CELEX: 62022TJ0125
Common foreign and security policy
Restrictive measures in view of Russia’s actions destabilising the situation in Ukraine
Temporary prohibition of broadcasting and suspension of authorisations for the broadcasting of content by certain media outlets
Listing of entities to which the restrictive measures apply
Competence of the Council
Rights of the defence
Right to be heard
Freedom of expression and information
Proportionality
Freedom to conduct a business
Principle of non-discrimination on grounds of nationality

By its action under Article 263 TFEU, the applicant, RT France, seeks the annulment of Council Decision (CFSP) 2022/351 of 1 March 2022 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (
OJ 2022 L 65, p. 5
, ‘the contested decision’) and of Council Regulation (EU) 2022/350 of 1 March 2022 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (
OJ 2022 L 65, p. 1
, ‘the contested regulation’) (together ‘the contested acts’), in so far as those acts relate to the applicant.
Background to the dispute
The applicant is a single-shareholder simplified limited company established in France, whose activity consists in the publication of specialised television channels. The applicant’s entire share capital is held by the association ANO ‘TV Novosti’ (‘TV Novosti’), an autonomous not-for-profit association in the Russian Federation, without share capital, having its headquarters in Moscow (Russia), which is almost entirely funded by the budget of the Russian State.
On 2 September 2015, the applicant entered into an agreement with the Conseil supérieur de l’audiovisuel (Audiovisual High Council (CSA), France), now the Autorité de régulation de la communication audiovisuelle et numérique (Authority for the regulation of audiovisual and digital communication (Arcom), France), for the broadcasting of the terrestrial television service called RT France. It has been operational in France since 2017 and its content is also broadcast in all French-speaking countries via satellite or the internet.
In March 2014, the Russian Federation unlawfully annexed the Autonomous Republic of Crimea and the city of Sevastopol and has since engaged in continued destabilisation actions in eastern Ukraine. In retaliation, the European Union has introduced restrictive measures in view of the actions of the Russian Federation, restrictive measures in view of actions compromising or threatening the territorial integrity, sovereignty and independence of Ukraine, and restrictive measures in response to the illegal annexation of the Autonomous Republic of Crimea and the city of Sevastopol by the Russian Federation.
From the spring of 2021 onwards, the situation on the border between Russia and Ukraine became tense, with the deployment by the Russian Federation of substantial military forces near its border with Ukraine.
In its conclusions of 24 and 25 June 2021, the European Council called on the Russian Federation to fully assume its responsibility in ensuring the full implementation of the ‘Minsk Agreements’ as the key condition for any substantial change in the Union’s stance. It emphasised the need for a ‘firm and coordinated response by the EU and its Member States to any further malign, illegal and disruptive activity by Russia, making full use of all instruments at the [European Union]’s disposal, and ensuring coordination with partners’. To that end, the European Council also invited the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy (‘the High Representative’) to present options for additional restrictive measures, including economic sanctions.
In the conclusions adopted at the meeting held on 16 December 2021, the European Council stressed the urgent need for the Russian Federation to de-escalate tensions caused by the military build-up along its border with Ukraine. It reiterated its full support for Ukraine’s sovereignty and territorial integrity. While encouraging diplomatic efforts, the European Council stated that any further military aggression against Ukraine would have massive consequences and severe cost in response, including restrictive measures coordinated with partners.
On 24 January 2022, the Council of the European Union approved conclusions in which it had condemned the Russian Federation’s continued aggressive actions and threats against Ukraine, and called on the Russian Federation to de-escalate the situation, abide by international law and engage constructively in dialogue through the established international mechanisms. Recalling the conclusions of the European Council of 16 December 2021, the Council reaffirmed that any further military aggression would have massive consequences and severe costs, including through a wide array of sectoral and individual restrictive measures that would be adopted in coordination with partners.
On 15 February 2022, the Gosudarstvennaya Duma Federal’nogo Sobrania Rossiskoï Federatsii (State Duma of the Federal Assembly of the Russian Federation) voted in favour of asking President Vladimir Putin to recognise as independent States the parts of eastern Ukraine claimed by separatists.
On 21 February 2022, the President of the Russian Federation signed a decree recognising the independence and sovereignty of the self-proclaimed ‘Donetsk People’s Republic’ and the ‘Luhansk People’s Republic’ and ordered that Russian military forces be deployed in those areas.
On 22 February 2022, the High Representative published a declaration on behalf of the European Union condemning those actions, since they constituted a serious violation of international law. The High Representative announced that the European Union would respond to those latest violations by the Russian Federation by adopting additional restrictive measures as a matter of urgency.
On 23 February 2022, the Council adopted a first package of restrictive measures. Those measures concerned, first, restrictions applicable to economic relations with the non-government-controlled areas of Donetsk and Luhansk; second, restrictions on access to capital markets, in particular by prohibiting the financing of the Russian Federation, its Government and its Central Bank; and, third, the addition of members of the government, banks, businesspersons, generals and 336 Members of the State Duma of the Federal Assembly of the Russian Federation to the list of persons and entities subject to restrictive measures.
On 24 February 2022, the President of the Russian Federation announced a military operation in Ukraine and on the same day Russian armed forces attacked Ukraine at a number of places in the country.
On the same date, the High Representative published a declaration on behalf of the European Union condemning the ‘unprovoked invasion’ of Ukraine by the armed forces of the Russian Federation and stated that the European Union’s response would include both sectoral and individual restrictive measures. In its conclusions adopted at its special meeting on the same day, the European Council condemned in the strongest possible terms that ‘unprovoked and unjustified … aggression’, being of the view that, by its illegal military actions, to which the European Council had to react, the Russian Federation was grossly violating international law and the principles of the United Nations Charter and undermining European and global security and stability. It demanded, in particular, that the Russian Federation stop its disinformation campaign, and agreed on further restrictive measures covering a number of sectors and having massive and severe consequences for the Russian Federation.
On 25 February 2022, the Committee of Ministers of the Council of Europe decided to suspend the Russian Federation from its rights of representation within the Council of Europe, in accordance with Article 8 of the Statute of the Council of Europe, signed at London on 5 May 1949, with immediate effect as regards its rights of representation in the Committee of Ministers and the Parliamentary Assembly of the Council of Europe.
In his statement of the same day, the Prosecutor of the International Criminal Court (ICC) reminded all sides conducting hostilities on the territory of Ukraine that, pursuant to the declaration lodged on 8 September 2015 accepting jurisdiction of that court, he would have jurisdiction over and would investigate any act of genocide, crime against humanity or war crime committed within the territory of Ukraine since 20 February 2014.
On the same date, the Council adopted a second package of restrictive measures. These included, first, a number of individual measures against politicians and businesspersons involved in undermining the integrity of the Ukrainian territory; second, a number of restrictive measures applicable in the fields of finance, defence, energy, the aviation sector and the space industry; and third, a number of measures suspending the application of certain provisions of the Agreement providing for facilitations for certain categories of citizens of the Russian Federation applying for short-stay visas.
On 28 February 2022, the Prosecutor of the ICC announced his decision to seek authorisation to open an investigation into the situation in Ukraine, on the basis of his office’s earlier conclusions arising from a preliminary examination, as he was satisfied that there was a reasonable basis to believe that the alleged war crimes and crimes against humanity had been committed in relation to the events already assessed during the preliminary examination.
Between 28 February and 1 March 2022, the Council adopted a third package of restrictive measures, namely individual and economic measures involving, in particular, the closure of European Union airspace to Russian aircraft, the financial messaging system SWIFT and the resources of the Russian Central Bank.
On 1 March 2022, the European Parliament adopted a resolution on the Russian aggression against Ukraine (2022/2564(RSP)), in which, inter alia, it condemned in the strongest possible terms the Russian Federation’s ‘illegal, unprovoked and unjustified military aggression’ against and invasion of Ukraine, and demanded that the Russian Federation immediately terminate all military activities in Ukraine, unconditionally withdraw all military and paramilitary forces and military equipment from the entire internationally recognised territory of Ukraine and fully respect Ukraine’s territorial integrity, sovereignty and independence within its internationally recognised borders; underlined that the military aggression and invasion constituted a serious violation of international law and called for the scope of sanctions to be broadened, and also underlined that the sanctions were aimed at strategically weakening the Russian economy and industrial base, in particular the military-industrial complex and thereby the ability of the Russian Federation to threaten international security in the future. In point 31 of that resolution, the Parliament also condemned the use of information warfare by Russian authorities, state media and proxies to create division with denigrating content and false narratives about the EU, the North Atlantic Treaty Organisation (NATO) and Ukraine, with the aim of creating plausible deniability for the Russian ‘atrocities’, and called on all Member States therefore to immediately suspend broadcast licensing to all Russian state media channels, including the rebroadcasting thereof.
Against that background, on 1 March 2022 the Council adopted, on the basis of Article 29 TEU, the contested decision and, on the basis of Article 215 TFEU, the contested regulation, in order to prohibit continuous and concerted propaganda actions in support of military aggression against Ukraine by the Russian Federation, targeted at civil society in the European Union and neighbouring countries, channelled through a number of media outlets under the permanent direct or indirect control of the leadership of the Russian Federation, since such actions constituted a threat to the EU’s public order and security.
Recitals 1 to 11 of the contested acts set out the circumstances that preceded the adoption of the restrictive measures which they lay down (‘the restrictive measures at issue’). More specifically, recitals 5 to 11 of the contested decision are worded as follows:
‘(5)
In its conclusions of 10 May 2021, the Council underlined the need to further strengthen the Union’s and Member States’ resilience as well as their ability to counter hybrid threats, including disinformation, ensuring the coordinated and integrated use of existing and possible new tools for countering hybrid threats at Union and Member States’ level, and possible responses in the field of hybrid threats including, inter alia, to foreign interference and influence operations, which may cover preventive measures as well as the imposition of costs on hostile state and non-state actors.
(6)
The Russian Federation has engaged in a systematic, international campaign of media manipulation and distortion of facts in order to enhance its strategy of destabilisation of its neighbouring countries and of the Union and its Member States. In particular, the propaganda has repeatedly and consistently targeted European political parties, especially during election periods, as well as targeting civil society, asylum seekers, Russian ethnic minorities, gender minorities, and the functioning of democratic institutions in the Union and its Member States.
(7)
In order to justify and support its aggression against Ukraine, the Russian Federation has engaged in continuous and concerted propaganda actions targeted at civil society in the Union and neighbouring countries, gravely distorting and manipulating facts.
(8)
Those propaganda actions have been channelled through a number of media outlets under the permanent direct or indirect control of the leadership of the Russian Federation. Such actions constitute a significant and direct threat to the Union’s public order and security.
(9)
Those media outlets are essential and instrumental in bringing forward and supporting the aggression against Ukraine, and for the destabilisation of its neighbouring countries.
(10)
In view of the gravity of the situation, and in response to Russia’s actions destabilising the situation in Ukraine, it is necessary, consistent with the fundamental rights and freedoms recognised in the Charter of Fundamental Rights, in particular with the right to freedom of expression and information as recognised in Article 11 thereof, to introduce further restrictive measures to urgently suspend the broadcasting activities of such media outlets in the Union, or directed at the Union. These measures should be maintained until the aggression against Ukraine is put to an end, and until the Russian Federation, and its associated media outlets, cease to conduct propaganda actions against the Union and its Member States.
(11)
Consistent with the fundamental rights and freedoms recognised in the Charter of Fundamental Rights, in particular with the right to freedom of expression and information, the freedom to conduct a business and the right to property as recognised in Articles 11, 16 and 17 thereof, these measures do not prevent those media outlets and their staff from carrying out other activities in the Union than broadcasting, such as research and interviews. In particular, these measures do not modify the obligation to respect the rights, freedoms and principles referred to in Article 6 of the Treaty on European Union, including in the Charter of Fundamental Rights, and in Member States’ constitutions, within their respective fields of application.’
Article 4g of Council Decision 2014/512/CFSP of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (
OJ 2014 L 229, p. 13
), as amended by the contested decision, reads as follows:
‘1.   It shall be prohibited for operators to broadcast, or to enable, facilitate or otherwise contribute to broadcast, any content by the legal persons, entities or bodies listed in Annex IX, including through transmission or distribution by any means such as cable, satellite, IP-TV, internet service providers, internet video-sharing platforms or applications, whether new or pre-installed.
2.   Any broadcasting licence or authorisation, transmission and distribution arrangement with the legal persons, entities or bodies listed in Annex IX shall be suspended.’
The applicant’s name was included in Annex IX of Decision 2014/512, as amended by the contested decision.
Article 2f of Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (
OJ 2014 L 229, p. 1
), as amended by the contested regulation, reads as follows:
‘1.   It shall be prohibited for operators to broadcast or to enable, facilitate or otherwise contribute to broadcast, any content by the legal persons, entities or bodies listed in Annex XV, including through transmission or distribution by any means such as cable, satellite, IP-TV, internet service providers, internet video-sharing platforms or applications, whether new or pre-installed.
2.   Any broadcasting licence or authorisation, transmission and distribution arrangement with the legal persons, entities or bodies listed in Annex XV shall be suspended.’
The applicant’s name was included in Annex XV to Regulation No 833/2014, as amended by the contested regulation.
In application of those provisions, the broadcast by any means of content originating with, inter alia, the applicant was temporarily prohibited in all countries of the European Union.
In accordance with Article 9 thereof, Decision 2014/512, as amended by Council Decision (CFSP) 2022/327 of 25 February 2022 (
OJ 2022 L 48, p. 1
), is to apply until 31 July 2022 and is to be kept under constant review. It is to be renewed, or amended as appropriate, if the Council deems that its objectives have not been met.
Procedure and forms of order sought
By application lodged at the Registry of the General Court on 8 March 2022, the applicant brought the present action.
By separate document lodged at the Court Registry on the same day, the applicant submitted an application for interim measures. That application was dismissed by order of 30 March 2022, RT France v Council (
T‑125/22 R
, not published,
EU:T:2022:199
), on the grounds that the condition relating to urgency had not been satisfied and that the balance of interests at stake weighed in favour of the Council. Costs were reserved.
By decision of 22 March 2022, the General Court (Fifth Chamber) decided, of its own motion and after hearing the parties, to adjudicate under an expedited procedure, pursuant to Article 151(2) of the Rules of Procedure of the General Court.
On a proposal from the President of the General Court, the latter decided, in application of Article 28 of the Rules of Procedure, to refer the case to the Grand Chamber.
As three members of the Grand Chamber were prevented from sitting, the President of the General Court designated three other judges to complete the Chamber.
On 3 May 2022, the Council lodged its defence.
By way of measures of organisation of procedure as provided for in Article 89(3) of the Rules of Procedure, notified to the applicant and the Council on 6 and 18 May 2022 respectively, those parties were allowed, pursuant to Article 154(3) of the Rules of Procedure, to lodge a reply and a rejoinder, confined to certain specific points.
The applicant lodged the reply on 16 May 2022 and the Council lodged the rejoinder on 25 May 2022.
By documents lodged at the Court Registry on 14, 18 and 30 March and also on 13 April and 10 and 13 May 2022, respectively, the Commission, the Kingdom of Belgium, the Republic of Poland, the French Republic, the Republic of Estonia, the High Representative, the Republic of Lithuania and the Republic of Latvia sought leave to intervene in the present proceedings in support of the form of order sought by the Council. The President of the Grand Chamber, by decisions of 4, 20 and 24 May 2022, granted leave to intervene to the Commission, the Kingdom of Belgium, the French Republic, the Republic of Poland, the Republic of Estonia, the Republic of Lithuania and the Republic of Latvia, and, by order of 11 May 2022, to the High Representative.
On 25 May 2022, the written part of the procedure was closed.
By way of measures of organisation of procedure provided for in Article 89(3) of the Rules of Procedure, the parties were asked to answer at the hearing certain questions put to them.
Acting on a proposal from the Judge-Rapporteur, the General Court (Grand Chamber) decided to open the oral part of the procedure and, of its own motion, that a hearing would be held.
The parties submitted oral argument and answered the oral questions put by the Court at the hearing on 10 June 2022.
The applicant claims, in essence, that the Court should:
–
annul the contested acts in so far as they relate to it;
–
order the Council to pay the costs.
The Council contends that the Court should:
–
dismiss the action;
–
order the applicant to pay the costs.
