62023TJ0489_RES
Case T‑489/23
Ilan Mironovich Shor
v
Council of the European Union
Judgment of the General Court (Fifth Chamber) of 18 December 2024
(Common Foreign and Security Policy – Restrictive measures taken in view of actions destabilising Moldova – Freezing of funds – Restriction on entry into the territories of the Member States – Lists of persons, entities and bodies subject to the freezing of funds and economic resources or to restrictions on entry into the territories of the Member States – Inclusion and maintenance of the applicant’s name on the lists – Planning and directing violent demonstrations – Article 1(1)(a)(ii) and Article 2(1)(a)(ii) of Decision (CFSP) 2023/891 and Article 2(3)(a)(ii) of Regulation (EU) 2023/888 – Obligation to state reasons – Plea of illegality – Error of assessment – Freedom to conduct a business – Right to property – Non-contractual liability)
European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures taken in view of the situation in Moldova – Scope of the review
(Council Decision (CFSP) 2023/891, as amended by Decisions (CFSP) 2023/1047 and (CFSP) 2024/1244; Council Regulations 2023/888, 2023/1045 and 2024/1243)
(see paragraph 21)
Acts of the institutions – Statement of reasons – Obligation – Scope – Restrictive measures taken in view of the situation in Moldova – Prohibition on entry and transit and freezing of funds of persons responsible for actions which undermine or threaten the sovereignty and independence of Moldova – Obligation to identify in the statement of reasons the specific and concrete elements justifying the said measure – Decision falling within a context known to the person concerned, enabling him or her to understand the scope of the measure taken against him or her – Whether summary statement of reasons sufficient
(Council Decision (CFSP) 2023/891, as amended by Decisions (CFSP) 2023/1047 and (CFSP) 2024/1244; Council Regulations 2023/888, 2023/1045 and 2024/1243)
(see paragraphs 26-33)
Common foreign and security policy – Restrictive measures taken in view of the situation in Moldova – Decision to freeze funds – Judicial review of legality – Scope – Provision of general scope concerning an individual restrictive measure – Inclusion
(Art. 29 TEU; Arts 275, second para., TFEU, and 277 TFEU; Council Decision (CFSP) 2023/891; Council Regulation 2023/888)
(see paragraphs 42-44)
Acts of the institutions – Choice of legal basis – Acts concerning the adoption of restrictive measures in view of the situation in Moldova – Prohibition on entry and transit and freezing of funds of persons planning, directing or engaging in violent demonstrations or other acts of violence – Article 29 TEU and Article 215(2) TFEU – Admissibility
(Arts 3(5), 21, 23, 24 and 29 TEU; art 215(2) TFEU; Council Decision (CFSP) 2023/891, Arts 1(1)(a)(ii) and 2(1)(a)(ii); Council Regulation 2023/888, Art. 2(3)(a)(ii))
(see paragraphs 50, 51, 56-59)
Common foreign and security policy – Restrictive measures taken in view of the situation in Moldova – Legal basis – Restrictive measures provided for by a decision and a regulation adopted, respectively, on the basis of Article 29 TEU and Article 215 TFEU – Power of the Council to adopt restrictive measures designed to support the rule of law in an EU candidate country
(Arts 21(2)(b) and 29 TEU; Art. 215(2) TFEU; Council Decision (CFSP) 2023/891, Arts 1(1)(a)(ii) and 2(1)(a)(ii); Council Regulation 2023/888, Art. 2(3)(a)(ii))
(see paragraph 62)
European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures taken in view of the situation in Moldova – Scope of the review – Restricted review for general rules – Criteria for adopting restrictive measures – Prohibition on entry and transit and freezing of funds of persons planning, directing or engaging in violent demonstrations or other acts of violence – Scope – Compliance with the principle of proportionality – Compliance with the principle of legal certainty
(Art. 275, second para., TFEU; Council Decision (CFSP) 2023/891, Art. 2(1)(a)(ii); Council Regulation 2023/888, Art. 2(3)(a)(ii))
(see paragraphs 71-75, 78, 79, 85)
European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures taken in view of the situation in Moldova – Scope of the review – Inclusion of the applicant on the list annexed to the contested decision on account of his responsibility for actions or policies undermining or threatening the sovereignty and independence of the Republic of Moldova – Documents available to the public – Probative value – Principle of the unfettered assessment of the evidence
(Council Decision (CFSP) 2023/891, as amended by Decisions (CFSP) 2023/1047 and (CFSP) 2024/1244; Council Regulations 2023/888, 2023/1045 and 2024/1243)
(see paragraphs 102-112)
Common foreign and security policy – Restrictive measures taken in view of the situation in Moldova – Prohibition on entry and transit and freezing of funds of persons responsible for actions or policies undermining or threatening the sovereignty and independence of the Republic of Moldova – Applicant with the status of party leader who planned violent demonstrations in the interest and with the assistance of the Russian Federation – Error of assessment – None
(Council Decision (CFSP) 2023/891, as amended by Decisions (CFSP) 2023/1047 and (CFSP) 2024/1244; Council Regulations 2023/888, 2023/1045 and 2024/1243)
(see paragraphs 119, 129-137, 151, 152)
