JUDGMENT OF THE GENERAL COURT (First Chamber)
10 May 2016 (*)
(Common foreign and security policy — Restrictive measures taken against Belarus — Freezing of funds and economic resources — Restrictions on entry into, or transit through, the territory of the European Union — Retention of the applicant’s name on the list of persons concerned — Journalist — Rights of defence — Obligation to state reasons — Error of assessment)
In Case T‑693/13,
Aliaksei Mikhalchanka, residing in Minsk (Belarus), represented by M. Michalauskas, lawyer,
applicant,
v
Council of the European Union, represented by J.-P. Hix and F. Naert, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU for annulment of Council Decision 2013/534/CFSP of 29 October 2013 amending Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2013 L 288, p. 69) and Council Implementing Regulation (EU) No 1054/2013 of 29 October 2013 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2013 L 288, p. 1),
THE GENERAL COURT (First Chamber),
composed of H. Kanninen (Rapporteur), President, I. Pelikánová and E. Buttigieg, Judges,
Registrar: G. Predonzani, Administrator,
having regard to the written part of the procedure and further to the hearing on 12 November 2015,
gives the following
Judgment (1)
Background to the dispute
1 The applicant, Mr Aliaksei Mikhalchanka, is a Belarusian national and journalist of the State television channel Obshchenatsional’noe Televidenie (ONT).
2 It appears from Council Common Position 2006/276/CFSP of 10 April 2006 concerning restrictive measures against certain officials of Belarus and repealing Common Position 2004/661/CFSP (OJ 2006 L 101, p. 5), that, following the disappearance of well-known persons in Belarus, the fraudulent elections and referendum and severe human rights violations in the repression of peaceful demonstrators in the aftermath of those elections and that referendum, it was decided that restrictive measures should be taken, such as preventing the entry into, or transit through, the territory of the European Union and authorising the freezing of the funds and economic resources of various persons in Belarus.
3 The EU implementing provisions were laid down in Council Regulation (EC) No 765/2006 of 18 May 2006 concerning restrictive measures against Belarus (OJ 2006 L 134, p. 1). Those provisions were subject to several successive amendments and Article 8a(1) of the regulation, as amended, lays down that, where the Council of the European Union decides to subject a natural or legal person, entity or body to the measures referred to in Article 2(1), it is to amend the annex in which that person is listed accordingly.
4 The restrictive measures laid down in Common Position 2006/276 were extended until 15 March 2010 by Council Common Position 2009/314/CFSP of 6 April 2009 amending Common Position 2006/276 and repealing Common Position 2008/844/CFSP (OJ 2009 L 93, p. 21). However, the travel restrictions imposed on certain leading figures in Belarus, with the exception of those involved in the disappearances which occurred between 1999 and 2000 and of the President of the Central Electoral Commission, were suspended until 15 December 2009.
5 On 15 December 2009, the Council adopted Decision 2009/969/CFSP extending the restrictive measures against certain officials of Belarus laid down in Common Position 2006/276 and repealing Common Position 2009/314 (OJ 2009 L 332, p. 76). It extended both the restrictive measures provided for in Common Position 2006/276 and the suspension of the travel restrictions imposed on certain leading figures in Belarus until 31 October 2010.
6 On the basis of a re-examination of Common Position 2006/276, by Decision 2010/639/CFSP of 25 October 2010 concerning restrictive measures against Belarus (OJ 2010 L 280, p. 18), the Council renewed both the measures provided for in Common Position 2006/276 and the suspension of the travel restrictions imposed on certain leading figures in Belarus until 31 October 2011.
7 By Council Decision 2011/69/CFSP of 31 January 2011 amending Council Decision 2010/639 (OJ 2011 L 28, p. 40), it was decided, in view of the fraudulent presidential elections of 19 December 2010 and the violent crackdown on the political opposition, civil society and representatives of independent mass media in Belarus, that the suspension of the travel restrictions should be terminated and other restrictive measures should be implemented. The following was added to Article 1(1) of Decision 2010/639:
‘(d) for the violations of international electoral standards in the presidential elections in Belarus on 19 December 2010, and the crackdown on civil society and democratic opposition, and those persons associated with them, as listed in Annex IIIA.’
