Melnichenko v Council (Common foreign and security policy - Restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine - Judgment) [2025] EUECJ T-498/22 (26 February 2025)
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Melnichenko v Council (Common foreign and security policy - Restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine - Judgment) [2025] EUECJ T-498/22 (26 February 2025)
URL: http://www.bailii.org/eu/cases/EUECJ/2025/T49822.html Cite as:
EU:T:2025:180,
[2025] EUECJ T-498/22,
ECLI:EU:T:2025:180
( 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,
applicant,
supported by
EuroChem Group AG, established in Zug (Switzerland),
and by
Siberian Coal Energy Company AO (SUEK), established in Moscow (Russia),
represented by N. Montag, L. Engelen and S. Bonifassi, lawyers,
interveners,
v
Council of the European Union, represented by B. Driessen and J. Rurarz, acting as Agents, and by B. Maingain and S. Remy, lawyers,
defendant,
supported by
Kingdom of Belgium, represented by C. Pochet, M. Van Regemorter and L. Van den Broeck, acting as Agents,
intervener,
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
Judgment
1 By 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’).
Background to the dispute
2 The present case arises in the context of the restrictive measures adopted by the European Union in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine.
3 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).
4 On the same day, the Council 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, in view of the gravity of the situation in Ukraine, the Council adopted, first, Decision (CFSP) 2022/329 amending Decision 2014/145 (OJ 2022 L 50, p. 1) and, second, Regulation (EU) 2022/330 amending Regulation No 269/2014 (OJ 2022 L 51, p. 1), in order, inter alia, to amend the criteria according to which natural or legal persons, entities or bodies could be subject to the restrictive measures at issue.
6 Article 2(1) and (2) of Decision 2014/145, as amended by Decision 2022/329 (‘Decision 2014/145, as amended’), is worded as follows:
‘1. All funds and economic resources belonging to, or owned, held or controlled by:
(a) natural persons responsible for, supporting or implementing actions or policies which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine, or stability or security in Ukraine, or which obstruct the work of international organisations in Ukraine;
…
(g) leading businesspersons or 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,
and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.
2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in the Annex.’
7 The detailed rules governing that freezing of funds are laid down in paragraph 3 et seq. of Article 2 of Decision 2014/145, as amended.
8 Article 1(1) of Decision 2014/145, as amended, prohibits the entry into or transit through the territories of the Member States by natural persons who meet criteria which are essentially the same as those set out in Article 2(1) of that decision.
9 Regulation No 269/2014, as amended by Regulation 2022/330 (‘Regulation No 269/2014, as amended’), requires the adoption of measures to freeze funds and lays down the detailed rules governing that freezing in terms essentially identical to those of Decision 2014/145, as amended.
10 In that context, on 3 June 2022, the Council adopted the initial acts.
11 By those initial acts, the applicant’s name was added to the lists at issue on the following grounds:
‘[The applicant] is the wife of Andrey Igorevich Melnichenko, a Russian industrialist who owns the major fertiliser producer [EuroChem Group AG] and the coal company [Siberian Coal Energy Company AO (SUEK)]. [She] takes good advantage of the fortune and benefits from the wealth of her husband. Together with him, she owns two penthouses with a value of more than 30 million dollars. In March 2022, [the applicant] replaced her husband as the beneficial owner of Firstline Trust, managed by Linetrust PTC Ltd, a company which represents the ultimate owner of EuroChem Group.
Therefore, she is associated with a leading businessperson 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. Furthermore, Andrey Igorevich Melnichenko is supporting or implementing actions or policies which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine, as well as stability and security in Ukraine.’
12 The Council also sent the applicant file WK 6580/2022 INIT (‘the first WK file’).
13 By email of 17 June 2022, the applicant submitted a request for reconsideration of the initial acts to the Council.
14 On 12 August 2022, by application lodged at the Registry of the General Court, the applicant brought the present action.
15 On 14 September 2022, the Council adopted the September 2022 acts extending the application of the measures adopted against the applicant until 15 March 2023. Those acts maintained the applicant’s name on the lists at issue on grounds identical to those contained in the initial acts reproduced in paragraph 11 above.
16 By letter of 15 September 2022, the Council rejected the applicant’s request for reconsideration submitted on 17 June 2022.
17 By letter of 1 November 2022, the applicant requested that the Council reconsider her situation as regards the maintenance of the restrictive measures concerning her.
18 On the basis of Article 86(1) of the Rules of Procedure of the General Court, by document lodged at the Court Registry on 24 November 2022, the applicant modified the form of order sought in her action so that that action cover also the September 2022 acts.
19 On 22 December 2022, the Council informed the applicant of its intention to maintain her name on the lists at issue and sent a new file, namely file WK 17634/2022 INIT (‘the second WK file’).
