1 By their appeal, the appellants, Mr Gennady Nikolayevich Timchenko and Mrs Elena Petrovna Timchenko, seek, in essence, to have set aside the judgment of the General Court of the European Union of 11 September 2024, Timchenko and Timchenko v Council (T‑644/22, EU:T:2024:621; ‘the judgment under appeal’), by which the General Court dismissed their action for annulment of Article 1, point 4, of Council Regulation (EU) 2022/1273 of 21 July 2022 amending Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 194, p. 1; ‘the regulation at issue’), in so far as it amends Article 9 of Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 6), by inserting inter alia, in Article 9(2), an obligation requiring persons subject to a fund-freezing measure to report funds and economic resources.
2 The factual and legal background to the present case is set out in paragraphs 2 to 16 of the judgment under appeal. For the purposes of the present proceedings, it may be summarised and supplemented as follows.
3 This case arises in the context of the restrictive measures adopted by the European Union since 2014 in response to actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine.
4 The applicants are subject to such measures. Mr Timchenko is a businessman and Mrs Timchenko is his wife. Both have Russian and Finnish nationalities.
5 Article 2 of Regulation No 269/2014, as amended by Council Regulation (EU) No 476/2014 of 12 May 2014 (OJ 2014 L 137, p. 1) (‘Regulation No 269/2014’), the version of which was the same both on the date of adoption of the acts referred to in paragraph 7 of this judgment and on the date of adoption of the regulation at issue, states: ‘1. All funds and economic resources belonging to, owned, held or controlled by any natural or legal persons, entities or bodies, or natural or legal persons, entities or bodies associated with them, as listed in Annex I, shall be frozen. 2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies, or natural or legal persons, entities or bodies associated with them, as listed in Annex I.’
6 Article 9 of Regulation No 269/2014, as amended by the regulation at issue, provides: ‘1. It shall be prohibited to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent the measures referred to in Article 2. 2. Natural or legal persons, entities or bodies listed in Annex I, shall: 3. Failure to comply with paragraph 2 shall be considered as participation, as referred to in paragraph 1, in activities the object or effect of which is to circumvent the measures referred to in Article 2. …’
7 In 2022, the Council of the European Union adopted restrictive measures against the appellants, including the freezing of their funds and economic resources, by adding their names to the lists of persons, entities and bodies in the annex to Council Decision 2014/145/CFSP of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 16) and in Annex I to Regulation No 269/2014. Those measures were taken, as regards Mr Timchenko, by Council Decision (CFSP) 2022/337 of 28 February 2022 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 59, p. 1) and by Council Implementing Regulation (EU) 2022/336 of 28 February 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 58, p. 1), and, as regards Mrs Timchenko, by Council Decision (CFSP) 2022/582 of 8 April 2022 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 110, p. 55) and by Council Implementing Regulation (EU) 2022/581 of 8 April 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 110, p. 3). The Council thereafter renewed the restrictive measures adopted against the applicants.
8 By application of 14 October 2022, the appellants brought an action before the General Court seeking, in essence, the annulment of Article 1, point 4, of the regulation at issue in so far as it amends Article 9(2) and (3) of Regulation No 269/2014. In particular, they argued that, by amending Article 9(2) of Regulation No 269/2014 to insert, inter alia, the obligation requiring natural persons listed in Annex I to that regulation to report funds and economic resources belonging to, owned, held or controlled by them within the territory of the European Union to the competent authorities of the Member State (‘the disputed reporting obligation’), the Council had exceeded the powers conferred on it by Article 215(2) TFEU and had also infringed Article 29 TEU, among other Treaty provisions.
9 In paragraph 65 of the judgment under appeal, the General Court held, with reference to paragraphs 56 to 64 of that judgment, that since the disputed reporting obligation falls within the Council’s power to implement a decision adopted in the field of the common foreign and security policy (CFSP) on the basis of Article 29 TEU, in this instance Decision 2014/145, the Council was entitled to lay down that obligation by means of an EU regulation adopted under Article 215(2) TFEU, irrespective of the fact that it is an obligation to act imposed on persons like the appellants and was not provided for in Decision 2014/145 itself.
10 More specifically, in paragraph 61 of the judgment under appeal, the General Court rejected the appellants’ argument that the disputed reporting obligation falls within the implementing powers of the Member States and establishes an infringement of Article 24(2) TEU.
