Case T‑116/22
Belavia – Belarusian Airlines AAT
v
Council of the European Union
Judgment of the General Court (Ninth Chamber) of 29 May 2024
(Common foreign and security policy – Restrictive measures taken because of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine – Freezing of funds – Lists of persons, entities and bodies to whom the freezing of funds and economic resources applies – Registering and maintaining the applicant’s name on the lists – Organisation of activities of the Lukashenko regime facilitating the illegal crossing of the external borders of the European Union or contribution to those activities – Benefit derived from the Lukashenko regime – Error of assessment)
1. European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures against Belarus – Freezing of funds of certain persons and entities having regard to the situation in Belarus – Scope of the review – Proof that the measure is well founded – Obligation on the competent EU authority to establish, in the event of challenge, that the reasons relied on against the persons or entities concerned are well founded – Inclusion on the lists based on a specific, precise and consistent set of indicia
(Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2012/642/CFSP, as amended by Decisions (CFSP) 2021/2125 and (CFSP) 2023/421, Annex; Council Regulations No 765/2006, No 2021/2124 and No 2023/419, Annex)
(see paragraphs 26-29)
2. Common foreign and security policy – Restrictive measures against Belarus – Criteria for adopting restrictive measures – Natural or legal persons, entities or bodies organising activities by the Lukashenko regime that facilitate the illegal crossing of the external borders of the European Union – Definition – No error of assessment
(Council Decision 2012/642/CFSP, as amended by Decisions (CFSP) 2021/2125 and (CFSP) 2023/421, Annex; Council Regulations No 765/2006, No 2021/2124 and No 2023/419, Annex)
(see paragraphs 45, 48-52, 57-60, 63-66)
3. European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures against Belarus – Freezing of funds of certain persons and entities having regard to the situation in Belarus – Scope of the review – Proof that the measure is well founded – Obligation on the competent EU authority to establish, in the event of challenge, that the reasons relied on against the persons or entities concerned are well founded – Breadth of the discretion of that competent authority – Relevance of the evidence produced in respect of a previous inclusion failing any change in the grounds, change to the applicant’s situation or development of the context in Belarus – Changes to the applicant’s situation and development of the situation in Belarus
(Council Decision 2012/642/CFSP, as amended by Decisions (CFSP) 2021/2125 and (CFSP) 2023/421, Annex; Council Regulations No 765/2006, No 2021/2124 and No 2023/419, Annex)
(see paragraphs 76-84)
4. Common foreign and security policy – Restrictive measures against Belarus – Criteria for adopting restrictive measures – Natural or legal persons, entities or bodies benefiting from or supporting the Lukashenko regime – Concept of ‘benefit’ – No error of assessment
(Council Decision 2012/642/CFSP, as amended by Decision (CFSP) 2023/421, Annex; Council Regulations No 765/2006 and No 2023/419, Annex)
(see paragraphs 92-100)
Résumé
In its judgment, the General Court dismisses the action for annulment brought by Belavia – Belarusian Airlines AAT against the acts by which that company was included in 2021, (1) and then maintained in 2023, (2) by the Council of the European Union, on the list of persons and entities subject to restrictive measures on account of the situation in Belarus. This case allows the Court to interpret, for the first time, the criterion for inclusion laid down in Article 4(1)(c)(i) of Decision 2012/642 (3) relating to organising activities by the Lukashenko regime that facilitate the illegal crossing of the external borders of the European Union.
This judgment has been brought in connection with a series of restrictive measures adopted by the European Union since 2004 in view of the situation in Belarus with regard to democracy, the rule of law and human rights. The funds and economic resources of the applicant, a State-owned national flag carrier airline, were frozen on the grounds that it was benefiting from and supporting the Lukashenko regime and that it was contributing to the activities of that regime facilitating the illegal crossing of the external borders of the European Union, by its involvement in bringing third-country nationals wishing to cross the external borders of the European Union from the Middle East to Belarus.