The Kingdom of Belgium, the Republic of Estonia, the French Republic, the Republic of Latvia, the Republic of Lithuania, the Republic of Poland, the Commission and the High Representative submitted at the hearing that the action should be dismissed.
Law
In support of its action, the applicant relies on four pleas in law, alleging breach of, respectively, the rights of the defence, freedom of expression and information, freedom to conduct a business and the principle of non-discrimination on grounds of nationality. In the context of the second plea, it also expresses doubt, as an incidental point, as to the Council’s competence to adopt the contested acts. In that regard, it should be borne in mind that the lack of competence of the authority which adopted the measure adversely affecting a party is a ground involving a matter of public policy which the Court must in any event examine of its own motion (see, to that effect, judgment of 14 December 2016, SV Capital v EBA,
C‑577/15 P
,
EU:C:2016:947
, paragraph
and the case-law cited). The Court considers it appropriate to examine, in the first place, whether the Council was competent to adopt the contested acts.
The Council’s competence to adopt the contested acts
The applicant claims, in essence, that only the national regulatory authorities, in this instance Arcom, may intervene to impose sanctions on an audiovisual media outlet in respect of inappropriate editorial content.
The Council, supported by the Kingdom of Belgium, the Republic of Estonia, the French Republic, the Republic of Latvia, the Republic of Lithuania, the Republic of Poland, the Commission and the High Representative, disputes the applicant’s arguments.
As a preliminary point, it should be borne in mind that Article 3(5) TEU provides as follows:
‘In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security … as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.’
As regards the contested decision, it should be observed that this is based on Article 29 TEU. That provision, inserted into Chapter 2 of Title V of the EU Treaty, on ‘Specific provisions on the common foreign and security policy’, confers on the Council the power to ‘adopt decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature’. In accordance with Article 23 TEU, the Union’s action on the international scene, pursuant to that chapter, is to be guided by the principles, pursue the objectives of, and be conducted in accordance with, the general provisions laid down in Chapter 1, including, according to Article 21(1) TEU, 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. Article 24(1) TEU states that ‘the Union’s competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union’s security …’
According to the case-law, the combined effects of, on the one hand, Articles 21 and 23, Article 24(1) and Article 25 and the first subparagraph of Article 28(1) TEU and, on the other hand, Article 29 TEU, decisions which (i) come within the framework of the common foreign and security policy, as defined in Article 24(1) TEU, (ii) relate to ‘a particular matter of a geographical or thematic nature’ and (iii) are not in the nature of ‘operational action’ within the meaning of Article 28 TEU constitute ‘approaches of the Union’ within the meaning of Article 29 TEU, namely actions entailing any operations, whether civil or military, led by one or more Member States, outside the European Union (see, to that effect, judgment of 27 February 2014, Ezz and Others v Council,
T‑256/11
,
EU:T:2014:93
, paragraphs
and
).
The concept of ‘approach of the Union’, within the meaning of Article 29 TEU, lends itself to a broad interpretation, so that, provided that the conditions set out in paragraph 50 above are met, not only acts programmatic in nature or mere declarations of intent, but also, in particular, decisions providing for measures capable of directly affecting the legal position of individuals may be adopted. That is, moreover, confirmed by the wording of the second paragraph of Article 275 TFEU (judgment of 27 February 2014, Ezz and Others v Council,
T‑256/11
,
EU:T:2014:93
, paragraph
).
In view of the broad scope of the aims and objectives of the common foreign and security policy, as expressed in Article 3(5) TEU and Article 21 TEU, and specific provisions relating to that policy, in particular Articles 23 and 24 TEU (see, to that effect, judgment of 5 March 2015, Ezz and Others v Council,
C‑220/14 P
,
EU:C:2015:147
, paragraph
), the Council has a broad discretion in determining the persons and entities that are to be subject to the restrictive measures that the European Union adopts in the field of the common foreign and security policy (see, to that effect, judgment of 28 March 2017, Rosneft,
C‑72/15
,
EU:C:2017:236
, paragraph
). Thus, the Council cannot be criticised for having considered that, faced with the international crisis caused by the Russian Federation’s aggression against Ukraine, suitable measures to respond to the serious threat to peace on the borders of the European Union and the violation of international law could include the temporary prohibition of the broadcasting of content of certain media outlets belonging, in particular, to the RT group of channels (‘the RT Group’), funded by the Russian State budget, on the ground that they supported that aggression by actions such as those referred to in recital 7 of the contested decision.
In fact, it follows from recital 8 of the contested decision that, in the Council’s assessment, such actions constituted a significant and direct threat to the EU’s public order and security, which justified its intervention within the framework of the competences which it exercises pursuant to Chapter 2 of Title V of the EU Treaty.
That intervention, as the Council made clear at the hearing, is therefore directly linked to the aims of the common foreign and security policy referred to in Article 21(2)(a) and (c) TEU, since it seeks, first, to safeguard the values, fundamental interests, security, independence and integrity of the European Union and, second, to preserve peace, prevent conflicts and strengthen international security (see, to that effect and by analogy, judgment of 28 March 2017, Rosneft,
C‑72/15
,
EU:C:2017:236
, paragraphs
and
).
As regards the objectives pursued by the Council, recitals 4 to 10 of the contested acts refer to the need to protect the Union and its Member States against disinformation and destabilisation campaigns conducted by the media outlets under the control of the leadership of the Russian Federation which threatened the Union’s public order and security, in a context marked by military aggression against Ukraine. Those objectives thus relate to public interests which aim to protect European society and form part of an overall strategy (see paragraphs 11, 12, 14, 17 and 19 above), which is designed to put an end, as quickly as possible, to the aggression suffered by Ukraine.
Since the propaganda and disinformation campaigns are capable of undermining the foundations of democratic societies and are an integral part of the arsenal of modern warfare, the restrictive measures at issue also form part of the pursuit by the European Union of the objectives assigned to it in Article 3(1) and (5) TEU.
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 common foreign and security policy. That conclusion cannot be called in question by the fact, raised by the applicant, that according to French national legislation, the power to impose sanctions on a broadcaster in respect of inappropriate editorial content falls within the competence of Arcom. First, the competences of the European Union, including those relating to the common foreign and security policy, cannot be excluded by or predicated on the existence or exercise of powers attributed by national law to an administrative authority. Thus, the fact that a national administrative authority has competence to adopt sanctions does not preclude the competence conferred on the Council to adopt restrictive measures designed to prohibit, provisionally and reversibly, the broadcasting of the applicant’s content.
Second, it should be observed that the competence attributed to the national administrative authorities by domestic laws does not pursue the same objectives, is not based on the same premisses or the same values and cannot guarantee the same results as uniform and immediate intervention throughout the territory of the Union, such as that which can be achieved under the common foreign and security policy. It should also be noted that, in its operative part, the contested decision is addressed to operators that broadcast content of the applicant and of the other broadcasters listed in Annex IX, prohibiting them from broadcasting that content by any means, including cable, satellite and IP-TV (see paragraph 23 above). Inasmuch as such a prohibition applies irrespective of the Member State in which those operators are established and of the mode of broadcasting the applicant’s content, it follows that the result intended by the contested decision could not have been achieved via the national regulatory authorities, the competence of which is limited to the territory of the Member State to which each of them belongs.
Furthermore, although the applicant has not referred to the division of the Union’s internal competences, the adoption of a decision by the Council under Article 29 TEU cannot be called in question by the possibility for the Union to intervene, in the field of audiovisual services, on the basis of other categories of competences governed by the FEU Treaty, in particular the competences attributed to the Union for the regulation of the internal market, under Article 4(2) TFEU.
In that regard, it is sufficient to recall that, in accordance with the second paragraph of Article 40 TEU, the implementation of the policies listed in Articles 3 to 6 TFEU is not to affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under the common foreign and security policy.
It follows that the Union’s competences under the common foreign and security policy and under other provisions of the FEU Treaty coming within the third part of that Treaty, dealing with the Union’s policies and internal actions, are not mutually exclusive, but are complementary, each having its own scope, and aim to achieve different objectives (see, to that effect and by analogy, judgment of 19 July 2012, Parliament v Council,
C‑130/10
,
EU:C:2012:472
, paragraph
).
As regards the Council’s competence to adopt the contested regulation, it must be observed that, according to Article 215(2) TFEU, where a decision, adopted in accordance with Chapter 2 of Title V of the EU Treaty, so provides, the Council may adopt restrictive measures against natural or legal persons and groups or non-State entities (see, to that effect, judgment of 30 June 2016, CW v Council,
T‑224/14
, not published,
EU:T:2016:375
, paragraph
).
In the present case, in so far as the Council could validly adopt the contested decision on the basis of Article 29 TEU, it follows that the adoption of the contested regulation on the basis of Article 215(2) TFEU was necessary, as is apparent from recital 12 of that regulation, to ensure its uniform application throughout the territory of the Union. In fact, since the restrictive measures at issue can be implemented only by imposing on economic operators a temporary prohibition on the broadcasting of the applicant’s audiovisual content, it is clear, as emphasised by certain interveners, that the uniform implementation of the temporary prohibition of the broadcasting of the applicant’s content throughout the territory of the European Union could be better achieved at EU level than at national level. In that regard, it should also be observed that, contrary to the applicant’s claim, the measures adopted by the Council in the present case cannot be considered to be a total interruption of economic and financial relations with a third country, pursuant to Article 215(1) TFEU, since, as has been stated above, the contested regulation was adopted on the basis of Article 215(2) TFEU.
In the light of the foregoing considerations, the complaint alleging that the Council lacks competence must be rejected as unfounded.
The first plea, alleging breach of the rights of the defence
The applicant takes issue with the Council for having adopted the contested acts in breach of the applicant’s rights of defence and of the adversarial principle inherent in those rights. First, respect for the rights of the defence, guaranteed by Articles 41 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’), required that the Council hear the applicant before adopting those acts, or at least allow it to submit comments, after having had access to the case file. Second, respect for the right to effective judicial protection, guaranteed by Article 47 of the Charter, required that the applicant be able to ascertain the grounds on which the Council proposed to base its decision to include the applicant’s name on the lists at issue before it adopted that decision.
In the applicant’s submission, the contested acts undeniably undermine its interests, in a serious and irreversible manner, giving rise to dramatic economic, financial and human consequences, since the applicant is no longer in a position to carry on its activity. It also claims that the contested acts cause serious harm to its reputation, since it is presented in those acts as a media outlet under the permanent and exclusive control of the Russian leadership, which discredits it in the exercise of its activity.
It is argued that, as it was given no prior individual notification of the restrictive measures at issue, the applicant was deprived of its rights. In addition, there was no official, or even informal, contact, by political or institutional representatives, be it at European or at national level, before the contested acts were adopted.
In the reply, the applicant claims, in essence, that the reasoning on which the contested acts are based is circular and tautological, and insufficient in the light of the requirements of the case-law of the Courts of the European Union. Moreover, in the defence, the Council merely paraphrases, or indeed re-transcribes, the recitals of those acts, while those acts, according to the applicant, do not demonstrate or justify the propaganda activity in which it is alleged to have taken part. Furthermore, the fact that the applicant was able to bring the present action, together with an application for interim measures, cannot prove that it was sufficiently informed by the grounds on which the temporary broadcasting ban at issue was based.
Furthermore, the applicant takes the view that the context of extreme urgency linked with the launch of the military aggression against Ukraine, on which the Council relies, is not in itself sufficient to justify the breach of its rights of defence and its right to effective judicial protection.
In the applicant’s submission, the general and absolute prohibition on broadcasting to which it is subject is purely symbolic and cannot be regarded as a reaction that would restore peace and stability on the European continent. Such a prohibition is in no way necessary to achieving the aim which it claims to pursue and has the attributes of a targeted restrictive measure that should have been taken with due regard for the applicant’s rights of defence. Nor does the fact that the applicant has the benefit of effective judicial review, before an impartial tribunal, compensate for the irregularity affecting the procedure for the adoption of the contested acts.
As regards, lastly, the arguments which the applicant could have put forward if it had been heard, or if it had been able to ascertain the grounds before the contested acts were adopted, the applicant claims that it would have been able to show, first, the balance which it had respected in the choice of participants and what was said in its media and, second, the veracity of the words used. Furthermore, the fact that it was never penalised by Arcom is tangible proof that the content broadcast did not constitute propaganda. In the light of those arguments, it submits that the procedure could have had a different outcome.
The Council, supported by the Kingdom of Belgium, the Republic of Estonia, the French Republic, the Republic of Latvia, the Republic of Lithuania, the Republic of Poland, la Commission and the High Representative, disputes the applicant’s arguments.
Following the clarification provided in the reply, the first plea must be regarded as consisting, in essence, of two parts, alleging, first, inadequate statement of reasons justifying the adoption of the contested acts with respect to the applicant and, second, failure to have regard to the applicant’s right to be heard before the contested acts were adopted.
It is appropriate to examine, first of all, the second part of the first plea.
The second part, alleging, in essence, failure to have regard to the applicant’s right to be heard
The right to be heard in all proceedings, laid down in Article 41(2)(a) of the Charter, which is inherent in respect for the rights of the defence, guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of a decision in relation to that person that is liable to affect his or her interests adversely (see, to that effect, judgments of 11 December 2014, Boudjlida,
C‑249/13
,
EU:C:2014:2431
, paragraphs
and
, and of 18 June 2020, Commission v RQ,
C‑831/18 P
,
EU:C:2020:481
, paragraphs
and
and the case-law cited).
In proceedings relating to the adoption of the decision to list the name of an individual in the annex to an act imposing restrictive measures, respect for the rights of the defence requires that the competent EU authority disclose to the individual concerned the grounds and the evidence against that person on which that authority proposes to base its decision. When that disclosure takes place, the competent EU authority must ensure that that individual is placed in a position in which he or she may effectively make known his or her views on the grounds advanced against him or her (see, to that effect, 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
, paragraphs
and
).
Article 52(1) of the Charter nevertheless allows limitations on the exercise of the rights enshrined in the Charter, subject to the conditions that the limitation concerned respects the essence of the fundamental right in question and, subject to the principle of proportionality, that it is necessary and genuinely meets objectives of general interest recognised by the European Union (see 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
and the case-law cited). In that regard, the Court of Justice has held on a number of occasions that the rights of the defence might be subject to limitations or derogations, both in the sphere of the restrictive measures adopted in the context of the common foreign and security policy (see, to that effect, judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran,
C‑27/09 P
,
EU:C:2011:853
, paragraph
and the case-law cited) and in other spheres (see, to that effect, judgments of 15 June 2006, Dokter and Others,
C‑28/05
,
EU:C:2006:408
, paragraphs
and
, and of 10 September 2013, G. and R.,
C‑383/13 PPU
,
EU:C:2013:533
, paragraph
).
Furthermore, the question whether there is a breach of the rights of the defence must be examined in relation to the specific circumstances of each particular case, including the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question (see 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
and the case-law cited).
It should be observed at the outset that, in the context of this part of its plea, the applicant cites, in one passage of the application, Article 48 of the Charter, entitled ‘Presumption of innocence and right of defence’, but without raising any specific supporting arguments. In that regard, it should be noted that the applicant has failed to explain in what respect it might rely on Article 48(2) of the Charter or derive a different protection from the Charter than it could derive from the application of Article 41(2)(a) of the Charter, or greater protection than that protection. In those circumstances, it is not necessary to examine a claim alleging infringement of Article 48 of the Charter independently (see, to that effect, judgment of 22 September 2015, First Islamic Investment Bank v Council,
T‑161/13
,
EU:T:2015:667
, paragraph
).
As regards respect for the right to be heard, it is apparent from the case-law that, in the case of the initial decision placing a person’s or an entity’s name on the list of persons and entities whose funds are frozen, the Council is not required to inform the person or entity concerned beforehand of the grounds on which it intends to rely in order to list that person or entity. So that its effectiveness may not be jeopardised, such a measure must be able to take advantage of a surprise effect and to apply immediately (see, to that effect, judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran,
