JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
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)
In Case T‑116/22,
Belavia – Belarusian Airlines AAT, established in Minsk (Belarus), represented by N. Tuominen and M. Krestiyanova, lawyers,
applicant,
v
Council of the European Union, represented by A. Boggio-Tomasaz and A. Antoniadis, acting as Agents,
defendant,
THE GENERAL COURT (Ninth Chamber),
composed of L. Truchot, President, H. Kanninen (Rapporteur) and R. Frendo, Judges,
Registrar: I. Kurme, Administrator,
having regard to the order of 24 November 2022, Belavia v Council (T‑116/22 R, not published, EU:T:2022:726),
having regard to the written part of the procedure,
further to the hearing on 25 October 2023,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, Belavia – Belarusian Airlines AAT, seeks the annulment, first, of Council Implementing Decision (CFSP) 2021/2125 of 2 December 2021 implementing Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus (OJ 2021 L 430I, p. 16), and of Council Implementing Regulation (EU) 2021/2124 of 2 December 2021 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2021 L 430I, p. 1) (‘the initial acts’), and, second, of Council Decision (CFSP) 2023/421 of 24 February 2023 amending Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine (OJ 2023 L 61, p. 41), and Council Implementing Regulation (EU) 2023/419 of 24 February 2023 implementing Article 8a of Regulation (EC) No 765/2006 concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine (OJ 2023 L 61, p. 20) (‘the maintaining acts’), in so far as those acts concern it.
Background to the dispute and events subsequent to the bringing of the action
2 The applicant is an air carrier established in Minsk (Belarus).
3 The present case has been brought in connection with 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.
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), the title of which was replaced, under Article 1(1) of Council Regulation (EU) No 588/2011 of 20 June 2011 (OJ 2011 L 161, p. 1), by the title ‘Council Regulation (EC) No 765/2006 of 18 May 2006 concerning restrictive measures in respect of Belarus’.
5 On 15 October 2012, the Council adopted, on the basis of Article 29 TEU, Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1).
6 According to Article 4(1)(b) and (c)(i) of Decision 2012/642, as amended by Council Decision (CFSP) 2021/1990 of 15 November 2021 (OJ 2021 L 405, p. 10), and Article 2(5) and (6) of Regulation No 765/2006, as amended by Council Regulation (EU) No 1014/2012 of 6 November 2012 (OJ 2012 L 307, p. 1) and Council Regulation (EU) 2021/1985 of 15 November 2021 (OJ 2021 L 405, p. 1), the latter provisions relating to the former, all funds and economic resources belonging to, owned, held or controlled by, inter alia, natural or legal persons, entities or bodies benefiting from or supporting the Lukashenko regime and natural or legal persons, entities or bodies organising, or contributing to, activities by the Lukashenko regime that facilitate the illegal crossing of the external borders of the European Union are to be frozen.
7 By letter of 1 November 2021, addressed to a member of the cabinet of the High Representative of the Union for Foreign Affairs and Security Policy, the applicant claimed that the allegations contained in certain press articles that it was involved in ‘migrant trafficking’ in Belarus were inaccurate.
8 On 2 December 2021, the Council adopted the initial acts. It is apparent from recitals 2 thereof that ‘on 21 and 22 October 2021, the European Council adopted conclusions in which it declared that it will not accept any attempt by third countries to instrumentalise migrants for political purposes, condemned all hybrid attacks at the Union’s borders and affirmed that it will respond accordingly’, and that the European Council ‘underlined that the Union will continue countering the ongoing hybrid attack launched by the Belarusian regime, including by adopting further restrictive measures against persons and legal entities, in line with its gradual approach, as a matter of urgency’.
9 By the initial acts, the applicant’s name was inserted in line 16 of Table B of the list of natural and legal persons, entities and bodies described in Article 3(1) and Article 4(1) of Decision 2012/642 appearing in the annex to that decision and in line 16 of Table B of the list of natural and legal persons, entities and bodies described in Article 2(1) of Regulation No 765/2006 appearing in Annex I to that regulation (‘the lists at issue’).
10 In the initial acts, with regard to the applicant, the Council entered the identifying information: ‘address: 14A Nemiga St., Minsk, Belarus, 220004’, ‘date of registration: 4.1.1996’ and ‘registration number: 600390798’, and justified the adoption of restrictive measures concerning the applicant by giving the following reasons:
‘[The applicant] is the State-owned national flag carrier airline. Aliaksandr Lukashenk[o] promised that his administration would provide all possible support to [the applicant] after the Union decided to introduce a prohibition on the overflight of Union airspace and on access to Union airports by all Belarusian air carriers. To that end, he agreed with the Russian President Vladimir Putin on planning the opening of new airline routes for [the applicant].
[The applicant’s] management also told its employees not to protest against the election irregularities and mass detentions in Belarus, in view of the fact that [the applicant] is a State-owned enterprise.
[The applicant] is therefore benefiting from and supporting the Lukashenk[o] regime.
