JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
15 February 2023 (*)
(Common foreign and security policy – Restrictive measures taken in view of the situation in Belarus – Lists of persons, entities and bodies subject to the freezing of funds and economic resources – Inclusion and maintenance of the applicant’s name on the lists – Concept of ‘person responsible for repression’ – Error of assessment – Proportionality)
In Case T‑536/21,
Belaeronavigatsia, established in Minsk (Belarus), represented by M. Michalauskas, lawyer,
applicant,
v
Council of the European Union, represented by R. Meyer and S. Van Overmeire, acting as Agents,
defendant,
supported by
European Commission, represented by C. Giolito and M. Carpus Carcea, acting as Agents,
intervener,
THE GENERAL COURT (Fifth Chamber),
composed of J. Svenningsen, President, J. Laitenberger and M. Stancu (Rapporteur), Judges,
Registrar: H. Eriksson, Administrator,
having regard to the written part of the procedure,
further to the hearing on 30 November 2022,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, Belaeronavigatsia, seeks the annulment of Council Decision (CFSP) 2021/1001 of 21 June 2021 amending Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus (OJ 2021 L 219 I, p. 67), of Council Implementing Regulation (EU) 2021/999 of 21 June 2021 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2021 L 219 I, p. 55) (together, ‘the initial acts’), of Council Decision (CFSP) 2022/307 of 24 February 2022 amending Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus (OJ 2022 L 46, p. 97), and of Council Implementing Regulation (EU) 2022/300 of 24 February 2022 implementing Article 8a of Regulation (EC) No 765/2006 concerning restrictive measures in view of the situation in Belarus (OJ 2022 L 46, p. 3) (together, ‘the maintaining acts’), in so far as those acts (together, ‘the contested acts’) concern the applicant.
Background to the dispute and events subsequent to the bringing of the action
2 The applicant, Belaeronavigatsia, is a Belarusian State-owned enterprise which is engaged in regulating airspace and providing air traffic assistance in Belarus.
3 The present case has been brought in the context of the 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. More specifically, it is linked to the intensification of the persistent violation of human rights and the brutal repression of opponents of the regime of President Lukashenko following the presidential elections of 9 August 2020, which were found by the European Union to be inconsistent with international standards.
4 On 18 May 2006, the Council of the European Union adopted, on the basis of Articles [75 and 215 TFEU], Regulation (EC) No 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2006 L 134, p. 1) and, on 15 October 2012, on the basis of Article 29 TEU, Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1).
5 According to Article 4(1)(a) of Decision 2012/642 and Article 2(4) of Regulation No 765/2006, as amended by Council Regulation (EU) No 1014/2012 of 6 November 2012, the latter provision referring to the former, all funds and economic resources owned, held or controlled by, inter alia, 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, are to be frozen (‘the general criterion at issue’).
6 By the initial acts, the applicant’s name was included on the lists of persons, entities and bodies subject to the restrictive measures set out in the annex to Decision 2012/642 and in Annex I to Regulation No 765/2006 (together, ‘the lists at issue’).
7 In the initial acts, the Council justified the inclusion of the applicant’s name on the lists at issue on the following grounds:
‘State-owned Enterprise BELAERONAVIGATSIA is responsible for Belarusian air traffic control. It therefore bears responsibility for diverting [flight FR4978] to Minsk airport without valid justification on 23 May 2021. This politically motivated decision was aimed at arresting and detaining opposition journalist Raman Pratasevich and Sofia Sapega and is a form of repression against civil society and democratic opposition in Belarus.
The BELAERONAVIGATSIA State-owned Enterprise is therefore responsible for the repression of civil society and democratic opposition.’
8 By letter of 22 June 2021, the Council sent the applicant an individual notification of the inclusion of its name on the lists at issue, enclosing a copy of the initial acts. In that letter, the Council informed the applicant that it had the possibility of requesting a review of the decision to include its name on those lists and of challenging that decision before the Court.
9 By letter of 3 November 2021, the applicant challenged the inclusion of its name on the lists at issue and requested the Council to carry out a review.
10 By letter of 17 January 2022, the Council replied to the applicant’s request for review and sent it document WK 15389/2021 INIT. By that same letter, it informed the applicant of its intention to maintain the applicant’s name on the lists at issue and of the possibility of submitting observations in that regard until 2 February 2022.