C‑27/09 P
,
EU:C:2011:853
, paragraph
). Upon application to the Council, the person or entity concerned also has the right to make known his or her view on that evidence after the measure has been adopted (judgment of 20 February 2013, Melli Bank v Council,
T‑492/10
,
EU:T:2013:80
, paragraph
).
Such a derogation from the fundamental right to be heard during a procedure preceding the adoption of restrictive measures is justified by the need to ensure that the freezing measures are effective and, in short, by overriding considerations to do with safety or the conduct of the international relations of the Union and of its Member States (see, to that effect, judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran,
C‑27/09 P
,
EU:C:2011:853
, paragraph
and the case-law cited).
In the present case, in the first place, as regards the applicant’s argument that the Council ought to have notified it individually of the contested acts, since those acts provide for restrictive measures against the applicant, it must be noted that while the absence of individual communication of those acts may have an impact on the point at which time started to run for the purposes of bringing an action, this does not in itself justify the annulment of the contested acts. In that regard, the applicant has failed to put forward any arguments that would demonstrate that, in the present case, the failure to communicate those acts individually resulted in a breach of its rights that would justify the annulment of those acts in so far as they concern it (see, to that effect, judgment of 13 September 2018, DenizBank v Council,
T‑798/14
,
EU:T:2018:546
, paragraph
and the case-law cited).
In the second place, as regards the Council’s failure to communicate the grounds and evidence supporting the adoption of the restrictive measures against the applicant before the restrictive measures at issue were adopted and the alleged breach of the applicant’s right to be heard, it should be observed that those measures consist in a temporary prohibition on broadcasting and not in the freezing of individual funds.
While a derogation from the fundamental right to respect for the right to be heard has been allowed by the case-law in the case of an initial decision to freeze funds, which must, by its very nature, be able to have a surprise effect and to apply immediately in order, in essence, not to jeopardise its effectiveness (see paragraph 80 above), there is nothing to preclude such a derogation from also being allowed where, in the light of the specific circumstances of a particular case, characterised by the need to intervene with the utmost urgency, the immediate implementation of a measure is essential in order to ensure its effectiveness in the light of the objectives which it pursues and in particular to ensure that it is not deprived of impact and effectiveness.
In the present case, it is necessary to ascertain whether, having regard to the requirements stemming from Article 3(1) and (5) TEU and Article 21(1) and (2)(a) and (c) TEU, relating, inter alia, to safeguarding the values of the European Union and its security and to preserving international peace and security in compliance with international law and, in particular, the principles of the United Nations Charter, the fact that the applicant was not informed in advance of the Council’s decision to prohibit it temporarily from any form of broadcasting of content constituted a breach of its right to be heard.
In that regard, on the one hand, first, it must be noted that the restrictive measures at issue were adopted in an extraordinary context of extreme urgency (see paragraphs 9 to 18 above), to which reference is made in recitals 10 and 11 of the contested acts, in which the Council also weighs up the different interests involved, taking into account, in particular, respect for the fundamental rights and freedoms recognised in the Charter. Second, in that context, the restrictive measures at issue are an integral part of a package of measures of unprecedented scope adopted by the Council between the last week of February, during which the first violation of Ukraine’s territorial integrity took place on 21 February 2022, when the Russian President recognised the independence and sovereignty of the Donetsk and Luhansk regions and ordered Russian armed forces to enter those areas (see paragraphs 10 to 12 above), and the beginning of March 2022. As the Council rightly emphasises, the rapid escalation of the situation and the gravity of the violations made any form of modulation of the restrictive measures designed to prevent the conflict from spreading difficult. In that context, the European Union therefore responded rapidly to a violation of obligations imposed
erga omnes
by international law in order to counter, using all the measures at its disposal that did not involve the use of force, the military aggression against Ukraine by the Russian Federation.
Furthermore, the adoption of the restrictive measures at issue immediately after the military aggression began, in order to ensure their full effectiveness, also met the requirement to put in place multiple forms of rapid response to that aggression, particularly in view of the fact, highlighted by the Council and the High Representative at the hearing, that at that time the aggression was perceived as likely to be short-lived. In that context, it should be observed that, as the Council claimed at the hearing, in view of that requirement, it would have been unable to give the applicant sufficient time to submit its observations before the contested acts were adopted without jeopardising the effectiveness of the restrictive measures at issue (see, to that effect, judgment of 8 July 2020, Ocean Capital Administration and Others v Council,
T‑332/15
, not published,
EU:T:2020:308
, paragraph
). Thus, in the context of the European Union’s overall strategy of responding in a rapid, united, graduated and coordinated manner, the requirements of urgency and effectiveness of all the restrictive measures adopted justified the limitation, on the basis of Article 52(1) of the Charter (see paragraph 77 above), of the application of Article 41(2)(a) of the Charter, inasmuch as they responded effectively to objectives of general interest recognised by the European Union, such as protecting the Union’s public order and security, as stated in recital 8 of the contested acts.
On the other hand, as the Council rightly emphasises, in a strategy of countering so-called ‘hybrid’ threats, already mentioned by the Council in its conclusions of 10 May 2021 (see recital 5 of the contested acts), 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.
It should be observed, as the Council, the High Representative and other interveners have, that the intense media coverage during the first days of the military aggression against Ukraine, as is apparent from the various items of evidence, drawn from public sources, placed on the case file by the Council, took place at a critical time when the actions of a media outlet, such as the applicant, were liable to have a significant harmful effect on public opinion, also giving rise to a potential threat to the Union’s public order and security.
In that regard, account should also be taken of the fact that the audiovisual media, which may, in particular, suggest, by the way in which they present the information, how their audience should assess it, have a much more immediate and powerful effect than the print media, since they are able to convey through images messages which the print media are not able to impart (see, to that effect, ECtHR, 5 April 2022,
NIT S.R.L. v. Republic of Moldova
, CE:ECHR:2022:0405JUD002847012, §§ 181 and 182 and the case-law cited).
Thus, in the very particular circumstances of the present case, set out in paragraphs 86 to 90 above, the Council rightly decided, on a proposal from the High Representative and the Commission, to intervene with the utmost rapidity, from the first days of the outbreak of war, to avoid the risk of the effectiveness of the restrictive measures at issue being seriously jeopardised or indeed, in essence, nullified, by prohibiting, in particular, the broadcasting of content of, inter alia, the applicant, with the aim of temporarily suspending the activity of such a vehicle for propaganda, in support of the military aggression against Ukraine, on the territory of the European Union.
In the light of all of the foregoing, 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 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.
In any event, according to settled case-law, a breach of the rights of the defence, in particular of the right to be heard, does not result in the annulment of the act in question unless, had it not been for that irregularity, even if proven, the outcome of the administrative procedure that preceded the adoption of the act might have been different, which it is for the person relying on such a breach to demonstrate (see, to that effect, judgments of 10 September 2013, G. and R.,
C‑383/13 PPU
,
EU:C:2013:533
, paragraph
; of 25 June 2020, Vnesheconombank v Council,
C‑731/18 P
, not published,
EU:C:2020:500
, paragraph
and the case-law cited, and of 13 September 2018, Sberbank of Russia v Council,
T‑732/14
,
EU:T:2018:541
, paragraph
and the case-law cited).
The Courts of the EU must – where an irregularity affecting the right to be heard is alleged to have occurred – assess whether, in the light of the factual and legal circumstances of the case, the outcome of the procedure at issue could have been different (see, to that effect, judgments of 10 September 2013, G. and R.,
C‑383/13 PPU
,
EU:C:2013:533
, paragraph
, and of 12 February 2020, Kibelisa Ngambasai v Council,
T‑169/18
, not published,
EU:T:2020:58
, paragraph
and the case-law cited).
In the present case, it should be observed that the grounds on which the Council relied in order to impose the restrictive measures at issue, which are set out in the recitals of the contested acts, consist essentially in the fact that the applicant is a media outlet funded by the budget of the Russian Federation and under the permanent control of the Russian leadership. In addition, the Council considered that the applicant, along with the other entities the names of which appeared in the annexes to the contested acts, engaged in propaganda actions in support, in particular, of the military aggression against Ukraine. In support of those grounds, the Council has placed on the case file, as annexes to its defence, several items of evidence relating both to the permanent control of the applicant and to its propaganda activity.
It must be pointed out that the evidence in question consists of television programmes broadcast by the applicant and articles published on its website, which were broadcast to the public, in particular during the period around the launch of the war and the days immediately afterwards. In the light of that evidence, the Council rightly considered that the content broadcast by the applicant entailed an activity of support for the military aggression against Ukraine (see paragraphs 172 to 188 below). Accordingly, it must be held that, even if the applicant had been given a hearing, its observations would not have altered the fact that those broadcasts had taken place, that those articles had been published and, in short, that that content had been broadcast to the public within the European Union.
Furthermore, in the reply and, at the hearing, in answer to a question put by the Court, the applicant claimed that the arguments and evidence which it would have been able to put forward if it had been heard or if it had been aware of the grounds before the contested acts were adopted were the same as those relied on in its written pleadings and were intended to demonstrate the balance which it observed in the choice of participants and in the words relayed in its media and, moreover, the veracity of the words used. However, as the Council emphasises in the rejoinder, although the evidence on which the applicant relies shows the existence of sequences which present other viewpoints on the situation in Ukraine, those sequences are not capable of showing that, overall, the applicant’s media coverage of the aggression maintained a balance in so far as concerns the choice of participants, content, images and views communicated in those sequences (see paragraphs 189 and 190 below).
Lastly, the fact that the applicant has never been the subject of sanctions imposed by Arcom is irrelevant and, in any event, is not capable of showing that the programmes contained in the videos placed on the case file by the Council did not constitute propaganda actions in support of the military aggression against Ukraine.
It follows that, having regard to the circumstances of the present case and all the evidence adduced by the applicant and the Council, no argument relied upon by the applicant can show that the outcome of the procedure could have been different if the applicant had been heard before the measures at issue were adopted or if the grounds relating to the application of those measures had been disclosed to it beforehand.
In the light of all of the foregoing, the second part of the first plea, alleging, in essence, breach of the rights of the defence, must be rejected.
The first part, alleging inadequacy of the statement of reasons on which the contested acts are based with respect to the applicant
As a preliminary point, it should be noted that, in the context of this part of the plea, the applicant merely relies on the right to effective judicial protection, but without putting forward any specific supporting arguments. In that regard, there is no need to examine independently a complaint alleging breach of the right to effective judicial protection (see paragraph 79 above).
As regards the alleged inadequacy of the statement of reasons on which the contested acts are based, it should be borne in mind that, in accordance with settled case-law, the purpose of the obligation to state the reasons on which an act adversely affecting an applicant is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, second, to enable those Courts to review the legality of that act (see judgment of 14 April 2021, Al-Tarazi v Council,
T‑260/19
, not published,
EU:T:2021:187
, paragraph
and the case-law cited).
It should also be borne in mind that the statement of reasons required by Article 296 TFEU and by Article 41(2)(c) of the Charter must be appropriate to the nature of the act at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in receiving explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 17 September 2020, Rosneft and Others v Council,
C‑732/18 P
, not published,
EU:C:2020:727
, paragraph
and the case-law cited).
Thus, first, the reasons given for a decision adversely affecting a person are sufficient if that decision was adopted in circumstances known to the party concerned which enable him or her to understand the scope of the measure concerning him or her (see judgment of 17 September 2020, Rosneft and Others v Council,
C‑732/18 P
, not published,
EU:C:2020:727
, paragraph
and the case-law cited). Second, the degree of precision of the statement of the reasons for a measure must be weighed against practical realities and the time and technical facilities available for taking the measure (see judgment of 13 September 2018, Sberbank of Russia v Council,
T‑732/14
,
EU:T:2018:541
, paragraph
and the case-law cited).
In addition, it has been made clear in the case-law that the statement of reasons for an act of the Council which imposed a restrictive measure had not only to identify the legal basis for that measure but also the actual and specific reasons why the Council considered, in the exercise of its discretion, that such a measure had to be adopted in respect of the person concerned (see judgment of 13 September 2018, Sberbank of Russia v Council,
T‑732/14
,
EU:T:2018:541
, paragraph
and the case-law cited).
In the present case, first, it should be borne in mind that the restrictive measures at issue relate to the content broadcast by certain audiovisual media outlets that are dependent on the Russian Federation – which include the applicant – and therefore form part of a context known to the applicant (see paragraphs 9 to 20 above).
In addition, as the Council rightly emphasises, first, recital 4 of the contested acts refers to the European Council’s conclusions of 24 February 2022 (see paragraph 14 above), whereby it condemned in the strongest possible terms the Russian Federation’s ‘unprovoked and unjustified … aggression’ against Ukraine, called for the urgent preparation and adoption of a further individual and economic sanctions package and demanded, in particular, that the Russian Federation immediately stop its disinformation campaign. Second, recital 5 of the contested acts refers to the Council’s conclusions of 10 May 2021 whereby the Council underlined the need to further strengthen the Union’s and Member States’ resilience as well as their ability to counter hybrid threats, including disinformation, and, inter alia, foreign interference and influence operations.
In addition, recitals 6 to 9 of the contested acts state the reasons for the designation of the legal persons, entities and bodies on the lists at issue. More specifically, recital 7 refers to the continuous and concerted propaganda actions of the Russian Federation targeted at, in particular, civil society in the Union in order to justify and support its aggression against Ukraine. Recitals 8 and 9 of the contested acts state that the media outlets subject to the measure temporarily prohibiting the broadcasting activities are those through which those propaganda activities have been channelled and which are under the permanent direct or indirect control of the leadership of the Russian Federation. Lastly, the latter recitals also set out the reasons underlying the adoption of the restrictive measures at issue, namely the fact that such actions constitute a significant and direct threat to the Union’s public order and security and that those media outlets are essential and instrumental in bringing forward and supporting the aggression against Ukraine and in destabilising neighbouring countries.
It follows from the wording of those recitals, especially in the context, known to the applicant, in which the contested acts were adopted, that the grounds stated are not general and abstract statements but grounds which relate directly to the applicant and its activities, which set out in a sufficiently precise manner the reasons why the restrictive measures at issue were adopted with regard to it.
Second, it should be borne in mind that the operative part of the contested acts, as set out in paragraphs 23 to 26 above, provide that it is to be prohibited for EU operators to broadcast, or to enable, facilitate or otherwise contribute to broadcast, any content by the legal persons, entities or bodies listed in Annex IX to the contested decision and Annex XV to the contested regulation, including through transmission or distribution by any means such as cable, satellite, IP-TV, internet service providers, internet video-sharing platforms or applications, whether new or pre-installed. It must be stated that the aforementioned annexes to the contested acts contain no specific statement of reasons concerning each of the entities listed therein, the broadcasting of whose content is temporarily prohibited.
It must be held, however, that the ‘actual and specific reasons’ why the Council considered, in the exercise of its discretion, that the restrictive measures at issue had to be adopted with respect to the applicant, within the meaning of the case-law referred to in paragraph 105 above, correspond in the present case to the criteria set out in recitals 6 to 9 of the contested acts.
The applicant was in fact mentioned solely because it satisfied the actual and specific reasons set out in recitals 6 to 9 of the contested acts, namely that it was a media outlet under the permanent direct or indirect control of the leadership of the Russian Federation, which engaged in propaganda actions the aim of which was, in particular, to justify and support the Russian Federation’s military aggression against Ukraine.
That statement of reasons is comprehensible and sufficiently precise, having regard to the specific context and the particularly serious and urgent conditions in which the contested acts were adopted, as to allow the applicant to know the reasons that led the Council to consider that the inclusion of its name on the lists at issue was justified in the light of the legal criteria applicable in the present case and to challenge the legality of its listing before the Courts of the European Union and to allow those Courts to exercise their power of review.
