Pedro Madeira Froufe (Editor)

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I

On 8 March 2023, the General Court delivered a judgment in the case of Violetta Prigozhina (Case T-212/22),[1] whose applicant is an octogenarian lady and mother of the well-known Russian “war entrepreneur” who leads the pro-Kremlin mercenary group called the “Wagner Group”.

The European Union (EU) has always had a sufficiently clear and assertive position towards the invasion of Ukraine by the military forces of the Russian Federation, which began on 24 February 2022. Support for Ukraine stems from many factors, not least the Ukrainian people’s desire to move closer to the European way of life. The so-called “Euromaidan revolution” that began in Kiev in 2014 reacted against the former President Víktor Yanukóvytch for having refused to sign the agreements on trade cooperation and, in general, greater openness to the EU, apparently under pressure from Moscow.[2] On the other hand, the military action (aggression) unleashed in 2022 by Russia against Ukraine calls into question the international order and the assumptions of peace built up after the Second World War. From the perspective of the EU (and the political and civilisational bloc currently referred to as the “West”, associated with the framework of the democratic rule of law), this is a serious violation of international law.

 War inevitably invokes the law – and far beyond the aspects arising from the barbarity and inhuman nature of the conflict itself. In other words, the intervention of the law is manifested far beyond aspects directly related to the application of the norms of International Humanitarian Law and the so-called ‘Law of War’. The civilisational dysfunction of any war immediately triggers connections that are mediately or immediately relevant for the law.

As an immediate reaction to the invasion of Ukraine by Russian military forces, the EU has developed a system of economic and financial sanctions. These European sanctions “add to existing measures imposed on Russia since 2014 following the annexation of Crimea and the non-implementation of the Minsk agreements.”[3]

Sanctions have so far been translated into three different types of measures – although, taken together, they are intended to generate complementary and interlinked effects. These are targeted restrictive measures (i.e., individual reactions/measures); visa measures; and economic sanctions as such (e.g., export and import embargoes).

According to the Council, “the aim of the economic sanctions is to impose severe consequences on Russia for its actions and to effectively thwart Russian abilities to continue the aggression.” Moreover, “the individual sanctions target people responsible for supporting, financing or implementing actions which undermine the territorial integrity, sovereignty and independence of Ukraine.”[4]

II

The present case is an action for annulment brought on 22 April 2022 by Violetta Prigozhina against the Council. The applicant sought to annul Council Decision (CFSP) 2022/265 of 23 February 2022 – amended by Decision 2014/145/CFSP of 17 March 2014, which had imposed “restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine”.[5] In addition, the appeal in question also sought to annul two Council Regulations, namely Regulation 269/2014 and Council Implementing Regulation 2022/260 of 23 February 2022.[6] In fact, Ms. Prigozhina’s name had been included in those acts – and she was therefore the addressee of individual restrictive measures consisting, broadly speaking, of the freezing of her assets. The claimant sought the annulment of those legal acts – or, at the very least, the removal of her name from the lists annexed to those Council acts, so that she would not be targeted by such restrictive measures.

It should be noted that these were not yet measures in direct reaction to the invasion itself, which was triggered by Russia a day later, on 24 February 2022. These were measures to anticipate and dissuade Russian military forces from moving along the border with Ukraine (with regard to the Council’s actions of 2022); in any case, these measures still stem from the occupation and annexation of Crimea by the Russian Federation in 2014 (Regulation and Decision, both from 2014), which were not recognised by the international community.[7]

III

The action for annulment provided for under Articles 263 and 264 of the Treaty on the Functioning of the European Union (TFEU) forms part of the system of procedures which guarantees respect for the EU legal order by its institutions, bodies, offices and agencies. It serves to assess the validity of final and binding acts intended to produce legal effects vis-à-vis third parties – and therefore acts other than recommendations or opinions, as set out in the first paragraph of Article 263 TFEU.

