Aleksandra Melnichenko v Council of the European Union (T-498/22)

Contents

Judgment of the General Court (First Chamber, Extended Composition)26 February 2025^note(Common foreign and security policy — Restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine — Freezing of funds — Restrictions on entry into the territory of the Member States — List of persons, entities and bodies subject to the freezing of funds and economic resources and subject to restrictions on entry into the territory of the Member States — Inclusion and maintenance of the applicant’s name on the list — Concept of association — Article 2(1), in fine, of Decision 2014/145/CFSP — Plea of illegality — Error of assessment — Fundamental rights — Proportionality)In Case T‑498/22,Aleksandra Melnichenko, residing in Saint-Moritz (Switzerland), represented by A. Miron, D. Müller, H. Bajer Pellet, R. Pieri, A. Beauchemin, lawyers, and C. Zatschler, Senior Counsel,supported byEuroChem Group AG, established in Zug (Switzerland),and bySiberian Coal Energy Company AO (SUEK), established in Moscow (Russia),represented by N. Montag, L. Engelen and S. Bonifassi, lawyers,vCouncil of the European Union, represented by B. Driessen and J. Rurarz, acting as Agents, and by B. Maingain and S. Remy, lawyers,supported byKingdom of Belgium, represented by C. Pochet, M. Van Regemorter and L. Van den Broeck, acting as Agents,THE GENERAL COURT (First Chamber, Extended Composition),composed, at the time of the deliberations, of R. Mastroianni, acting as President, M. Brkan, I. Gâlea, T. Tóth and S.L. Kalėda (Rapporteur), Judges,Registrar: R. Ūkelytė, Administrator,having regard to the written part of the procedure,further to the hearing on 9 July 2024,gives the following

JudgmentOnly the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.

1By her action based on Article 263 TFEU, the applicant, Ms Aleksandra Melnichenko, seeks annulment of the following acts, in so far as they include and maintain her name on the lists annexed thereto (‘the lists at issue’):– first, Council Decision (CFSP) 2022/883 of 3 June 2022 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 153, p. 92) and Council Implementing Regulation (EU) 2022/878 of 3 June 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 153, p. 15) (together, ‘the initial acts’);– second, 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 September 2022 acts’);– third, 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 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 March 2023 acts’), as well as Council Decision (CFSP) 2023/811 of 13 April 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 101, p. 67) and Council Implementing Regulation (EU) 2023/806 of 13 April 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 101, p. 1) (together, ‘the April 2023 acts’; and, together with the initial acts, the September 2022 acts and the March 2023 acts, ‘the contested acts’).…

Forms of order sought

27The applicant, supported by EuroChem Group and SUEK, claims that the Court should:– declare Article 2(1) of Decision 2014/145, as amended, and Article 3(1) of Regulation No 269/2014, as amended, inapplicable to her in so far as those provisions refer to ‘natural or legal persons, entities or bodies associated with’ individuals or entities included on the lists at issue;– annul the contested acts in so far as they concern her;– order the Council to pay the costs.

28The Council, supported by the Kingdom of Belgium, contends that the Court should:– dismiss the action;– order the applicant to pay the costs.

Law

29In support of the action, the applicant raises, in essence, five pleas in law alleging, first, a ‘manifest error of assessment’, second, infringement of the obligation to state reasons, third, infringement of the principle of proportionality and of fundamental rights, fourth, illegality of the criterion set out in Article 2(1) of Decision 2014/145, as amended, and Article 3(1) of Regulation No 269/2014, as amended, relating to natural and legal persons, entities or bodies associated with a person subject to restrictive measures on the basis of one of the listing criteria laid down in Article 2(1)(a) to (h) of that decision and Article 3(1)(a) to (h) of that regulation (‘the association criterion’) and, fifth, infringement of the right to be heard.…

The third plea in law, alleging infringement of the applicant’s fundamental rights

…

105Furthermore, the applicant, supported by EuroChem Group and SUEK, adds that, since she has never had any link with Russian decision-makers, imposing restrictive measures on her in no way contributes to attaining the objectives of Regulation No 269/2014, as amended, which consist in exerting pressure on the Russian authorities, and runs counter to the European Union’s policy of guaranteeing global food security. Maintaining those restrictive measures in relation to her is therefore neither necessary nor appropriate.

106The Council, supported by the Kingdom of Belgium, disputes the applicant’s arguments.