[The applicant] has been involved in bringing migrants from the Middle East to Belarus. Migrants wishing to cross the Union’s external border have been flying to Minsk on board flights operated by [the applicant] from a number of Middle Eastern countries, in particular Lebanon, [the United Arab Emirates] and [Türkiye]. In order to facilitate this, [the applicant] opened new air routes and expanded the number of flights on existing routes. Local tour operators have acted as intermediaries in selling [the applicant’s] tickets to prospective migrants, thereby helping [the applicant] to keep a low profile.
[The applicant] is therefore contributing to activities by the Lukashenk[o] regime that facilitate the illegal crossing of the external borders of the Union.’
11 By letter of 3 December 2021, the Council informed the applicant that its name was included on the lists at issue.
12 By letter of 30 December 2021, the applicant asked the Council for access to the information and evidence supporting the inclusion of its name on the lists at issue.
13 By letter of 14 January 2022, the Council provided the applicant with the documents containing the evidence used as the basis for its decision to include its name on the lists at issue.
14 By letter of 25 February 2022, the Council informed the applicant of the continuing inclusion of its name on the lists at issue.
15 By letter of 21 December 2022, the Council informed the applicant of its intention to extend the restrictive measures against it, on the basis of a document enclosed with that letter.
16 By letter of 19 January 2023, the applicant replied that the document communicated by the Council did not justify maintaining its name on the lists at issue.
17 On 24 February 2023, the Council adopted the maintaining acts by which it maintained the applicant’s name on the lists at issue on grounds that were essentially identical to those in the initial acts.
18 By letter of 27 February 2023, the Council stated that the observations set out in the letter of 19 January 2023 did not call into question its assessment that it was appropriate to maintain the applicant’s name on the lists at issue.
Procedure and forms of order sought
19 Following modification of the application pursuant to Article 86 of the Rules of Procedure of the General Court and further to the hearing, the applicant claims that the Court should:
– annul the initial and maintaining acts, in so far as they concern it;
– order the Council to pay the costs;
– reject the Council’s requests in the alternative seeking (i) that the effects of Implementing Decision 2021/2125 be maintained in so far as they concern the applicant until the partial annulment of Implementing Regulation 2021/2124 takes effect and (ii) that the effects of Decision 2023/421 be maintained in so far as they concern the applicant until the partial annulment of Implementing Regulation 2023/419 takes effect.
20 The Council contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs;
– in the alternative, should the Court annul the initial acts in so far as they concern the applicant, order that the effects of Implementing Decision 2021/2125 be maintained regarding the applicant until the partial annulment of Implementing Regulation 2021/2124 takes effect and, should the Court annul the maintaining acts in so far as they concern the applicant, order that the effects of Decision 2023/421 be maintained regarding the applicant until the partial annulment of Implementing Regulation 2023/419 takes effect.
Law
21 It is appropriate to examine, in the first place, the application for partial annulment of the initial acts and, in the second place, the application for partial annulment of the maintaining acts.
The application for partial annulment of the initial acts
22 In support of the application for annulment of the initial acts in so far as they concern it, the applicant relies formally on two pleas in law, alleging, first, manifest error of assessment by the Council and, second, that ‘because the Council failed to meet the required standard of proof’, the initial acts contain ‘an unlawful type of [sanction]’.
23 The Council disputes the applicant’s line of argument.
24 As a preliminary point, it should be observed, first, that the two pleas raised formally by the applicant overlap to a large extent in that they both allege, in essence, an error in the assessment of the facts and an infringement of Article 4(1)(b) and (c)(i) of Decision 2012/642. Moreover, the applicant stated at the hearing that it had raised, in essence, a single plea.
25 In those circumstances, the Court considers that the two pleas raised by the applicant form, in essence, a single plea in law.
26 Second, it should be recalled that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires, in particular, that the Courts of the European Union are to 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. 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, is substantiated (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).
27 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 that entity to adduce evidence of the negative, that those reasons are not well founded (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 121).
28 If the competent EU authority provides relevant information or evidence, the Courts of the European Union must then determine whether the facts alleged are made out in the light of that information or evidence and assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person or entity concerned (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 124).
29 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 detailed, precise and consistent body of evidence 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 12 February 2020, Kanyama v Council, T‑167/18, not published, EU:T:2020:49, paragraph 93 and the case-law cited).
30 Moreover, having regard to the preventive nature of the restrictive measures at issue, if, in the course of their review of the lawfulness of the contested decision, the Courts of the European Union consider that, at the very least, one of the reasons mentioned in the summary in question is sufficiently detailed and specific, that it is substantiated and that it constitutes in itself sufficient basis to support that decision, the fact that the same cannot be said of other such reasons cannot justify the annulment of that decision (see, to that effect, judgments 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 130, and of 24 November 2021, Assi v Council, T‑256/19, EU:T:2021:818, paragraph 168).