11 Having also rejected the appellants’ other pleas, the General Court dismissed their action.
12 The appellants claim that the Court should: - set aside the judgment under appeal; - dispose of the case on the merits and annul the regulation at issue in so far as it amends Article 9(2) of Regulation No 269/2014 and imposes the disputed reporting obligation on them; - order the Council to pay the costs both at first instance and on appeal.
13 The Council contends that the Court should: - dismiss the appeal; - order the appellants to pay the costs both at first instance and on appeal.
14 The European Commission contends that the Court should: - dismiss the appeal; - order the appellants to pay the costs.
15 In support of their appeal, the appellants rely on two grounds of appeal, the first alleging inadequate reasoning and the second alleging that the General Court erred in law in applying and interpreting Article 215 TFEU and the line of authority devolving from the judgment of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236).
16 By their first ground of appeal, the appellants complain that the General Court did not give sufficient reasons in the judgment under appeal to address their argument that the Council exceeded its powers by laying down the disputed reporting obligation in Article 9(2) of Regulation No 269/2014, as amended by the regulation at issue. This ground of appeal is divided into two limbs.
17 By the first limb of their first ground of appeal, the appellants take issue with the General Court for failing to state clearly and unequivocally whether the disputed reporting obligation constitutes a restrictive measure adopted under Article 29 TEU and Article 215 TFEU, as is apparent from paragraphs 56 and 62 of the judgment under appeal, or whether that obligation constitutes a measure implementing restrictive measures, as is apparent from paragraph 60 of that judgment. They claim that the General Court’s reasoning is therefore ambiguous as to how that obligation is to be classified in law.
18 By the second limb of their first ground of appeal, the appellants submit that the General Court gave insufficient reasons for paragraphs 57 to 60 of the judgment under appeal inasmuch as its reasoning does not identify the specific legal basis on which the Council was entitled to rely in order to lay down the disputed reporting obligation. The General Court does not, it is argued, explain how it reached the conclusion that the Council did not overstep its powers by laying down that obligation, even though Article 215(2) TFEU allows it only to adopt restrictive measures for which provision has already been made in the reference CFSP decision and, under Article 24 TEU, responsibility for implementing restrictive measures lies with the High Representative of the Union for Foreign Affairs and Security Policy and the Member States.
19 The Council and the Commission dispute the merits of the applicants’ arguments.
20 It should be recalled, as the General Court did in paragraphs 51 and 52 of the judgment under appeal, that, in the field of the CFSP, the Council may, under Article 29 TEU, adopt decisions which are to define the approach of the European Union to a particular matter of a geographical or thematic nature, an approach that may encompass restrictive measures against natural or legal persons, groups or entities (see, to that effect, judgments of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraphs 87 and 88, and of 6 October 2020, Bank Refah Kargaran v Council, C‑134/19 P, EU:C:2020:793, paragraphs 41 and 44).
21 Furthermore, Article 215(2) TFEU allows the Council to adopt restrictive measures against natural or legal persons and groups or non-State entities where provision is made for that purpose by a decision adopted in accordance with Chapter 2 of Title V of the EU Treaty, of which Article 29 forms part.
22 Given that restrictive measures may be adopted by the Council both by way of a CFSP decision under Article 29 TEU and by way of acts of the European Union adopted under Article 215(2) TFEU, the Court of Justice has - as the General Court observed, in essence, in paragraphs 53 to 55 of the judgment under appeal - defined how the Council’s powers are divided in the light of those two provisions of the Treaties.
23 Thus, decisions adopted within the framework of the CFSP under Article 29 TEU declare the position of the European Union with respect to the restrictive measures to be adopted. As a general rule, the Council is called upon, acting unanimously, to determine or define the persons and entities to be subject to those measures (see, to that effect, judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraphs 88 and 90).
24 For their part, regulations adopted under Article 215 TFEU relate, in the light of their objectives and content, to those decisions and constitute the instrument giving effect to them at EU level. That provision, which serves as a bridge between the objectives of the EU Treaty in matters of the CFSP and the actions of the European Union involving economic measures falling within the scope of the FEU Treaty, permits the adoption of regulations by the Council, acting by a qualified majority on a joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the Commission, in order to implement the relevant CFSP decision and thus give effect to the restrictive measures where such measures fall within the scope of the FEU Treaty, and, in particular, in order to ensure their uniform application in all Member States (see, to that effect, judgments of 19 July 2012, Parliament v Council, C‑130/10, EU:C:2012:472, paragraphs 72 and 76, and of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraphs 88 to 90).