European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures taken in view of the situation in Moldova – Scope of the review – Proof that the measure is well founded – Obligation on the competent EU authority to establish, in the event of challenge, that the reasons relied on against the persons or entities concerned are well founded – Breadth of the discretion of the competent authority – Relevance of evidence produced on the basis of a previous inclusion where there are no amendments to the grounds for inclusion or changes in the applicant’s situation or in the context in Moldova
(Council Decision (CFSP) 2023/891, as amended by Decisions (CFSP) 2023/1047 and (CFSP) 2024/1244; Council Regulations 2023/888, 2023/1045 and 2024/1243)
(see paragraphs 154, 160-163)
Common foreign and security policy – Restrictive measures taken in view of the situation in Moldova – Scope – Persons responsible for actions or policies undermining or threatening the sovereignty and independence of the Republic of Moldova – Concept – Persons who have committed such acts in the past, notwithstanding the lack of evidence establishing current involvement in such acts – Inclusion
(Council Decision (CFSP) 2023/891, as amended by Decisions (CFSP) 2023/1047 and (CFSP) 2024/1244, Arts 1(1)(a)( ii) and 2(1)(a)(ii); Council Regulations 2023/888, Art. 2(3)(a)(ii), 2023/1045 and 2024/1243)
(see paragraphs 158, 159)
Common foreign and security policy – Restrictive measures taken in view of the situation in Moldova – Prohibition on entry and transit and freezing of funds of persons planning, directing or engaging in violent demonstrations or other acts of violence – Restriction of the right to property and the freedom to conduct a business – Breach of the principle of proportionality – None
(Charter of Fundamental Rights of the European Union, Arts 16 and 17; Council Decision (CFSP) 2023/891, as amended by Decisions (CFSP) 2023/1047 and (CFSP) 2024/1244; Council Regulations 2023/888, 2023/1045 and 2024/1243)
(see paragraphs 171-178, 181)
Non-contractual liability – Conditions – Actual and certain damage – Assessment – Criteria – No actual and certain damage
(Art. 340, second para., TFEU)
(see paragraphs 185, 186)
Résumé
By its judgment, the General Court dismisses the action for annulment brought by Ilan Mironovich Shor against the acts by which, in 2023 (
1
) the Council of the European Union included, and subsequently in 2024 (
2
) retained, him on the lists of persons and entities subject to restrictive measures in view of the situation in the Republic of Moldova. This case allows the Court to rule, for the first time, on the lawfulness of the listing criterion which allows the Council to adopt restrictive measures against persons who plan, direct or engage in violent demonstrations or other acts of violence, set out in Article 1(1)(a)(ii) and Article 2(1)(a)(ii) of Decision 2023/891 (
3
) (‘criterion (ii)’). It is also the first judgment, delivered in the context of the restrictive measures introduced in view of the situation in the Republic of Moldova, in which the Court examines the merits of the case.
In the face of the destabilising actions with which the Republic of Moldova was confronted, restrictive measures were adopted by the European Union for the first time in April 2023. In particular, they target persons responsible for actions or policies which undermine or threaten the sovereignty and independence of that third country, as well as democracy, the rule of law, stability or security in that country, or who support or carry out those actions. (
4
)
The applicant, a politician and businessman of Moldovan and Israeli nationality, had his funds and economic resources frozen inter alia on account of his role in directing and planning violent demonstrations. In that regard, the Council alleged that the applicant was involved in inciting violence against the current government of the Republic of Moldova and supporting pro-Russian activity in that country.
Findings of the Court
In the first place, as regards criterion (ii) the Court states that the Council set out in a comprehensible and unequivocal manner the specific and concrete reasons why it considered that the demonstrations directed and planned by the applicant rendered him responsible for actions which undermined and threatened the sovereignty and independence of the Republic of Moldova and democracy, the rule of law, stability and security in that State. Therefore, and also taking into account the context in which the acts were adopted, the Court dismisses the plea alleging breaches of the obligation to state reasons.
In the second place, the Court also dismisses as unfounded the plea alleging illegality of Decision 2023/891 and Regulation 2023/888.
In that regard, first of all the Court considers that criterion (ii) could be introduced into the EU legal order by Decision 2023/891 and Regulation 2023/888, based, respectively, on Article 29 TEU and Article 215(2) TFEU. In the light of the aim and content of Decision 2023/891, that decision is directly linked to the aims of the Common Foreign and Security Policy (CFSP) set out in Article 21(2)(b) TEU in that it seeks to consolidate and support democracy and the rule of law in the Republic of Moldova. In those circumstances, the planning and direction of, or engagement in, violent demonstrations or other acts of violence can justify action by the European Union under the CFSP based on the objective of consolidating and supporting democracy and the rule of law in a third country. The Court states that violent demonstrations are liable to undermine the legal and institutional foundations of the country concerned and that they are not covered by the fundamental right to freedom of peaceful assembly guaranteed by Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (
5
) and by Article 12(1) of the Charter of Fundamental Rights of the European Union.