On the other hand, with regard to who has legal standing to bring an action for annulment, the aforementioned rule admits two types of claimants: those with institutional standing and those of ordinary nature. In this sense, those included in the institutional feature can be accommodated in two major categories: a group of possible applicants known as ‘privileged applicants’ (the Member States, Parliament, Commission and Council) and a group that can be perceived as “relatively privileged applicants” (the European Committee of the Regions, the European Central Bank and the European Court of Auditors).

Privileged applicants are perceived as such as they have virtually unconditional legal capacity to bring proceedings, inasmuch as they will be able to challenge any definitive act of the institutions intended to produce binding legal effects on the basis of any ground for invalidity provided for by the Treaties and without any need to prove their specific and direct interest in bringing proceedings. On the other hand, the case of the European Committee of the Regions, the European Central Bank and the European Court of Auditors is slightly different insofar as, in order to challenge an act resorting to an action for annulment, they must rely on and prove that the contested acts call into question the safeguarding of their prerogatives – see paragraph 3 of Article 263 TFEU – for which reason they are considered ‘relatively privileged’ applicants.

However, direct and immediate access by individuals to the General Court, such as Ms. Prigozhina, is provided for (albeit in a restricted manner) in paragraph 4 of Article 263 TFEU. In a Union based on the rule of law, it is imperative that those who are affected in their legal sphere by the effects of EU legal acts are able to defend themselves before the courts and to challenge those acts – otherwise there would be grounds for an infringement of justice. It must be stressed, against the background of the appeal in Case T-212/22, that individuals, such as Ms. Prigozhina, may challenge the acts addressed to them, as in the case of the abovementioned decisions challenged in the proceedings – strictly speaking, the lists of persons to whom sanctions are addressed.  Moreover, an individual may also bring an action for annulment against measures which are not addressed to them personally (general and abstract measures, for example) or which, although addressed to another person, are of direct and individual concern to them.

The Court of Justice has held “that an act is of individual concern to the applicant if that act affects not only his legitimate interests but also by reason of certain attributes peculiar to that person or by reason of a factual situation distinguishing the applicant in a similar way from that of the person to whom it is addressed”. The case-law of the Court of Justice “considers that an act is of direct concern to the applicant if that act has, of itself, the immediate effect of depriving the latter of a right or imposing an obligation on that individual, so as to place them in a situation analogous to that which they would have been in if they had been the intended addressee of the act.”[8]

These key features characterising the action for annulment serve to justify the position of the applicant, Ms. Prigozhina, either by challenging acts of which she is the direct addressee in a targeted manner (the inclusion of her name on 23 February 2022 in the list of addressees of the special measures) or by challenging provisions contained in acts such as the 2014 and 2022 Regulations identified above. It should be noted that, in relation to “a regulatory act which is of direct concern to them and does not entail implementing measures”, the individual’s capacity to bring proceedings is facilitated because, in addition to proving the direct effect caused by such an act, they do not need to prove cumulatively the individual effect suffered (paragraph 4, Article 263 TFEU, final part).

The applicant sought the annulment of the various acts mentioned in so far as they were of direct and individual concern to her, and the removal of her name from the lists of persons to whom the measures in question were addressed (even if the annulment of the acts or part of the acts concerning her were not declared). In addition, the applicant sought an order that the Council pay the costs of the proceedings.[9]

IV

The General Court first rejected, on a preliminary basis, the applicant’s request that her name be removed from the lists in question. The Court first interpreted that request as being an injunction from the Court to the Council to order the removal of the applicant’s name from the lists of persons subject to the sanctioning measures adopted. The Court concluded that, under its powers to review the legality of European acts (Article 263 TFEU), it had no power to issue injunctions addressed to EU institutions, bodies, offices and agencies. Thus, it considered itself incompetent to order the exclusion of the applicant’s name from the lists drawn up by the Council and, accordingly, rejected that request outright.[10]

