Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)

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Judgment of the General Court (Grand Chamber), 27 July 2022

Case T-125/22[1] RT France v Council

Common foreign and security policy — Restrictive measures adopted in view of Russia’s actions destabilising the situation in Ukraine — Temporary prohibition of dissemination and suspension of authorisations for the dissemination of certain media content — Inclusion on the list 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

1. Facts

Following the military attack perpetrated by Russia against Ukraine on 24 February 2022, the Council of the European Union adopted, on 1 March 2022, new restrictive measures against Russia, namely Decision 2022/351[2] and Regulation 2022/350[3].

The purpose of those acts is the temporary prohibition of actions for propaganda of that military assault by means of certain media under Russian control. Thus, any operator established in the European Union is prohibited from broadcasting content produced by legal persons, entities or bodies set out in the annexes to the abovementioned acts.

The applicant, RT France, was included on the list of entities covered by the contested measures. This company, which is established in France, is active in the distribution of special-interest channels and its entire share capital is held by a Russian non-profit association established in Moscow.

RT France sought the annulment of the contested measures on the basis of (i) infringement of its rights of defence, in particular the right to be heard, (ii) its freedom of expression and information and its freedom to conduct a business, and (iii) the principle of non-discrimination. It also called into question the Council’s competence to adopt the acts in question.

The General Court (GC), sitting as a Grand Chamber at the end of an expedited procedure, ruled for the first time on restrictive measures adopted by the Council to prohibit the dissemination of audiovisual content.

2. Decision

First, the GC analyses the Council’s competence to adopt the measures at issue. Under the Treaty on European Union (TEU), the Union is to contribute to international peace and security[4] and, to that end, the Council has the power to adopt ‘decisions which define the overall approach to a particular matter of a geographical or thematic nature by the Union’[5]. Given that propaganda and the disinformation campaigns refer in question the foundations of democratic societies, the GC considered that the measures at issue fall within the framework of those objectives pursued by the European Union and that therefore, the Council is competent to adopt the measures at issue.

Secondly, as regards the infringements of fundamental rights relied on by the applicant, the GC recalls that the Charter of Fundamental Rights of the European Union (Charter) allows limitations on the exercise of the rights enshrined therein. The restrictions must, however, respect the essence of the fundamental right in question and the principle of proportionality, which must ensure that restrictions are necessary and correspond to the general interests recognised by the European Union.

Consequently, as regards the rights of the defence, in particular the right to be heard, the GC recalls the importance of the very exceptional context in which the contested acts were adopted and the objective that they seek to preserve, namely the integrity of the democratic debate within the European society against disinformation and manipulation of the facts in the light of the conflict and the effectiveness of the measures at issue. The GC thus took the view that the European Union authorities were not required to hear the applicant before its name was first included on the lists at issue and, therefore, there had been no breach of its right to be heard.

Thirdly, as regards the infringement of the freedom of expression and information, the GC recalls firstly, as has already been pointed out, that under Article 52 of the Charter, the Council may adopt measures which restrict the applicant’s freedom of expression provided that it complies with the conditions laid down by the Charter.

The GC considers that those conditions are consistent with the relevant case-law principles established by the European Court of Human Rights[6] and considers, firstly, that the restrictive measure must be provided for by law, in particular in Article 29 TEU, empowering the Council to adopt decisions on the position of the European Union and Article 215 TFEU.

Secondly, the GC examined whether the extension of the temporary prohibition on the dissemination of media content applied to the applicant, complied with the essence of the right to freedom of expression. The GC concludes that, given the temporary and reversible nature of the measures and the fact that they did not prevent the applicant from carrying out other activities of distribution of media content, such as investigation and interviews, the measures respected the essence of the right to freedom of expression.

As regards the common public interest objective which the measure seeks to protect, the GC reiterates that propaganda and the disinformation campaigns in respect of the war in Ukraine relate to the fundamental values of a democratic society and form part of the modern war arsenal. As such, the GC considers that the measures serve to pursue, the objectives protected by the European Union, in particular Article 3(1) and (5) of the TEU.

As regards the proportionality of the measures, the GC observes that the content of the news disseminated and the applicant’s narrative on the military assault, described as ‘special military operation’, ‘police operations’ and ‘defensive and preventive action of the Russian Federation’, constituted sufficiently specific, precise and consistent evidence that the Council could legitimately consider that the applicant actively supported Russia’s policy on the invasion of Ukraine and that it was providing partial information justifying the invasion in violation of international right and the Charter of the United Nations.

As regards freedom of the press, the GC emphasises that the processing of the information in question cannot benefit from the enhanced protection provided for in Article 11 of the Charter in the light of the balancing of the interests involved. In that regard, it is also necessary to take into consideration the United Nations International Covenant on Civil and Political Rights of 16 December 1966, to which both the Member‑States and Russia are parties and according to which, propaganda in favour of war is prohibited[7].

As regards the interference with the freedom to conduct a business, the GC concludes that the measures at issue, since they are temporary and reversible, do not constitute a disproportionate interference with the essence of the applicant’s freedom to conduct a business.

Finally, as regards the infringement of the principle of non-discrimination on grounds of nationality[8], the applicant considers it was discriminated against merely because its sole shareholder was Russian and was thus treated less favourably than the other French audiovisual media.

The GC states that the principle of non-discrimination laid down in Article 21 of the Charter must be applied in accordance with the first paragraph of Article 18 of the Treaty on the Functioning of the European Union (TFEU), which covers situations in which a national of a Member State suffers discriminatory treatment compared with nationals of another Member State solely on the basis of his nationality.

In that regard, the GC considers that, even if a legal person were able to revise the benefit of Article 21 of the Charter, that kind of disparity in treatment does not fall within the scope of Article 18 TFEU. The GC also adds that the applicant is the subject of the contested acts because it is controlled by the Russian Government and by the acts of propaganda which it issues in respect of military assault against Ukraine and not merely because its capital is held by a Russian association, as the applicant claims.

In the light of the foregoing, the GC dismisses the action.

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[1] Only available in French.

[2] Council Decision (CFSP) No 2022/351 of 1 March 2022 amending Decision No 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ L 65, p. 5-7).

[3] Council Regulation (EU) No 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 L 65, pp. 1-4).

[4]  Article 3 (5) of the Treaty on European Union.

[5] Article 29 of the Treaty on European Union.

[6] ECtHR, 5 April 2022, NIT S.R.L. v. the Republic of Moldova, CE:ECHR:2022:0405JUD 002847012, paragraphs 178 to 182, and ECtHR, 15 October 2015, Perinçek v. Switzerland, CE:ECHR:2015:1015JUD 002751008, paragraphs 197, 205, 206 and 230.

[7] Article 20 (1).

[8] Enshrined in particular in Article 21 (2) of the Charter.