11 By letters of 26 January and 1 February 2022, the applicant disputed the relevance of the evidence compiled in document WK 15389/2021 INIT and requested the Council to carry out a review of the inclusion of its name on the lists at issue.
12 By the maintaining acts, the inclusion of the applicant’s name on the lists at issue was maintained until 28 February 2023, the grounds justifying that continued listing being the following:
‘The state-owned enterprise Belaeronavigatsia is responsible for Belarusian air traffic control. It therefore bears responsibility for diverting [flight FR4978] to Minsk airport without proper justification on 23 May 2021. This politically motivated decision was taken with the aim of arresting and detaining opposition journalist Raman Pratasevich and Sofia Sapega and is a form of repression against civil society and democratic opposition in Belarus.
The state-owned enterprise Belaeronavigatsia is therefore responsible for the repression of civil society and democratic opposition.’
13 By letter of 25 February 2022, the Council replied to the applicant’s letters referred to in paragraph 11 above and sent it documents WK 1795/2022 INIT and WK 1795/2022 ADD 1. By the same letter, the Council informed the applicant of its decision to maintain its name on the lists at issue.
Forms of order sought
14 By its action, brought on 1 September 2021, the applicant originally challenged the initial acts in so far as they concern it. By document lodged at the Court Registry on 13 May 2022, the applicant amended the form of order sought so that it also covered the maintaining acts in so far as they concern it.
15 The applicant claims that the Court should:
– annul the contested acts in so far as they concern it;
– order the Council and the Commission to pay the costs.
16 The Council and the Commission contend that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
17 In support of its action, the applicant relies on two pleas in law, alleging, first, an error of assessment and, secondly, failure to have regard to the principle of proportionality.
The first plea in law, alleging an error of assessment
18 In the context of that plea, the applicant criticises the Council for having found that the general criterion at issue was an objective criterion which did not require it to be established that the person or entity subject to the restrictive measures had intended to participate in the act of repression committed. In that regard, without pleading the illegality of the general criterion at issue, the applicant takes the view, in essence, that the terms ‘responsible for the repression’ used in Article 4(1)(a) of Decision 2012/642 and Article 2(4) of Regulation No 765/2006 indicate that that criterion implies the existence of an intentional element and, therefore, that it must be established that the person or entity subject to the restrictive measures intended to participate in the act of repression of which it is accused.
19 Thus, the applicant argues that the Council could not merely establish the material imputability of the diversion of flight FR4978 to Minsk airport (Belarus) on 23 May 2021 and that it should also have demonstrated an intentional element on the part of the applicant, that is to say, that, by its actions, it had deliberately participated in the repression of civil society and democratic opposition. In the absence of such a demonstration, the Council could not have found that there was a sufficient factual basis to show the applicant’s intention to take part in the repression of civil society and democratic opposition.
20 The applicant submits, in the first place, that its actions were not motivated by political considerations, but, on the contrary, by its obligations in the field of aviation safety as a State-owned enterprise responsible for regulating airspace and providing air traffic assistance in accordance with the international conventions to which Belarus is a party. According to the applicant, it thus acted in accordance with the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, concluded in Montreal (Canada) on 23 September 1971, and the Convention on International Civil Aviation, concluded in Chicago (United States) on 7 December 1944.
21 The applicant maintains, in the second place, that it may have been manipulated by the services outside its enterprise which informed it of the presence of a bomb on board flight FR4978 and that, since it did not have the passenger list in its possession, it had no reason to suspect such manipulation. The fact, which the applicant disputes, that the bomb threat email was only received by Minsk airport 24 minutes after that threat had been communicated to the pilot of flight FR4978, does not preclude the applicant’s good faith since it acted solely on the basis of information received from the Minsk airport security services. Furthermore, it cannot be held responsible for the diversion of flight FR4978 since it merely issued a recommendation to the pilot, who himself took the decision to land in Belarus.
22 The Council, supported by the Commission, disputes the applicant’s arguments.
23 It should be borne in mind that, according to Article 4(1)(a) of Decision 2012/642 and Article 2(4) of Regulation No 765/2006, all funds and economic resources owned, held or controlled by, inter alia, 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, are to be frozen.