20 On 12 January 2023, the applicant submitted her observations on the renewal of the restrictive measures against her.
21 On 13 March 2023, the Council adopted the March 2023 acts. Those acts maintained the applicant’s name on the lists at issue on the following grounds:
‘[The applicant] is the wife of Andrey Igorevich Melnichenko, a Russian industrialist who transferred the ownership of the major fertiliser producer EuroChem Group and the coal company SUEK to her on 9 March 2022. [The applicant] is now the beneficial owner of these companies. [The applicant] takes good advantage of the fortune and benefits from the wealth of her husband. Together with him, she owns two penthouses with a value of more than USD 30 million. In March 2022, [the applicant] replaced her husband as the beneficial owner of Firstline Trust, managed by Linetrust PTC Ltd, a company which represents the ultimate owner of EuroChem Group.
Therefore, she is associated with a leading businessperson 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. Furthermore, Andrey Igorevich Melnichenko is supporting or implementing actions or policies which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine, as well as stability and security in Ukraine.’
22 By letter of 14 March 2023, the Council replied to the applicant’s observations of 19 December 2022 and 12 January 2023, stating that those observations did not cast doubt on its assessment justifying the maintenance of the applicant’s name on the lists at issue.
23 On 13 April 2023, the Council adopted the April 2023 acts. Those acts amended the grounds for maintaining the applicant’s name on the lists at issue as follows:
‘[The applicant] is the wife of Andrey Igorevich Melnichenko, a Russian industrialist who transferred his effective ownership and benefit of the major fertiliser producer EuroChem Group and the coal company SUEK to her on 9 March 2022.
[The applicant] takes advantage of the fortune and benefits from the wealth of her husband. In March 2022, [the applicant] replaced her husband as the beneficial owner of Firstline Trust, managed by Linetrust PTC Ltd, a company which represents the ultimate owner of EuroChem Group.
Therefore, she is associated with a leading businessperson 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.’
24 By email of 17 April 2023, the applicant requested access to the documents on which the Council had based the March 2023 acts.
25 By email of 25 April 2023, the Council replied that it did not have in its possession any documents other than the second WK file sent to the applicant on 22 December 2022.
26 On the basis of Article 86(1) of the Rules of Procedure, by document lodged at the Court Registry on 23 May 2023, the applicant modified the form of order sought in her action in order for it to cover the March 2023 and April 2023 acts also.
Forms of order sought
27 The 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.
28 The Council, supported by the Kingdom of Belgium, contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
29 In 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.
30 The Court considers it appropriate to analyse, first, the second and fifth pleas, since they relate to the formal legality of the contested acts, next, the fourth plea, alleging illegality of the association criterion and, last, the first and third pleas.
The second plea in law, alleging infringement of the obligation to state reasons
31 By the complaint alleging ‘inconsistency and contradictions in the Listing Grounds’, the applicant claims, in essence, that the statements of reasons for the contested acts is defective. She claims that, in view of that inconsistency and those contradictions, the Council infringed its obligation to state reasons. Furthermore, she claims that the Council failed to identify the individual, specific and concrete reasons justifying the restrictive measures imposed on her. Last, the amendments to the statement of reasons in the March 2023 and April 2023 acts amount to an acknowledgement of the errors made in the initial acts.
32 The Council disputes the applicant’s arguments.
33 According to settled case-law, the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the act so as to enable the persons concerned to ascertain the reasons for the measures taken for the purpose of assessing whether it is well founded and to enable the court having jurisdiction to exercise its power of review (judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 50; see, also, judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 47 and the case-law cited).
34 The statement of reasons required by Article 296 TFEU must, however, be appropriate to the act at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of that act, the nature of the reasons given and the interest which the addressees of the act, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. In particular, it is not necessary for the reasoning to go into all the relevant facts and points of law or to provide a detailed answer to the considerations set out by the person concerned when consulted prior to the adoption of that same act, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. Consequently, the reasons given for an act adversely affecting a person are sufficient if that act was adopted in a context which was known to that person and which enables him or her to understand the scope of the measure concerning him or her (judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 53; see also judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 48 and the case-law cited).
35 Thus, the degree of precision of the statement of the reasons for an act must be weighed against practical realities and the time and technical facilities available for taking the measure (see judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 104 and the case-law cited).
36 In addition, it has been made clear in the case-law that the statement of reasons for an act of the Council which imposed a restrictive measure had not only to identify the legal basis for that measure but also the actual and specific reasons why the Council considered, in the exercise of its discretion, that such a measure had to be adopted in respect of the person concerned (see judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 105 and the case-law cited).
37 The question of the statement of reasons, which concerns an essential procedural requirement, is separate from that of the evidence of the alleged conduct, which concerns the substantive legality of the act in question and involves assessing the truth of the facts set out in that act and the characterisation of those facts as evidence justifying the use of restrictive measures against the person concerned (see judgment of 6 October 2015, Chyzh and Others v Council, T‑276/12, not published, EU:T:2015:748, paragraph 111 and the case-law cited).