8 Decision 2011/69 replaced Article 2 of Decision 2010/639 as follows:
‘Article 2
1. All funds and economic resources belonging to, owned, held or controlled by persons who are responsible:
…
(b) for the violations of international electoral standards in the presidential elections in Belarus on 19 December 2010, and the crackdown on civil society and democratic opposition, and those natural or legal persons, entities or bodies associated with them, as listed in Annex IIIA;
…’
9 The applicant’s name was listed in Annex V of Decision 2011/69, which adds Annex IIIA to Decision 2010/639. The applicant’s name, which is listed in point 77, is accompanied by the following information: ‘Journalist of the State TV channel ONT with senior and influential position’.
10 Council Implementing Regulation (EU) No 84/2011 of 31 January 2011 amending Regulation No 765/2006 (OJ 2011 L 28, p. 17) replaced, inter alia, Article 2 of Regulation No 765/2006 with the following text:
‘Article 2
1. All funds and economic resources belonging to, owned, held or controlled by the natural or legal persons, entities and bodies listed in Annex I or in Annex IA shall be frozen.
2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of the natural or legal persons, entities or bodies listed in Annex I or in Annex IA.
…
5. Annex IA shall consist of the natural or legal persons, entities and bodies referred to in Article 2(1)(a) of … Decision 2010/639… as amended.’
11 By Annex II (Annex IA to Regulation No 765/2006 listing the natural or legal persons, entities or bodies referred to in Article 2(1), (2) and (5)), Implementing Regulation No 84/2011 added the applicant’s name with the same information as set out in paragraph 9 above.
12 A notice was published on 2 February 2011 in the Official Journal of the European Union for the attention of the persons to which the measures provided for in Decision 2011/69 and in Implementing Regulation No 84/2011 apply (OJ 2011 C 33, p. 17).
13 By Council Implementing Decision 2011/174/CFSP of 21 March 2011 implementing Decision 2010/639 (OJ 2011 L 76, p. 72), Annexes I to III, IIIA and IV to Decision 2010/639 were replaced by the text set out in Annexes I to V to that implementing decision. The applicant’s name is listed in Annex IV with the same position as set out in paragraph 9 above.
14 By Council Implementing Regulation (EU) No 271/2011 of 21 March 2011 implementing Article 8a(1) of Regulation No 765/2006 (OJ 2011 L 76, p. 13), Annexes I and IA of Regulation No 765/2006 were replaced by the text set out in Annexes I and II to the implementing regulation. The applicant’s name is listed in Annex II with the same position as set out in paragraph 9 above.
15 By Decision 2012/642/CFSP of 15 October 2012 concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1), the Council extended the restrictive measures in force until 31 October 2013 and integrated the measures imposed by Decision 2010/639 into a single legal instrument. Article 3(1) of the decision provides:
‘Member States shall take the necessary measures to prevent the entry into, or transit through, their territories of persons:
(a) responsible for serious violations of human rights or the repression of civil society and democratic opposition, or whose activities otherwise seriously undermine democracy or the rule of law in Belarus, or any person associated with them;
(b) benefiting from or supporting the Lukashenka regime,
as listed in the Annex.’
16 Article 4(1) of Decision 2012/642 provides:
‘All funds and economic resources belonging to, owned, held or controlled by:
(a) persons, entities or bodies responsible for serious violations of human rights or the repression of civil society and democratic opposition, or whose activities otherwise seriously undermine democracy or the rule of law in Belarus, or any natural or legal persons, entities or bodies associated with them, as well as legal persons, entities or bodies owned or controlled by them;
(b) natural or legal persons, entities or bodies benefiting from or supporting the Lukashenka regime, as well as legal persons, entities or bodies owned or controlled by them,
as listed in the Annex shall be frozen.’
17 In the annex to Decision 2012/642, the applicant’s name, placed in point 138, is listed with the following information:
‘Journalist of the state TV channel ONT with an influential position. He is the anchorman of the TV programme “That is how it is”. This programme is an instrument of state propaganda on TV, which supports and justifies the repression of the democratic opposition and of civil society. The opposition and civil society are systematically highlighted in a negative and derogatory way using falsified information. He was particularly active in this regard after the crackdown on peaceful demonstrations on 19 December 2010 and on subsequent protests.’