In those circumstances, the applicant was able properly to ascertain the actual and specific reasons that justified the adoption of the contested acts and therefore has no basis for claiming that the statement of reasons is inadequate in that regard.
The part of the first plea alleging inadequacy of the statement of reasons justifying the adoption of the contested acts with respect to the applicant must therefore be rejected as unfounded, and the first plea must therefore be rejected in its entirety.
The second plea, alleging infringement of freedom of expression and information
The applicant claims that the contested acts disregard the freedom of expression and information guaranteed by Article 11 of the Charter, which corresponds to Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’).
The applicant observes that, according to the case-law of the European Court of Human Rights (‘the ECtHR’), freedom of expression and information is one of the essential foundations of a democratic society and one of the fundamental conditions of progress and development for all, so that interference by the State would not be necessary in such a society if it had the effect of deterring the press from contributing to an open discussion of issues of public interest. In the applicant’s submission, it also follows from the case-law of the ECtHR that, in the field of audiovisual broadcasting, the State is required to guarantee access by the public, via television and radio, to a variety of opinions and comments that reflect, in particular, the diversity of public opinion in the country and also to ensure that journalists and other audiovisual media professionals are protected against obstacles to the communication of that information and those comments. Thus, the public authorities should refrain from restricting information media, whatever they may be. Like the ECHR, the Charter is opposed as a matter of principle to any prohibition of publication and broadcasting.
In its reply, in the first place, the applicant claims that the restrictive measures at issue are not appropriate for the pursuit of the twofold general interest objective on which the Council relies, namely (i) the objective of countering a hybrid threat from the Russian Federation and (ii) an objective of preserving peace and strengthening international security. In that regard, the applicant claims that it has committed no act that would justify the imposition of the restrictive measures at issue and that those measures represent only a ‘political gesture’.
In the second place, the applicant maintains that the measure to which it is subject constitutes an excessive restriction of freedom of expression and information. First, the very essence of that freedom is undermined in so far as the general and absolute temporary prohibition of broadcasting makes an information service inaccessible throughout the territory of the European Union. Second, such a prohibition is not proportionate, as the censorship of an information service does not constitute an effective means of achieving the objectives pursued by the contested acts.
The applicant submits, furthermore, that the restrictive measures at issue are not accompanied by any clear and objective time limit, as the lifting of the measures is subject to a random, indeed arbitrary, assessment by the Council. The expiry of the temporary prohibition on broadcasting, set at 31 July 2022, is highlighted, in a purely artificial manner, solely for the needs of the defence, since it can be extended.
In addition, the applicant takes issue with the Council, first, for not having substantiated the allegations, made in the contested acts, that the applicant engages in propaganda and, second, for having based the restrictive measures at issue on its mode of funding, which has not changed since 2017. In the applicant’s submission, the propaganda actions in which it is alleged to have engaged and the justification for its supposed ability to pursue a part of its activity are wholly unsubstantiated.
In the first place, the applicant maintains that it has never sought to conceal the way in which it is funded, which, moreover, is not punishable in itself and has always been public. Furthermore, it would be rash to draw any conclusion whatsoever about the editorial work of a media outlet from the sole fact that it receives State funding, as is, for example, the case of France 24.
In the second place, as regards the allegations relating strictly to propaganda, the applicant claims that it is independent of the Russian State and that it has complete control of its editorial policy. It observes, moreover, that it has never been the subject of sanctions, whether by the CSA or by Arcom, since it was authorised to broadcast its content, and that its agreement with Arcom was renewed without difficulty in 2020. The content broadcast by the applicant cannot therefore, for that sole reason, be regarded as reprehensible in the light to the obligations incumbent on the applicant.
Moreover, it is argued that the Council cannot confuse the applicant’s media coverage and information processing with those of other channels of the RT Group, which are separate from the applicant, which have been the subject of decisions adopted by certain national regulatory authorities and, in particular, by the regulatory authority of the United Kingdom of Great Britain and Northern Ireland.
Lastly, as regards the evidence adduced by the Council concerning the alleged activity of disinformation or manipulation of information in which the applicant is engaged, the latter maintains in its reply that the Council has failed to show that it was an organ of Russian State influence and of propaganda for the latter. The work of a French researcher, on whom the Council relied on a number of occasions and who, moreover, is the subject of defamation proceedings, does not justify a prohibition measure such as that at issue. The same applies to the report of the Secretary of State of the United States, adduced by the Council, which does not refer to any specific conduct on the applicant’s part.
In the applicant’s submission, the truncated evidence adduced by the Council does not demonstrate how the applicant dealt with Russian military operations on Ukrainian territory. Relying on certain items of evidence submitted by the Council, the applicant produced a document responding to those various items. It maintains that a close examination of the evidence annexed to the reply and added to the case file is sufficient to be convinced of the specious nature of the arguments put forward by the Council, which attempts to justify the contested acts
ex post facto
. The applicant maintains that it dealt with different opinions concerning the conflict in Ukraine, which on many occasions was described as military aggression undermining peace in Europe and not solely as defensive and preventive action on the part of the Russian Federation. Likewise, the applicant’s journalists took care to contradict the claims of certain participants and to ensure balance between the views expressed. Furthermore, conveying the view of the Russian Federation is not as such reprehensible, unless the view is taken that only the majority opinion can be broadcast.
The applicant argues, in addition, that it is incorrect to assert, in order to justify the proportionality of the prohibition at issue, that such measures do not prevent the applicant and its staff from performing, within the European Union, activities other than broadcasting, such as research and interviews. That is confirmed, in particular, by the recent refusal by the Commission de la carte d’identité des journalistes professionnels (Professional Journalists’ Press Card Commission (CCIJP), France) to accredit the applicant’s journalists. Pursuant to that prohibition, all professional journalists working for the applicant are therefore prevented from effectively working as journalists. Similarly, suppliers now refuse to continue their contractual relationships with the applicant. Thus, the temporary prohibition on broadcasting amounts to preventing the applicant’s entire activity, in particular its ability to be broadcast to the French public, and is not proportionate.
In the applicant’s submission, whatever the editorial policy of a media outlet, or its audience, ultimately a general and absolute prohibition on broadcasting constitutes a genuine act of censorship and cannot be regarded as either necessary or proportionate in order to achieve effectively the objectives on which the Council relies.
Lastly, the applicant disputes the reversible nature of the measure at issue. As it is impossible for it to exercise its activity, the applicant is inevitably at risk of being placed in liquidation.
The Council, supported by the Kingdom of Belgium, the Republic of Estonia, the French Republic, the Republic of Latvia, the Republic of Lithuania, the Republic of Poland, the Commission and the High Representative, disputes the applicant’s arguments.
The principles of case-law applicable to freedom of expression
It must be recalled that respect for fundamental rights is required of all actions of the European Union, including those in the area of the common foreign and security policy, as is apparent from the provisions, read together, set out in Articles 21 and 23 TEU (see judgment of 27 September 2018, Ezz and Others v Council,
T‑288/15
,
EU:T:2018:619
, paragraph
and the case-law cited). Since freedom of expression is guaranteed by Article 11 of the Charter, which corresponds to Article 10 ECHR, it must be ascertained whether that right is respected by the contested acts.
Under Article 11(1) of the Charter, everyone has the right to freedom of expression, which includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. Article 11(2) of the Charter provides that the freedom and pluralism of the media are to be respected. As is apparent from the Explanations relating to the Charter of Fundamental Rights (
OJ 2007 C 303, p. 17
) and in accordance with Article 52(3) of the Charter, the rights guaranteed in Article 11 thereof have the same meaning and scope as those guaranteed in Article 10 ECHR (judgment of 26 April 2022, Poland v Parliament and Council,
C‑401/19
,
EU:C:2022:297
, paragraph
; see also judgment of 14 July 2021, CabelloRondón v Council,
T‑248/18
,
EU:T:2021:450
, paragraph
and the case-law cited).
The ECtHR has already held that freedom of expression constituted one of the essential freedoms of a democratic society and that no distinction was made in Article 10 ECHR according to the nature of the aim pursued or the role which natural or legal persons had played in the exercise of that freedom (ECtHR, 28 September 1999,
Öztürk v. Türkiye
, CE:ECHR:1999:0928JUD002247993, § 49). Subject to Article 10(2) ECHR, that freedom is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb, in accordance with the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’ (ECtHR, 7 December 1976,
Handyside v. United Kingdom
, CE:ECHR:1976:1207JUD000549372, § 49; see also ECtHR, 5 April 2022,
NIT S.R.L. v. Republic of Moldova
, CE:ECHR:2022:0405JUD002847012, § 177 and the case-law cited).
In that regard, the ECtHR has also held that tolerance and respect for the equal dignity of all human beings constituted the basis of a democratic and pluralist society. It follows, in principle, that it may be deemed necessary, in democratic societies, to penalise or indeed to prevent all forms of expression that propagate, encourage, promote or justify hatred based on intolerance, the use of and apology for violence, provided that it is ensured that the ‘formalities’, ‘conditions’, ‘restrictions’ or ‘penalties’ imposed are proportionate to the legitimate aim pursued (see, to that effect, ECtHR, 6 July 2006,
Erbakan v. Türkiye
, CE:ECHR:2006:0706JUD005940500, § 56 and the case-law cited, and 23 June 2022,
Rouillan v. France
, CE:ECHR:2022:0623JUD002800019, § 66).
It is clear from the wording of Article 10 ECHR itself that the right to freedom of expression is not an absolute prerogative and may therefore be subject to limitations. In that regard, a number of principles may be identified in the case-law of the ECtHR, according to which, first, the most careful scrutiny is called for when the measures taken or sanctions imposed by the authorities are capable of discouraging the participation of the press in debates on matters of legitimate public interest and, second, that provision does not, however, guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern (see ECtHR, 5 April 2022,
NIT S.R.L. v. Republic of Moldova
, CE:ECHR:2022:0405JUD002847012, §§ 178 and 179 and the case-law cited).
The protection of the right of the media and, more particularly, of journalists to impart information on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide ‘reliable and precise’ information in accordance with the ethics of journalism, or in other words, in accordance with the tenets of responsible journalism (see ECtHR, 5 April 2022,
NIT S.R.L. v. Republic of Moldova
, CE:ECHR:2022:0405JUD002847012, § 180 and the case-law cited).
These considerations play a particularly important role nowadays, given the influence wielded by the media in contemporary society: not only do they inform, they can also suggest, by the way in which they present the information, how it is to be assessed. In a world in which the individual is confronted with vast quantities of information circulated via traditional and electronic media and involving an ever-growing number of players, monitoring compliance with journalistic ethics takes on added importance (see ECtHR, 5 April 2022,
NIT S.R.L. v. Republic of Moldova
, CE:ECHR:2022:0405JUD002847012, § 181 and the case-law cited).
Where the ‘duties and responsibilities’ which the exercise of freedom of expression entails are concerned, the potential impact of the medium of expression involved is an important factor in assessing the proportionality of the interference. In this context, account must be taken of the fact that the audiovisual media have a more immediate and powerful effect than the print media. The former have means of conveying through images messages which the print media are not able to impart (see paragraph 90 above). The function of television and radio as familiar sources of entertainment in the intimacy of the listener’s or viewer’s home further reinforces their impact (see, to that effect, ECtHR, 5 April 2022,
NIT S.R.L. v. Republic of Moldova
, CE:ECHR:2022:0405JUD002847012, § 182 and the case-law cited).
In accordance with that case-law, in principle, 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 (see, to that effect, ECtHR, 8 July 1999,
Sürek v. Türkiye (No. 1)
, CE:ECHR:1999:0708JUD002668295, §§ 61 and 62, and 15 October 2015,
Perinçek v. Switzerland
, CE:ECHR:2015:1015JUD002751008, §§ 197 and 230).
According to the ECtHR, in order to determine whether the statements taken as a whole may be seen as a justification of violence, 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 (see, to that effect, ECtHR, 6 July 2010,
Gözel and Özer v. Türkiye
, CE:ECHR:2010:0706JUD004345304, paragraph 52, and 15 October 2015,
Perinçek v. Switzerland
, CE:ECHR:2015:1015JUD002751008, §§ 205 and 206).
It is in the light of all of those principles and considerations that the Court must examine the present plea.
The existence of a restriction on freedom of expression
As a preliminary point, it should be observed that, as is apparent from recitals 7 and 8 of the contested acts, the applicant was temporarily prohibited from broadcasting content as a media outlet under the permanent direct or indirect control of the leadership of the Russian Federation, for having engaged in propaganda actions justifying and supporting the Russian Federation’s military aggression against Ukraine.
That temporary prohibition on broadcasting constitutes an interference with the applicant’s exercise of its right to freedom of expression within the meaning of Article 11(1) of the Charter, as is apparent, moreover, from recitals 10 and 11 of the contested acts.
In that regard, it must be borne in mind that, as has been stated in paragraph 135 above, the right to freedom of expression on which the applicant relies, as protected by Article 11 of the Charter, may be subject to limitations, under the conditions laid down in Article 52(1) of the Charter, according to which, first, ‘any limitation on the exercise of the rights and freedoms recognised by [the Charter] must be provided for by law and respect the essence of those rights and freedoms’ and, second, ‘subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’.
Thus, in order to comply with EU law, an interference with freedom of expression must satisfy four conditions. First, the limitation in question must be ‘provided for by law’, in the sense that the EU institution adopting measures liable to restrict a natural or legal person’s freedom of expression must have a legal basis for its actions. Second, the limitation in question must respect the essence of freedom of expression. Third, it must effectively meet an objective of general interest, recognised as such by the European Union. Fourth, the limitation in question must be proportionate (see, to that effect, judgments of 15 June 2017, Kiselev v Council,
T‑262/15
,
EU:T:2017:392
, paragraphs
and
and the case-law cited, and of 13 September 2018, VTB Bank v Council,
T‑734/14
, not published,
EU:T:2018:542
, paragraph
and the case-law cited).
Those conditions correspond, in essence, to those provided for by the case-law of the ECtHR, according to which, in order to be justified under Article 10(2) ECHR, an interference with the exercise of the right to freedom of expression must be ‘prescribed by law’, pursue one or more legitimate aims and be ‘necessary in a democratic society’ to achieve them (see, to that effect, ECtHR, 7 June 2012,
Centro Europa 7 S.r.l. and Di Stefano v. Italy
, CE:ECHR:2012:0607JUD003843309, § 135).
It follows that the Council was allowed to adopt restrictive measures capable of restricting the applicant’s freedom of expression, provided that those limitations comply with the conditions, set out above, all of which must be satisfied in order for that freedom to be legitimately restricted (see, to that effect, judgment of 15 June 2017, Kiselev v Council,
T‑262/15
,
EU:T:2017:392
, paragraph
and the case-law cited).
It must therefore be ascertained whether the restrictive measures at issue are provided for by law, comply with the essence of freedom of expression, pursue an objective of general interest and are not disproportionate, although, in its written pleadings the applicant focused its argument on the last of those conditions.
The condition that any restriction on freedom of expression must be provided for by law
As to whether the restrictive measures at issue were provided for by law, it must be noted that those measures are set out in acts of general application and have clear legal bases in EU law, namely Article 29 TEU, in the case of the contested decision, and Article 215 TFEU, in the case of the contested regulation (see, to that effect, judgments of 15 June 2017, Kiselev v Council,
T‑262/15
,
EU:T:2017:392
, paragraph
and the case-law cited, and of 14 July 2021, Cabello Rondón v Council,
T‑248/18
,
EU:T:2021:450
, paragraph
). Those Treaty provisions are sufficiently foreseeable for the persons concerned as regards their purpose in serving as legal bases for the adoption of restrictive measures liable adversely to affect or limit freedom of expression (see paragraphs 49 to 52 and 62 above).
As regards the requirement of foreseeability, the ECtHR has repeatedly held that a norm cannot be regarded as a ‘law’ within the meaning of Article 10(2) ECHR unless it is formulated with sufficient precision to enable a person to regulate his or her conduct. That person must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. A law which confers a discretion is thus not in itself inconsistent with the requirement of foreseeability, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see ECtHR, 5 April 2022,
NIT S.R.L. v. Republic of Moldova
, CE:ECHR:2022:0405JUD002847012, § 159 and the case-law cited).
In the present case, having regard to the foregoing and also to the broad discretion which the Council enjoys when adopting restrictive measures (see paragraph 52 above), it was foreseeable that, in view of the important role played by the media, in particular the audiovisual media, in modern society, the large-scale media support for the military aggression against Ukraine by the Russian Federation, provided during television and internet broadcasts by a media outlet entirely funded by the Russian State budget, could be targeted by restrictive measures consisting in the prohibition of the broadcasting of propaganda activities in support of such aggression (see, to that effect, judgment of 15 June 2017, Kiselev v Council,
T‑262/15
,