Findings of the Court
Regarding, in the first place, the initial inclusion of the applicant on the lists on the basis of the criterion laid down in Article 4(1)(c)(i) of Decision 2012/642, the Court considers that the Council had a sufficiently detailed, precise and consistent body of evidence to establish that third-country nationals intending to cross the external borders of the European Union without complying with the relevant legislation travelled to Minsk (Belarus) on flights operated by the applicant from Lebanon, the United Arab Emirates and Türkiye. Moreover, the Council had sufficient evidence to allege that, in order to facilitate this practice, the applicant expanded the number of flights on existing routes and that local tour operators acted as intermediaries in selling the applicant’s tickets to those persons, thereby helping the applicant to keep a low profile.
The Court goes on to reject the applicant’s arguments challenging that body of evidence. Thus, first, the applicant claimed, inter alia, that, in 2021, it transported fewer passengers than other airlines which also operate on the routes between Istanbul (Türkiye) and Minsk and Dubai (United Arab Emirates) and Minsk and that the number of persons which it transported on the route between Beirut (Lebanon) and Minsk is lower than that of persons transported on other routes to or from third countries other than Lebanon. The Court states that, nevertheless, those facts do not show that the applicant did not contribute, by its own operations transporting persons from Lebanon, the United Arab Emirates and Türkiye to Belarus, to the activities of the Lukashenko regime facilitating the illegal crossing of the external borders of the European Union. In addition, according to data submitted by the applicant, in 2021, the number of passengers it transported from Istanbul or Beirut to Minsk increased substantially.
Second, the applicant’s allegations that its flights to Lebanon, the United Arab Emirates and Türkiye were not chartered by the Belarusian State and, moreover, that its own transport operations were profitable are not capable of showing that those flights and operations were not part of the activities of the Lukashenko regime facilitating the illegal crossing of the external borders of the European Union. It is apparent from the evidence in the file that the Lukashenko regime organised the transport of third-country nationals to Belarus by air by supporting the issuing of visas for Belarus, that the effect of that measure was to increase demand for air transport services to Belarus and that some airlines profited from the commercial operation of flights meeting that demand.
Third, the fact that the applicant carried out the requisite checks when checking in its passengers, regarding, inter alia, the requirement to possess a visa, does not rule out the applicant having participated in the activities of the Lukashenko regime facilitating the illegal crossing of the external borders of the European Union.
Last, the Court observes that it is not apparent from the evidence produced by the Council that, as set out in the grounds at issue, the applicant opened new flight routes in order to facilitate transporting third-country nationals to Belarus. However, that finding is not enough to annul the initial acts. The Council’s reasoning in support of the assessment that the applicant contributed to the activities of the Lukashenko regime facilitating the illegal crossing of the external borders of the European Union, which are sufficiently precise and detailed and free from errors of assessment of the facts or errors of law, constitutes in itself a sufficient basis for justifying the inclusion of the applicant’s name on the lists at issue.
With regard, in the second place, to the maintenance of the applicant’s name on the lists based on that same criterion, the Court recalls that it is for the Council, in the course of the periodic review of restrictive measures, to conduct an updated assessment of the situation and to appraise the impact of the previously adopted measures in the light of their objectives in respect of the persons concerned. In order to justify such maintenance, the Council may base its decision on the same evidence justifying the initial inclusion, provided that the grounds for inclusion remain unchanged and the context has not changed in such a way that that evidence is now out of date. In the present case, the Court observes that the Council acknowledges implicitly that the evidence justifying the adoption of the initial acts, relating to the flights operated by the applicant from Lebanon and the United Arab Emirates, had become obsolete. Moreover, the Court takes the view that the fact that the applicant continued to operate flights on the route between Istanbul and Minsk was not sufficient to justify maintaining its name on the lists. As a result, the Council has not shown to the requisite legal standard that, when the maintaining acts were adopted, the applicant was still involved in the activities of the Lukashenko regime facilitating the illegal crossing of the external borders of the European Union due to the flights it operated between Istanbul and Minsk.
However, the Court considers that the Council had a sufficiently detailed, precise and consistent body of evidence to establish that the applicant had derived a concrete benefit from the public statements made by President Lukashenko announcing that the Belarusian State would give all possible support to the applicant.