Case T‑125/22
RT France
v
Council of the European Union
Judgment of the General Court (Grand Chamber), 27 July 2022
(Common foreign and security policy – Restrictive measures adopted in view of Russia’s actions destabilising the situation in Ukraine – Temporary prohibition on broadcasting and suspension of authorisations for the broadcasting of content by certain media outlets – Inclusion on the list of entities to which restrictive measures apply – Competence of the Council – Rights of the defence – Right to be heard – Freedom of expression and of information – Proportionality – Freedom to conduct a business – Principle of non-discrimination on grounds of nationality)
1. Acts of the institutions – Decisions – Specific provisions concerning the Common Foreign and Security Policy (CFSP) – Union competence in matters of the CFSP – Scope – Decisions providing for measures capable of directly altering the legal position of individuals – Included – Determination by the Council of the persons and entities subject to the restrictive measures – Temporary suspension of the broadcasting of content by certain media outlets – Whether permissible – Competence conferred on a national administrative authority to adopt sanctions – Irrelevant
(Arts 3(5), 21, 23, 24(1), 25, 28 and 29 TEU; Council Decision (CFSP) 2022/351)
(see paragraphs 49-54, 57)
2. EU law – Principles – Rights of the defence – Right to effective judicial protection – Restrictive measures – Obligation to disclose individual and specific grounds for the decisions adopted – Right to be heard prior to the adoption of such measures – Limitations – Conditions
(Charter of Fundamental Rights of the European Union, Arts 41(2) and 48(2))
(see paragraphs 75-79)
3. EU law – Principles – Rights of the defence – Right to effective judicial protection – Restrictive measures taken having regard to the situation in Ukraine – Temporary prohibition on the broadcasting of content by certain media outlets – Initial decision to include the name of a person or entity on a list of persons and entities subject to those restrictions – Objectives – Exceptional circumstances – Urgency – Council’s obligation to disclose incriminating evidence – None
(Arts 3(10 and (5), 21(1) and (2)(a) and (c), TEU; Charter of Fundamental Rights of the European Union, Arts 41(2)(a) and 52(1); Council Decision (CFSP) 2022/351, Annex; Council Regulation 2022/350, Annex)
(see paragraphs 80, 81, 85-88, 92)
4. EU law – Principles – Rights of the defence – Right to effective judicial protection – Restrictive measures taken having regard to the situation in Ukraine – Temporary prohibition on the broadcasting of content by certain media outlets – Obligation to disclose incriminating evidence – Scope – Unlawfulness of the act dependent on proof of the possible procedural impact of the infringement – Burden of proof on the person claiming infringement – Obligation on the Courts of the European Union to carry out checks
(Council Decision (CFSP) 2022/351, Annex; Council Regulation No 2022/350, Annex)
(see paragraphs 82, 93, 94)
5. Acts of the institutions – Statement of reasons – Obligation – Scope – Restrictive measures taken having regard to the situation in Ukraine – Temporary prohibition on the broadcasting of content by certain media outlets – Obligation to identify in the statement of reasons the specific and concrete elements justifying that measure – Decision falling within a context known to the person concerned, enabling him or her to understand the scope of the measure taken against him or her – Whether summary statement of reasons sufficient
(Art. 296, second subpara., TFEU; Charter of Fundamental Rights of the European Union, Arts 11, 41(2)(c) and 52(1); Council Decision (CFSP) 2022/351; Council Regulation 2022/350)
(see paragraphs 102-105, 109, 111-115)
6. Common foreign and security policy – Restrictive measures against certain persons and entities in view of the situation in Ukraine – Temporary prohibition on the broadcasting of content by certain media outlets – Restriction of the right to freedom of expression – Whether permissible – Condition – Restriction laid down by law – Definition – Acts of general application laying down clear and predictable bases in EU law – Included
(Art. 29 TEU; Art. 215 TFEU; Charter of Fundamental Rights of the European Union, Arts 11 and 52(1); Council Decision (CFSP) 2022/351; Council Regulation 2022/350)
(see paragraphs 145-147, 149-152)
7. Common foreign and security policy – Restrictive measures against certain persons and entities in view of the situation in Ukraine – Temporary prohibition on the broadcasting of content by certain media outlets – Restriction of the right to freedom of expression – Whether permissible – Condition – Respect for the essential content of the freedom of expression – Meaning – Temporary and reversible measures which do not call into question that freedom as such – Included
(Charter of Fundamental Rights of the European Union, Arts 11 and 52(1); Council Implementing Decision (CFSP) 2022/351, recital 10 and Art. 9)
(see paragraphs 154-157, 159)
8. Common foreign and security policy – Restrictive measures against certain persons and entities in view of the situation in Ukraine – Temporary prohibition on the broadcasting of content by certain media outlets – Restriction of the right to freedom of expression – Whether permissible – Condition – Pursuit of an objective of general interest, recognised as such by the European Union – Definition – Protection of EU public order and public security – Maintenance of international peace and security – Included
(Arts 3(1) and (5), 21(2)(a) and (c) TEU; Charter of Fundamental Rights of the European Union, Arts 11 and 52(1); Council Decision (CFSP) 2022/351; Council Regulation 2022/350, recitals 1 to 10)
(see paragraphs 161-163, 166, 167)
9. Common foreign and security policy – Restrictive measures against certain persons and entities in view of the situation in Ukraine – Temporary prohibition on the broadcasting of content by certain media outlets – Restriction of the right to freedom of expression – Whether permissible – Condition – Observance of the principle of proportionality – Infringement – None