31 In the present case, the Court considers it appropriate to begin by examining the grounds of the initial acts in the fourth and fifth paragraphs referred to in paragraph 10 above; it is apparent from those sections that the applicant has been involved in bringing third-country nationals from the Middle East to Belarus, that third-country nationals wishing to cross the external borders of the European Union have been flying to Minsk on board flights operated by the applicant from a number of Middle Eastern countries, in particular Lebanon, the United Arab Emirates and Türkiye, that, in order to facilitate this, the applicant opened new air routes and expanded the number of flights on existing routes, that local tour operators have acted as intermediaries in selling the applicant’s tickets to third-country nationals potentially intending to cross those external borders, thereby helping the applicant to keep a low profile, and that the applicant is therefore contributing to activities by the Lukashenko regime that facilitate the illegal crossing of those external borders.
32 Those grounds are based on the criterion laid down in Article 4(1)(c)(i) of Decision 2012/642, to which Article 2(6)(a)(i) of Regulation No 765/2006 refers.
33 In support of its allegations, in the first place, the Council refers to the context of the events at issue.
34 In that connection, the Council relies on an article published on the website ‘wyborcza.pl’ on 21 October 2021 and an article published on the website ‘spiegel.de’ on 14 August 2021, from which it is apparent, in essence, that, in 2021, in response to certain measures taken by the European Union against Belarus, Belarusian authorities encouraged third-country nationals to travel to Belarus by air in order to direct them from that country towards the external borders of the European Union. It also refers to a message published on Twitter on 26 October 2021 according to which the Belarusian embassy in Syria drew up a list of travel agencies with exclusive rights to issue visas to citizens from Arab countries on their arrival in the restricted zone of Minsk airport.
35 The applicant does not dispute the existence of the context thus described by the Council.
36 In the second place, the Council produces the following documents:
– an article published on the website ‘reuters.com’ on 7 July 2021, from which it is apparent, inter alia, that an official of the Lithuanian Government sent to the Reuters press agency copies of four boarding passes for a flight from Istanbul (Türkiye) to Minsk operated by the applicant, found on a third-country national who had entered Lithuanian territory;
– an article published on the website ‘lemonde.fr’ on 10 November 2021 according to which, inter alia, in November 2021, several third-country nationals were present at Beirut airport (Lebanon) in order to board a flight to Minsk operated by the applicant, that one of those persons declared that he or she had obtained a visa from the Belarusian honorary consulate so that his or her journey ‘[looked] like legality’ and intended to enter ‘Fortress Europe’, that another of those persons stated that he wished to benefit from the ‘road [which had] opened’ in Belarus in order to travel to Germany, that the applicant had been operating two direct flights per week from Beirut to Minsk since November 2021, while it had previously been operating only one flight per week, that the number of travellers transported by the applicant had increased considerably since August 2020 and that ‘[although] it is impossible to book a flight on [the applicant’s] site, local tour operators [took] care of filling their planes’;
– an article published on the website ‘dw.com’ on 9 November 2021 from which it is apparent, inter alia, that (i) a travel agent established in Baghdad (Iraq) declared that ‘[the applicant had] direct flights to Minsk from Istanbul, Dubai [(United Arab Emirates)] and elsewhere’, that ‘all you [had] to do [is] to get there’ and that ‘it [was] a bit more expensive but still doable’ and (ii) planes operated by the applicant were used to ‘transport migrants to the [European Union’s] border’;
– an article published on the website ‘reform.by’ on 23 August 2021 according to which ‘airplanes from Istanbul fly to Minsk daily – four flights a day’, ‘two are performed by [the applicant], recently mainly on Embraer E195 (capacity up to 125 people), but in June there were Boeings with a capacity of about 150-190 seats’;
– three information extracts published on the website ‘flightradar24.com’, according to which the main air route from Erbil International Airport (Iraq) is to Istanbul with 23 flights per week, that the main air route from Baghdad International Airport is to Istanbul with 28 flights per week and that the applicant operates 2 flights per day from Istanbul to Minsk;
– an article published on the website ‘belsat.eu’ on 11 October 2021 stating, in particular, that a journalist ‘noticed about 50 passengers from the Middle East at [Istanbul Airport]’ who ‘were checking in, standing in a separate queue to [the applicant’s] stand’.
37 First, the Court observes that, among those documents, the article published on the website ‘lemonde.fr’, the article published on the website ‘dw.com’, the article published on the website ‘belsat.eu’ and the article published on the website ‘reuters.com’ agree on the fact that third-country nationals were able to board, in Beirut, Dubai and Istanbul, flights to Minsk operated by the applicant.
38 Admittedly, the Council does not dispute the applicant’s claim that it has never operated flights to or from Afghanistan, Iran, Iraq, Myanmar, Pakistan or Syria. In addition, as observed by the applicant, since the Council, in the grounds at issue, referred to flights operated by the applicant from certain Middle Eastern countries, Lebanon, the United Arab Emirates and Türkiye ‘in particular’, it cannot claim validly, in the defence, that it based its reasoning ‘only’ on the flights from those three third countries in order to include the applicant’s name on the lists at issue.