EU:T:2017:392
, paragraph
).
In those circumstances, it must be held that the condition that the limitations of freedom of expression must be provided for by law is satisfied in the present case.
Compliance with the essence of freedom of expression
It is necessary to ascertain whether the nature or scope of the temporary prohibition on the broadcasting of the applicant’s content constitutes an interference with the essence of freedom of expression.
In the present case, it must be emphasised that the restrictive measures at issue are temporary and reversible. It follows from Article 9 of Decision 2014/512, as amended, that that decision is to apply until 31 July 2022 and is to be kept under constant review (see paragraph 28 above). The maintenance of the restrictive measures at issue after 31 July 2022 will require the adoption by the Council of a new decision and a new regulation.
Contrary to the applicant’s assertion, it follows from the wording of the last part of recital 10 of the contested acts, read and interpreted in the light of the requirement to limit, as far as possible, the interference with the applicant’s freedom of expression, that the maintenance of the restrictive measures at issue after 31 July 2022 is conditional on two cumulative criteria. Those measures could be maintained, first, until the aggression against Ukraine is put to an end and, second, until the Russian Federation, and its associated media outlets, cease to conduct propaganda actions against the Union and its Member States. As the two criteria are cumulative, if one of them ceased to be satisfied, there would be no further need to maintain the measures at issue. The applicant cannot therefore claim that the measures are intended to apply without a time limit defined in advance by the Council.
In addition, it should be observed that the contested acts do not prevent every activity inherent in freedom of information and expression. As stated in recital 11 of the contested acts, the temporary prohibition on broadcasting imposed on the applicant does not prevent it from carrying out other activities in the European Union than broadcasting, such as research and interviews. It may therefore be affirmed, as the Council contends, that the applicant and its journalists remain authorised to pursue certain activities linked to freedom of information and expression and that, in principle, that prohibition is not liable to impede the applicant’s exercise of other, potentially revenue-generating, activities.
Furthermore, it should be noted, as the Council does, that the contested acts do not prohibit the applicant from broadcasting its content outside the European Union, including in French-speaking countries, so that the restrictive measures at issue do not interfere with its right to exercise its freedom of expression outside the European Union (see, to that effect, judgment of 15 June 2017, Kiselev v Council,
T‑262/15
,
EU:T:2017:392
, paragraph
and the case-law cited). In short, the applicant has been prevented neither from producing programmes and editorial content nor from selling them to entities not affected by the measures at issue, including TV Novosti and the other RT Group media outlets established in third countries, which would then be able to broadcast that content outside the European Union.
In addition, as regards the argument based on the CCIJP’s decision to refuse any new application for a press card submitted by journalists working for the applicant, it should be observed that that refusal is the direct consequence of a unilateral decision of that commission, the adoption of which is not a consequence of the contested acts, and which, moreover, is the subject matter of an action currently pending before the French courts having jurisdiction. The applicant is therefore wrong to maintain that the fact that its journalists are unable to practise their profession on French territory is the consequence of the adoption of the contested acts.
For those reasons, it must held that the nature and scope of the temporary prohibition at issue comply with the essence of freedom of expression and do not undermine that freedom as such.
The pursuit of an objective of general interest, recognised as such by the European Union
As regards the condition relating to the pursuit of an objective of general interest, recognised as such by the European Union, it should be observed, as the Council does, that, as is clear from recitals 1 to 10 of the contested acts, the Council seeks, by the restrictive measures at issue, to pursue a twofold objective.
First, as stated in recitals 6 to 8 of the contested acts, the Council seeks to protect the Union’s public order and security, under threat from the systematic international propaganda campaign put in place by the Russian Federation, channelled through media outlets under the permanent direct or indirect control of its leadership, in order to destabilise neighbouring countries, the Union and its Member States and to support military aggression against Ukraine, which corresponds to one of the objectives of the common foreign and security policy. The adoption of restrictive measures against media outlets having such a propaganda action as their mission satisfies the objective set out in Article 21(2)(a) TEU, namely to safeguard the Union’s values, fundamental interests, security and integrity.
Furthermore, as has already been observed in paragraph 56 above, since the propaganda and disinformation campaigns are capable of undermining the foundations of democratic societies and are an integral part of the arsenal of modern warfare, the restrictive measures at issue also form part of the pursuit by the European Union of the objectives, including the peaceful objectives, assigned to it in Article 3(1) and (5) TEU.
Second, as the Council emphasises, the restrictive measures at issue form part of the objectives pursued by the overall strategy of responding in a rapid, united, graduated and coordinated manner, implemented by the Union, through the adoption of a series of restrictive measures (see paragraphs 12, 17 and 19 above), with the ultimate aim of exerting maximum pressure on the Russian authorities so that they bring an end to their actions and policies destabilising Ukraine and to the military aggression against Ukraine. From that perspective, the restrictive measures at issue are consistent with the objective, referred to in Article 21(2)(c) TEU, of preserving peace, preventing conflicts and strengthening international security, in accordance with the purposes and principles of the United Nations Charter (see, to that effect, judgment of 15 June 2017, Kiselev v Council,
T‑262/15
,
EU:T:2017:392
, paragraph
).
It should be observed that, as certain interveners have submitted, the restrictive measures at issue may be understood as being the response, with the peaceful means at the Union’s disposal and with a view to achieving the objectives laid down in Article 3(5) TEU, of a subject of international law faced with aggression in breach of Article 2(4) of the United Nations Charter and, consequently, a violation of the
erga omnes
obligations imposed by international law.
The existence of such a violation, moreover, was confirmed by the resolution of 2 March 2022, entitled ‘Aggression against Ukraine’ (A/ES-11/L.1), of the United Nations General Assembly. In that resolution, inter alia, the United Nations General Assembly, referring to its resolution 377 A(V) of 3 November 1950, entitled ‘Uniting for peace’, and taking into account that the lack of unanimity of the permanent members of the Security Council had prevented it from exercising its primary responsibility for the maintenance of international peace and security, deplored in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2(4) of the United Nations Charter and demanded that the Russian Federation immediately cease its use of force against Ukraine and immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognised borders. It also recalled the obligation of all States under Article 2 of the United Nations Charter to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations, and to settle their international disputes by peaceful means. Recognising that the Russian military operations inside the sovereign territory of Ukraine were on a scale never seen in Europe in decades, it considered that urgent action was needed to save the current generation from the scourge of war. It demanded that the Russian Federation immediately cease its use of force against Ukraine and refrain from any unlawful threat or use of force against any Member State. In the operative part of the resolution, the General Assembly, in particular, reasserted the efforts by the Secretary-General, Member States and international organisations to de-escalate the current situation and to respond to the humanitarian and refugee crisis that the aggression against Ukraine by the Russian Federation had created.
As the Council rightly emphasises, putting an end to the state of war and the violations of international humanitarian law, to which war is liable to lead, also meets an objective of fundamental general interest for the international community (see, to that effect, judgment of 30 July 1996, Bosphorus,
C‑84/95
,
EU:C:1996:312
, paragraph
).
Accordingly, the condition relating to the pursuit of an objective of general interest is satisfied in the present case.
The proportionate nature of the restrictive measures at issue
As regards the proportionate nature of the limitations in question, it should be borne in mind that the principle of proportionality requires that the limitations which may be imposed by acts of EU law on rights and freedoms enshrined in the Charter do not exceed the limits of what is appropriate and necessary in order to meet the legitimate objectives pursued or the need to protect the rights and freedoms of others; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 26 April 2022, Poland v Parliament and Council,
C‑401/19
,
EU:C:2022:297
, paragraph
and the case-law cited; see also, to that effect, judgment of 15 June 2017, Kiselev v Council,
T‑262/15
,
EU:T:2017:392
, paragraph
and the case-law cited).
Thus, in order to examine the proportionate nature of the restrictive measures at issue, it is necessary to ascertain, first of all, whether the evidence adduced by the Council is capable of justifying the conclusion which it has drawn concerning, in essence, control over the applicant and the tenor of the content broadcast by it and, next, whether the restrictive measures at issue are appropriate and necessary in order to achieve the objectives of general interest pursued by the European Union.
–
The relevance and the sufficiency of the evidence adduced by the Council
As a preliminary point, it should be recalled that, for the purposes of the review of the legality of the grounds on which the decision to include or maintain a specific person’s name on the list of persons subject to restrictive measures is based, the Courts of the European Union are to ensure that that decision, which affects that person 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, are substantiated by sufficiently specific and concrete evidence (judgments of 21 April 2015, Anbouba v Council,
C‑605/13 P
,
EU:C:2015:248
, paragraph
, and of 15 June 2017, Kiselev v Council,
T‑262/15
,
EU:T:2017:392
, paragraph
).
In the first place, it is necessary to establish whether the Council was entitled to consider that the applicant was a media outlet under the permanent direct or indirect control of the leadership of the Russian Federation.
First of all, it is apparent from the case file, and it is not disputed by the applicant, that its share capital, like that of the other channels of the RT Group, belongs to the association governed by Russian law TV Novosti, which is, in essence, entirely funded by the budget of the Russian State (see paragraph 2 above), which was confirmed by the applicant itself at the hearing. It is also apparent from the case file that that association was created in 2005 by RIA Novosti, a State press agency which was dissolved in 2013 by a decision which provided that its assets would be transferred to the new State international press agency Rossiya Segodnya. Next, as the Council has emphasised, it is apparent, in essence, from the statements made on a number of occasions by the global editor-in-chief of the RT Group, presented as such on the applicant’s website, that the RT Group is a Russian State news outlet, ‘an international channel representing the country’, whose mission is, in particular, to build up a large audience beginning with the countries where its channels are operational and to be used, at crucial moments, for example in time of war, as an ‘information arm’ against the Western world. In that context, the function of the RT Group has been compared, in essence, with that of the Russian Defence Ministry. In that regard, it must also be stated that, although the global editor-in-chief of the RT Group is not formally the applicant’s director, it is apparent from several statements which she has made, placed on the case file by the Council, that she systematically refers to the applicant’s journalists as ‘her’ journalists. In addition, in answer to a question from the Court at the hearing, the applicant stated that TV Novosti bought its editorial products, irrespective of their content, and also provided it with audiovisual material, such as documentaries and stories, which are produced for all channels of the RT Group. Lastly, it is apparent from the case file that the President of the Russian Federation has declared, first, that ‘RT could not fail to reflect the positions of the official authorities on what [was] happening in [their] country and overseas’ and, second, when contemplating a visit to the applicant’s premises that, ‘if there [was] such fear that that media outlet influences minds, that [meant] [that they were] the winners in that contest’.
In the reply, the applicant merely reiterated that, although the different RT channels belong to the same group and share a certain number of values, the applicant was completely independent and controlled its editorial policy. However, it adduced no evidence relating to the regulatory and institutional framework that governed the activities of the Russian entities Rossiya Segodnya and TV Novosti capable of demonstrating its editorial independence and institutional autonomy vis-à-vis those entities. When expressly questioned on that point at the hearing, the applicant was unable to explain whether its editorial independence and institutional autonomy vis-à-vis the RT Group could be inferred from legislation or, in any event, from public acts.
It follows that the Council has adduced a body of sufficiently concrete, precise and consistent evidence showing that the applicant was under the permanent direct or indirect control of the leadership of the Russian Federation.
In the second place, it is necessary to establish whether the Council was able to consider that the applicant had engaged in continuous and concerted propaganda actions targeted at civil society in the European Union and neighbouring countries in order, inter alia, to justify and support the Russian Federation’s aggression against Ukraine.
In the present case, it should be noted that, in support of the contested acts, the Council produced a number of items of evidence, all of which predate the acts in question and are accessible to the public.
First, it follows from that evidence that the applicant engaged in activities in support of the Russian Government’s actions and policies to destabilise Ukraine, during the period preceding the military aggression against that country, through articles published on its website and interviews seeking, in particular, to present the deployment of the Russian armed forces as a preventive action to defend the self-proclaimed republics of Donetsk and Luhansk. In an article dated 21 February 2022, reporting the words of the Russian Minister for Foreign Affairs accusing the ‘West’ of ‘creating insurmountable confrontation between Russia and NATO’, it is also stated, first, that ‘the Americans never stop repeating … that Russia is “on the point” of overrunning Ukraine, a theory firmly rejected by Moscow, which accuses the West of seeking to aggravate the situation’ and, second, that ‘the situation has seriously deteriorated in eastern Ukraine in recent days[,] a shell of unknown make fired from Ukrainian territory [having] completely destroyed a service post of the FSB border guards of the Russian Federation’. A few weeks earlier, on 1 December 2021, the applicant published a video on YouTube quoting the Head of the Russian Diplomatic Service as saying that ‘Russia [did] not rule out that Ukraine, with Western support, [might] decide to engage in a military adventure’. In an article dated 24 January 2022, referring to ‘ethnic cleansing’ by Ukraine in the Donbas, it is stated: ‘Don’t forget, these regions, Donetsk and Luhansk, are regions of Russia that were given to Ukraine by Lenin and the Bolsheviks.’ An article dated 12 February 2022 contains a video by a participant, presented as a visiting professor at Moscow State University, asserting that numerous jihadist groups had arrived at the front line on the Ukrainian side and that provocations were feared. In an article dated 21 February 2022, it is claimed that ‘imminent atrocities’ by the Ukrainian army threatened the Russian-speaking population of Donbas. In an interview on 22 February 2022, a political analyst asserts that the United States is engaged in propaganda ‘which fabricates an imaginary war from scratch’ and that it exercises ‘poisonous influence that threatens Russia’s security on its own borders, while giving the impression of flying to the rescue of a poor small nation’.
Second, it is apparent from programmes broadcast on the applicant’s television channel between 24 February 2022, the day on which the military aggression began, and 27 February 2022 that, once the military aggression had been launched, the applicant continued to adopt the official position of the authorities of the Russian Federation that the offensive, in accordance with the Russian President’s speech on 24 February 2022, was a ‘special operation’, a preventive, defensive and limited action, caused by Western countries and by the aggressive attitude of NATO and also by Ukrainian provocation, aimed at defending the self-proclaimed republics of Donetsk and Luhansk.
In that regard, particular attention should be paid to the terms used in those broadcasts, the way in which the words were formulated and the context in which those programmes were broadcast, namely that of an ongoing war.
During the morning of 24 February 2022, the first day of the Russian offensive, the ongoing military operations were presented by certain participants in those broadcasts as ‘defensive action’ by the Russian Federation. More particularly, one guest, introduced as a political expert, repeatedly asserted that the Russian reaction was ‘defensive’ and ‘limited’ and that the war in the Donbas was the result of manipulation by ‘Westerners’, adding: ‘Let’s see who is really responsible, objectively, it is only NATO and its Ukrainian puppets’. That guest also maintained that the territories of the Donbas should be quickly liberated from the ‘stranglehold of the military regime of Kiev’ and that the sole purpose of the ongoing military operations was to recover the two separatist republics of the Donbas and to restore calm on the Russian borders. In addition, he stated: ‘Russia has no intention of waging war on Ukraine and annexing it, contrary to what Western propaganda would have us believe’. During the same broadcast, another guest, appearing via a linkup, asserted: ‘This is clearly not an invasion, as the English-speaking, EU and NATO communications agencies were trying to show, it is a matter of securing the Republics of the Donbass and, as we shall see, … liberating the citizens of the Donbass, we are going to see the citizens of the Donbass joyfully welcoming the Russian troops, because the Donbass has experienced shelling by Ukraine since 2014’. According to that guest, it is not ‘a war of aggression, it is a defensive war to secure its territory and secure its access’. The guest added: ‘The danger is that Ukraine will be “NATO-ised”, because that communication campaign to show that Russia is the aggressor makes it possible to avoid negotiation … and to supply arms to Ukraine on a permanent basis and therefore the danger of escalation and of an attack by Ukraine on the territory of the Donbass increases … The independent republics have requested Russia’s help.’ Another guest, introduced as a political analyst, who appeared on the same morning, states that ‘in spite of the proposals to talk sent by Moscow … in spite of diplomacy, after eight years, … the only solution that Moscow has found today is war.’ As the Council emphasises, it is apparent from those broadcasts that the studio participants referred to the provocation of which the Russian Federation had long been the victim, which legitimises the military attack, and to the fact that the outbreak of the conflict should be linked to the actions of the Western countries and to the alleged Ukrainian provocation.