25 On the basis of that case-law, the General Court stated, in paragraphs 56, 59 and 60 of the judgment under appeal, read in conjunction with paragraphs 63 and 65 thereof, that the disputed reporting obligation in Article 9(2) of Regulation No 269/2014, as amended by the regulation at issue, had been established on the basis of Article 215(2) TFEU and that its purpose was to implement a decision taken in the field of the CFSP under Article 29 TEU, namely Decision 2014/145, in order to ensure the uniform application, in the territory of the European Union, of the restrictive measures provided for in that decision, in particular in order to thwart strategies to circumvent those measures.
26 It is apparent from those paragraphs that, in the light of the case-law cited in paragraphs 53 to 55 of the judgment under appeal and summarised in paragraphs 20 to 24 above, the General Court held that the disputed reporting obligation was not a restrictive measure taken under Article 29 TEU or under Article 215(2) TFEU, but a measure, adopted on the sole basis of the latter provision, intended to ensure the uniform application of the restrictive measure freezing funds and economic resources, provided for in Article 2 of Decision 2014/145 and essentially reproduced in Article 2 of Regulation No 269/2014.
27 In so doing, the General Court clearly and unequivocally identified, first, in paragraph 60 of the judgment under appeal, read in conjunction with paragraph 56 thereof, the legal basis for the disputed reporting obligation, namely Article 215(2) TFEU, and, secondly, in paragraph 60 of that judgment, the legal nature of that obligation, namely a measure intended to implement Decision 2014/145 in such a way as to ensure the uniform application of the restrictive measure freezing funds and economic resources provided for in that decision.
28 Furthermore, contrary to what the appellants claim, the finding, in paragraph 62 of the judgment under appeal, that the mere reference in Article 215(2) TFEU to ‘restrictive measures’ does not have the effect of limiting the measures provided for in that provision to obligations not to act cannot be construed as meaning that the General Court classified the disputed reporting obligation as a ‘restrictive measure’ and thus contradicted its finding, in paragraph 60 of that judgment, that the reporting obligation is intended to implement such a measure.
29 It is true that the wording of Article 215(2) TFEU uses only the expression ‘restrictive measures’ and, in paragraph 56 of the judgment under appeal, as well as in paragraphs 63 and 65 thereof, the General Court finds that the disputed reporting obligation was established on the sole basis of that provision of the FEU Treaty.
30 However, that does not mean that that obligation must necessarily be classified as a ‘restrictive measure’. As is apparent from paragraph 89 of the judgment of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236), cited in paragraph 54 of the judgment under appeal and recalled, in essence, in paragraph 24 above, measures adopted by the Council in a regulation adopted under that provision may be intended to give effect to restrictive measures provided for in a CFSP decision, where such measures fall within the scope of the FEU Treaty, and to apply those measures in a uniform manner in all the Member States. To that end, the Council may reproduce the main content of the CFSP decision and provide definitions or clarification relating to the application of the restrictive measures provided for in that decision.
31 In those circumstances and having regard also to the fact that, under the second subparagraph of Article 26(2) TEU, the Council is to ensure the unity, consistency and effectiveness of EU action in the field of the CFSP, that institution may find it necessary to adopt, in such a regulation, measures intended to ensure the uniform, consistent and effective application of the restrictive measures set out in a CFSP decision, without those implementing measures themselves constituting restrictive measures. That is the very purpose of the disputed reporting obligation as a measure which, as is apparent in essence from paragraphs 59 and 60 of the judgment under appeal, relates to the restrictive measure freezing funds and economic resources, provided for in Article 2 of Decision 2014/145 and essentially reproduced in Article 2 of Regulation No 269/2014.
32 By stating, in paragraph 62 of the judgment under appeal, that the mere reference in Article 215(2) TFEU to ‘restrictive measures’ does not have the effect of limiting the measures provided for in that provision to obligations not to act, the General Court explained - as is, moreover, clearly apparent from the second sentence of paragraph 62 and from paragraph 63 of that judgment - that a measure adopted under Article 215(2) TFEU may, as in the present case, entail an obligation to act in order to ensure the uniform application of a restrictive measure provided for in a CFSP decision.