39 However, use of the term ‘in particular’ in the grounds at issue must be understood as meaning that the Council set out a non-exhaustive list of the countries from which flights were operated by the applicant. As the existence of such flights to Minsk from Lebanon, the United Arab Emirates and Türkiye has been established, there is no need to examine whether it can be established on the facts that the applicant operated flights from other third countries.
40 The Council did not therefore err in finding, at the very least, that third-country nationals travelled to Minsk on flights operated by the applicant from Lebanon, the United Arab Emirates and Türkiye.
41 Moreover, according to the article published on the website ‘lemonde.fr’ and the article published on the website ‘dw.com’, third-country nationals took flights operated by the applicant in order subsequently to cross the external borders of the European Union from Belarus and, according to the article published on the website ‘reuters.com’, a third-country national who had entered a Member State was found in possession of boarding passes from the applicant. In addition, it is apparent from the article published on the website ‘lemonde.fr’ that a third-country national preparing to board a flight operated by the applicant from Beirut to Minsk declared that he wished to ‘approach Fortress Europe’, that ‘“networks” await him [in Belarus]’ and that a reference was made to ‘the dead on the border between Belarus and Poland’, and another third-country national stated that he intended to reach Germany, while ‘[aware of] the danger’, since ‘Belarus has not opened its doors out of benevolence’ and ‘a road has opened’.
42 Those elements support the Council’s reasoning that third-country nationals boarded flights to Minsk operated by the applicant with the intention of crossing the borders of certain Member States without complying with the relevant legislation.
43 Second, it is apparent from the article published on the website ‘lemonde.fr’ that the applicant increased the number of flights from Beirut in 2021. Moreover, the information extracts published on the website ‘flightradar24.com’ and the article published on the website ‘reform.by’ show that the applicant operated two flights per day on the route between Istanbul and Minsk. Last, it is apparent from that article that the applicant increased the transport capacity of the planes operating on that route.
44 Third, the article published on the website ‘lemonde.fr’ relates that, ‘since August [2020] the number of [travellers with the applicant] has increased considerably’, that, in that context, ‘[the applicant] [kept] a low profile’ and that ‘[although] it [was] impossible to book a flight on [the applicant’s] site, local tour operators [took] care of filling their planes’.
45 It is apparent from the considerations set out in paragraphs 36 to 44 above that, when the initial acts were adopted, the Council had a sufficiently detailed, precise and consistent body of evidence to establish, in the light of the context described in paragraph 34 above, that third-country nationals intending to cross the external borders of the European Union without complying with the relevant legislation travelled to Minsk on flights operated by the applicant from Lebanon, the United Arab Emirates and Türkiye, that, in order to facilitate this, 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.
46 In order to challenge the body of evidence adduced by the Council, first, the applicant claims that other airlines operate flights between the United Arab Emirates and Türkiye, on the one hand, and Belarus, on the other, that those airlines have transported many people from Minsk to third countries between October and December 2021, when ‘the migrant crisis started winding down because migrants started getting back to their countries’ and that it does not transport directly, in comparison with other airlines, a high number of passengers, given that, inter alia, the aircraft it operates have a maximum capacity lower than that of aircraft operated by those other companies. It also argues that, even though it is the only airline to operate the route between Beirut and Minsk, it is a seasonal flight, tickets for which are sold by a third party, that, in 2021, the number of travellers flying on that air route was insignificant compared to other routes from or to third countries other than Lebanon and that it transported fewer passengers on the route between Beirut and Minsk in 2021 than in 2018 and 2019. In support of its claims, the applicant relies on data obtained from the Belarus Department of Aviation.
47 None of those arguments can succeed.
48 Admittedly, the data produced by the applicant show that, in 2021, it transported fewer passengers than two other airlines which operate, similarly to the applicant, on the routes between Istanbul and Minsk and Dubai and Minsk, that other airlines transported many persons from Minsk to Baghdad, Erbil and Damas (Syria) in late 2021 and that the number of persons which it transported on the route between Beirut and Minsk is lower than that of persons transported on other routes to or from third countries other than Lebanon in respect of which it produces figures.
49 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.
50 In addition, according to the data relayed by the applicant, the number of passengers transported by the applicant in 2021 from Istanbul to Minsk increased substantially, from 2 978 passengers in May to 6 975 passengers in October, and the number of passengers which it transported from Beirut to Minsk increased considerably, from 187 in June to 1 681 in September, which supports the Council’s allegations.
51 Similarly, the Court cannot endorse the applicant’s arguments that, first, the other airlines that it mentions must also be held responsible for the activities of the Lukashenko regime facilitating the illegal crossing of external borders of the European Union and, second, the fact that the name of one of those airlines was included then withdrawn from the lists at issue justifies the withdrawal of its name.