38 In the present case, in the first place, it should be noted that the general context which led the Council to adopt the contested acts is set out in the respective recitals of those acts. Similarly, the legal basis of those acts is clearly set out in Article 29 TEU and Article 215 TFEU.
39 In the second place, contrary to what the applicant claims, it must be held that the specific and concrete reasons which led the Council to include and maintain the applicant’s name on the lists at issue are set out sufficiently clearly in the grounds for the contested acts reproduced in paragraphs 11, 21 and 23 above. Moreover, it is apparent from the arguments put forward by the applicant in her written pleadings that she understood the reasons which justified the adoption of the measures taken against her.
40 In the third place, the statements of reasons for the contested acts are not identical merely as a result of the passage of time and the periodic review of the restrictive measures; the statement of reasons specific to each of those acts enables the applicant to ascertain the reasons for the measures taken at the time of their adoption in order to assess whether they are well founded.
41 It follows that the statements of reasons for the contested acts are comprehensible and sufficiently precise to enable the applicant to ascertain the reasons which led the Council to consider that the inclusion and maintenance of her name on the lists at issue were justified, and to challenge the legality thereof before the Courts of the European Union, and to enable those Courts to exercise their power of review.
42 Consequently, the second plea in law must be rejected.
The fifth plea in law, alleging infringement of the rights of the defence and of the right to be heard
43 The applicant complains, in essence, that the Council failed to warn it beforehand of the restrictive measures which it intended to adopt against her.
44 The Council disputes the applicant’s arguments.
45 The right to be heard in all proceedings, laid down in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’), which is inherent in respect for the rights of the defence, guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before any decision liable to affect his or her interests adversely is taken (see, to that effect, judgments of 11 December 2014, Boudjlida, C‑249/13, EU:C:2014:2431, paragraphs 34 and 36, and of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraphs 65 and 67 and the case-law cited).
46 Article 52(1) of the Charter nevertheless allows limitations on the exercise of the rights enshrined in the Charter, provided that the limitation concerned is provided for by law, respects the essence of the fundamental right in question and, subject to the principle of proportionality, that it is necessary and genuinely meets objectives of general interest recognised by the European Union (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 101 and the case-law cited).
47 In that regard, the Court of Justice has held on a number of occasions that the rights of the defence may be subject to limitations or derogations, including in the sphere of the restrictive measures adopted in the context of the common foreign and security policy (CFSP) (see, to that effect, judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 67 and the case-law cited).
48 Further, the question whether there is an infringement of the rights of the defence must be examined by reference to the specific circumstances of each particular case, including the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question (see 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 102 and the case-law cited).
49 It should also be borne in mind that, as regards restrictive measures, the Courts of the European Union distinguish between, on the one hand, the initial inclusion of a person’s name on the lists in question and, on the other, the maintenance of that person’s name on those lists (see, to that effect, judgment of 30 April 2015, Al-Chihabi v Council, T‑593/11, EU:T:2015:249, paragraph 40).
50 With regard to the initial entry of a person’s name on a list of persons covered by restrictive measures, the EU authorities cannot be required to communicate the grounds of those measures before the name of a person or entity is placed on such a list for the first time (see, to that effect, judgment of 21 January 2015, Makhlouf v Council, T‑509/11, not published, EU:T:2015:33, paragraph 34 and the case-law cited).
51 So that its effectiveness may not be jeopardised, such a measure must, by its very nature, be able to take advantage of a surprise effect and to apply immediately. In such a case, it is, as a rule, enough if the institution notifies the person or entity concerned of the grounds and affords it the right to be heard at the same time as, or immediately after, the decision is adopted (judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 61).
52 In the present case, in the light of the case-law referred to in paragraphs 46 to 51 above, it must be held that the fact that the applicant was not heard prior to the initial inclusion of her name on the lists at issue constitutes a justified limitation of her rights of defence. In addition, following the adoption of the initial acts, the Council sent the first WK file to the applicant, who was therefore able to submit her observations.
53 Accordingly, the fifth plea in law must be rejected.
The fourth plea in law, alleging illegality of the association criterion
54 The applicant claims that the concepts of ‘association’ or ‘community of interests’ are not defined in Decision 2014/145, as amended, or in Regulation No 269/2014, as amended, and that the Council has not provided any objective criterion to serve as guidance for the application of the association criterion or to define its scope. Such a criterion does not satisfy the requirements of clarity, precision and foreseeability required by law and gives the Council a wholly arbitrary discretion. The failure to define a general listing criterion is in itself contrary to the principle of legal certainty. The lack of foreseeability leaves open the possibility that all persons linked to ‘Russian billionaires’ may be sanctioned. According to the applicant, the lack of a clear definition of the terms used also limits the capacity of the listed person to defend him- or herself properly.
55 The Council disputes the applicant’s arguments.
56 Under Article 277 TFEU, any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the European Union is at issue, plead the grounds specified in the second paragraph of Article 263 TFEU in order to invoke before the Courts of the European Union the inapplicability of that act.