24 As regards the nature of the general criterion at issue, it must be stated that the terms ‘responsible for the repression’ used in Article 4(1)(a) of Decision 2012/642 and in Article 2(4) of Regulation No 765/2006 are not defined either by those provisions or by other provisions of Decision 2012/642 or of Regulation No 765/2006.
25 Consequently, the meaning and scope of those terms must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part (see, to that effect, judgments of 10 March 2005, EasyCar, C‑336/03, EU:C:2005:150, paragraph 21 and the case-law cited, and of 7 May 2019, Germany v Commission, T‑239/17, EU:T:2019:289, paragraph 40 and the case-law cited).
26 In that regard, first, it should be noted that, in everyday language, the terms ‘responsible for’ refer to the person whose acts and/or activities have produced a consequence of which the perpetrator of those acts and/or activities is aware or cannot reasonably be unaware.
27 Secondly, it is apparent from the context in which the terms ‘responsible for the repression’ are used, in particular from the use, in Article 4(1)(a) of Decision 2012/642 and Article 2(4) of Regulation No 765/2006, of the wording ‘persons, entities or bodies responsible for … the repression of civil society and democratic opposition, or whose activities otherwise seriously undermine democracy or the rule of law in Belarus’, that the legislative intent was to target, by the general criterion at issue, in general, any person, entity or body whose activities seriously undermine democracy or the rule of law in Belarus. Furthermore, the use of the term ‘otherwise’ in the second part of those provisions demonstrates the legislative intent to regard the repression of civil society and democratic opposition as a type of activity seriously undermining democracy or the rule of law in Belarus. Lastly, the use of the term ‘activities’ is an indication of the legislative intent to target persons, entities or bodies whose activities seriously undermine democracy or the rule of law in Belarus because those activities contribute to that undermining, irrespective of whether or not there is an intentional element in that regard.
28 Thirdly, as regards the objectives pursued by Decision 2012/642 and by Regulation No 765/2006, it should be recalled, as a preliminary point, that, according to Article 21(2)(b) TEU, the consolidation of and support for democracy, the rule of law, human rights and the principles of international law on the international scene are among the objectives of the European Union in the framework of the common foreign and security policy (CFSP).
29 In the present case, as is apparent from recital 1 of Decision 2012/642, the restrictive measures against Belarus were adopted on account of the continued lack of respect for human rights, democracy and rule of law in that country. Those measures are intended to put pressure on the regime of President Lukashenko to put an end to human rights violations and the repression of civil society and democratic opposition.
30 It must be stated that the approach of targeting persons, entities and bodies whose acts and/or activities contribute to the repression of civil society and democratic opposition is consistent with the objective referred to in paragraph 29 above and cannot, in any event, be considered to be inappropriate with respect to the objective pursued (see, to that effect and by analogy, judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 147). Acts and/or activities contributing to human rights violations and the repression of civil society and democratic opposition must cease not only where those acts and/or activities have been committed intentionally, but also where no intentional element can be identified on the part of their perpetrators.
31 In the light of the foregoing, the general criterion at issue must be interpreted as meaning that persons, entities or bodies whose acts and/or activities contribute to the repression of civil society and democratic opposition are responsible for that repression, irrespective of their intent, as soon as they are aware or cannot reasonably be unaware of the consequences of their acts and/or activities.
32 In that regard, it should be made clear that, contrary to the applicant’s claims, the restrictive measures do not constitute punitive measures which would require evidence of an intentional element on the part of the perpetrator of the acts and/or activities in question.
33 The freezing of funds and economic resources to which the applicant is subject does not constitute an administrative penalty or fall within the scope of the first sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
34 In the first place, no provision of EU law confers a criminal-law aspect on the restrictive measures of freezing funds and economic resources taken against a person, entity or body on the basis of the provisions relating to the CFSP. Those measures constitute targeted preventive measures, which are intended, in accordance with Article 21(2)(b) TEU, to consolidate and support democracy, the rule of law, human rights and the principles of international law.
35 In the second place, the provisions of Decision 2012/642 establishing the scheme for the freezing of funds and economic resources against Belarus seek neither to punish, nor to prevent the repetition of any conduct. Their sole purpose is to preserve the assets held by the persons, entities and bodies referred to in Article 4(1)(a) of Decision 2012/642, in accordance with the objectives referred to in Article 21(2)(b) TEU (see, by analogy, judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 78 and the case-law cited). The funds and assets of the persons concerned are not therefore confiscated, but frozen as a precautionary measure.