52 In that connection, it is sufficient to recall that the fact that the liability of other airlines should or could have potentially been sought does not exclude the applicant’s liability from being sought in and of itself, having regard to its own activities of transporting persons to Belarus (see, to that effect, judgments of 23 September 2014, Ipatau v Council, T‑646/11, not published, EU:T:2014:800, paragraph 116, and of 7 June 2023, Skryba v Council, T‑581/21, not published, EU:T:2023:321, paragraph 57).
53 Second, the applicant claims that it did not receive any instructions from the government ordering it to operate flights for the purpose of participating in activities facilitating the illegal crossing of the external borders of the European Union, that its flights to Lebanon, the United Arab Emirates and Türkiye were not chartered by the Belarusian State and that they are profitable.
54 In that connection, the Court observes that the Council did not rely, in the grounds at issue, on the statements that instructions had been given by the Belarusian Government, that the Belarusian State had chartered certain flights or that the flights in question were not profitable.
55 In addition, first, as the Council observes, the fact – which is not disputed by the parties – that the applicant is owed in its entirety by the Belarusian State renders implausible the argument that its activities could be determined irrespective of the Belarus Government’s wishes, failing any evidence to support this.
56 Moreover, according to the articles published on the website ‘wyborcza.pl’ and the website ‘spiegel.de’ referred to in paragraph 34 above, the Belarusian authorities facilitated the increase in traveller flows to Belarus by taking measures to issue many tourist visas to third-country nationals, inter alia by delegating special powers to travel agencies, some of which were controlled by the Belarusian State. Those articles and the article published on the website ‘lemonde.fr’ referred to in paragraph 36 above relate that, in that context, third-country nationals paid significant amounts to travel to Belarus by airplane. In addition, it is apparent from that latter article that ‘a multitude of actors [were] thus enriched by the hopes of a better life for [third-country nationals]’, airlines in particular, some of which, in order to respond to the increased demand for air transport services from third countries to Belarus, had expanded their transport capacity or considered opening new flight routes.
57 Accordingly, it is apparent from the evidence in the file that the Lukashenko regime organised the transport of third-country nationals to Belarus by air, not by chartering flights but 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. It follows that the applicant’s allegations that its flights to Lebanon, the United Arab Emirates and Türkiye were not chartered by the Belarusian State and its own transport operations were profitable – assuming those allegations to be established – 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.
58 Third, the applicant argues that it complies with the relevant legislation when checking in its passengers, regarding, in particular, the requirement to possess a visa.
59 In that connection, it is sufficient to note that, as is apparent from paragraph 56 above, the activities of the Lukashenko regime facilitating the illegal crossing of the external borders of the European Union included the issuing of visas to third-country nationals in order for them to enter Belarusian territory. The article published on the website ‘lemonde.fr’ referred to in paragraph 36 above relates, accordingly, that a third-country national preparing to board a flight operated by the applicant from Beirut and intending to cross those external borders declared that he had a visa so that his travel ‘look[ed] like legality’.
60 It follows that 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.
61 Fourth, the applicant submits that it does not pursue any activities other than the operation of flights and that it has ‘never witnessed [activities] at its airports … such as organised pick-ups of large groups of alleged migrants’.
62 In so far as those considerations are unrelated to the evidence relied on by the Council against the applicant, they must be rejected as irrelevant.
63 Admittedly, having regard to all the foregoing considerations, 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.
64 However, that finding is not enough to annul the initial acts, as the Council has adduced evidence to show that the factual allegations set out in paragraph 45 above are well founded, and that that evidence is sufficient to establish that the applicant contributed to the activities of the Lukashenko regime facilitating the illegal crossing of the external borders of the European Union for the purposes of the criterion laid down in Article 4(1)(c)(i) of Decision 2012/642.
65 In addition, the Court takes the view that 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.
66 Therefore, in accordance with the case-law cited in paragraph 30 above, the single plea in law must be rejected as unfounded, without there being any need to examine the applicant’s arguments directed against the other grounds justifying the initial acts, since the fact that those grounds are not substantiated cannot lead to the annulment of those acts.
67 It follows that the application for partial annulment of the initial acts must be rejected.
The application for partial annulment of the maintaining acts
68 By statement of modification lodged in accordance with Article 86 of the Rules of Procedure, the applicant seeks the annulment of the maintaining acts in so far as they concern it, reiterating, in essence, the plea in law raised in the application.
69 In its observations on the statement of modification, first of all, the Council submits that it took into account the applicant’s observations before adopting the maintaining acts. Next, the Council submits that it has demonstrated in the defence and in the rejoinder that the restrictive measures taken against the applicant are well founded and maintains that its assessment is confirmed by the additional evidence added to its file when the maintaining acts were adopted. Finally, it contends that the applicant’s arguments relating to the situation of two other airlines do not show that the maintaining acts are unlawful.
70 In the present case, the Court considers it appropriate to begin by examining the grounds of the maintaining acts in the fourth and fifth paragraphs of those grounds, according to which the applicant contributes to the activities of the Lukashenko regime facilitating the illegal crossing of the external borders of the European Union, followed by those in the first and third paragraphs of those grounds, according to which the applicant benefits from the Lukashenko regime.