Next, the Court considers that the category of persons potentially targeted by restrictive measures based on criterion (ii) is not disproportionate. For restrictive measures to be adopted on the basis of that criterion, the actions of the person concerned must be liable to undermine or threaten the sovereignty and independence of the Republic of Moldova, or democracy, the rule of law, stability or security in that State. In other words, the actions must be such as to undermine the legal and institutional foundations of that country. Thus, restrictive measures cannot be adopted against persons responsible for planning, directing or engaging in demonstrations covered by the right to freedom of peaceful assembly.
Lastly, the Court holds that the Council did not make an error of assessment in considering that the violent demonstrations directed and planned by the applicant rendered him responsible for actions which undermined or threatened democracy and the rule of law in the Republic of Moldova.
In that regard, the Court finds, first of all, that the grounds of the contested acts are sufficiently substantiated to establish, first, that the applicant took part in the training of persons with a view to causing disorder and unrest at demonstrations in the Republic of Moldova and, second, that his party planned violent demonstrations and gatherings, mainly in the capital Chișinău, with the assistance of paid demonstrators in 2022 and 2023. Several items of evidence show in a concrete, precise and consistent manner that a large number of persons were selected and remunerated by the applicant’s party to take part in the demonstrations at issue. It follows in particular that the applicant’s intention was to involve in those demonstrations, in return for remuneration, certain persons with a particular profile capable of causing disturbances and unrest at them, with a view to intimidating the government. To that extent, it cannot be held that those persons intended to exercise their right to freedom of peaceful assembly by taking part in the demonstrations in order to express their personal convictions and opinions.
The Court also observes that the violent demonstrations at issue were organised in the interest and with the assistance of the Russian Federation and therefore formed an integral part of the actions to destabilise the Moldovan Government to which the restrictive measures at issue were intended to respond.
Lastly, the Court considers that, despite the fact that the Council did not adduce evidence that the applicant had planned, directed or engaged in, directly or indirectly, in violent demonstrations or other acts of violence since his name was entered on the lists at issue, the mere dissolution of the applicant’s party is not sufficient to render obsolete the restrictive measures adopted against him, as the Council found that there was still a threat to democracy and the rule of law and the stability and security in the Republic of Moldova.
The Court notes in that regard that the planning of violent demonstrations does not depend on the existence of the political party of which the applicant was president.
Furthermore, the fact that the grounds for including the applicant’s name on the lists at issue refer to a factual situation which existed before the adoption of the initial acts and which was recently modified does not necessarily mean that the restrictive measures adopted against him by those acts are obsolete. That interpretation is borne out by the second paragraph of Article 8 of Decision 2023/891 and by Article 13(4) of Regulation 2023/888. Those provisions permit the retention on the lists at issue of the names of persons and entities who have not committed any act to destabilise the Republic of Moldova during the period preceding the review if that retention is still justified in the light of all the relevant circumstances and, in particular, of the fact that the objectives pursued by the restrictive measures have not been achieved.
Moreover, the applicant created a new political formation immediately after the dissolution of his party and the links between the applicant and the Russian Federation did not disappear solely on account of the dissolution of his party in June 2023.
Consequently, the context which justified the initial inclusion of the applicant’s name on the lists at issue has not changed in such a way as to prevent the Council from retaining the applicant’s name on those lists pursuant to criterion (ii) by relying on the same evidence as that which justified the initial inclusion of his name.
In the light of the foregoing, the Court dismisses the applicant’s action for annulment and, in the absence of evidence of the existence of actual and certain damage, his claim for damages.
(
1
)	Council Decision (CFSP) 2023/1047 of 30 May 2023 amending Decision (CFSP) 2023/891 concerning restrictive measures in view of actions destabilising the Republic of Moldova (OJ 2023 L 140 I, p. 9), and Council Implementing Regulation (EU) 2023/1045 of 30 May 2023 implementing Regulation (EU) 2023/888 concerning restrictive measures in view of actions destabilising the Republic of Moldova (OJ 2023 L 140 I, p. 1).
(
2
)	Council Decision (CFSP) 2024/1244 of 26 April 2024 amending Decision (CFSP) 2023/891 concerning restrictive measures in view of actions destabilising the Republic of Moldova (OJ L 2024/1242) and Council Implementing Regulation (EU) 2024/1243 of 26 April 2024 implementing Regulation (EU) 2023/888 concerning restrictive measures in view of actions destabilising the Republic of Moldova (O L 2024/1243).
(
3
)	Council Decision (CFSP) 2023/891 of 28 April 2023 concerning restrictive measures in view of actions destabilising the Republic of Moldova (OJ 2023 L 114, p. 15).
(
4
)	See Article 1(1) of Decision 2023/891 and Article 2(3) of Council Regulation 2023/888 of 28 April 2023 concerning restrictive measures in view of actions destabilising the Republic of Moldova (OJ 2023 L 114, p. 1).
(
5
)	Signed in Rome on 4 November 1950.