During the afternoon of 24 February 2022, a number of guests continued to present the Russian offensive as a defensive and preventive action on the part of the Russian Federation. It was also observed that the outbreak of the conflict had again been attributed to the actions of the Western countries and Ukrainian provocation. One journalist, introduced as a strategic intelligence consultant, asserted that ‘Ukraine [was] a creation of Russia’. In the words of one participant, introduced as a United States political specialist: ‘There are many territorial problems in Ukraine, it is a country which has had many problems in genuinely coming together, in federating, it is very much the case, and is still the case today, if you mention Transnistria, if you mention Donbass, or Crimea, they are territories which hope to become part of the Russian Federation, whether we like it or not, and that process must be taken into account if we are to understand all the underlying processes, notably the Russian military intervention.’ According to another analyst: ‘It is very clearly a matter of protecting the self-proclaimed republics of Donbass and preventing the Ukrainian State from pursuing in future the policy … towards those two entities which has consisted in shelling them incessantly for eight years, it is therefore, in fact, a matter of neutralising the present Ukrainian regime’s capacity for nuisance’. According to that analysist, ‘the protection of Donbass is very important, and [as] President Putin has said, [that means] neutralising Ukraine, which since 2014 has been perceived in Moscow as a hostile entity’. He adds, first, that ‘there is the will to settle a dispute which it has not been possible to settle by negotiation, largely, moreover, as a result of Ukraine and its Western sponsors … and Russia therefore decides to take action and use force’ and, second, that ‘for Russia, it is a matter of reinstating a form of territorial configuration that takes account of the presence of a significant Russian-speaking minority’. According to another guest, introduced as a strategic intelligence consultant: ‘Many people see what is happening as aggression, I tend to see it as defence … by the 1991 Agreements, the United States committed to no extension of NATO towards the East, but with what is happening today, in particular Ukraine’s intention to join NATO, we are seeing the opposite’. According to that guest: ‘If there are separatist tendencies that may help Russia to take a small piece of territory, today, it is engaged in a kind of prevention, defending itself, that goes some way towards justifying what we are seeing.’
During the morning of 25 February 2022, a guest appearing via a linkup, introduced as the editor-in-chief of a Serbian magazine, claimed that a parallel could be drawn between the situation in Ukraine and the situation in Serbia 30 years ago. He refers to the ‘expulsion of 250000 Serbs from Croatia’, to the fact that their ‘then President, Milosevic, was declared to be a new Hitler’ and speaks of the ‘genocide which … was planned by the Kiev Government with the support of the United States and even of Brussels’. During the course of the same morning, one participant, introduced as a visiting professor at Moscow State University, again presented the Russian offensive in Ukraine as a defensive and preventive action. She stated that: ‘[The purpose of that offensive is] to demilitarise Ukraine, since Ukraine has been “overmilitarised” in recent times by the NATO countries, although it is not a member of NATO, and its denazification, since all the structures, since the “Maidan” in 2014, have been infiltrated by neo-Nazi groups … a country which is at an unprecedented level of corruption, which is run from abroad, it becomes absolutely dangerous to leave it in that state, for its population, for Europe, not just for Russia … the direct aim is therefore to demilitarise the country and to enable the populations, as has been said, to determine the course which [they] wish to follow and not the course imposed on them by the successive “Maidans” since 2004.’ According to that guest: ‘There is a problem generally with the governance and the ideological direction of the official Ukrainian Government … they have recognised as war heroes individuals who were on the Nazi side … when it comes to glorifying the Nazi heroes who massacred civil populations and were part of the German army at the time, there is still a very serious international security problem which arises since Ukraine is still at the gates of the [Union].’ She also asserts: ‘It is important to distinguish the political side from the legal side; politically, effectively, it is always questionable since in the political framework one is in the right of the strongest, the international community finds it quite lawful to go and shell the former Yugoslavia …, conversely … the fact that Russia wishes to liberate the populations which are under the yoke of an extremist government, that escapes [it] … if the international community chooses to defend the Nazi regime at its doors, that is its choice, amoral, inhuman …; from the legal viewpoint, the question is to what extent the Donetsk regions are entitled to have independence[;] for that, it is necessary to understand that, on the one hand the State is entitled to defend itself and to protect its territorial integrity, but for that the State must exist; the State exists in law when its legislation is … globally and generally applied and effective throughout the territory …; can it really be said that the Ukrainian State exists? If one considers the democratic rule of law, such as, in any event, the international community, at least in theory, recognises and applies it, in that case the Ukrainian State does not exist. On that basis, it is quite normal that Donetsk and Luhansk should ask to be protected … it is normal that Russia should intervene legally precisely in order to allow those populations to restore the State.’ She adds: There can be territorial integrity only to the extent to which there is [a] State, once there is not a State, there is the peoples’ right to self-determination, it is either one or the other; the Ukrainian State was destroyed the first time, harmed in 2004 … then it was completed in 2014 … therefore there is no State, from that time, there can be no territorial integrity.’
During the afternoon of 25 February 2022, a guest, introduced as an expert on geopolitics and lecturer at the University of Geneva (Switzerland), stated: ‘It is a police operation … and therefore the Russians have, in a way, done the housekeeping, and it is in that sense that [the operation] is very different from an invasion as such [… We must think about] the redefinition of the borders, which we have done since the fall of the USSR.’ Those statements met with no comment or any reaction, in particular from the journalist presenting the programme. Another guest, introduced as an expert on geostrategy, stated, in particular: ‘The American strategy seeks to surround Russian and cause it to disappear eventually. It almost succeeded during the Yeltsin years, then Russia recovered.’ He ended by saying that, for Russia, Ukraine is ‘a strategic country which must not in any event join NATO, that is to say, a hostile organisation[, and that] what is happening is normal, the statements from the Kremlin spokesperson are perfectly lawful.’
During the afternoon of 26 February 2022, a guest journalist asserted that there was a ‘Russophobic’ atmosphere in France and represented the Russian Federation as a player open to negotiations, stating that the Russian Federation had been extending its hand for several years, concerning discussions on establishing a demilitarised buffer zone in Ukraine. The studio guests emphasised the stance of the European countries and the situation in the Donbas to explain the military aggression conducted by the Russian Federation.
Last, on Sunday 27 February 2022 a number of guests continued to present the military aggression as legitimate intervention to protect the self-proclaimed republics of the Donbas and respond to a Western threat, referring in particular to manipulation by the United States, including the sanctions adopted against the Russian Federation. More specifically, during the morning, a special envoy in the Donbas (the banner appearing to the right of his image bearing the words ‘Donetsk. Republic of Donetsk’) stated, in particular, that ‘the local authorities fear[ed] that the Ukrainian forces would target oil depots, as had been the case in the region of Luhansk’. During the afternoon, a guest journalist, introduced as a strategic intelligence consultant, present in the studio, questioned by the journalist, made the following assertion: ‘There are no other alternatives to dialogue, especially since, although that invasion of Ukraine by Russia is perceived as aggression, as an unlawful act, that invasion of Ukraine by Russia, conversely it may also assume a certain form of legitimacy, since Russia may justify its involvement by the call [for assistance] of the Russian-speaking population living in the Donbass’. The same afternoon, an unequivocal report about the situation in the Donbas, made before the aggression against Ukraine, showing, in essence, only the pro-Russian sentiment of the self-proclaimed republics of the Donbas, was broadcast. In that report, Ukraine is presented almost exclusively as an aggressor State, alone responsible for the shelling of the Donbas, whether in the testimony of the population questioned or in the testimony of the only journalist appearing in the report. There is no mention of the Ukrainian authorities’ viewpoint or of the international controversy about the identity of the powers responsible for the shelling in the Donbas.
Thus, on the basis of the evidence examined in paragraphs 180 to 185 above, the Council could validly consider that the applicant was broadcasting programmes containing a reading of the events relating to the military aggression against Ukraine that favoured that aggression and the narrative of those events made by the political leaders of the Russian Federation, including in so far as concerns the existence of imminent threats of aggression by Ukraine and NATO (see paragraphs 180 to 182 above), and using vocabulary similar to, or indeed identical with, that used by the Russian Government bodies, such as the reference to a ‘special military operation’, a ‘police operation’ or a ‘defensive and preventive action of the Russian Federation’, rather than to ‘a war’ (see paragraphs 178, 180 and 181 above).
More specifically, it is apparent from paragraphs 180 to 185 above that, in the applicant’s broadcasts, much reliance was placed on outside commentators – invited by the channel’s production team, who were aware of their views – who tended to justify the military aggression against Ukraine and whose claims, with rare exceptions, were not challenged by the studio presenters. Although their opinions were sometimes counterbalanced by other opinions expressed by different participants, that does not suffice to restore balance to the statements expressing a narrative broadly in favour of the military aggression against Ukraine. In that regard, it should be borne in mind, moreover, that, according to the ECtHR, in so far as the editor has the power to shape the editorial direction, he or she is vicariously subject to the ‘duties and responsibilities’ which the editorial and journalistic staff undertake in the collection and dissemination of information to the public and which assume an even greater importance in situations of conflict and tension (see, to that effect, ECtHR, 8 July 1999,
Sürek v. Türkiye (No 1)
, CE:ECHR:1999:0708JUD002668295, § 63).
The Council was therefore 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, first, that, before the adoption of the restrictive measures at issue, the applicant actively supported the destabilising and aggressive policy conducted by the Russian Federation towards Ukraine, which eventually led to a massive military offensive, and, second, that the applicant had, inter alia, broadcast information justifying the military aggression against Ukraine, capable of constituting a significant and direct threat to the Union’s public order and security.
That conclusion is not called in question by the documents and video files which the applicant has placed on the case file. Without there being any need to adjudicate on the admissibility of that evidence, which is disputed by the Council, on the ground of failure to comply with Article 76(d) of the Rules of Procedure, in that the applicant on each occasion made a general reference to the annexes to the reply, it should be observed that the sequences were frequently truncated, only very rarely reflecting the reality of an armed conflict, are not necessarily placed in their context or are sometimes broadcast in different timeslots from those in which the statements set out in paragraphs 180 to 185 above were broadcast. Such sequences are not capable, as such, of evidencing a balanced overall treatment by the applicant of the information relating to the ongoing war (see paragraph 187 above), in compliance with the principles on the ‘duties and responsibilities’ of the audiovisual media as set out in the case-law of the ECtHR referred to in paragraphs 136 to 140 above. As regards the applicant’s argument that it dealt with certain information and used terms in the same way as other media did, the evidence adduced in support of that assertion does not show that the media to which it refers systematically broadcast content such as that set out in paragraphs 180 to 185 above.
Furthermore, it follows from some of those videos that, during the broadcasting of the images dealing with the regions of Donetsk and Luhansk, during the period from 24 to 27 February 2022, the information banners displayed ‘Donetsk. Republic of Donetsk’ and ‘Luhansk. Republic of Luhansk’. It is sufficient to note that the designation of those territories, which are part of Ukraine, as independent ‘republics’ is used by the Russian Federation, which has, moreover, recognised their sovereignty and independence (see paragraph 10 above), which testifies to the biased nature of the information designed to reflect the propaganda coming out of the Russian Federation.
In the light of all of those considerations, the applicant has failed to establish that the Council made an error of assessment of the facts by considering that the applicant was a media outlet essentially under the permanent control of the leadership of the Russian Federation and that, by its programmes, it broadcast continuous and concerted statements targeted at civil society in order to justify and support the Russian Federation’s aggression against Ukraine, carried out in violation of international law and the United Nations Charter. Nor has the applicant established that the Council made an error of assessment in characterising those statements as propaganda actions supporting that aggression, as is apparent from recital 7 of the contested acts.
–
The appropriate nature of the limitations
It is necessary to ascertain whether the restrictive measures at issue are appropriate for achieving the objectives of general interest pursued by the European Union.
In that regard, it must be held that, given the broad discretion which the Council enjoys in that respect (see paragraph 52 above), it could validly take the view that the restrictive measures at issue, which were targeted at the media outlets controlled by the Russian Federation engaged in propaganda actions in support of the military invasion of Ukraine by the Russian Federation, were capable of protecting the Union’s public order and security and preserving the integrity of democratic debate within European society, peace and international security.
In the present case, it should be observed that the temporary prohibition on the broadcasting of the applicant’s content, as a measure forming part of the framework of a rapid, unified, graduated and coordinated response, implemented through a package of restrictive measures, also constitutes a measure appropriate for achieving the objective of exerting maximum pressure on the Russian authorities so that they bring an end to their actions and policies destabilising Ukraine and to the military aggression against Ukraine (see paragraph 163 above).
It follows that the restrictive measures at issue are appropriate for achieving the objectives of general interest pursued by the European Union.
–
The necessity of the limitations
It is necessary to ascertain whether other, less restrictive measures would have allowed the objectives of general interest pursued by the European Union to be achieved.
In that regard, it should be stated that, having regard to the nature of the applicant’s continuous information channels, other less onerous restrictive measures, such as the prohibition on broadcasting in certain countries of the European Union or a prohibition limited to certain ways of broadcasting the programmes and the limitation to certain types of content, or even the obligation to display a banner or indeed a warning, are not as effective in achieving the objectives pursued by the contested acts, namely putting an end to the direct threats to the Union’s public order and security and exerting maximum pressure on the Russian authorities so that they bring an end to the military aggression against Ukraine (see, to that effect and by analogy, judgment of 15 June 2017, Kiselev v Council,
T‑262/15
,
EU:T:2017:392
, paragraph
and the case-law cited). As the Council and certain interveners have rightly observed, other measures would not have achieved the same outcome, since some of them – such as the prohibition on the broadcasting of certain content, in the case of a rolling news channel – would have been practically impossible to implement, while others – such as the obligation to display a banner or indeed a warning – would have been of limited effectiveness.
In particular, it must be noted, first, that the restrictive measures at issue were adopted in an extraordinary context and one of extreme urgency (see paragraphs 9 to 18 above), determined, in particular, by the intensification of the military aggression against Ukraine, and second, that they are an integral part of a package of measures on an unprecedented scale, adopted by the Council between the last week of February and the beginning of March 2022, in order to counter, with the peaceful instruments available to the Union, the Russian Federation’s military aggression against Ukraine, to deter the Russian Federation from continuing such aggression and thus to protect the Union’s borders. In the context of the overall strategy of responding in a rapid, united, graduated and coordinated manner, implemented by the Union, the adoption of such measures, in that they effectively satisfy objectives of general interest recognised by the Union (see paragraphs 160 to 165 above), may be regarded as necessary.
In addition, it should be observed that, as the Council and certain interveners have submitted, the intensive coverage of the first days of the military aggression against Ukraine undoubtedly constituted a crucial time when the actions of a media outlet, such as the applicant, were likely to intensify and have a significant harmful effect on public opinion in the European Union, by its operations involving manipulation and hostile influence, having regard to the tenor of the programmes broadcast by the applicant, referred to above, to justify and support the Russian Federation’s aggression against Ukraine. In such a context, the Council could rightly take the view that it was essential for the European Union to intervene in the first days of the outbreak of that aggression, by prohibiting, inter alia, the broadcasting of the applicant’s content with the aim of temporarily suspending such a vehicle for propaganda in favour of the military aggression against Ukraine on the territory of the European Union.
It follows that the Council did not make an error of assessment by considering that other, less restrictive measures would not have allowed the objectives pursued to be achieved.
–
The weighing-up of the interests
As regards the strictly proportionate nature of the restrictive measures at issue, the weighing up of the competing interests shows that the disadvantages entailed in the temporary prohibition on the broadcasting of content are not disproportionate to the objectives pursued, which in turn correspond to objectives of general interest (see paragraphs 160 to 165 above).