36 In the third place, the effects of those provisions are limited in time and reversible. The freezing of funds and economic resources provided for in them apply, pursuant to Article 8 of Decision 2012/642, during a specified period, and the Council, which keeps it under constant review, may at any time decide to bring it to an end.
37 Contrary to what the applicant claims, the general criterion at issue is therefore an objective criterion, linked to the acts and/or activities of the person subject to the restrictive measures, which does not therefore require proof that that person intended to participate, through the acts and/or activities in question, in the repression of civil society and democratic opposition in Belarus.
38 In the present case, it is therefore sufficient that the Council’s file includes a set of indicia sufficiently specific, precise and consistent to establish that the acts alleged against the applicant in connection with the diversion of flight FR4978 contributed to the repression of civil society and democratic opposition in Belarus and that the applicant was aware or could not reasonably have been unaware of that consequence of its actions.
39 In that regard, it must be held that, contrary to the applicant’s claims, neither the fact that the act of which it is accused constitutes an isolated act, nor the fact that the applicant is a legal person governed by public law responsible for regulating airspace and providing air traffic assistance in Belarus can have any implications as regards the scope of judicial review and the burden of proof borne by the Council, since neither Article 29 TEU, nor Article 215 TFEU, nor the contested acts adopted on the basis of those provisions make any distinction as to the isolated or repeated nature of the acts and/or activities complained of or as to the nature of the acts and/or activities of the natural or legal persons which may be subject to restrictive measures.
40 As regards the extent of that review, it is apparent from the case-law that the effectiveness of the judicial review guaranteed by Article 47 of the Charter requires that the EU Courts ensure that the decision by which restrictive measures were adopted or maintained, which affects the person or entity concerned individually, is taken on a sufficiently solid factual basis (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 119). The assessment of whether the factual basis adopted by the Council is sufficiently solid 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 EU Courts a set of indicia sufficiently specific, precise and consistent to establish that there is a sufficient link between the entity subject to a measure freezing its funds and the regime or, in general, the situations, being combated (see judgment of 20 July 2017, Badica and Kardiam v Council, T‑619/15, EU:T:2017:532, paragraph 99 and the case-law cited).
41 In the present case, it should be noted that it is common ground between the parties that the applicant is the Belarusian State-owned enterprise responsible for regulating airspace and providing air traffic assistance, and that it recommended, through its air traffic controller who was in contact with the pilot of flight FR4978 (‘the air traffic controller’), that the aircraft be diverted to Minsk airport and land there, which led to the arrest of the journalist and opponent Raman Pratasevich and Sofia Sapega by the Belarusian authorities.
42 In that regard, it should be made clear in particular that it is apparent from the transcript of the communication between the pilot of flight FR4978 and the air traffic controller sent by the Belarusian authorities, the content of which is reproduced in an article published on 25 May 2021 on the Reuters website – which forms part of the Council’s evidence compiled in document WK 6825/2021 INIT on which the inclusion of the applicant’s name on the lists at issue by the initial acts is based – that the recommendation to divert to Minsk airport did not come from the airline responsible for that flight or from the airports of departure or of arrival, but solely from the applicant.
43 Furthermore, it is apparent from several press articles compiled in document WK 6825/2021 INIT that the diversion of flight FR4978 led to the arrest of the journalist and opponent Raman Pratasevich and Sofia Sapega, who were passengers on that flight.
44 Thus, the information available to the Council at the time the initial acts were adopted, constitutes a set of indicia sufficiently specific, precise and consistent to show that, without the applicant’s recommendation to land at Minsk airport, flight FR4978 would not have been diverted to that airport and that that diversion led to the arrest of the journalist and opponent Raman Pratasevich and Sofia Sapega.
45 That arrest constitutes an act of repression against civil society and democratic opposition, given that, as is apparent from the evidence produced by the Council, the journalist and opponent Raman Pratasevich was arrested on the ground that he was charged with terrorism offences by the Belarusian authorities because of his activities as a journalist and opponent of President Lukashenko’s regime. In addition, it is apparent from the evidence submitted by the Council that that arrest took place following the presidential elections of 9 August 2020, which were found by the European Union to be inconsistent with international standards and which were followed by an intensification of the persistent violation of human rights and the brutal repression of opponents of the regime of President Lukashenko.