The Court’s decision in an action for annulment against European legal acts can only consist of (i) the rejection of the application, or (ii) the annulment, in whole or in part, of the contested act – as follows, accordingly, from Article 264 TFEU.[11] On the other hand, Article 266 TFEU itself does not allow the Court to direct or impose orders on the institutions, since that provision provides that it is for the institution, body, office or agency whose act has been declared void to take the necessary measures to comply with the judgment of the Court.  It is for the Court, as a judicial body, to declare the act in question valid or invalid – and not to exercise the decision-making role conferred by the Treaties on the institutions.[12]

It must also be borne in mind that, pursuant to Article 24(1) TEU – and in the specific area of the Common Foreign and Security Policy (CFSP), in the context of which the legislative acts and the resulting lists of addressees of the individual measures referred to were adopted – the Court has jurisdiction only to verify compliance with Article 40 TEU and to review the legality of certain acts provided for in paragraph 2 of Article 275 TFEU. Those acts referred to in the second paragraph of Article 275 TFEU are, precisely, decisions imposing restrictive measures on natural or legal persons adopted by the Council under the CFSP (Chapter 2 of Title V of the TEU) and subject to actions for annulment (paragraph 4 of Article 263 TFEU).

V

Recital 20 of the judgment under appeal sets out the arguments put forward by the applicant in support of her application for annulment of the Council acts against which she sought to react. The claimant alleges that the Council failed to fulfil its obligation to state reasons for the acts adopted, that there were insufficient facts on which to base the adoption of such European acts, an erroneous assessment of such facts, misuse of powers, infringement of the claimant’s fundamental rights and, specifically, a clear infringement of the right to property.

With regard to the first argument raised, the General Court had the opportunity to clarify the scope of that obligation to provide reasons for acts of the institutions and to clarify the meaning of Article 296 TFEU. Thus, that obligation to state reasons, in abstract terms, requires the institutions to give explicit, clear and adequate reasons for the measures which they adopt.[13] The General Court underlines the need to assess the obligation on institutions to state reasons by considering the context as an integral part of those reasons – that is to say, what is reasonably and easily apparent from the context, such as the circumstances surrounding the acts adopted and motivating the adoption of those acts. In Recital 24, the Court expressly refers to the need for such a reasoning to be adapted to the nature of the act in question – and thus to the specific context in which it is adopted.[14] Thus, the requirement to state reasons must be assessed in the light of the circumstances of the case, the content (effects) of the act in question, the nature of the reasons given for the adoption of that act and the interests of the addressees or of other persons directly and individually affected by that legislative act.

Moreover, the Court points out that it is not required that the statement of reasons must specifically set out all the relevant matters of fact or law, or that it must respond in detail to the observations which may have been raised by the interested parties during the public consultation stage preceding the adoption of the act at issue – precisely because the adequacy of the statement of reasons must be assessed by also taking into account its context, as well as all the legal rules governing the matter in question, which is the subject of the act adopted. For the General Court (Recital 14), the grounds justifying the inclusion of the applicant’s name in the lists of addressees of the individual measures relate to the fact that Ms. Prigozhina is the mother of Mr. Prigozhin and was also the owner of the company “Concord Management and Consulting LLC”. This company was part of the “Concord Group” – a business group which was founded and owned, at least until 2019, by Mr. Prigozhin (Mss Prigozhina’s son). Mr. Prigozhin is also the founder of the “Wagner Group”, which is allegedly responsible for the placement of mercenaries on the territory of Ukraine, having entered into relevant public contracts with the Russian Ministry of Defence, following the illegal annexation of Crimea by Moscow’s military forces in 2014. The applicant had therefore been a partner of her son, not only through this “Concord Management and Consulting” company, but also allegedly through other companies (according to what was invoked by the Council). Also pursuant to Recital 26, it is clearly apparent that the designation of the applicant as the addressee of the individual measures results from the criterion set out in Article 1(1)(a) and Article 2(1)(a) of Decision 2014/145, as well as Article 2 of Regulation 269/2014. It follows from those provisions that the individual measures in question apply to natural persons responsible for actions or policies which undermine or threaten the territorial integrity, sovereignty, and independence of Ukraine, as well as to natural persons associated with them (as in the case of Ms. Prigozhina regarding her son).

