FRANCE Trends and Developments Contributed by: William Julié, Amélie Beauchemin, Camille Gosson and Elena Moreno, WJ Avocats
As such, the Council expressed its belief that all leading businesspersons in Russia attempt to cir - cumvent EU sanctions by distributing their assets to their immediate family members. This is problematic on several levels, as the Council keeps, in a highly far-fetched manner, sanctioning individuals for being leading businesspersons in Russia who in reality and objectively do not qualify as such, many of them not even having set a foot in Russia for decades, and now targeting these people’s family members. Judicial scrutiny and emerging case law Such a presumption had already been addressed by the Court of Justice in another sanctions regime, created in reaction to the situation in Myanmar. In a judgment of 13 March 2012, Tay Za v Council, the appellate judges expressed their doubt as to the pos - sibility of “establish[ing] a link, even an indirect link, between the absence of progress towards democra - tisation and the continuing violation of human rights in Myanmar, which, as is apparent from recital 1 in the preamble to the contested regulation, is one of the reasons which led to the adoption of the regulation, and the conduct of the family members of those in charge of businesses, which, in itself, has not been criticised” (paragraph 67). They recalled that “the application of such measures to natural persons on the sole ground of their family connection with persons associated with the leaders of the third country concerned, irrespective of the per - sonal conduct of such natural persons, is at variance with the Court’s case law on Articles 60 EC and 301 EC” (paragraph 66), and “by finding at paragraph 168 of Kadi and Al Barakaat International Foundation v Council and Commission that the restrictive measures adopted against a third country could not be directed at persons associated with that country ‘in some other way’, the Court intended to restrict the categories of natural persons at whom targeted restrictive meas - ures may be directed to those whose connection with the third country concerned is quite obvious, namely the leaders of third countries and the individuals asso - ciated with them” (paragraph 68). Despite this precedent, the General Court confirmed the legality of the amended criterion (g) in September 2024 in the case of Mordashova v Council (T-497/22,
paragraphs 105 to 117). It clarified that the notion of benefit “covers any benefit of any kind whatsoever, which is not necessarily undue, but which must be quantitatively or qualitatively not negligible”, includ - ing “a financial or non-financial benefit, such as a gift, a transfer of funds or economic resources, an inter - vention with a view to facilitating the award of public contracts, an appointment or a promotion.” The Court clarified that “although a situation likely to lead to circumvention may justify the existence of a benefit”, proof of such a situation does not need to be provided by the Council for the purpose of adding a person’s name to the list under the new criterion (g). It then unconvincingly concluded that the amended cri - terion (g) does not constitute an irrebuttable presump - tion as it is not based “solely on family ties between a close family member and an influential businessman or woman, but requires demonstration of the advan- tage derived, which must be quantitatively or qualita - tively significant”. Similarly, the case of Mrs Elena Timchenko, who was sanctioned in April 2022 by the Council on the criterion of “association” for being the wife of Gen - nady Timchenko, is worth analysing. By a judgment of 6 September 2023 (T-361/22), the General Court held that the concept of association covers persons who are “linked by common interests, without, how - ever, requiring a connection by means of a common economic activity”. As regards family members, the Court stated that “the link must go beyond the fam - ily relationship” and “must be characterized by the objective existence of interrelated common interests”. It essentially held that Mrs Timchenko was associated with her husband because they were both members of the board of directors of the Timchenko Foundation. In her appeal, Mrs Timchenko contested this was an overly broad interpretation of the concept of associa - tion, arguing that it allows the listing of any natural persons solely because of the existence of a family relationship between them, in violation of the case law of the Court of Justice mentioned above. While the Court of Justice has not yet rendered its judgment in this case, Advocate General Medina delivered an opinion on 10 April 2025, which failed to
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