Case T‑307/22
A2B Connect BV and Others
v
Council of the European Union
Judgment of the General Court (First Chamber, Extended Composition) of 26 March 2025
( Common foreign and security policy – Restrictive measures adopted 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 – Temporary prohibition of advertising for products or services in content produced or broadcast by certain media outlets – Competence of the Council – Freedom of expression and of information – Proportionality – Obligation to state reasons )
1.      Common foreign and security policy – Restrictive measures taken against certain persons and entities in view of the situation in Ukraine – Temporary prohibition on the broadcasting of content by certain media outlets – Prohibition of advertising for products or services in content produced or broadcast by certain media outlets – Judicial review of legality – Scope – Provision of general scope concerning an individual restrictive measure – Included
(Arts 24(1), 29 and 40 TEU; Arts 263, fourth para., and 275, second para., TFEU; Council Decision 2014/512/CFSP, as amended by Decisions (CFSP) 2022/351 and (CFSP) 2022/884, Art. 4g(1) and (3); Council Regulations No 833/2014, Art. 2f(1) and (3), 2022/350 and 2022/879)
(see paragraphs 23-33)
2.      Acts of the institutions – Decisions – Specific provisions concerning the Common Foreign and Security Policy (CFSP) – Union competence in matters of the CFSP – Scope – Decisions providing for measures capable of directly altering the legal position of individuals – Included – Determination by the Council of the persons and entities subject to the restrictive measures – Temporary prohibition on the broadcasting of content by certain media outlets – Whether permissible – Prohibition of advertising for products or services in content produced or broadcast by certain media outlets – Competence conferred on a national administrative authority to adopt sanctions – Irrelevant
(Arts 24(1), 29 and 40 TEU; Arts 263, fourth para., and 275, second para., TFEU; Council Decision 2014/512/CFSP, as amended by Decisions (CFSP) 2022/351 and (CFSP) 2022/884, Art. 4g(1) and (3); Council Regulations No 833/2014, Art. 2f(1) and (3), 2022/350 and 2022/879)
(see paragraphs 44-54)
3.      Common foreign and security policy – Restrictive measures taken against certain persons and entities in view of the situation in Ukraine – Temporary prohibition on the broadcasting of content by certain media outlets – Prohibition of advertising for products or services in content produced or broadcast by certain media outlets – Judicial review of legality – Scope – Action for annulment – Regulatory act giving effect to a decision of the European Union adopted in the context of the common foreign and security policy – Jurisdiction of the EU Courts – Included
(Art. 215 TFEU; Council Regulations No 833/2014, 2022/350 and 2022/879)
(see paragraphs 61, 62)
4.      Acts of the institutions – Statement of reasons – Obligation – Scope – Restrictive measures taken in view of the situation in Ukraine – Temporary prohibition on the broadcasting of content by certain media outlets – Prohibition of advertising for products or services in content produced or broadcast by certain media outlets – Measures of general application – Admissibility of statement of reasons limited to indicating the overall situation leading to the adoption of the measure and the general objectives pursued by the latter
(Art. 29 TEU; Arts 215 and 296, second para., TFEU; Council Regulations No 833/2014, Art. 2f(1) and (3), 2022/350 and 2022/879)
(see paragraphs 70-73, 76-81, 85)
5.      Fundamental rights – Freedom of expression – Affirmed both by the Charter of Fundamental Rights and by the European Convention on Human Rights – Identical meaning and scope – Level of protection provided for by the Charter not infringing that guaranteed by that convention
(Charter of Fundamental Rights of the European Union, Art. 11)
(see paragraphs 102, 103, 105-107)
6.      Common foreign and security policy – Restrictive measures against certain persons and entities in view of the situation in Ukraine – Temporary prohibition on the broadcasting of content by certain media outlets – Prohibition of advertising for products or services in content produced or broadcast by certain media outlets – Restriction of the right to freedom of expression – Whether permissible – Condition – Restriction laid down by law – Meaning – Acts of general application laying down clear and predictable bases in EU law – Included
(Charter of Fundamental Rights of the European Union, Arts 11 and 52(1); Council Regulations No 833/2014, Art. 2f(1) and (3), 2022/350 and 2022/879)
(see paragraphs 104, 111-115)
7.      Common foreign and security policy – Restrictive measures against certain persons and entities in view of the situation in Ukraine – Temporary prohibition on the broadcasting of content by certain media outlets – Prohibition of advertising for products or services in content produced or broadcast by certain media outlets – Restriction of the right to freedom of expression – Whether permissible – Condition – Respect for the essential content of the freedom of expression – Meaning – Temporary and reversible measures which do not call into question that freedom as such – Included
(Charter of Fundamental Rights of the European Union, Arts 11 and 52(1); Council Regulations No 833/2014, Art. 2f(1) and (3), 2022/350 and 2022/879)
