Council of Europe & ECHR) and it is up to the EU to decide it if needs additional evidence or clarification.
HX was included in the EU’s Syria sanctions in 2014. Advocate General Kokott (the German Advocate General at the Court of Justice) has given her opinion in HX’s EJ appeal. See Opinion in Case C-423/16 P HX v Council and previous blog on the case here.
In the AG’s view, the General Court had been unduly formalistic and should have permitted HX to modify his application at the oral hearing to challenge his 2015 as well as 2014 listing (the Court had refused the modification because he made the application orally and not in a document). However, since all the 2015 listing did was extend the 2014 listing (which had been annulled in any case) by a year, HX had not been disadvantaged by the General Court’s decision.