18 By Regulation (EU) No 1014/2012 of 6 November 2012 (OJ 2012 L 307, p. 1), the Council amended Regulation No 765/2006. It replaced Article 2 of the latter by the following:
‘1. All funds and economic resources belonging to, or owned, held or controlled by the natural or legal persons, entities and bodies listed in Annex I shall be frozen.
2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of the natural or legal persons, entities and bodies listed in Annex I.
3. The participation, knowingly and intentionally, in activities the object or effect of which is, directly or indirectly, to circumvent the measures referred to in paragraphs 1 and 2 shall be prohibited.
4. Annex I shall consist of a list of the natural or legal persons, entities and bodies who, in accordance with point (a) of Article 4(1) of … Decision 2012/642…, have been identified by the Council as being responsible for serious violations of human rights or the repression of civil society and democratic opposition, or whose activities otherwise seriously undermine democracy or the rule of law in Belarus, or any natural or legal persons, entities and bodies associated with them, as well as legal persons, entities or bodies owned or controlled by them.
5. Annex I shall also consist of a list of the natural or legal persons, entities and bodies who, in accordance with point (b) of Article 4(1) of … Decision 2012/642 …, have been identified by the Council as benefiting from or supporting the Lukashenka regime, as well as legal persons, entities and bodies owned or controlled by them.’
19 Furthermore, by Regulation No 1014/2012, the references to ‘Annexes I, IA and IB’ or the references to ‘Annexes I or IA’ in Regulation No 765/2006, as amended, were replaced by references to ‘Annex I’.
20 By Implementing Regulation (EU) No 1017/2012 of 6 November 2012 implementing Article 8a(1) of Regulation No 765/2006 (OJ 2012 L 307, p. 7), the Council replaced the text set out in Annexes I, IA and IB of Regulation No 765/2006 by a single annex. In that annex the applicant’s name is listed with the same information as set out in paragraph 17 above.
21 By letters of 7 November 2012, the Council informed the applicant and his representative of Decision 2012/642, Regulation No 1014/2012 and Implementing Regulation No 1017/2012.
22 On the same day, a notice for the attention of the persons and entities to which the restrictive measures provided for in the three acts cited in the previous paragraph was published in the Official Journal (OJ 2012 C 339, p. 9).
23 By Decision 2013/534/CFSP of 29 October 2013 amending Decision 2012/642 (OJ 2013 L 288, p. 69), the Council extended the restrictive measures in force until 31 October 2014 and replaced the annex to Decision 2012/642. The applicant’s name, placed in point 132 of the annex to Decision 2013/534, was listed with the same information as set out in paragraph 17 above.
24 By Implementing Regulation (EU) No 1054/2013 of 29 October 2013 implementing Article 8a(1) of Regulation No 765/2006 (OJ 2013 L 288, p. 1), the Council amended the annex to Regulation No 765/2006. The applicant’s name, placed in point 132 of that annex, is also listed with the same information as set out in paragraph 17 above.
25 In the judgment of 23 September 2014 in Mikhalchanka v Council (T‑196/11 and T‑542/12, not published, EU:T:2014:801), the General Court annulled, in so far as they concern the applicant, Decision 2011/69, Implementing Decision 2011/174, Implementing Regulation No 271/2011, Decision 2012/642 and Implementing Regulation No 1017/2012.
Procedure and forms of order sought
26 By application lodged at the Registry of the General Court on 31 December 2013, the applicant brought an action, claiming that the Court should:
– annul Decision 2013/534 in so far as it concerns the applicant;
– annul Implementing Regulation No 1054/2013, in so far as it concerns the applicant;
– order the Council to pay the costs.
27 By document lodged at the Court Registry also on 31 December 2013, the applicant submitted an application for legal aid on the basis of Articles 94 and 95 of the Rules of Procedure of the General Court of 2 May 1991.
28 On 18 March 2014, the Council lodged its defence at the Court Registry in which it claimed that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
29 On 6 May 2014, the applicant lodged his reply and, on 18 June 2014, the Council lodged its rejoinder.
30 By order of 11 December 2014 in Mikhalchanka v Council (T‑693/13, not published, EU:T:2014:1098), the applicant was granted legal aid.