46 As regards the maintenance of the applicant’s name on the lists at issue, it should be noted that the information which became available after the initial acts were adopted, namely the various press articles set out in document WK 15389/2021 INIT, the preliminary report published on 7 January 2022 by the International Civil Aviation Organisation (ICAO) following an initial factual investigation into the forced landing of flight FR4978, reproduced in documents WK 1795/2022 INIT and WK 795/2022 INIT, as well as the testimony of the air traffic controller obtained by the Polish judicial authorities and the transcript of the recording made by the air traffic controller of the conversations which took place in the control tower at the time of the events, set out in document WK 1795/2022 ADD 1, merely confirm and clarify the evidence which was available when the initial acts were adopted. Thus, it is apparent from that evidence that the bomb threat email that was received, inter alia, at Minsk airport, was sent – allegedly by the Hamas movement, which quickly denied being its author – after the pilot had been informed of that bomb threat. In addition, the applicant declared the alert phase only when the pilot issued the ‘Mayday’ distress call and informed the air traffic controller of the decision to land at Minsk airport.
47 As to the remainder, it should be noted that, even though it was published on 19 July 2022, that is to say after the maintaining acts were adopted, the ICAO’s final report confirms the information contained in the ICAO’s preliminary report of 7 January 2022 (see, as regards the reliance on information provided during the course of judicial proceedings, judgment of 28 February 2019, Souruh v Council, T‑440/16, not published, EU:T:2019:115, paragraph 93 and the case-law cited).
48 As regards the applicant’s arguments that, first, it may have been manipulated by the services outside its enterprise which informed it of the presence of a bomb on board flight FR4978 and, secondly, since it did not have the passenger list in its possession, it had no reason to suspect such manipulation, it must be held that it is apparent from the documents in the file, in particular from the testimony of the air traffic controller obtained by the Polish judicial authorities, which was, moreover, reproduced in the ICAO’s final report of 19 July 2022, that the applicant’s governing bodies and its relevant staff were perfectly aware that they were participating in an operation the purpose of which was to divert flight FR4978 to Minsk airport for reasons unrelated to aviation safety.
49 First of all, the air traffic controller stated that, long before flight FR4978 entered Belarusian airspace, the applicant’s Director-General, accompanied by an unidentified individual, whom the applicant confirmed at the hearing as belonging to the Belarusian State Security Committee (KGB), came to speak to the air traffic controller’s supervisor and that, subsequently, the supervisor informed the air traffic controller that an aircraft with a bomb on board was expected in Belarusian airspace, but that he was prohibited from notifying immediately the aircraft concerned, since the aircraft might wish to land at the nearest airport or in the neighbouring airspace sector in which it was located at that time, namely in Ukraine.
50 Next, the air traffic controller stated that his supervisor had ordered him to convey to the pilot of flight FR4978 the information that a bomb on board was going to explode above Vilnius (Lithuania) and that, subsequently, the unidentified individual – whom the air traffic controller suspected of belonging to the KGB – remained seated next to him the entire time, telling him how to answer the questions of the pilot of flight FR4978. Thus, it was on the instructions of that individual that the air traffic controller indicated to that pilot that the information concerning the bomb came from the security services, that an email had been sent in this respect and that the code of the threat was red. After the pilot issued the ‘Mayday’ distress call and started his descent to Minsk airport, that individual exchanged telephone messages with a third party, confirming that the pilot had taken the decision to land at Minsk airport.
51 Furthermore, it is apparent from the documents before the Court that, some days after the diversion of flight FR4978, the air traffic controller was summoned to the applicant’s premises, where his superiors asked him to amend his statement, so that it would not disclose inconsistencies in the chronology of events.
52 Lastly, it is apparent from the documents before the Court that the United States authorities conducted their own investigation, leading a Federal Grand Jury of the United States District Court for the Southern District of New York (United States) to hand down an indictment concerning the diversion of flight FR4978 against four Belarusian officials, namely the applicant’s Director-General and Deputy Director-General, as well as two KGB officers. That document states, inter alia, that those persons were key participants in a plot designed to divert flight FR4978 to Minsk airport, that they cooperated with the applicant’s staff in order to transmit the false bomb threat to flight FR4978 with a view to its diversion and that they subsequently falsified reports to conceal their actions.