57 Article 277 TFEU gives expression to a general principle conferring upon any party to proceedings the right to challenge incidentally, with a view to obtaining the annulment of a decision addressed to that party, the validity of acts of general application which form the legal basis of that decision, if that party was not entitled under Article 263 TFEU to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that it be declared void. The general measure claimed to be illegal must be applicable, directly or indirectly, to the issue with which the action is concerned and there must be a direct legal connection between the contested individual decision and the general measure in question (see judgment of 17 February 2017, Islamic Republic of Iran Shipping Lines and Others v Council, T‑14/14 and T‑87/14, EU:T:2017:102, paragraph 55 and the case-law cited).
58 With regard to the extent of the judicial review, according to settled case-law, the Courts of the European Union must, in accordance with the powers conferred on them by the FEU Treaty, ensure the review, in principle the full review, of the lawfulness of all EU acts in the light of the fundamental rights forming an integral part of the EU legal order. That obligation is expressly laid down by the second paragraph of Article 275 TFEU (see judgments of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 58 and the case-law cited, and of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 65 and the case-law cited).
59 The fact remains that the Council enjoys a broad discretion as regards the general and abstract definition of the legal criteria and procedures for adopting restrictive measures (see, to that effect, judgment of 21 April 2015, Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 41 and the case-law cited). Consequently, rules of general application defining those criteria and procedures, such as the provisions of the contested acts laying down the relevant criteria referred to in the present plea, are subject to a limited judicial review, restricted to checking that the rules governing procedure and the statement of reasons have been complied with, that the facts are materially accurate, that there has been no error in law and that there has been no manifest error of assessment of the facts or misuse of power (see, to that effect, judgment of 9 July 2009, Melli Bank v Council, T‑246/08 and T‑332/08, EU:T:2009:266, paragraphs 44 and 45).
60 Furthermore, the principle of legal certainty requires that EU legislation be clear and precise and its application foreseeable for those subject to it (see judgments of 5 March 2015, Europäisch-Iranische Handelsbank v Council, C‑585/13 P, EU:C:2015:145, paragraph 93 and the case-law cited, and of 17 February 2017, Islamic Republic of Iran Shipping Lines and Others v Council, T‑14/14 and T‑87/14, EU:T:2017:102, paragraph 192 and the case-law cited).
61 In the present case, the applicant submits, in essence, that the association criterion does not satisfy the requirement of foreseeability and clarity.
62 In that regard, it should be pointed out that, while the association criterion is often used in the acts of the Council, 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, Tomana and Others v Council and Commission, C‑330/15 P, not published, EU:C:2016:601, paragraph 48; of 4 September 2015, NIOC and Others v Council, T‑577/12, not published, EU:T:2015:596, paragraph 114; and of 21 July 2016, Bredenkamp and Others v Council and Commission, T‑66/14, EU:T:2016:430, paragraphs 35 to 37). However, it may be accepted that that criterion concerns persons who are generally bound by common interests (judgment of 8 March 2023, Prigozhina v Council, T‑212/22, not published, EU:T:2023:104, paragraph 93). The concept of ‘association’ provided for in the relevant provisions of Decision 2014/145, as amended, and Regulation No 269/2014, as amended, may therefore be interpreted as covering any natural or legal person or any entity with a link which goes beyond a family relationship with a person or entity subject to restrictive measures (see, to that effect, judgment of 6 September 2023, Pumpyanskiy v Council, T‑291/22, not published, EU:T:2023:499, paragraph 74).
63 Thus, the association criterion does not require the person whose name is included or maintained on the lists of persons, entities and bodies subject to the restrictive measures on the basis of that criterion to have a link with the situation which justified the inclusion or maintenance of the name of the person with which he or she is considered to be associated or with the situation in Ukraine.
64 The possibility of imposing restrictive measures on a person associated with a person whose name has been included or maintained on the lists of persons subject to restrictive measures on the basis of one of the criteria laid down in Article 2(1)(a) to (h) of Decision 2014/145, as amended, and in Article 3(1)(a) to (h) of Regulation No 269/2014, as amended, is justified by the not insignificant risk that a person subject to restrictive measures may exploit his or her link with persons associated with him or her to exert pressure on them in order to circumvent the effect of the measures applying to him or her (see, to that effect, judgment of 8 March 2023, Prigozhina v Council, T‑212/22, not published, EU:T:2023:104, paragraph 103 and the case-law cited).
65 Thus, as regards the association criterion, laid down in the relevant provisions of Decision 2014/145, as amended, and Regulation No 269/2014, as amended, its wording refers in a sufficiently clear and precise manner to any natural or legal person, or any entity having a link, as defined in paragraphs 62 to 64 above, with a person subject to restrictive measures under one of the listing criteria laid down in Article 2(1)(a) to (h) of Decision 2014/145, as amended, and in Article 3(1)(a) to (h) of Regulation No 269/2014, as amended.