In fact, the importance of the objectives pursued by the contested acts, namely (i) the cessation of a continuous and concerted propaganda activity in favour of the military aggression against Ukraine targeted at civil society in the Union and neighbouring countries, which comes within the objective of safeguarding the Union’s values, fundamental interests, security, integrity and public order, and (ii) the protection of Ukraine’s territorial integrity, sovereignty and independence and the promotion of a peaceful settlement of the crisis in that country, which are part of the wider objective of maintaining peace and international security, in accordance with the objectives of the Union’s external action stated in Article 21(2)(a) and (c) TEU, is such as to prevail over the possibility that, for certain operators, the consequences of those measures may be negative, even significantly so (see, to that effect and by analogy, judgment of 28 March 2017, Rosneft,
C‑72/15
,
EU:C:2017:236
, paragraphs
and
and the case-law cited).
As the Council claims, the importance of the objective of maintaining peace and international security is also demonstrated by the fact that other European institutions and other multilateral international bodies have, since 24 February 2022, the day on which the military aggression against Ukraine was launched, adopted various declarations, decisions, positions and measures having the same objectives as those pursued by the European Union (see paragraphs 15, 16, 18 and 20 above).
That importance has also been confirmed by such bodies since the adoption of the contested acts. That was the case, in particular, of the United Nations General Assembly, as is apparent from paragraph 165 above, and of the International Court of Justice (ICJ). In fact, by order of 16 March 2022, in the case entitled ‘Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation)’, the ICJ held that Ukraine had a plausible right not to be subjected to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine and decided, in the form of provisional measures, that the Russian Federation was to immediately suspend the military operations that it had commenced on 24 February 2022 in the territory of Ukraine and that it was to ensure that any military or irregular armed units which might be directed or supported by it, as well as any organisations and persons which might be subject to its control or direction, took no steps in furtherance of the abovementioned military operations.
As regards the safeguarding of the Union’s values, fundamental interests, security and integrity, it was also of the utmost importance for the European Union temporarily to suspend the applicant’s propaganda activity in support of the military aggression against Ukraine from the first few days when that aggression was launched.
For those reasons, taking into account the fact that the exercise of freedom of expression carries with it duties and responsibilities, which are all the more important where audiovisual media outlets, such as the applicant, are concerned (see paragraphs 136 to 138 above), the news reporting at issue, which covers propaganda activity to justify and support the Russian Federation’s illegal, unprovoked and unjustified military aggression against Ukraine, cannot be said to have been of a kind calling for the enhanced protection afforded to press freedom under Article 11 of the Charter (see, to that effect and by analogy, ECtHR, 5 April 2022,
NIT S.R.L. v. Republic of Moldova
, CE:ECHR:2022:0405JUD002847012, § 215), especially when such protection is claimed by a news outlet which is essentially under the permanent direct or indirect control of the aggressor State, as is the case here (see paragraphs 172 to 174 above).
Furthermore, it should be observed that, in relation to fundamental rights, which form an integral part of the general principles of law, the observance of which the Courts of the European Union ensure, the Court of Justice has held, in particular, that international treaties for the protection of human rights on which the Member States had collaborated or to which they were signatories could also supply guidelines which should be followed within the framework of EU law (judgment of 14 May 1974, Nold v Commission,
4/73
,
EU:C:1974:51
, paragraph
), in particular, for the purposes of the interpretation and application of Article 11 of the Charter.
From that perspective, as the Council, the Kingdom of Belgium, the Republic of Estonia, the French Republic, the Republic of Latvia, the Republic of Lithuania, the Republic of Poland, the Commission and the High Representative rightly emphasised at the hearing, it is appropriate to take into consideration the International Covenant on Civil and Political Rights, adopted on 16 December 1966 by the United Nations General Assembly, to which not only the Member States but also the Russian Federation are parties, which is one of the international instruments for the protection of human rights of which the Courts of the European Union take account in applying the general principles of EU law (see, to that effect, judgment of 27 June 2006, Parliament v Council,
C‑540/03
,
EU:C:2006:429
, paragraph
and the case-law cited).
Article 20(1) of that covenant provides that ‘any propaganda for war shall be prohibited by law’. In that regard, it should be observed that the fact that the prohibition on ‘propaganda for war’ is laid down in a separate paragraph from the prohibition on ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’, which is laid down in Article 20(2), must be interpreted as being intended to attribute the utmost gravity to ‘propaganda for war’.
In the present case, it must be pointed out that the propaganda activity put in place by the applicant forms part of the context of an ongoing war, provoked by an act committed by a State and characterised as ‘aggression’ by the international community (see, in particular, paragraphs 15, 165 and 204 above), in breach of the prohibition on the use of force laid down in Article 2(4) of the United Nations Charter. In that regard, it should be borne in mind that, by resolution 110 (II), reaffirmed by resolution 381 (V), the United Nations General Assembly condemned ‘all forms of propaganda, in whatsoever country conducted, which is either designed or likely to provoke any threat to the peace, breach of the peace, or act of aggression’. Furthermore, it should be pointed out that the scope of the prohibition imposed by Article 20(1) of that covenant, which refers to ‘any’ propaganda for war, includes not only incitement to a future war, but also continuous, repeated and concerted statements in support of an ongoing war, contrary to international law, especially where those statements come from a media outlet under the direct or indirect control of the aggressor State.
It follows from the foregoing considerations that, in the context of its activity during the period preceding the Russian Federation’s military aggression against Ukraine and, above all, during the days following that aggression, the applicant engaged in a systematic action of broadcasting ‘selected’ information, including manifestly false or misleading information, revealing a manifest imbalance in the presentation of the different opposing viewpoints, with the specific aim of justifying and supporting that aggression.
In those circumstances, the Council was correct to consider it necessary to prevent, in compliance with Article 11 of the Charter, forms of expression designed to justify and support an act of military aggression, perpetrated in violation of international law and the United Nations Charter.
The foregoing considerations suffice, taking account of all of the circumstances set out above and, in particular, of the extraordinary context of the present case, to establish that the limitations on the applicant’s freedom of expression which the restrictive measures at issue are liable to entail are proportionate, in that they are appropriate and necessary, to the aims pursued.
As to the argument which the applicant derives, in the alternative, from freedom of expression and information, within the meaning of Article 11 of the Charter, seen from a passive point of view, namely the public’s right to receive information, irrespective of any question concerning the applicant’s interest in relying on that right, it is sufficient to state that, if the interference with the right to broadcast programmes involving support for an act of aggression is justified and proportionate (see paragraphs 149 to 191 above), the same applies a fortiori to the limitation of the public’s right to receive such programmes.
In the light of all of the foregoing considerations, the second plea must be rejected.
The third plea, alleging infringement of the freedom to conduct a business
The applicant takes the view that the contested acts constitute an infringement of the freedom to conduct a business, protected by Article 16 of the Charter. In its submission, any restriction on the freedom of the media automatically affects that freedom. That is particularly true in the present case, since the general and absolute prohibition on broadcasting imposed by the restrictive measures at issue essentially prevents the applicant’s journalists and employees from pursuing their activities, with the real risk that the applicant may be put into liquidation within a short time.
The Council, supported by the Kingdom of Belgium, the Republic of Estonia, the French Republic, the Republic of Latvia, the Republic of Lithuania, the Republic of Poland, the Commission and the High Representative, disputes the applicant’s arguments.
Under Article 16 of the Charter, ‘the freedom to conduct a business in accordance with Union law and national laws and practices is recognised’.
In the present case, there is no doubt whatsoever that the restrictive measures contained in the contested acts entail limitations on the applicant’s exercise of its right to freedom to conduct a business.
However, such a freedom, like other fundamental rights, is not absolute and its exercise may be subject to restrictions justified by objectives of general interest pursued by the European Union, provided that such restrictions in fact correspond to objectives of general interest and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very essence of the rights thus guaranteed (see judgment of 28 March 2017, Rosneft,
C‑72/15
,
EU:C:2017:236
, paragraph
and the case-law cited).
Moreover, restrictive measures, by definition, have consequences which affect, in particular, the freedom to pursue a trade or business, thereby causing harm to persons who are in no way responsible for the situation which led to the adoption of the sanctions. That is a fortiori the case with respect to the consequences of the targeted restrictive measures on the entities subject to those measures (see, to that effect, judgment of 28 March 2017, Rosneft,
C‑72/15
,
EU:C:2017:236
, paragraph
and the case-law cited).
As has been observed in paragraph 145 above, in order to comply with EU law, a limitation on freedom to conduct a business must satisfy the following conditions: it must be provided for by law, it must respect the essential content of that freedom and it must refer to an objective of general interest, recognised as such by the European Union, and it must not be disproportionate (see, to that effect, judgment of 13 September 2018, VTB Bank v Council,
T‑734/14
, not published,
EU:T:2018:542
, paragraph
and the case-law cited).
It is clear that those conditions are satisfied in the present case.
In the first place, the restrictive measures at issue are ‘provided for by law’, since they are laid down in acts which, in particular, are of general application and have a clear legal basis in EU law and sufficient foreseeability (see paragraph 149 above).
In the second place, since the measures in question are temporary and reversible, it must be held that they do not undermine the essential content of the freedom to conduct a business (see paragraphs 154 and 155 above), a fortiori when the applicant has adduced no evidence capable of calling that conclusion in question.
In the third place, as already pointed out in paragraph 202 above, the importance of the objectives pursued by the contested acts, consisting, in particular, first, in safeguarding the Union’s values, fundamental interests, security, integrity and public order and, second, in preserving peace and the strengthening of international security, and forming part, as is apparent from the matters referred to in paragraphs 160 to 166 above, of the objectives pursued by the overall strategy implemented by the Union, through the rapid adoption of a package of restrictive measures, with the ultimate aim of exerting maximum pressure on the Russian Federation to bring an end to its military aggression against Ukraine, perpetrated in violation of international law and of the United Nations Charter, in accordance with the objectives of the external action of the Union set out in Article 21 TEU, is of such a nature as to justify consequences that may be negative, even considerable, for certain operators.
In the fourth place, as regards the appropriate, necessary and proportionate nature of the restrictive measures at issue, reference should be made to paragraphs 193 to 213 above.
In the present case, it is true that the applicant has been temporarily prevented from exercising its broadcasting activity either within or towards the Union since the restrictive measures at issue were implemented. However, such a prohibition, by nature temporary, seems to be fully justified by the objectives of general interest pursued by those measures (see paragraphs 161 to 166 above). In that regard, the applicant claims that the contested acts jeopardise the continuity of the jobs of all of its employees – in particular the jobs inherent in the broadcasting activity – and its financial viability, leading its being placed in liquidation in short order. However, the applicant has failed to adduce any evidence on the basis of which it might be found that there is an imminent risk for its financial viability, in view, first, of the fact that the contested acts do not prevent the applicant from carrying out certain activities (see paragraphs 156 and 157 above), and, second, of the fact that it belongs to an association which, in essence, is entirely funded by the Russian State budget (see paragraph 172 above).
Thus, the Council rightly considered that the fact that the applicant is temporarily prohibited, until 31 July 2022, from broadcasting within and towards the Union was capable of making an effective contribution to the objectives of the contested acts set out in paragraph 226 above.
It must be held that the restrictive measures at issue did not constitute a disproportionate interference with the applicant’s freedom to conduct a business, and that its arguments in that respect must be rejected as unfounded.
In the light of the foregoing considerations, the third plea must be rejected.
The fourth plea, alleging breach of the principle of non-discrimination on grounds of nationality
In the applicant’s submission, the contested acts breach the principle of non-discrimination, recognised by Article 21 of the Charter, in so far as they are based solely on the sources of its funding and, more particularly, on the link between it and the Russian Federation, and not on its individual conduct. Any prohibition on a media outlet on the sole ground of the nationality of its shareholders, whether public or private, is contrary to the principle of non-discrimination.
The Council, supported by the Kingdom of Belgium, the Republic of Estonia, the French Republic, the Republic of Latvia, the Republic of Lithuania, the Republic of Poland, la Commission and the High Representative, disputes the applicant’s arguments.
Under Article 21(1) of the Charter, ‘any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation’ is to be prohibited. According to Article 21(2), within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality is also to be prohibited.
As regards the prohibition of discrimination on grounds of nationality, it should be recalled that, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, the Explanations relating to the Charter must be taken into consideration with a view to its interpretation.
According to those explanations, Article 21(2) of the Charter ‘corresponds to the first paragraph of Article 18 [TFEU] and must be applied in compliance with that Article’. Moreover, according to Article 52(2) of the Charter, the rights recognised by the Charter for which provision is made in the Treaties are to be exercised under the conditions and within the limits defined by those Treaties. It follows that Article 21(2) of the Charter must be construed as having the same scope as the first paragraph of Article 18 TFEU (see judgment of 30 April 2019, Wattiau v Parliament,
T‑737/17
,
EU:T:2019:273
, paragraph
and the case-law cited).
The first paragraph of Article 18 TFEU provides that, ‘within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited’. That provision is in Part Two of the FEU Treaty, entitled ‘Non-discrimination and citizenship of the Union’. It concerns situations coming falling within the scope of EU law in which a national of one Member State is treated in a discriminatory manner by comparison with nationals of another Member State solely on the basis of his or her nationality (see judgment of 20 November 2017, Petrov and Others v Parliament,
T‑452/15
,
EU:T:2017:822
, paragraph
and the case-law cited).
Having regard to the discrimination on grounds of nationality which the applicant alleges, namely the fact that, in essence, the restrictive measures at issue are discriminatory because of its Russian shareholding and that, for that reason, it is treated less favourably than the other French audiovisual media outlets which are not under the same type of control by an entity of a third country, it should be observed that, even if a legal person might claim to be protected by Article 21(2) of the Charter, the fact remains that such a type of unequal treatment does not come within the scope of that provision, as is stated in paragraph 237 above.
In any event, it should be observed, as the Council does, that the applicant was made the subject of the restrictive measures at issue following an assessment of the actual evidence relating to its role in the context of the propaganda actions in support of the Russian Federation’s military aggression against Ukraine. The grounds on which the Council relied when it adopted the contested acts are based on the applicant’s role as a strategic information and propaganda arm under the permanent direct or indirect control of the leadership of the Russian Federation. Admittedly, the fact that its share capital is owned by an association established in Russia, entirely funded by the Russian State budget, was not a secondary factor in the assessment of its propaganda activity. However, it is apparent from the contested acts that the different treatment of the applicant by comparison with other audiovisual media outlets is based on two criteria, one relating to the fact that it is controlled by the Government of the Russian Federation and the other to its propaganda acts in favour of the military aggression against Ukraine. Contrary to the applicant’s submission, therefore, its capital structure or the source of its funding is not the only ground that led the Council to adopt the contested acts.
Furthermore, the applicant has failed to identify any other category of persons that were treated more favourably even though they were in a situation comparable with the applicant’s own, namely under the direct or indirect control of the leadership of the Russian Federation.
The applicant has therefore failed to establish how it had been subject to any discrimination whatsoever prohibited by Article 21 of the Charter.
In the light of all of the foregoing, the fourth plea must be rejected and, accordingly, the action must be dismissed in its entirety.
Costs
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. As the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Council, in accordance with the form of order sought by the latter, including those relating to the interim proceedings.
According to 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. Consequently, the Kingdom of Belgium, the Republic of Estonia, the French Republic, the Republic of Latvia, the Republic of Lithuania, the Republic of Poland and the Commission must bear their own costs.
According to Article 138(3) of the Rules of Procedure, the General Court may order an intervener other than those referred to in paragraphs 1 and 2 thereof to bear his or her own costs. In the present case, the High Representative must be ordered to bear his own costs.