(see paragraphs 116-118, 120, 121)
8.      Common foreign and security policy – Restrictive measures against certain persons and entities in view of the situation in Ukraine – Temporary prohibition on the broadcasting of content by certain media outlets – Prohibition of advertising for products or services in content produced or broadcast by certain media outlets – Restriction of the right to freedom of expression – Whether permissible – Condition – Pursuit of an objective of general interest, recognised as such by the European Union – Meaning – Protection of EU public order and public security – Maintenance of international peace and security – Included
(Arts 3(1), 5 and 21(2)(c) TEU; Charter of Fundamental Rights of the European Union, Arts 11 and 52(1); Council Regulations No 833/2014, Art. 2f(1) and (3), 2022/350 and 2022/879)
(see paragraphs 122, 123)
9.      Common foreign and security policy – Restrictive measures against certain persons and entities in view of the situation in Ukraine – Temporary prohibition on the broadcasting of content by certain media outlets – Prohibition of advertising for products or services in content produced or broadcast by certain media outlets – Restriction of the right to freedom of expression – Whether permissible – Condition – Observance of the principle of proportionality – Infringement – No infringement
(Charter of Fundamental Rights of the European Union, Arts 11 and 52(1); Council Regulations No 833/2014, Art. 2f(1) and (3), 2022/350 and 2022/879)
(see paragraphs 124-135)
10.    Action for annulment – Pleas in law – Action directed against Council regulations adopting restrictive measures in view of the situation in Ukraine – Plea alleging infringement of the right to freedom of expression and information of users of the services of an internet service provider – Operator concerned not permitted to rely on the right to freedom of expression and information of its users
(Art. 263 TFEU)
(see paragraphs 136-140)
Résumé
In its judgment, the General Court dismisses the action for annulment brought by the applicant companies against the acts by which the Council prohibits any operator established in the European Union, first, from broadcasting any content, and from enabling, facilitating or contributing to the broadcasting, by the legal persons, entities or bodies listed in the annexes to the contested decisions, of any content; and, second, from advertising products or services in content broadcast by those persons, entities or bodies. (1) The present case allows the Court, inter alia, to rule on the conditions for recognition of its jurisdiction to examine the legality of decisions adopted in the context of the common foreign and security policy (CFSP) in respect of applicants subject to those prohibitions.
The present judgment arises in the context of a series of restrictive measures adopted by the European Union following the military aggression launched by the Russian Federation against Ukraine on 24 February 2022. The applicants, who are established in the Netherlands and whose names are not on the lists annexed to the contested acts, are providers of internet services to individuals and to businesses.
In support of their action, the applicants claim a lack of competence on the part of the Council to adopt the contested acts and an infringement of the rights to freedom of expression and information (2) and to good administration (3) guaranteed by the Charter of Fundamental Rights of the European Union (‘the Charter’).
Findings of the Court
Examining of its own motion whether it has jurisdiction to examine the legality of the contested acts, the Court finds, in the first place, that it is only necessary to rule on the legality of the contested regulations. In that regard, it notes, first of all, that, in accordance with the second paragraph of Article 275 TFEU, it is the individual nature of measures adopted on the basis of provisions relating to the CFSP which permits access to the Courts of the European Union. A decision providing for restrictive measures may be considered to be an individual measure if the person concerned is referred to by name in that decision. Since the applicants’ names do not appear either in the body of Decision 2014/512, as amended, or in Annex IX thereto, as amended, the Court finds that the contested decisions are not restrictive measures against the applicants. The restrictive measures at issue must, in fact, be understood as being of general application as regards the applicants – since the latter are among the entities belonging to the general and abstract category of ‘operators’ that are prohibited from broadcasting content from the ‘legal persons, entities or bodies’ listed in Annex IX to Decision 2014/512, as amended – and as being of individual application as regards those persons, entities and bodies.
Accordingly, the applicants cannot rely on the fact that the restrictive measures at issue are individual measures in relation to the media outlets identified in the body of Decision 2014/512, as amended, as a basis for the Court’s jurisdiction to hear their action for annulment. On the other hand, the Court must ensure the full review of the legality of European Union acts, such as the contested regulations, which have been adopted on the basis of Article 215 TFEU.