The assessment that the applicant contributes to the activities of the Lukashenko regime facilitating the illegal crossing of the external borders of the European Union
71 In the fourth and fifth paragraphs of the grounds of the maintaining acts, the Council made no changes to the considerations in the fourth and fifth paragraphs of the grounds of the initial decisions set out in paragraph 31 above.
72 In the statement of modification and at the hearing, the applicant claimed that the Council had failed to take account of the evidence that it had sent to the Council at the time of the periodic review of the restrictive measures in respect of Belarus which resulted in the adoption of the maintaining acts.
73 The applicant referred to the letter sent to the Council on 19 January 2023 in which it had argued, inter alia, that ‘the migrant crisis no longer exists, as far as the EU-Belarus [border is] concerned’. It added that, in November 2021, the Turkish and Emirati authorities had prohibited airlines operating flights from Türkiye and the United Arab Emirates from transporting nationals from several Middle Eastern and Asian third countries to Minsk and that it had itself ceased operating on the route between Beirut and Minsk. According to the applicant, the number of persons originating from the third countries referred to above who could have travelled to Belarus by air had then decreased considerably and, from 2022, third-country nationals attempting to cross the external borders of the European Union no longer travelled by air.
74 In its observations on the statement of modification, the Council relied on ‘sources confirming that the applicant [kept] operating flights from Istanbul, which is the most popular destination of flights from Erbil …, to Minsk’.
75 At the hearing, the Council specified that it had examined the evidence relied on by the applicant before adopting the maintaining acts. It stated that it had taken account of the fact that the applicant no longer operated flights from Lebanon and that steps had been taken by the Turkish authorities, but that other evidence in its possession showed that the applicant had continued to operate flights from Istanbul Airport, which was a connecting hub for persons wishing to travel to Minsk in order subsequently to cross the external borders of the European Union, and that the applicant was selling its tickets via third parties in a non-transparent manner. It also argued that the flights operated by the applicant from Istanbul, not those operated from Dubai and Beirut, had justified the adoption of the maintaining acts.
76 It must be borne in mind that restrictive measures are 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. In the course of its periodic review of those restrictive measures, it is for the Council 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 at issue 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).
77 In order to justify maintaining a person’s name on the list, the Council is not prohibited from basing its decision on the same evidence justifying the initial inclusion, re-inclusion or previous retention of the name of the person concerned on the list, provided that (i) the grounds for listing remain unchanged and (ii) the context has not changed in such a way that that evidence is now out of date. That context includes not only the situation of the country in respect of which the system of restrictive measures was established, but also the particular situation of the person concerned (see judgment of 26 October 2022, Ovsyannikov v Council, T‑714/20, not published, EU:T:2022:674, paragraph 78 and the case-law cited).
78 In the present case, first, the Court observes that, at the hearing, the Council stated that, in the light of the elements of which it was aware when the maintaining acts were adopted, the assessment that the applicant contributed to activities of the Lukashenko regime facilitating the illegal crossing of the external borders of the European Union could no longer be justified by the fact that the applicant operated flights from Lebanon and the United Arab Emirates. In addition, regarding the flights operated by the applicant on the route between Istanbul and Minsk, the Council stated that that assessment was based on the existence of a route between Erbil and Istanbul and on a non-transparent system for the sale of the applicant’s tickets.
79 So doing, the Council acknowledges implicitly that the evidence justifying the adoption of the initial acts had become obsolete in that regard.
80 Therefore, according to the case-law cited in paragraph 77 above, the Council made an error of assessment in justifying the maintaining acts by the same grounds as those on which the initial act was based, according to which ‘migrants wishing to cross the [European Union’s] external border have been flying to Minsk on board flights operated by [the applicant] from a number of Middle Eastern countries, in particular Lebanon, [the United Arab Emirates] and [Türkiye]’.
81 Second, regarding the flights operated on the route between Istanbul and Minsk, the Council relied at the hearing on information published on the website ‘flightradar24.com’, which it accessed on 23 November 2022.
82 In that connection, it must be stated that the information published on the website ‘flightradar24.com’ lends no support to the Council’s claim that the applicant allegedly had a non-transparent ticket distribution system in place. In addition, that information establishes, at most, that there was a flight route between Erbil and Istanbul and that the applicant continued to operate flights on the route between Istanbul and Minsk. This is not, however, sufficient to establish that the applicant was involved in transporting third-country nationals who may have intended to cross the external borders of the European Union, while the Council, moreover, acknowledges that, from October 2021, airlines operating flights from Türkiye were prohibited from transporting nationals from several Middle Eastern and Asian third countries to Minsk.
83 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 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.
84 It follows from the foregoing that the ground that the applicant contributes to activities by the Lukashenko regime that facilitate the illegal crossing of the external borders of the European Union is vitiated by an error of assessment.