66 Moreover, the association criterion is part of a legal framework that is clearly circumscribed by the objectives pursued by the legislation governing the restrictive measures at issue, namely the need, in view of the gravity of the situation, to exert maximum pressure on the Russian authorities so that they bring an end to their actions and policies destabilising Ukraine.
67 In addition, the discretion conferred on the Council by the criteria at issue is offset by an obligation to state reasons and strengthened procedural rights (see judgment of 16 July 2014, National Iranian Oil Company v Council, T‑578/12, not published, EU:T:2014:678, paragraph 122 and the case-law cited).
68 It follows that the association criterion attains the level of foreseeability required by EU law.
69 Furthermore, the applicant cannot claim that the Council is required to establish specifically a risk of circumvention of the restrictive measures in order to justify reliance on the association criterion. That criterion is indeed in itself based on the finding that there is a not insignificant risk of circumvention of the restrictive measures (see, to that effect, judgment of 22 September 2016, NIOC and Others v Council, C‑595/15 P, not published, EU:C:2016:721, paragraphs 89 and 90). It makes it possible to guarantee the efficiency and the effectiveness of the restrictive measures taken against the persons included on the lists in question by preventing those persons from circumventing the measures adopted against them. Therefore, that criterion contributes to the attainment of the objectives laid down in Article 21(2)(c) TEU, such as the preservation of peace, the prevention of conflicts and the strengthening of international security, in accordance with the purposes and principles of the Charter of the United Nations.
70 The fourth plea in law must therefore be rejected.
First plea in law, alleging a ‘manifest error of assessment’
Preliminary observations
71 First of all, it should be noted that the present plea must be regarded as alleging an error of assessment. While it is true that the Council has a degree of discretion to determine, on a case-by-case basis, whether the legal criteria on which the restrictive measures at issue are based are met, the Courts of the European Union must ensure the review, in principle the full review, of the lawfulness of all EU acts (see judgment of 15 November 2023, OT v Council, T‑193/22, EU:T:2023:716, paragraph 121 and the case-law cited).
72 Next, it should be recalled that the effectiveness of the judicial review guaranteed by Article 47 of the Charter requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to include or to maintain a person’s name on a list of persons subject to restrictive measures, the Courts of the European Union are to ensure that that decision, which affects that person 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, are substantiated (judgment of 30 March 2022, Yanukovych v Council, T‑292/20, not published, EU:T:2022:188, paragraph 74).
73 It 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 (see judgment of 15 November 2023, OT v Council, T‑193/22, EU:T:2023:716, paragraph 123 and the case-law cited).
74 Such an assessment must be carried out by examining the evidence and information not in isolation but in its context. The Council discharges the burden of proof borne by it if it presents to the Courts of the European Union a sufficiently concrete, precise and consistent body of evidence to establish that there is a sufficient link between the person or entity subject to a measure freezing his, her or its funds and the regime or, in general, the situations, being combated (see judgment of 15 November 2023, OT v Council, T‑193/22, EU:T:2023:716, paragraph 124 and the case-law cited).
75 Last, it should be borne in mind that restrictive measures are measures of a precautionary and, by definition, provisional nature, the validity of which 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 for the Council, in the course of its periodic review of those restrictive 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 attain the objectives pursued by the initial inclusion of the names of the persons and entities concerned on the list in question or whether the same conclusion in respect of those persons and entities can still be drawn (see judgment of 27 April 2022, Ilunga Luyoyo v Council, T‑108/21, EU:T:2022:253, paragraph 55 and the case-law cited; judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 67).
76 In order to justify maintaining a person’s name on the list in question, the Council is not prohibited from basing its decision on the same evidence justifying the initial inclusion, re-inclusion or previous maintenance of the name of the person concerned on that list, 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). That context includes not only the situation in the country in respect of which the system of restrictive measures has been established, but also the specific situation of the person concerned (see judgment of 9 June 2021, Borborudi v Council, T‑580/19, EU:T:2021:330, paragraph 60 (not published) and the case-law cited; judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 78). Similarly, maintenance on the list in question is justified in the light of all the relevant circumstances and, in particular, of the fact that the objectives pursued by the restrictive measures have not been achieved (see, to that effect, judgments of 12 February 2020, Amisi Kumba v Council, T‑163/18, EU:T:2020:57, paragraphs 83 and 84; of 27 April 2022, Boshab v Council, T‑103/21, not published, EU:T:2022:248, paragraph 121; and of 27 April 2022, Ilunga Luyoyo v Council, T‑108/21, EU:T:2022:253, paragraph 56).
77 It is in the light of those considerations that it must be ascertained whether the Council made an error of assessment in deciding to include and then maintain the applicant’s name on the lists at issue.