31 By documents lodged at the Court Registry on 8 and 16 June 2015, the Council and the applicant replied to the question of the Court, put as a measure of organisation of procedure, on the conclusions to be drawn in the present case from the reasoning of the Court in the judgment of 23 September 2014 in Mikhalchanka v Council (T‑196/11 and T‑542/12, not published, EU:T:2014:801). In its response, the Council applied for a ruling that there was no need to adjudicate. In the alternative, it submitted that it did not follow from that judgment that, in the present case, Decision 2013/534 and Implementing Regulation No 1054/2013 were unlawful.
32 By document lodged at the Court Registry on 24 July 2015, the applicant submitted its observations on the Council’s application for a ruling that there was no need to adjudicate.
33 By documents lodged at the Court Registry on 16 and 22 October 2015, the applicant and the Council replied to the question of the Court, put as a measure of organisation of procedure, seeking to determine whether the applicant knew of the grounds appearing in Decision 2013/534 and Implementing Regulation No 1054/2013 before the adoption of those acts in the light of the annulment, in the judgment of 23 September 2014 in Mikhalchanka v Council (T‑196/11 and T‑542/12, not published, EU:T:2014:801), of Decision 2012/642 and of Implementing Regulation No 1017/2012 in so far as they concern the applicant.
Law
34 In support of his action, the applicant relies on four pleas in law alleging, first, infringement of his rights of defence, second, insufficient reasoning, third, an error of assessment and, fourth, that the measure concerning the applicant was disproportionate.
35 Since the Council has applied for a ruling that there is no need to adjudicate, it is appropriate to examine that application as a preliminary point.
…
First plea in law, alleging infringement of the applicant’s rights of defence
44 The applicant submits, in essence, that he was not informed in advance of the extension of the restrictive measures in Decision 2013/534 and Implementing Regulation No 1054/2013. According to the applicant, although the Council had knowledge of his address, he was given notice of those acts only on 30 October 2013, namely after the date of their adoption. The possibility that the Council offered him of requesting a review a posteriori cannot be regarded as an adversarial procedure, which must precede any sanction. At the hearing, the applicant stated that an adversarial debate before the adoption of the acts at issue would have been useful in assessing the accuracy of the facts, which had moreover changed from the time when the first restrictive measures were taken against the applicant.
…
46 In that regard, it appears from the case-law that, in proceedings relating to the adoption of a decision to list or retain the listing of the name of an individual in the annex to an act concerning restrictive measures, respect for the rights of the defence and the right to effective judicial protection requires that the competent EU authority disclose to the individual concerned the evidence against that person available to that authority and relied on as the basis of its decision, so that that individual is in a position to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in bringing an action before the Courts of the European Union (see, to that effect, judgment of 18 July 2013 in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 111).
47 When that disclosure takes place, the competent EU authority must ensure that that individual is placed in a position in which he may effectively make known his views on the grounds advanced against him (see, to that effect, judgment of 18 July 2013 in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 112).
48 As regards a decision whereby the name of the individual concerned is to be retained on the list in the annex to the act concerning restrictive measures, compliance with that dual procedural obligation must, contrary to the position in respect of an initial listing, precede the adoption of that decision (see, to that effect, judgment of 18 July 2013 in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 113).
49 The Court has held that, in the case of a subsequent decision to freeze funds by which the inclusion of the name of a person or entity already appearing on the list was retained, surprise effect was no longer necessary in order to ensure that the measure be effective, with the result that the adoption of such a decision must, in principle, have been preceded by disclosure of the incriminating evidence and by allowing the person or entity concerned an opportunity of being heard (judgment of 21 December 2011 in France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 62).
50 The right to a prior hearing must be respected where the Council has admitted new evidence against the person affected by the restrictive measure and by the retention of the listing at issue (judgment of 13 September 2013 in Makhlouf v Council, T‑383/11, EU:T:2013:431, paragraph 43; see also, to that effect, judgment of 21 December 2011 in France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 63).
