Judgment — ECLI:EU:T:2018:548
Date: 2018-09-13
Language of the case: English
Court formation: Sixth Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - unfounded

Summary — Judgment of the General Court (Sixth Chamber), 13 September 2018 1. Common foreign and security policy — Restrictive measures taken having regard to the situation in Ukraine — Export restrictions — Judicial review of legality — Scope — Articles 4 and 4a of Decision 2014/512/CFSP — Measures of general application — Not included (Art. 275, 2nd para. TFEU; Council Decision 2014/512/CFSP, Arts 4 and 4a) 2. Action for annulment — Natural or legal persons — Measures of direct and individual concern to them — Whether directly concerned — Criteria — Restrictive measures taken having regard to the situation in Ukraine — Acts prohibiting all EU operators from carrying out certain types of financial transaction with entities established in Russia which are publicly controlled or with over 50% public ownership and whose names are included in the lists of entities subject to restrictive measures — Action brought by an entity included in those lists — Admissibility (Art. 263, 4th para. TFEU; Council Decision 2014/512/CFSP, Art. 1(2)(b) and (3), and Art. 7 and Annex III; Council Regulation No 833/2014, Art. 5(2)(b) and (3), Art. 11 and Annex VI) 3. Action for annulment — Natural or legal persons — Measures of direct and individual concern to them — Whether directly concerned — Criteria — Merely factual effects — Included (Art. 263, 4th para. TFEU; Council Regulation No 833/2014, Art. 4(3) and (4)) 4. Action for annulment — Natural or legal persons — Regulatory acts — Acts not comprising implementing measures and concerning the applicant directly — Concept of implementing measures — Criteria — Restrictive measures concerning exports establishing a system of prior authorisation — Act not entailing implementing measures (Art. 263, 4th para. TFEU; Council Regulation No 833/2014) 5. Acts of the institutions — Statement of reasons — Obligation — Scope — Restrictive measures taken having regard to the situation in Ukraine — Restrictions on exports and on access to EU capital markets — Obligation to identify in the statement of reasons the specific and concrete elements justifying the measure — Decision falling within a context known to the person concerned, enabling him to understand the scope of the measure taken against him — Whether summary statement of reasons sufficient (Art. 296, 2nd para. TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(c); Council Decision 2014/512/CFSP, Art. 1(2)(b) to (d) and Annex III; Council Regulation No 833/2014, Art. 5(2)(b) to (d) and Annex VI) 6. Common foreign and security policy — Restrictive measures taken having regard to the situation in Ukraine — Legal basis — Restrictive measures provided for by a decision adopted on the basis of Article 215 TFEU — Restrictions on exports and on access to EU capital markets — Need to establish a connection between the undertakings affected by the restrictive measures and the Russian State — None (Art. 29 TEU; Art. 215 TFEU; Council Decision 2014/512/CFSP; Council Regulation No 833/2014) 7. Common foreign and security policy — Restrictive measures taken having regard to the situation in Ukraine — Restrictions on exports and on access to EU capital markets — Judicial review of legality — Appropriateness of the restrictive measures — Restrictive measures pursuing a legitimate aim of the common foreign and security policy (Art. 21 TEU; Council Decision 2014/512/CFSP; Council Regulation No 833/2014) 8. International agreements — Communities-Russia Partnership Agreement — Measures necessary for protecting a party’s essential security interests — War or serious international tension constituting threat of war — Concept — Restrictive measures pursuing a legitimate aim of the common foreign and security policy (Art. 21 TEU; Communities-Russia Partnership Agreement, Art. 99(1)(d); Council Regulation No 833/2014) 9. Common foreign and security policy — Restrictive measures taken having regard to the situation in Ukraine — Restrictions on exports and on access to EU capital markets — Restriction of the right to property and the free exercise of an economic activity — Breach of principle of proportionality — None (Charter of Fundamental Rights of the European Union, Arts 16, 17 and 52(1); Council Decision 2014/512/CFSP; Council Regulation No 833/2014) 1. See the text of the decision. (see paras 52-54, 59-61) 2. The condition that there must be direct concern to a natural or legal person, as laid down in the fourth paragraph of Article 263 TFEU, requires the contested EU measure to affect directly the legal situation of the individual and leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules without the application of other intermediate rules. The provisions on access to the capital market in Decision 2014/512/CFSP and Regulation No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, which leave no discretion to the addressees entrusted with their implementation, are of direct concern to a commercial company specialising in oil and gas exploration and production, the sale and distribution of crude oil and the production and sale of petroleum products, whose name is listed in the annexes to those acts. The resulting restrictive measures, prohibiting all EU operators from carrying out certain types of financial transaction or from concluding agreements with entities established in Russia which are publicly controlled or with over 50% public ownership which have estimated total assets of over RUB 1 trillion and at least 50% of whose estimated revenues originate from the sale or transportation of crude oil or petroleum products, and whose names are listed in those annexes, apply directly to that company, as an immediate consequence of the fact that it is an entity referred to in Article 1(2)(b) and (3) of Decision 2014/512/CFSP and Article 5(2)(b) and (3) of Regulation No 833/2014 and that its name is listed in Annex III to that decision and in Annex VI to that contested regulation. Although those provisions lay down prohibitions which apply in the first place to credit institutions and other financial bodies established in the European Union, the aim and the effect of those prohibitions is directly to affect the entities listed in the annexes to those acts whose economic activity is limited as a result of the application of those measures to them. Self-evidently it is for the bodies established in the European Union to apply those measures, given that the acts adopted by the EU institutions are not, as a rule, intended to apply outside the territory of the European Union. That does not, however, mean that the entities affected by the provisions on access to the capital market are not directly concerned by the restrictive measures applied with regard to them. (see paras 72-75) 3. The conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU are the same for all actions brought by natural or legal persons against acts of the European Union, irrespective of the type of act or the matter in question. Thus, while it is true that the condition that an EU act must be of direct concern to a natural or legal person means that that act must affect directly the legal situation of the individual, it is appropriate, for the purpose of determining direct concern to a person, for consideration to be given also to the factual effects of an EU act on that person, and such effects must be more than merely indirect. This must be determined specifically in each individual case having regard to the regulatory content of the EU act in question. Even though the provisions of Regulation No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine that concern export restrictions constitute provisions of general application, they affect the person concerned directly (see paras 86, 97) 4. See the text of the decision. (see paras 101-103) 5. See the text of the decision. (see paras 112, 113, 115, 117, 119, 120, 122-124, 127) 6. See the text of the decision. (see paras 133-136, 139-140) 7. See the text of the decision. (see para. 142, 143, 166) 8. Under Article 99(1)(d) of the Agreement on Partnership and Cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part, nothing in that agreement is to prevent a party from taking any measures which it considers necessary for the protection of its essential security interests, notably in time of war or serious international tension constituting threat of war or in order to carry out obligations accepted for the purpose of maintaining peace and international security. The objective of restrictive measures intended to promote a peaceful settlement of the crisis in Ukraine is consistent with that of maintaining peace and international security, in accordance with the objectives of the Union’s external action set out in Article 21 TEU. Consequently, taking into consideration the broad discretion enjoyed by the Council in this area, that institution can take the view that the adoption of such restrictive measures is necessary for the protection of essential EU security interests and for the maintenance of peace and international security. (see paras 151-153) 9. See the text of the decision. (see paras 160-164, 167-172)