The assessment that the applicant benefits from the Lukashenko regime
85 It is apparent from the first and third paragraphs of the grounds of the maintaining acts that the applicant is the State-owned national flag carrier airline, that President Lukashenko promised that his administration would provide all possible support to the applicant after the European Union decided to introduce a prohibition on the overflight of EU airspace and on access to EU airports by all Belarusian air carriers, that, to that end, he agreed with the Russian President Vladimir Putin on planning the opening of new airline routes for the applicant and that the applicant therefore benefits from the Lukashenko regime.
86 Those grounds are based on the criterion of ‘benefit’ derived from the Lukashenko regime laid down in Article 4(1)(b) of Decision 2012/642, to which Article 2(5) of Regulation No 765/2006 refers. It is clear from Article 4(1)(b) of Decision 2012/642 that that criterion for listing is distinct from that of ‘support’ for the Lukashenko regime (see, to that effect, judgments of 27 September 2017, BelTechExport v Council, T‑765/15, not published, EU:T:2017:669, paragraph 92; of 18 October 2023, MAZ-upravljajusaja kompanija holdinga Belavtomaz v Council, T‑532/21, not published, EU:T:2023:656, paragraph 44; and of 18 October 2023, Belaz-upravljajusaja kompanija holdinga Belaz Holding v Council, T‑533/21, not published, EU:T:2023:657, paragraph 40).
87 In support of its allegations, the Council, in the defence and the rejoinder, relies on the following pieces of evidence:
– an article published on the website ‘belta.by’ on 1 June 2021 from which it is apparent that, on the same day, during a meeting on cooperation with Russia, President Lukashenko stated that he found it regrettable that the ‘West’ had ‘link[ed] [the applicant] and [an] incident’, declared that the Belarusian State would give all possible support to the applicant and stated that the Republic of Belarus and the Russian Federation were considering opening new flight routes to several Russian cities to the applicant’s benefit;
– an article published on the website ‘tass.com’ on 1 June 2021 from which it is apparent that, according to information relayed by the media ‘SB. Belarus Today’, the Presidents of the Republic of Belarus and of the Russian Federation instructed their respective ministers for transport to determine to which Russian cities the applicant could fly.
88 It is apparent from the article published on the website ‘belta.by’ and from the article published on the website ‘tass.com’ that, according to President Lukashenko, ‘it’s most important for us to give work to our pilots and to use the aircraft we procured with such difficulties in challenging times’, ‘we had a major renewal of the aircraft fleet’, ‘our pilots are skillful’, ‘I promised that we would not leave [the applicant] out in the cold’ and ‘we will support this company no matter … the cost; it is our honor to support it’.
89 Admittedly, the article published on the website ‘belta.by’ and the article published on the website ‘tass.com’ do not state expressly that, as the Council sets out in the grounds at issue, the declarations in question by President Lukashenko were made in response to the decision of the European Union to introduce a prohibition on the overflight of its airspace and on access to airports within the European Union by all Belarusian air carriers. However, as stressed by the Council at the hearing, without being challenged by the applicant, the reference in the first article to the ‘West’ having ‘link[ed] [the applicant] and [an] incident’ must be understood as a reference to the fact that, by Council Decision (CFSP) 2021/908 of 4 June 2021 amending Decision 2012/642 (OJ 2021 L 197I, p. 3), the European Union, in response to the forced landing of a Ryanair flight in Minsk, in Belarus, on 23 May 2021, adopted a measure by which the Member States are to deny permission to land in, take off or overfly their territories to any aircraft operated by Belarusian air carriers.
90 The applicant acknowledges that it is an airline owned by the Belarusian State and acknowledges the existence of the public statements made by President Lukashenko referred to in paragraphs 88 and 89 above. Similarly, it does not dispute that the Presidents of the Republic of Belarus and of the Russian Federation instructed their respective ministers for transport to determine to which Russian cities the applicant could fly. However, such elements, which show specific support to the applicant, a State-owned national flag carrier airline, from President Lukashenko, cannot be disregarded in the overall assessment of the various relevant factors which would justify the applicant being considered as an entity benefiting from President Lukashenko’s regime (see, to that effect, judgment of 28 June 2023, Dana Astra v Council, T‑239/21, not published, EU:T:2023:364, paragraph 45 and the case-law cited).
91 However, the applicant argues that the public statements made by President Lukashenko referred to in paragraphs 88 and 89 above have not had any commercial or financial consequences for it, particularly because no new flight routes to Russia were allocated to the applicant following that meeting. A single new flight route between Minsk and Ufa (Russia) was opened after the European Union imposed restrictions on flights in the spring of 2021, and that opening had been decided and announced before the meeting between President Lukashenko and the President of the Russian Federation.