107It should be recalled that the right to respect for private and family life, home and communications, the right to property and the right of Union citizens to move and reside freely within the territory of the Member States are enshrined in Articles 7, 17 and 45 of the Charter, respectively.

108As regards, in the first place, the fundamental rights enshrined in Articles 7 and 17 of the Charter, in the present case, the restrictive measures at issue constitute protective measures, which are not intended to deprive the persons concerned of their right to property and their right to respect for private and family life, home and communications. However, with the exception of the right to respect for communications for which a limitation has not been demonstrated, the measures in question undeniably entail a limitation of those fundamental rights in the present case (see, to that effect and by analogy, judgment of 12 March 2014, Al Assad v Council, T‑202/12, EU:T:2014:113, paragraph 115 and the case-law cited).

109However, according to settled case-law, the fundamental rights enshrined in Articles 7 and 17 of the Charter do not enjoy absolute protection in EU law, but must be viewed in relation to their function in society (see judgment of 12 March 2014, Al Assad v Council, T‑202/12, EU:T:2014:113, paragraph 113 and the case-law cited).

110In that regard, it must be borne in mind that, under Article 52(1) of the Charter, first, ‘any limitation on the exercise of the rights and freedoms recognised by [the Charter] must be provided for by law and respect the essence of those rights and freedoms’ and, second, ‘subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.’

111Thus, in order to comply with EU law, a limitation on the exercise of fundamental rights and freedoms must satisfy four conditions. First, it must be ‘provided for by law’, in the sense that the EU institution adopting measures liable to restrict a natural or legal person’s fundamental rights must have a legal basis for its actions. Second, it must respect the essence of those rights. Third, it must effectively meet an objective of general interest, recognised as such by the European Union. Fourth, it must be proportionate (see judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraphs 145 and 222 and the case-law cited).

112It is clear that those four conditions are satisfied in the present case.

113First, it must be noted that the limitations on the exercise by the applicant of her right to respect for her private and family life, and home, and her right to property are ‘provided for by law’, since they are set out in acts which are, inter alia, of general application, namely Decision 2014/145, as amended, and Regulation No 269/2014, as amended, and which have a clear legal basis in EU law, namely Article 29 TEU and Article 215 TFEU, respectively.

114Second, given that the contested acts apply for six months and are kept under constant review, as provided for in Article 6 of Decision 2014/145, as amended, the limitations referred to in paragraph 113 above are temporary and reversible. Therefore, it must be held that they do not infringe the essence of her right to respect for private and family life, and home, and her right to property. In addition, the contested acts provide for the possibility of granting exemptions to the restrictive measures applied. In particular, with regard to the freezing of funds, Article 2(3) and (4) of Decision 2014/145, as amended, and Article 4(1), Article 5(1) and Article 6(1) of Regulation No 269/2014, as amended, provide for the possibility, first, of authorising the use of frozen funds to meet essential needs or to satisfy certain commitments and, second, of granting specific authorisations to unfreeze funds, other financial assets or other economic resources.

115Third, the limitations referred to in paragraph 113 above are intended to exert pressure on the Russian authorities so that they bring an end to their actions and policies destabilising Ukraine. That is an objective of general interest which falls within those pursued under the CFSP and referred to in Article 21(2)(b) and (c) TEU, such as the consolidation of and support for democracy, the rule of law, human rights and the principles of international law, and the preservation of peace, prevention of conflicts and strengthening of international security and the protection of civilian populations (see, by analogy, judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraph 176).

116Fourth, with regard to the principle of proportionality, it must be noted that, as a general principle of EU law, this requires that measures adopted by the EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued by the legislation in question. Consequently, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 30 November 2016, Rotenberg v Council, T‑720/14, EU:T:2016:689, paragraph 178 and the case-law cited).

117So far as concerns the appropriateness of the limitations referred to in paragraph 113 above, it must be noted that, in the light of objectives of general interest which are as fundamental to the international community as those covered by the contested acts, those limitations cannot, as such, be regarded as inappropriate. Furthermore, as regards their necessity, it should be noted that alternative and less restrictive measures, such as a system of prior authorisation, are not as effective in achieving the objectives pursued. Moreover, the restrictions are temporary and reversible and provide for possible exemptions. Therefore, it must be held that the disadvantages caused to the applicant are not disproportionate in view of the importance of the objective pursued by those acts.