The evidence produced by the Council
78 As is apparent from the contested acts, the inclusion of the applicant’s name on the lists at issue, maintained successively by the September 2022 acts, the March 2023 acts and the April 2023 acts, is based on her status as an associate of her husband, Mr Melnichenko, inter alia, on the ground that he transferred to her the ownership and benefit of EuroChem Group and SUEK, a ground which the General Court considers it appropriate to examine first. In order to substantiate that ground, which is disputed by the applicant, the Council refers to the first WK file, which contains 11 items of evidence. It should be noted that those constitute, with the exception of Exhibit 11, publicly available information, namely:
– articles drawn from the websites of (i) Celeb Family, accessed in March 2022 (Exhibit 1), (ii) WIKI, accessed in February 2022 (Exhibit 2), (iii) Forbes, published on 5 March 2022 and 5 November 2019 (Exhibits 3 and 4), (iv) Rusbase, published on 5 November 2019 (Exhibit 5), (v) Kommersant, published on 24 February 2022 (Exhibit 9), and (vi) RBC, published on 12 January 2022 (Exhibit 10);
– an extract dated February 2022 taken from the Twitter account of a journalist (Exhibit 6);
– extracts from a website of SUEK (Exhibit 7) and from a website of EuroChem Group, both accessed in February 2022 (Exhibit 8);
– a letter from a law firm of 27 April 2022 (unnumbered item, ‘Exhibit 11’).
79 Moreover, as regards specifically the March 2023 and April 2023 acts, the Council also relied on the additional evidence in the second WK file, namely:
– articles published on the websites of Svoboda on 22 May 2022 (Exhibit 1) and of The Brussels Times on 14 June 2022 (Exhibit 2);
– screenshots from the specialised websites of Cbonds (Exhibits 3 and 5), of GlobeNewswire (Exhibit 4), of Tadviser (Exhibits 6 and 7), of Rusprofile (Exhibits 8 and 11) and of ‘Audit-it.ru’ (Exhibits 9 and 10).
The reliability of the evidence
80 The applicant calls into question the reliability of the evidence on which the Council based its decision. She claims, in essence, that that evidence is an ‘insubstantial compilation’ of very low quality publications drawn from social media and unreliable press articles, sometimes containing wrong information and which relate very little to her, if at all. In addition, press articles must be supported by other evidence.
81 The Council disputes the applicant’s arguments.
82 It should be noted that, in accordance with settled case-law, the activity of the Courts of the European Union is governed by the principle of the unfettered assessment of the evidence, and it is only the reliability of the evidence before the General Court which is decisive when it comes to the assessment of its value. In that connection, in order to assess the probative value of a document, regard should be had to the credibility of the account it contains 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, Kaddour v Council, T‑461/16, EU:T:2018:316, paragraph 107 and the case-law cited, and of 12 February 2020, Amisi Kumba v Council, T‑163/18, EU:T:2020:57, paragraph 95 (not published) and the case-law cited).
83 In 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, Kim and Others v Council and Commission, T‑533/15 and T‑264/16, EU:T:2018:138, paragraph 107, and of 1 June 2022, Prigozhin v Council, T‑723/20, not published, EU:T:2022:317, paragraph 59).
84 Furthermore, it must be observed 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 from being provided (judgment of 15 November 2023, OT v Council, T 193/22, EU:T:2023:716, paragraph 116).
85 In the present case, first, it is apparent from paragraph 74 above that the assessment of whether the grounds for inclusion and maintenance on the lists at issue are well founded must be carried out by examining the evidence and information not in isolation but in their context. Therefore, the applicant’s challenge relating to the relevance of certain items of evidence, taken individually, in particular that of Exhibits 3 to 11 of the first WK file and Exhibits 9 to 11 of the second WK file must be rejected. Moreover, it must be noted that, with the exception of the information contained in Exhibit 3 of the first WK file according to which she owns, ‘together with [her husband]’, two penthouses in New York (United States), the applicant does not dispute the content of the documents in the first WK file, nor of those in the second WK file.
86 Second, as is apparent from paragraph 82 above, the activity of the Court of Justice and of the General Court is governed by the principle of the unfettered assessment of the evidence. Contrary to what the applicant claims, the Council did not rely on an ‘insubstantial compilation’ of press articles and websites of poor quality. It should be noted that the press articles come from sources of information of various origins, namely the websites of Svoboda, Kommersant, RBC, The Brussels Times, Rusbase, GlobeNewswire and Forbes. In addition, the Council produces screenshots from EuroChem Group’s website and SUEK’s website (Exhibits 7 and 8 of the first WK file, respectively) and from the website of Cbonds, a world-renowned data platform (Exhibits 3 and 5 of the second WK file), and of Tadviser (Exhibits 6 and 7 of the second WK file). The applicant’s argument must therefore be rejected.
87 Thus, in the light of the foregoing, it must be held that the applicant has not demonstrated that the evidence at issue was unreliable.
The application of the association criterion to the applicant
88 The applicant, supported by EuroChem Group and SUEK, disputes the merits of the inclusion and maintenance of her name on the lists at issue – which relate to the association criterion – on the ground that she cannot be regarded as ‘associated’ with her husband.