(Charter of Fundamental Rights of the European Union, Arts 11 and 52(1); Council Decision (CFSP) 2022/351; Council Regulation 2022/350)
(see paragraphs 186, 188, 191, 193-195, 197-202, 206, 211-213, 215)
10. Common foreign and security policy – Restrictive measures against certain persons and entities in view of the situation in Ukraine – Temporary prohibition on the broadcasting of content by certain media outlets – Restriction on the freedom to conduct a business – Whether permissible – Conditions – Infringement – None
(Charter of Fundamental Rights of the European Union, Arts 11 and 52(1); Council Decision (CFSP) 2022/351; Council Regulation 2022/350)
(see paragraphs 219-228, 230)
11. Common foreign and security policy – Restrictive measures against certain persons and entities in view of the situation in Ukraine – Temporary prohibition on the broadcasting of content by certain media outlets – Principle of non-discrimination – Scope ratione materiae – Share capital owned by a legal person of a third country – Precluded – Infringement of principle of non-discrimination – None
(Art. 6(1), third subpara., TEU; Art. 18, first subpara., TFEU; Charter of Fundamental Rights of the European Union, Arts 21(2) and 52(1) and (7); Council Decision (CFSP) 2022/351; Council Regulation 2022/350)
(see paragraphs 235, 236, 238-242)
Résumé
Following the military aggression perpetrated by the Russian Federation (‘Russia’) against Ukraine on 24 February 2022, the Council of the European Union adopted a number of ‘packages’ of restrictive measures against Russia. Those measures supplement the previous measures that the Council had adopted from 2014 onwards in view of the actions of that State which had destabilised the situation in Ukraine (1) and in response to the illegal annexation, by Russia, of Crimea and the city of Sevastopol. (2)
It was in that context that the Council adopted, on 1 March 2022, Decision 2022/351 (3) and Regulation 2022/350 (4) (‘the contested measures’) in order temporarily to prohibit the propaganda campaign, undertaken by Russia, targeting civil society in the European Union and in neighbouring countries, in support of its military aggression against Ukraine, carried out through certain media outlets under its control, since that campaign constituted a threat to the EU’s public order and security. On that basis, any operator established in the European Union is prohibited from circulating content produced by the legal persons, entities or bodies listed in the annexes to the contested measures. (5)
The applicant, RT France, was included on the list of entities set out in the annexes to the contested measures. This single-shareholder simplified limited company, established in France, publishes specialised television channels. The applicant’s entire share capital is held by the association ANO ‘TV Novosti’, an autonomous not-for-profit association in the Russian Federation, without share capital, having its headquarters in Moscow (Russia). The applicant sought annulment of the contested acts on the ground that its rights of defence, its freedom of expression and information, and its freedom to conduct a business had been infringed. It also alleged infringement of the principle of non-discrimination. Furthermore, it cast doubt on the Council’s competence to adopt the acts at issue.
The General Court, sitting as the Grand Chamber, and further to an expedited procedure decided of its own motion, (6) rules for the first time on restrictive measures adopted by the Council seeking to prohibit the broadcasting of audiovisual content. In that connection, the Court recalls the Council’s competence to adopt such measures under the Common Foreign and Security Policy of the European Union (CFSP), and rules in particular on the observance of the rights of the defence and the limitations on the exercise of the freedom of expression of an audiovisual media outlet in the light of the conditions laid down in Article 52(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
Findings of the Court
As regards, first of all, the Council’s competence to adopt the restrictive measures at issue, the Court states that, pursuant to the relevant provisions of the Treaty on European Union, the European Union is to contribute to international ‘peace and security’ (7) and that, to that end, power is conferred on the Council to adopt ‘decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature’. (8) The Court states that the Union’s competence in CFSP matters are to cover all areas of foreign policy and all questions relating to the Union’s security (9) and that the Union’s action on the international scene is to seek to promote democracy, the rule of law, the universality and indivisibility of human rights, respect for human dignity, respect for the principles of the United Nations Charter and international law. (10) Since the concept of ‘approach of the Union’ lends itself to a broad interpretation, such approaches may take the form of decisions providing for measures capable of directly affecting the legal position of individuals, as is confirmed by the wording of the second paragraph of Article 275 TFEU. (11)By adopting the contested decision, the Council therefore exercised the competence attributed to the European Union by the Treaties under the provisions relating to the CFSP.
In that regard, the Court points out that the fact that national administrative authorities, such as the Autorité de régulation de la communication audiovisuel (Authority for the regulation of audiovisual and digital communication; Arcom) in France, are competent to adopt sanctions against the audiovisual entities at issue does not exclude the Council’s own competence, since the competence conferred on those authorities is not based on the same values and does not pursue the same objectives. Such authorities cannot guarantee the same results as uniform and immediate intervention by the Council throughout the territory of the European Union, such as that achieved under the CFSP.