33 Accordingly, the complaints put forward in support of the first limb and part of the second limb of the first ground of appeal, alleging that the General Court contradicted itself and did not sufficiently substantiate its reasoning as regards the legal basis on which the Council was entitled to rely in order to lay down the disputed reporting obligation, are unfounded.
34 It is also necessary to reject the complaint, put forward in support of the second limb of that ground of appeal, that the General Court’s reasoning concerning the legal basis for the disputed reporting obligation, in paragraphs 57 to 60 of the judgment under appeal, is vitiated by inadequacy because it did not take account of the fact that restrictive measures are, under Article 24 TEU, implemented by the High Representative of the Union for Foreign Affairs and Security Policy and by the Member States.
35 In paragraph 61 of the judgment under appeal, which was not challenged in the context of the second limb of the first ground of appeal, the General Court - referring expressly to its reasoning and to the grounds set out in paragraphs 57 to 60 of that judgment - rejected the appellants’ argument specifically alleging infringement of that article of the EU Treaty and failure to have regard to the implementing powers of the Member States. In those circumstances, it cannot be held that the General Court failed to state sufficient reasons for the judgment under appeal in that regard.
36 In the light of the foregoing, the first ground of appeal must be rejected as unfounded.
37 By their second ground of appeal, the appellants submit that, as a result of its misinterpretation and misapplication of Article 215 TFEU and the judgment of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236), the General Court wrongly held, in paragraph 63 of the judgment under appeal, that the Council was entitled to lay down the disputed reporting obligation in Article 9(2) of Regulation No 269/2014, as amended by the regulation at issue, and that that judgment should be understood as classifying that obligation as a restrictive measure (first limb of the second ground of appeal) or as a measure implementing a restrictive measure freezing funds and economic resources (second limb of the second ground of appeal).
38 On the assumption that the General Court classified the disputed reporting obligation as a restrictive measure, the appellants submit that it erred in finding, in paragraph 63 of the judgment under appeal, that the Council was entitled to adopt that obligation on the basis of Article 215(2) TFEU, even though the obligation was not expressly provided for in the related CFSP decision.
39 First, the appellants argue that Article 215(2) TFEU excludes the possibility of adopting additional restrictive measures that are distinct from those provided for in the relevant CFSP decision. Decision 2014/145 does not mention the disputed reporting obligation. Secondly, the very nature of that obligation, which is a self-standing obligation that the persons concerned must comply with, failing which the failure to report would be regarded as circumvention of the restrictive measures, punishable by penalties, requires it to be included not only in the regulation laying down that obligation, but also in the reference CFSP decision, which is to be adopted unanimously.
40 The Council and the Commission dispute the applicant’s arguments.
41 The first limb of the second ground of appeal is put forward on the assumption that the General Court classified the disputed reporting obligation as a restrictive measure. However, it is clear from the considerations set out in paragraphs 26 to 32 above that that is not the case. In those circumstances, the first limb of the second ground of appeal must be rejected as ineffective.
42 On the assumption that the General Court classified the disputed reporting obligation as a measure implementing the restrictive measure freezing funds and economic resources, provided for inter alia in Article 2 of Decision 2014/145, the appellants complain that it erred in law in finding, in paragraph 63 of the judgment under appeal, that the Council was competent to lay down such an obligation in Regulation No 269/2014. The General Court failed, it is claimed, to have regard to Article 24 TEU, according to which, if Article 291(2) TFEU does not apply, it is for each Member State, and not the Council, to adopt the measures necessary to implement the restrictive measures set out in a CFSP decision.
43 Furthermore, and on the same assumption, the appellants argue, in essence, that in paragraphs 54 to 59 of the judgment under appeal, the General Court misinterpreted and misapplied the judgment of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236) and, as a result, erred in law in finding that the Council was competent to lay down such an obligation in Regulation No 269/2014. It follows from that judgment that a regulation adopted on the basis of Article 215 TFEU is merely an instrument intended to confer direct effect and, therefore, binding force on restrictive measures already set out in a CFSP decision, if necessary by elaborating on them but without adding further measures or altering the scope of the measures thus set out. The appellants maintain that the General Court broadened the scope of that judgment by stating that such a regulation not only gives effect to such restrictive measures, but also implements them.