89 In essence, first, the applicant claims that, since she is not involved in her husband’s business activities, she is unable to take position on whether he is a leading businessperson within the meaning of the criterion referred to in Article 2(1)(g) of Decision 2014/145, as amended. However, as she is convinced that the Council made an error of assessment by including her husband’s name on the lists at issue, she annexes to her application initiating proceedings the application submitted by her husband in Case T‑271/22 and states that she contests all the claims made against her husband and echoes the arguments contained in his application. Second, she submits that she cannot be regarded as being ‘associated’ with him, on the ground that there is no evidence of a commonality of interests between her and her husband and that a family tie alone is not sufficient. Third, she observes that neither her husband nor herself are owners or beneficial owners of the assets held by Firstline Trust. In addition, she states that she did not take any active steps to become a beneficiary thereof. Furthermore, she underlines that the fact that she became the beneficiary of Firstline Trust does not constitute a risk of circumvention of a restrictive measure imposed on her husband. In any event, the beneficiary of a trust does not enjoy any right to property. Fourth, the applicant states that she is not involved in any action or any policy relating to Ukraine and does not have ties to the Russian Government, which is required in order to apply the association criterion.
90 The Council disputes the applicant’s arguments.
91 As a preliminary point, it should be noted that, while the applicant disputes the measures to which her husband is subject, she does not, however, develop any argument in her application to substantiate her claims. She merely annexed to her application the application initiating proceedings lodged by her husband in Case T‑271/22, in which he seeks annulment of the measures concerning him. It must be borne in mind that the review carried out by the General Court in the present case can relate only to whether the inclusion and maintenance of the applicant’s name on the lists at issue is well founded and cannot therefore call into question the legality of the decisions by which the Council included her husband’s name on those lists (see, to that effect, judgments of 11 May 2017, Barqawi v Council, T‑303/15, not published, EU:T:2017:328, paragraph 42, and of 18 May 2022, Foz v Council, T‑296/20, EU:T:2022:298, paragraph 115).
92 In the present case, as regards the links between the applicant and Mr Melnichenko, the grounds for listing refer, first, to the fact that the applicant is his wife and, second, to the fact that she takes advantage of the fortune of her husband and benefits from his wealth, having regard in particular to her status as a beneficiary of Firstline Trust, which indirectly manages the assets of EuroChem Group.
93 As regards the general context linked to the situation in Ukraine, it must be stated that, between the date of adoption of the initial acts and that of the September 2022, March 2023 and April 2023 acts, the gravity of the situation in Ukraine persisted. Thus, in the present case, there is no need to make a distinction between those acts, since the verification of the information put forward in that part of the statement of reasons and in the evidence, which is contained in the first WK file and in the second WK file, relates, in essence, to the same factual circumstances.
94 As regards family ties, the applicant does not dispute that she is married to Mr Melnichenko.
95 So far as concerns an economic link, it should be noted that, as is apparent from the first WK file (Exhibit 11), that is to say, a letter sent by a law firm to a national authority of a Member State of the European Union, the applicant is the beneficiary of the trust set up in order to protect her husband’s fortune, namely Firstline Trust, which manages, through two companies established in Cyprus, the assets of EuroChem Group and SUEK, which were both set up by her husband. Following her husband’s relinquishment of his status as first beneficiary of that trust, the applicant became the beneficiary and the protector of Firstline Trust on 8 March 2022, that is to say, the day before her name was included on the lists at issue. In addition, as the applicant observes, on 7 May 2022, Firstline Trust’s trustee distributed to her a not insignificant shareholding in a company which holds a portfolio of majority shareholdings in EuroChem Group and SUEK. It follows that, as the Council maintains, in addition to being a beneficiary of the trust at issue, the applicant indirectly holds a significant shareholding in EuroChem Group and SUEK.
96 In the light of those circumstances, which are not called into question by the applicant, the Council was entitled to find, without making an error of assessment, first, that the applicant took advantage of Mr Melnichenko’s fortune and benefited from his wealth and, second, that the persons concerned, in addition to the family ties which bind them, were linked by common economic interests; those considerations justify the application of the association criterion in the present case.
97 It should be noted that, as beneficiary of the trust at issue, the applicant participated in a scheme designed to prevent the assets transferred by Mr Melnichenko to that trust from being frozen as a result of the application of the restrictive measures adopted against him (see, to that effect, judgment of 8 May 2024, Ismailova v Council, T‑234/22, not published, under appeal, EU:T:2024:287, paragraph 146). Accordingly, the Council was entitled to find, without making an error of assessment, the existence of common interests between the applicant and her husband.