92 In that connection, the Court observes that the Council refers, in its observations on the statement of modification, to certain documents added to its file when the maintaining acts were adopted, including:
– an article published on the website ‘neg.by’ on 10 August 2022 from which it is apparent that the applicant increased the number of flights from Minsk to certain cities in Russia, due, inter alia, to flights to Vnukovo airport, situated in Moscow (Russia);
– an article published on the website ‘mir24.tv’ on 15 July 2022, reporting that the applicant opened a flight route between Minsk and Vnukovo airport;
– an article published on the website ‘eng.belta.by’ on 15 July 2022 from which it is apparent that the applicant re-established, from that date, regular flights on the route between Minsk and Vnukovo airport;
– an article published on the website ‘sb.by’ on 5 November 2022 relating that the Republic of Belarus and the Russian Federation developed their cooperation in the field of civil aviation following the measures taken by the European Union to close its airspace, that, in those circumstances, the Belarusian airlines ‘have reoriented their work in eastern and southern directions’, inter alia, the applicant, which was at that time operating regular flights to certain countries including Russia, and that ‘the air carriers of Russia and Belarus regularly open new international and domestic routes as well as develop cooperation’.
93 First, the article published on the website ‘mir24.tv’ and the article published on the website ‘eng.belta.by’ both relate that the applicant began operating flights to Vnukovo airport from 15 July 2022. This contradicts the applicant’s claim that the route between Minsk and Ufa was the only one opened towards Russia after the European Union introduced a prohibition relating to its airspace.
94 Admittedly, the applicant argued that it had decided to fly to and from Vnukovo airport due to the increase in the number of passengers wishing to travel to Moscow and relied, for that purpose, on a letter dated 5 July 2021 by which the operator of that airport invited the director general of the applicant to open a new route from Minsk.
95 However, the Court notes, first, that the letter of the operator of Vnukovo airport of 5 July 2021 is not unequivocal regarding the reasons for opening a flight route to that airport. In that letter, the operator refers to the ‘ambiguous geopolitical situation’ which could, according to the operator, restrict the applicant’s activities, but also allow a significant increase in the number of passengers on the flight route between Minsk and Moscow.
96 Moreover, as the letter of the operator of Vnukovo airport was sent to the applicant approximately one month after the public statements made by President Lukashenko announcing that the Belarusian State would give all possible support to the applicant, the Court takes the view that such proximity in time supports the Council’s reasoning that the opening of the route to Vnukovo airport on 15 July 2022 followed those statements and that President Lukashenko did therefore act on his promise to the applicant. The applicant’s argument that it had previously been operating flights to Vnukovo airport until 2011 and that it is not, strictly speaking, a ‘new flight destination’ cannot rebut that finding. The fact that the applicant did not operate on the flight route between Minsk and Vnukovo airport from 2011 but began to do so following an invitation received shortly after the public statements made by President Lukashenko referred to above is more likely to corroborate the Council’s allegations.
97 It follows that the applicant’s arguments are not sufficient to call into question the evidence submitted by the Council.
98 Second, the Court observes that the article published on the website ‘neg.by’ and the article published on the website ‘sb.by’ state that the number of flights operated by the applicant to Russia increased and that close cooperation was established between Belarusian and Russian operators in the air transport sector after the airspace of the European Union was closed to aircraft from the Republic of Belarus and the Russian Federation.
99 Therefore, the evidence relied on by the Council constitutes a sufficiently detailed, precise and consistent body of evidence to establish that, contrary to the applicant’s claims, the applicant 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.
100 It is apparent from all the foregoing that the Council did not make an error of assessment in finding that the applicant is the State-owned national flag carrier airline, that President Lukashenko promised that his administration would provide all possible support to the applicant after the European Union decided to introduce a prohibition on the overflight of EU airspace and on access to EU airports by all Belarusian air carriers, and that, to that end, he agreed with the Russian President Vladimir Putin on planning the opening of new airline routes for the applicant.
101 In addition, as the Council has proved that the applicant 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, the applicant argues unsuccessfully that those statements do not make it possible to conclude that it benefits from the Lukashenko regime for the purposes of the criterion laid down in Article 4(1)(b) of Decision 2012/642.
102 Moreover, the grounds on which the assessment that the applicant benefits from the Lukashenko regime is based are sufficiently precise and detailed and free from errors of assessment of the facts or errors of law and constitute in themselves a sufficient basis for maintaining the applicant’s name on the lists at issue.
103 Therefore, in accordance with the case-law cited in paragraph 30 above, the single plea in law must be rejected as unfounded, without there being any need to examine the applicant’s arguments directed against the grounds of the maintaining acts from which it is apparent that it supports the Lukashenko regime, since the fact that those grounds are not substantiated cannot lead to the annulment of those acts.
104 In the light of all the foregoing considerations, the application for partial annulment of the maintaining acts and, consequently, the present action in its entirety must be dismissed as unfounded.
Costs
105 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, it must be ordered to pay the costs, in accordance with the form of order sought by the Council, including those relating to the proceedings for interim measures.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1. Dismisses the action;
2. Orders Belavia – Belarusian Airlines AAT to pay the costs, including those relating to the proceedings for interim measures.
Delivered in open court in Luxembourg on 29 May 2024.
V. Di Bucci | | M. van der Woude |