53 In the light of the foregoing and having regard to the political context in Belarus at the material time, characterised by an intensification of the persistent violation of human rights and the brutal repression of opponents of the regime of President Lukashenko following the presidential elections of 9 August 2020, which were found to be inconsistent with international standards, the applicant could not, or at the very least could not reasonably, be unaware that its activities carried out in order to divert flight FR4978 to Minsk for reasons unrelated to aviation safety contributed to the repression of civil society and democratic opposition.
54 Accordingly, the Council did not make an error of assessment in finding that, by its involvement, as a public enterprise responsible for regulating airspace and providing air traffic assistance in Belarus, in the diversion of flight FR4978, the applicant is responsible for the repression of civil society and democratic opposition in Belarus.
55 The applicant’s arguments cannot cast any doubt on that finding.
56 First, as regards the argument that, in the light of Article 20 of the Charter, the taking into consideration of the applicant’s objective participation in the diversion of flight FR4978 should lead to the automatic punishment of all those whose instrumental role was established, including the pilot of that flight, it should be noted that the Council remains free to assess, in the exercise of the powers conferred on it by the TFEU, the detailed arrangements for implementing decisions adopted in accordance with Title V, Chapter 2 of the TEU, including the determination of persons targeted by the possible adoption of any restrictive measures based on Article 215 TFEU (see, to that effect, judgment of 6 September 2013, Bank Melli Iran v Council, T‑35/10 and T‑7/11, EU:T:2013:397, paragraph 194).
57 Furthermore, contrary to what the applicant claimed at the hearing, the interpretation of the general criterion at issue as set out in paragraph 31 above does not imply that any act and/or any activity which contributes in an equivalent manner to the repression of civil society and democratic opposition is covered by that criterion irrespective of its substantive classification. The objective nature thereof must necessarily be determined in accordance with Article 4(1)(a) of Decision 2012/642 and Article 2(4) of Regulation No 765/2006, which refer only to acts and/or activities which may be classified as acts of repression, excluding acts which, by their nature, lack any intrinsic connection with the repression of civil society and democratic opposition.
58 Secondly, as regards the applicant’s argument based on the judgment of 30 September 2021, Court of Auditors v Pinxten (C‑130/19, EU:C:2021:782), that only some of its representatives and employees were actually involved in the abovementioned diversion and, moreover, the penalty for the culpable member of an institution must not automatically affect the entire institution, it should be noted that, as the Council rightly states, there is a difference in nature between, on the one hand, an act committed alone by an agent or member of an institution, acting for his or her own benefit, to the detriment of the institution to which he or she belongs and, on the other hand, as in the present case, an act committed by agents of a public establishment on behalf of that establishment in the context of the duties entrusted to them, using the resources and powers of the establishment in question. That argument of the applicant cannot therefore succeed.
59 Thirdly, as regards the argument that the adoption of restrictive measures should be based on allegations of systematic violations of human rights, it should be noted that the general criterion at issue does not prescribe that only acts and/or activities of such a nature may lead to the adoption of restrictive measures. Furthermore, and in any event, the diversion of flight FR7948 with a view to the arrest of the journalist and opponent Raman Pratasevich and Sofia Sapega cannot be dissociated from its context, namely that of the presidential elections of 9 August 2020, which were found by the European Union to be inconsistent with international standards and which were followed by an intensification of the persistent violation of human rights and the brutal repression of opponents of the regime of President Lukashenko.
60 Fourthly, in respect of the argument that the Council adopted restrictive measures against the applicant even though the ICAO had not yet delivered its findings and the United States had not adopted such measures, it must be held, as the Council has done, that the principle of the presumption of innocence, which requires that any person charged with a criminal offence is presumed innocent until proved guilty according to law, does not preclude the adoption of restrictive measures, since those measures are not, as stated in paragraphs 34 and 35 above, of a criminal nature.
61 In the light of the foregoing, it must be held that the first plea is unfounded and must therefore be rejected.
The second plea in law, alleging failure to have regard to the principle of proportionality
62 In the context of that plea, the applicant submits that the Council failed to have regard to the principle of proportionality.