98 That conclusion cannot be called into question by the other arguments put forward by the applicant.
99 In the first place, the applicant claims that the transfer of the status of beneficiary of Firstline Trust cannot be regarded as a commercial transaction, since neither she nor her husband were the owners of the assets held in Firstline Trust at the time their names were included on the lists at issue. In her view, the legal opinions produced support the conclusion that the beneficiary of a trust does not enjoy the right of ownership or control of the assets held by the trust. She infers therefrom that the present case must be distinguished from the situation at issue in the case which gave rise to the judgment of 8 May 2024, Ismailova v Council (T‑234/22, not published, under appeal, EU:T:2024:287), in which the applicant and the person with whom she was associated could use the trust assets at the same time.
100 In that regard, it should be noted that the use of trusts and intermediate companies for the management of assets does not have the effect of distancing the common interest linking persons and covering those assets (see, by analogy, judgment of 8 May 2024, Ismailova v Council, T‑234/22, not published, under appeal, EU:T:2024:287, paragraph 151). In the present case, the fact that the shares in EuroChem Group and SUEK are indirectly managed by the trust which was set up in order to protect Mr Melnichenko’s fortune and in relation to which the applicant obtained the status of beneficiary, following Mr Melnichenko’s renunciation of that status, is sufficient to establish the existence of common interests for the purposes of the association criterion.
101 The applicant’s arguments based on the fact that the beneficiary of a trust does not have the right of ownership or control over the assets held by the trust, and on the fact that she and her husband could not use Firstline Trust assets at the same time, are not such as to call into question the existence of common interests for the purposes of the association criterion, which are demonstrated, to the requisite legal standard, by the applicant’s status as a beneficiary of the trust set up in order to protect her husband’s fortune, and also borne out by the fact that the trustee of Firstline Trust transferred to the applicant a not insignificant shareholding in a company managed by that trust. The evidence produced by the applicant shows at most that the fiduciary ownership of the assets is formally transferred to the trust administrator, which does not alter the fact that the applicant is a beneficiary of the trust set up in order to protect her husband’s fortune, which shows that, economically, she is linked to the latter by common interests. That link is borne out by the fact that on 7 May 2022 a transfer of the assets managed by the trust was made in favour of the applicant and thus she indirectly holds a significant shareholding in EuroChem Group and SUEK.
102 In the second place, as regards the applicant’s argument that the association criterion fails to have regard to the requirement that a sufficient link must be established between the person subject to a measure freezing his or her funds and the regime or, in general, the situations being combated, it must be borne in mind that, as is apparent from paragraph 63 above, that criterion does not require the person covered by that criterion to have a link with the reasons justifying the inclusion on the lists in question of the person’s name with which it is considered to be associated or, more generally, with the situation in Ukraine. Furthermore, as is apparent from paragraph 69 above, the applicant cannot claim that the Council is required to establish specifically a risk of circumvention of the restrictive measures in order to justify reliance on that criterion.
103 Having regard to the foregoing, the first plea in law must be rejected.
The third plea in law, alleging infringement of the applicant’s fundamental rights
104 The applicant claims that the inclusion of her name on the lists at issue constitutes an unjustified, arbitrary and disproportionate limitation of her fundamental rights, which include, inter alia, the right to respect for private and family life, home and communications, and the right to property. In addition, the applicant questions the proportionality of the restrictions on her freedom of movement and that of her minor children, all of whom are citizens of the European Union, and of her husband, a national of Russia and the United Arab Emirates. Last, she takes the view that none of the interferences referred to are legitimate under Article 52(1) of the Charter.
105 Furthermore, 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.
106 The Council, supported by the Kingdom of Belgium, disputes the applicant’s arguments.
107 It 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.
108 As 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).
109 However, 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).
110 In 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.’
111 Thus, 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).
112 It is clear that those four conditions are satisfied in the present case.
113 First, 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.
114 Second, 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.
115 Third, 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).
116 Fourth, 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).
117 So 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.
118 Moreover, 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.
119 It follows that the limitations referred to in paragraph 113 above are not disproportionate in relation to the objectives pursued by the restrictive measures.
120 As 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.
121 It 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).
122 However, 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.
123 In 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.
124 Second, 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).
125 In 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).
126 Third, the limitations referred to in paragraph 123 above relate to the objective of general interest referred to in paragraph 115 above.
127 Fourth, 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.
128 As 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.
129 Moreover, 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).
130 Furthermore, 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.
131 It follows that the limitations referred to in paragraph 123 above comply with the conditions set out in Article 52(1) of the Charter.
132 As 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.
133 Furthermore, 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.
134 As 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.
135 In 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.
136 In 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
137 Under 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.
138 Furthermore, under Article 138(1) of the Rules of Procedure, Member States which intervene in the proceedings are to bear their own costs. The Kingdom of Belgium must therefore bear its own costs.
139 Last, according to Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in paragraphs 1 and 2 thereof to bear his or her own costs. In the present case, EuroChem Group and SUEK must each bear their own costs.
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.
Mastroianni
Brkan
Gâlea
Tóth
Kalėda
Delivered in open court in Luxembourg on 26 February 2025.