118Moreover, as regards the applicant’s argument that the limitations referred to in paragraph 113 above are not proportionate because of the risks they pose to global food security, that argument must be rejected as ineffective because it has no connection with the applicant’s right to property or with her right to respect for private and family life, and home.

119It follows that the limitations referred to in paragraph 113 above are not disproportionate in relation to the objectives pursued by the restrictive measures.

120As regards, in the second place, the applicant’s argument alleging infringement of her right to move freely within the territory of the Member States, enshrined in Article 45(1) of the Charter, it must be noted that in accordance with Article 52(2) thereof, the rights recognised by the Charter for which provision is made in the Treaties are to be exercised under the conditions and within the limits defined by those Treaties. As is apparent from the Explanations relating to the [Charter] (OJ 2007 C 303, p. 17), the right guaranteed by Article 45(1) of the Charter is the same right as that guaranteed by Article 20(2)(a) TFEU. The scope of that right is described further in Article 21 TFEU.

121It should be noted that, according to Article 21(1) TFEU, the right to move and reside freely within the territory of the Member States is subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. That reservation, formulated in the second part of Article 21(1) TFEU, referring to the Treaties, in the plural, also includes the EU Treaty and the measures adopted to give it effect. It follows that limitations on the exercise of the right to freedom of movement and of residence of Union citizens enshrined in Article 45(1) of the Charter may, in the field of the CFSP, be imposed by acts which are adopted on the basis of Article 29 TEU, such as the contested acts (see, to that effect, judgments of 5 November 2014, Mayaleh v Council, T‑307/12 and T‑408/13, EU:T:2014:926, paragraphs 195 and 196, and of 4 December 2015, Sarafraz v Council, T‑273/13, not published, EU:T:2015:939, paragraphs 194 and 195).

122However, as recalled in paragraph 111 above, in order to comply with EU law, limitations on the exercise of the rights enshrined in the Charter must satisfy the conditions set out in Article 52(1) thereof, namely: be provided for by law, respect the essence of those rights, refer to an objective of general interest, recognised as such by the European Union, and not be disproportionate. That also applies to the rights recognised by the Charter which are the subject of provisions in the Treaties (see, to that effect, judgment of 6 October 2015, Delvigne, C‑650/13, EU:C:2015:648, paragraph 46, and Opinion of Advocate General Szpunar in Agenzia delle dogane e dei monopoli and Ministero dell’Economia e delle Finanze, C‑452/20, EU:C:2021:855, point 60). Therefore, the limitations on the exercise of the right enshrined in Article 45(1) of the Charter, imposed in the context of the implementation of the CFSP, must satisfy those conditions.

123In the present case, first, the limitations on the applicant’s right to move freely within the territory of the Member States resulting from the contested acts are ‘provided for by law’ since they are set out in acts which are, inter alia, of general application, namely Decision 2014/145, as amended, and Regulation No 269/2014, as amended, and which have a clear legal basis in EU law, namely Article 29 TEU and Article 215 TFEU, respectively.

124Second, as regards the question whether the limitations referred to in paragraph 123 above respect the ‘essence’ of the applicant’s right to move freely within the territory of the Member States, regard must be had to the nature and scope of the restrictive measures at issue (see, to that effect, judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 153).

125In that connection, it must be held that the limitations referred to in paragraph 123 above respect the ‘essence’ of the applicant’s right to move freely within the territory of the Member States. First of all, in accordance with Article 1(2) of Decision 2014/145, as amended, those limitations comply with the principle of international law according to which a State cannot refuse its own nationals the right to enter its territory and remain there. Next, under Article 6 of Decision 2014/145, as amended, the lists at issue are to be periodically reviewed so that the names of persons who no longer meet the listing criteria are removed from the lists. Last, those limitations do not call into question that right as such, since they have the effect of temporarily suspending, under specific conditions and on account of their individual situation, the right of certain persons to move freely within the territory of the Member States, provided that those conditions continue to be satisfied (see, to that effect and by analogy, judgment of 6 October 2015, Delvigne, C‑650/13, EU:C:2015:648, paragraph 48).

126Third, the limitations referred to in paragraph 123 above relate to the objective of general interest referred to in paragraph 115 above.

127Fourth, as regards the appropriateness of the limitations referred to in paragraph 123 above, it should be noted that they are suitable for the purpose of meeting the objective of general interest referred to in paragraph 115 above, in that they contribute to its attainment.