44 The Council and the Commission dispute those arguments.
45 In the first place, concerning the appellants’ arguments summarised in paragraph 42 above, it should be recalled that, under the second subparagraph of Article 24(1) TEU and the first subparagraph of Article 26(2) and Article 26(3) TEU, the Council, acting unanimously, is to take the decisions necessary for defining and implementing the CFSP on the basis of the general guidelines and strategic lines defined by the European Council, and that the CFSP is to be put into effect by the High Representative of the Union for Foreign Affairs and Security Policy and by the Member States, in accordance with the Treaties and using national and EU resources.
46 As the General Court correctly held, in essence, in paragraph 61 of the judgment under appeal, read in conjunction with paragraphs 57 to 60 thereof to which paragraph 61 refers, the Council is, as is also clear from paragraphs 30, 31 and 32 above, empowered, under the combined provisions of Articles 24 and 26 TEU and Article 215(2) TFEU, to implement decisions adopted in the field of the CFSP under Article 29 TEU in order, inter alia, to ensure the uniform, consistent and effective application, in all Member States, of the restrictive measures provided for in such decisions, where those measures fall within the scope of the FEU Treaty.
47 By thus adopting, on the basis of Article 215(2) TFEU, a regulation intended to implement a CFSP decision, the Council in no way encroaches upon the implementing powers of the Member States laid down in the second subparagraph of Article 24(1) and in Article 26(3) TEU.
48 Although such a regulation is intended to give effect, at EU level, to the restrictive measures provided for in a CFSP decision while ensuring the uniform, consistent and effective application of those measures, the implementing powers of the Member States referred to in those provisions of the EU Treaty relate not to the implementation of CFSP decisions and to the application of restrictive measures at EU level, but to the implementation of those measures by the competent authorities of each Member State on its national territory.
49 This must all the more be so since, according to the very wording of Article 26(3) TEU, the CFSP is implemented by the Member States ‘using … Union resources’. That means that Member States must ensure the implementation of restrictive measures in their respective territories by complying with the measures adopted by the Council on the basis of Article 215(2) TFEU in order to ensure the uniform, consistent and effective application, at EU level, of the restrictive measures set out in CFSP decisions.
50 In so far as the appellants maintain that the Council was not entitled to lay down the disputed reporting obligation without an implementing power to that effect having been conferred on it, under Article 291(2) TFEU, by a regulation adopted on the basis of Article 215(2) TFEU, suffice it to note that restrictive measures and measures which, like the disputed reporting obligation, are intended to apply the restrictive measures provided for in a CFSP decision in a uniform, consistent and effective manner at EU level may indeed be adopted under Article 291(2) TFEU where a regulation adopted on the basis of Article 215 TFEU confers implementing powers on the Commission or the Council, but they may also be adopted exclusively on the basis of the second of those provisions (see, to that effect, judgment of 1 March 2016, National Iranian Oil Company v Council, C‑440/14 P, EU:C:2016:128, paragraph 34).
51 In the second place, concerning the appellants’ arguments summarised in paragraph 43 of the present judgment, it must be held that the General Court correctly recalled and applied, in paragraphs 54 to 59 of the judgment under appeal, the line of authority devolving from the judgment of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236). As the General Court held, in essence, and as stated in paragraph 29 above, it is apparent from paragraphs 88 to 90 of the judgment of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236), that the Council is empowered, in the context of a regulation adopted on the basis of Article 215(2) TFEU, to take all measures, such as the disputed reporting obligation, intended to implement a CFSP decision adopted under Article 29 TEU and, in that connection, to ensure the uniform application at EU level of the restrictive measures set out in such a decision and recalled or elaborated on in the regulation concerned. Contrary to the appellants’ assertions, the Council, in so doing, does not add any new restrictive measures or alter the scope of the restrictive measures established in the CFSP decision.
52 In the light of the foregoing, the second limb of the second ground of appeal must be rejected as unfounded. Accordingly, the appeal must be dismissed in its entirety.
53 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs.
54 Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
55 Since the Council and the Commission have applied for costs and the appellants have been unsuccessful, the appellants must be ordered to pay the costs. 1. Dismisses the appeal; 2. Orders Mr Gennady Nikolayevich Timchenko and Mrs Elena Petrovna Timchenko to pay, in addition to their own costs, those incurred by the Council of the European Union and the European Commission.