As regards, in the second place, whether the Council was competent to adopt the regulations concerned, the Court notes, first, that, under Article 215(2) TFEU, a precondition for ascertaining whether the Council was competent to adopt the contested regulations is that it must have been competent to adopt the contested decisions, which confer on it the power to adopt those regulations, and, second, that, in its relations with the wider world, the European Union is to uphold and promote its values and interests and contribute to the protection of its citizens (4) and to peace, security and the strict observance of international law. The Court then observes that the combined effects of Articles 21 and 23, Article 24(1) and Article 25, the first subparagraph of Article 28(1) and Article 29 TEU are that the concept of ‘approach of the Union’ can lend itself to a broad interpretation, such that Article 29 TEU may be the basis for adopting, inter alia, decisions providing for measures capable of directly affecting the legal position of individuals. Moreover, the Council has broad discretion to determine the persons and entities which will be subject to the restrictive measures that the European Union adopts in the field of the CFSP. Accordingly, the Council could therefore correctly consider that, in response to 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 to the violation of international law could include a prohibition of the broadcasting of the content of certain media outlets under the control of the leadership of the Russian Federation, on the ground that they supported that aggression by continuous and concerted propaganda actions targeting civil society in the European Union and neighbouring countries, and a prohibition on advertising products or services in any content produced or broadcast by the media outlets concerned.
The Court observes on that point that, since the propaganda and disinformation campaigns conducted by those media outlets 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 are integral to the pursuit by the European Union of the objectives assigned to it in Article 3(1) and (5) TEU. Since the actions in question constitute, in that regard, a significant and direct threat to the public order and security of the European Union, those measures, by seeking to safeguard the values, fundamental interests, security and independence of the European Union and to preserve peace, are, therefore, directly linked to the aims of the CFSP. (5)
Furthermore, the Court notes that the fact that the national regulatory authorities have competence to penalise an audiovisual media outlet for inappropriate editorial content does not preclude the competence conferred on the Council to adopt restrictive measures designed to prohibit, provisionally and reversibly, the broadcasting of certain media content. The competence attributed to the national administrative authorities by domestic law does not pursue the same objectives, is not based on the same values and cannot guarantee the same results as uniform and immediate intervention throughout the territory of the European Union, such as the intervention that can be undertaken under the CFSP.
Last, the Court notes that the adoption of the contested acts cannot be called into question by the fact that the European Union is able to intervene, in the field of audiovisual services, on the basis of other categories of competences governed by the FEU Treaty. (6) 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’s competences under the CFSP. (7)
As regards, in the third place, the alleged infringement of the right to good administration, the Court holds that the Council stated sufficient reasons for the contested regulations. It recalls in that regard that, in the case of provisions of general application, the statement of reasons may be limited to indicating, first, the overall situation which led to their adoption, and, second, the general objectives which they are intended to achieve, and that there is no obligation on the Council under EU law to disclose the documents relating to its decision-making process.
As regards, in the fourth and last place, the alleged infringement of freedom of expression and information, in particular of freedom to impart information, the Court recalls that the rights and freedoms enshrined in Article 11 of the Charter are not absolute rights, but must be considered in relation to their function in society. Accordingly, even assuming, first, that internet service providers, such as the applicants, may be regarded as holders of an autonomous right to freedom to impart information, and, second, that the temporary prohibition on contributing to the broadcasting of content from the media outlets subject to the restrictive measures at issue and the prohibition on advertising products or services in content broadcast by those outlets could constitute interference with the exercise of that freedom, the Court notes that limitations may be allowed on the exercise of the rights enshrined by the Charter. (8)
In the present case, the Court finds, in the light of the nature and purpose of the prohibitions at issue, that it was appropriate for the Council to take internet service providers, such as the applicants, into consideration in the same way as any of the means of content transmission or distribution, as operators that are expected to ensure the application, and therefore the effectiveness, of those prohibitions in the territory of the European Union.
Last, the Court holds that the applicants cannot rely, in support of their action for annulment, on the right of the users of their services to receive information, since the applicants do not themselves hold that right.
1      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), 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), Council Decision (CFSP) 2022/884 of 3 June 2022 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2022 L 153, p. 128) and Council Regulation (EU) 2022/879 of 3 June 2022 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2022 L 153, p. 53).
2      Article 11 of the Charter.
3      Article 41 of the Charter.
4      Article 3(5) TEU.
5      Article 21(2)(a) and (c) TEU.
6      Article 4(2) TFEU.
7      In accordance with the second paragraph of Article 40 TEU.
8      Article 52(1) of the Charter.