On those grounds,
THE GENERAL COURT (Grand Chamber)
hereby:

1.
Dismisses the action;

2.
Orders RT France to bear its own costs and to pay those incurred by the Council of the European Union, including those relating to the interim proceedings;

3.
Orders the Kingdom of Belgium, the Republic of Estonia, the French Republic, the Republic of Latvia, the Republic of Lithuania, the Republic of Poland, the European Commission, and the High Representative of the Union for Foreign Affairs and Security Policy to bear their own costs.

Papasavvas
Kanninen
Tomljenović
Gervasoni
Spielmann
Frimodt Nielsen
Schwarcz
Buttigieg
Öberg
Mastroianni
Brkan
Gâlea
Dimitrakopoulos
Kukovec
Kingston
Delivered in public in Luxembourg on 27 July 2022.
[Signatures]
Table of contents

Background to the dispute

Procedure and forms of order sought

Law

The Council’s competence to adopt the contested acts

The first plea, alleging breach of the rights of the defence

The second part, alleging, in essence, failure to have regard to the applicant’s right to be heard

The first part, alleging inadequacy of the statement of reasons on which the contested acts are based with respect to the applicant

The second plea, alleging infringement of freedom of expression and information

The principles of case-law applicable to freedom of expression

The existence of a restriction on freedom of expression

The condition that any restriction on freedom of expression must be provided for by law

Compliance with the essence of freedom of expression

The pursuit of an objective of general interest, recognised as such by the European Union

The proportionate nature of the restrictive measures at issue

– The relevance and the sufficiency of the evidence adduced by the Council

– The appropriate nature of the limitations

– The necessity of the limitations

– The weighing-up of the interests

The third plea, alleging infringement of the freedom to conduct a business

The fourth plea, alleging breach of the principle of non-discrimination on grounds of nationality

Costs
(
*1
)	Language of the case: French.