63 In the first place, according to the applicant, it is disproportionate to penalise both the applicant and its director for the same acts. Furthermore, even if there had been misconduct on the part of members of its staff, the applicant should not be penalised since it is not responsible for conduct constituting wrongful acts of a staff member which are not intrinsically connected with the performance of his or her duties.
64 In the second place, according to the applicant, the restrictive measures adopted against it risk jeopardising its international public service mission. In particular, those measures could prevent it from meeting its current expenses, from repaying its debts to a number of bodies and undertakings and from financing the investments necessary to improve the quality of its services.
65 In that regard, the applicant maintains that the exceptional release authorisations, provided for in Article 3 of Regulation No 765/2006, in Implementing Regulation No 2021/999 and in Article 5 of Decision 2021/1001, are impossible to implement. According to the applicant, the unworkable nature of those authorisations is explained in particular by the fact that they are unsuited to the structural nature of investments in the aviation safety sector.
66 The Council, supported by the Commission, disputes the applicant’s arguments.
67 It should be recalled, first of all, that the principle of proportionality is one of the general principles of EU law and requires that measures implemented through provisions of EU law be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve them (see judgment of 13 March 2012, Melli Bank v Council, C‑380/09 P, EU:C:2012:137, paragraph 52 and the case-law cited).
68 The case-law makes clear in that respect that, with regard to judicial review of compliance with the principle of proportionality, the EU legislature must be allowed a broad discretion in areas such as the CFSP, which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. Therefore, the legality of a measure adopted in those areas can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 146 and the case-law cited).
69 It is certainly the case that the rights of the party concerned are to a certain extent curtailed by the restrictive measures adopted against it due to the fact that it cannot, in particular, dispose of any funds that may be situated within the territory of the European Union or transfer its funds to the European Union, except with special authorisation. Likewise, the measures imposed on the party concerned may cause its associates and customers to regard it with a certain suspicion or mistrust (see, to that effect, judgment of 23 September 2020, Kaddour v Council, T‑510/18, EU:T:2020:436, paragraph 174 (not published)).
70 However, in the present case, it must be held that, contrary to what the applicant claims, there is a reasonable relationship between the restrictive measures adopted by the contested acts and the objective pursued.
71 In so far as, as stated in paragraphs 28 and 29 above, that objective is, inter alia, to promote democracy, human rights and the rule of law in Belarus, the approach of targeting persons, entities and bodies whose acts and/or activities have contributed to the repression of civil society and democratic opposition in Belarus is consistent with that objective and cannot, in any event, be regarded as being inappropriate in the light of the objective pursued.
72 In respect of the argument relating to the fact that the measures concern the applicant and its director simultaneously, it should be borne in mind, as stated in paragraph 56 above, that the Council remains free to assess, in the exercise of the powers conferred on it by the TFEU, the detailed arrangements for implementing decisions adopted in accordance with Title V, Chapter 2 of the TEU, including the adoption of any restrictive measures on the basis of Article 215 TFEU, and that the importance of the objective pursued by the contested acts justifies the restrictive measures affecting all those responsible for the acts and/or activities contributing to the repression of civil society and democratic opposition.
73 So far as concerns the argument that the freezing of funds and economic resources risks jeopardising its international public service mission, it must be stated, as the Council has done, that it is apparent from the documents submitted by the applicant that, notwithstanding the imposition of the measures at issue, it made substantial profits in 2019 and in 2020. In addition, the applicant does not provide any concrete evidence regarding the long-term investments to which it refers or regarding the amounts at stake.
74 Lastly, as regards the applicant’s argument that the exceptional release authorisation is unworkable in practice, it is sufficient to note that the applicant has not established that it made an application to that effect which it was refused and that it has not adduced any concrete evidence to show that such authorisation is insufficient to enable it to carry out its aviation safety operations.
75 In the light of the foregoing, the applicant’s second plea must be rejected as unfounded and, accordingly, the action must be dismissed in its entirety.
Costs
76 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
77 Under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs.
78 In the present case, since the applicant has been unsuccessful, it must be ordered to pay the costs. In addition, as an intervening institution, the Commission is to bear its own costs.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Dismisses the action;
2. Orders Belaeronavigatsia to bear its own costs and to pay those incurred by the Council of the European Union;
3. Orders the European Commission to bear its own costs.
Svenningsen | Laitenberger | Stancu |
Delivered in open court in Luxembourg on 15 February 2023.
[Signatures]