As regards the infringements of fundamental rights on which the applicant relies, the Court notes that, in accordance with the provisions of Article 52(1) of the Charter, these are not absolute rights and may be subject to limitations, provided that the limitations concerned are provided for by law, respect the essence of the fundamental right at issue and, subject to the principle of proportionality, are necessary and meet objectives of general interest recognised by the European Union.
Thus, as regards the infringement of the rights of the defence, and in particular of the right to be heard, the Court observes, in the light of the objectives of the CFSP, that the measures at issue form part of an extraordinary context of extreme urgency, characterised by a rapid escalation of the situation which made any form of modulation of the restrictive measures designed to prevent the conflict from spreading difficult. Next, in a strategy of countering so-called ‘hybrid’ threats, including disinformation, the requirement to adopt restrictive measures against media outlets, such as the applicant, funded by the Russian State budget and directly or indirectly controlled by the leadership of that country, which is the aggressor country, in that they were considered to be at the root of a continuous and concerted activity of disinformation and manipulation of the facts, became, following the launch of the armed conflict, overriding and urgent, in order to preserve the integrity of democratic debate in European society. Having regard to the quite exceptional context in which the contested acts were adopted, namely that of the outbreak of a war at the borders of the European Union, the objective which they pursue and the effectiveness of the restrictive measures which they lay down, it must be concluded that the EU authorities were not required to hear the applicant before initially placing its name on the lists at issue and, consequently, that there was no breach of the applicant’s right to be heard.
Next, as regards infringement of the freedom of expression and information, (12) the Court recalls first the principles of case-law laid down by the European Court of Human Rights. (13) Thus, in view of the influence exerted by the media in modern society, the right of journalists to impart information on issues of general interest is subject to the proviso that they are acting in good faith, on an accurate factual basis, and provide ‘reliable and precise’ information in accordance with the ethics of journalism and the tenets of responsible journalism. In the light of the examination of the proportionality of the restrictive measures at issue, account must be taken of the fact that the audiovisual media have a more immediate and powerful effect than the print media. The Court also points out that, unlike expression on matters of public interest, which is entitled to strong protection, expression that promotes or justifies violence, hatred, xenophobia or another form of intolerance cannot normally claim protection, and it is necessary to pay attention to the words used, the manner in which the statements were made and the context in which they were broadcast.
Examining the conditions of Article 52(1) of the Charter, the Court then observes that the restrictive measures at issue were, inter alia, provided for ‘by law’ in the sense that they were set out in acts which are, in particular, of general application, having clear legal bases in EU law, (14) and that they were foreseeable in the light of the applicant’s actions. The condition relating to the pursuit of an objective of general interest recognised by the European Union is also satisfied. By the restrictive measures at issue, the Council pursues the twofold objective of protecting the public order and security of the European Union, threatened by the propaganda campaign at issue, and of exerting pressure on the Russian authorities so that they bring an end to their military aggression against Ukraine
The Court considers, moreover, that the Council was entitled to consider that the various items of evidence referred to above constituted a sufficiently concrete, precise and consistent body of evidence capable of demonstrating that, before the adoption of the contested acts, the applicant actively supported the policy conducted by Russia towards Ukraine, and that the applicant had broadcast information justifying the military aggression at issue, which constituted a significant and direct threat to the Union’s public order and security. In that regard, it considers that the evidence put forward by the applicant does not prove a balanced overall treatment, by the latter, of the information relating to the ongoing war.
In the context, lastly, of the weighing-up of the interests at issue, the Court points out that the information processing in question cannot benefit from the enhanced protection afforded to press freedom under Article 11 of the Charter. In that connection, it is appropriate to take into consideration the United Nations International Covenant on Civil and Political Rights, adopted on 16 December 1966, to which not only the Member States but also Russia are parties, and pursuant to which ‘any propaganda for war shall be prohibited by law’. (15) Having regard to the extraordinary context of the case, the Court finds that the limitations on the applicant’s freedom of expression are proportionate to the aims pursued.
As regards, moreover, the infringement of the freedom to conduct a business, the Court also finds that since the measures in question are temporary and reversible, they do not undermine the essential content of the freedom to conduct a business.
As regards, lastly, infringement of the principle of non-discrimination on grounds of nationality, enshrined in particular in Article 21(2) of the Charter, the Court states that this must apply in accordance with the first paragraph of Article 18 TFEU, (16) which concerns situations falling within the scope of EU law in which a national of one Member State suffers discriminatory treatment compared with nationals of another Member State solely on the basis of his nationality. The General Court notes in that regard that, in the case of alleged discrimination on account of the applicant’s Russian shareholding, which was treated for that reason less favourably than other French audiovisual media outlets (which are not under the same type of control by an entity of a third country), a disparity in treatment of that kind does not fall within the scope of that provision.
In view of the foregoing, the Court dismisses the action.