51 In the present case, as regards the grounds specifically relating to the applicant, the Court notes that Decision 2013/534 and Implementing Regulation No 1054/2013 retained the applicant’s name on the list of persons concerned by the restrictive measures at issue.
52 It is common ground that those grounds are the same as the grounds appearing in Decision 2012/642 and Implementing Regulation No 1017/2012, as has been stated in paragraphs 23 and 24 above. Furthermore, it is clear from paragraph 21 above that Decision 2012/642 and Implementing Regulation No 1017/2012 were disclosed to the applicant, who thereby had an opportunity of making known his views on the grounds advanced against him.
53 In those circumstances, the Court finds that the Council has not admitted any new evidence against the applicant in adopting Decision 2013/534 and Implementing Regulation No 1054/2013 and that, on the basis of the case-law set out in paragraphs 46 to 50 above, the Council was not under a duty to disclose to the applicant the grounds for those acts before their adoption.
54 That finding is not affected by the fact that, in the judgment of 23 September 2014 in Mikhalchanka v Council (T‑196/11 and T‑542/12, not published, EU:T:2014:801, paragraphs 74 and 75), the Court annulled Decision 2012/642 and Implementing Regulation No 1017/2012, as far as the applicant is concerned, on the ground that those acts were not disclosed to the applicant before their adoption and that the applicant had therefore not been in a position effectively to make known his views before the adoption of those acts.
55 First, it should be noted that neither the applicant nor the Council have submitted that the annulment of Decision 2012/642 and Implementing Regulation No 1017/2012 affected the date when the applicant knew of the grounds contained in those acts and which were reproduced in Decision 2013/534 and Implementing Regulation No 1054/2013.
56 Second and above all, even if, under the first paragraph of Article 264 TFEU, where an action is well founded, the EU judicature is to declare the act concerned to be void and even if, according to settled case-law, it therefore follows that a decision to annul by the EU judicature leads retroactively to the disappearance of the act with regard to all persons (judgments of 1 June 2006 in P&O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission, C‑442/03 P and C‑471/03 P, EU:C:2006:356, paragraph 43, and of 12 February 2008 in CELF and Ministre de la Culture et de la Communication, C‑199/06, EU:C:2008:79, paragraph 61), the fact remains that, since the judgment of 23 September 2014 in Mikhalchanka v Council (T‑196/11 and T‑542/12, not published, EU:T:2014:801), the disappearance of Decision 2012/642 and of Implementing Regulation No 1017/2012 retroactively did not, as far as the applicant is concerned, affect the date when the applicant knew of the grounds for those acts.
57 As the Council submits, the annulment of Decision 2012/642 and of Implementing Regulation No 1017/2012 did not lead to the annulment of the publication of those acts, or to that of the notice concerning those acts, or even to that of the individual disclosure effected by the letter sent to the applicant and his representative. The factual background in which the applicant became aware of the grounds contained in the acts was therefore not affected by the judgment of 23 September 2014 in Mikhalchanka v Council (T‑196/11 and T‑542/12, not published, EU:T:2014:801).
58 It follows that the grounds for Decision 2013/534 and for Implementing Regulation No 1054/2013 were disclosed to the applicant before their adoption and that the applicant was therefore in a position to submit his observations to the Council in that regard.
59 The first plea must therefore be dismissed as unfounded.
…
Third plea in law, alleging an error of assessment
…
109 It follows from the foregoing that the third plea in law must be upheld as well founded and Decision 2013/534 and Implementing Regulation No 1054/2013 must be annulled in so far as they concern the applicant, without it being necessary to consider the fourth plea in law raised by the applicant.
…
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Dismisses the application of the Council of the European Union for a ruling that there is no need to adjudicate;
2. Annuls, in so far as they concern Mr Aliaksei Mikhalchanka:
– Council Decision 2013/534/CFSP of 29 October 2013 amending Decision 2012/642/CFSP concerning restrictive measures against Belarus;
– Council Implementing Regulation (EU) No 1054/2013 of 29 October 2013 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus;
3. Orders the Council to bear its own costs and those incurred by Mr Mikhalchanka.
Kanninen | Pelikánová | Buttigieg |
Delivered in open court in Luxembourg on 10 May 2016.
[Signatures]