128As regards the necessity of the limitations referred to in paragraph 123 above, it should be noted that the applicant has failed to demonstrate that the Council was entitled to consider adopting measures which were less restrictive but just as appropriate as those provided for. Furthermore, the application of the restrictive measures at issue is subject to the exemption mechanism referred to in Article 1(6) of Decision 2014/145, as amended, which authorises the Member States to grant exemptions from the measures imposed, inter alia, where a person’s travel is justified on grounds of urgent humanitarian need.

129Moreover, while recognising the negative consequences for the applicant, as described by her, which result from the application of the restrictive measures at issue, it must be held that, in the light of the importance of the objectives pursued by those measures, the limitations referred to in paragraph 123 above are not manifestly disproportionate (see, to that effect and by analogy, judgment of 14 October 2009, Bank Melli Iran v Council, T‑390/08, EU:T:2009:401, paragraph 71).

130Furthermore, the applicant has not put forward any specific evidence to substantiate the alleged seriousness of the negative consequences flowing from the application of the restrictive measures at issue. In so far as she refers to the impossibility of going to the family residence in Switzerland, that factor is not relevant in the context of the analysis of her argument alleging infringement of her right to move freely within the territory of the Member States.

131It follows that the limitations referred to in paragraph 123 above comply with the conditions set out in Article 52(1) of the Charter.

132As regards the applicant’s argument that the application by analogy of the judgment of 19 October 2004, Zhu and Chen (C‑200/02, EU:C:2004:639, paragraph 46), confers on her, under Article 21 TFEU, the derived right to reside in a Member State, where that is necessary in order to ensure enjoyment of the right of residence of her young children, who are Union citizens, it should be noted that the considerations drawn from that judgment cannot be transposed to the present case, given that the applicant, as a Union citizen, has the autonomous right to move and reside freely within the territory of the Member States. Such a right is not absolute and it is apparent from the foregoing considerations that the limitation of the applicant’s right to move freely within the territory of the Member States is considered to be justified.

133Furthermore, in so far as the applicant refers to the derived right of her husband, a third-country national, to move and reside within the territory of the Member States, that argument must also be rejected as ineffective since it is not capable to demonstrate infringement of the applicant’s right to move freely within the territory of the Member States.

134As regards the applicant’s reference to the right of her minor children to move and reside freely within the territory of the Member States, it must be borne in mind that Article 24(2) of the Charter provides that, in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

135In the present case, it should be noted, first, that the applicant stated, in her written pleadings and at the hearing, that she was not claiming infringement of her children’s autonomous right to move and reside freely within the territory of the Member States. Second, in so far as the applicant refers to the situation of her children in order to demonstrate the allegedly disproportionate nature of the limitation on her own right to move freely within the territory of the Member States, it should be noted that that argument is not substantiated. The applicant merely claims that the restrictive measures imposed on her would oblige her children to leave the territory of the Member States. Furthermore, when questioned on that point at the hearing, she merely stated in general terms that the members of her family are prevented from living together at their homes in the European Union and in Switzerland, and referred to the disruption to her children’s relationship with their grandparents living in Europe and to their education being put on hold. It should be noted that the restrictive measures at issue, first, do not cover the applicant’s children and, second, do not restrict the applicant’s right to enter and reside freely in the territory of the Member State of the European Union of which she is a national. Therefore, the applicant is wrong to claim that, as a result of those measures, her children are forced into leaving that territory. Moreover, it should be recalled that Article 1(6) of Decision 2014/145, as amended, authorises Member States to grant exemptions from the measures at issue, inter alia, where a person’s travel is justified on the grounds of urgent humanitarian need, and that provision is to be interpreted and applied, in the light of Article 24(2) of the Charter, taking into account the best interests of the child.

136In the light of all of the foregoing, the third plea in law must be rejected and, consequently, the action must be dismissed in its entirety.

Costs

137Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the Council.…

Operative part

On those grounds,THE GENERAL COURT (First Chamber, Extended Composition)hereby:

1.Dismisses the action;

2.Orders Ms Aleksandra Melnichenko to pay the costs;

3.Orders EuroChem Group AG, Siberian Coal Energy Company AO (SUEK) and the Kingdom of Belgium to bear their own costs.

Delivered in open court in Luxembourg on 26 February 2025.