In conclusion, the General Court rejected the applicant’s claim, regarding the contested Council acts, that there was an alleged infringement of the obligation to state reasons under Article 296 TFEU. As concluded in Recital 34, the statement of reasons for the contested acts makes it possible to identify the specific and concrete reasons on which the Council considered that the applicant should be the addressee of the individual sanctioning measures at issue, so that such a statement of reasons must be regarded as being sufficient to enable the applicant to assess the rationale of such measures in relation to herself, as well as to be able to defend herself judicially.

VI

The applicant further alleged, in addition to the insufficient facts on the basis of which the European legal acts were adopted, an erroneous assessment of those facts. In essence, Ms. Prigozhina contested the fact that the Council had found that she was – at the time of the adoption of the contested acts – an ‘associate’ (in the sense of a partner in a commercial company) of her son. She also contested the fact that her son was responsible for the placement of mercenaries of the ‘Wagner Group’, in the territory of Ukraine. In summary, the applicant claimed that there was no factual basis for the Council’s acts to be addressed to her and, furthermore, that there was a manifest error of assessment of the facts considered by the Council for her to be addressed by those acts.[15]

The General Court, in Recital 36, begins by stressing –  also invoking Article 47 of the Charter of Fundamental Rights of the European Union (CFREU) – the need for a ‘sufficiently solid’ factual basis for the Court to be able to validate the adoption or maintenance of individual measures affecting a specific person or entity. Indeed, such a ‘sufficiently solid factual basis’ is a requirement of the guarantee of effective judicial protection and review. Invoking previous case-law,[16] the Court held that the guarantee of such effective judicial review entails a verification of the facts alleged in the statement of reasons relating to the act or decision of the institution, so that the judicial control is not limited to assessing the plausibility, in the abstract, of the reasons given, but may ascertain whether all or any of those reasons may be regarded as sufficient, in the particular case, to support that act or decision. It is up to the EU judicial authority to verify this by asking the relevant EU authority for the relevant information or evidence, whether confidential or not (see Recital 37).

The Court also makes clear that, in the event of a challenge (such as in this action for annulment), the burden of proof on the sufficiency and relevance of the facts in support of the acts adopted in relation to the person or entity concerned lies with the competent EU authority (i.e., the institution which issued the contested act) and not, in any case, with the person or entity concerned alone.[17]

In any event, if, where relevant information or evidence is provided by the competent EU authority, the Court must verify the substantive accuracy of the facts alleged in the light of that information and evidence. It must consequently also verify the evidential value of such information and evidence provided by the competent EU authority, depending on the specific circumstances and in the light of any observations submitted by the person or entity concerned by the contested act (Recital 40).

In summary, in the Court’s view, the Council failed to present facts or documents demonstrating that Ms. Prigozhina was a “partner”/“associate” of Mr. Prigozhin in several companies – other than being formally, but prior to the acts adopted by the Council, in the company “Concord Management and Consulting”.[18] Furthermore, for the Court, the term “associate” should not only have a “capitalistic” or business character – at the very least, it certainly should not have it merely in a formal sense. An “associate” means a person with links and with benefits arising from those links to someone who has engaged in actions which undermine or threaten the territorial integrity, sovereignty, and independence of Ukraine. In the Court’s view, the Council failed to make a full case that the applicant had an actual relationship of benefit and participation (albeit indirect) in her son’s actions. Therefore, the application to Ms. Prigozhina of the contested individual measures then resulted solely from the fact that she was the mother of her son!

Thus, the General Court ultimately satisfied Ms. Prigozhina’s claim and annulled the contested Council acts in so far as they concerned this applicant. Despite the wartime and firm political and institutional position of the EU towards the Russian Federation, the fact remains that such a context and its possible pressures were not reflected in the judicial assessment of the Council acts carried out by the General Court.

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[1] Judgment  Prigozhina v Council, 8 March 2023, Case T-212/22, ECLI:EU:T:2023:104. See InfoCuria, Action brought on 21 April 2022 – Prigozhina v Council (Case T-212/22), https://curia.europa.eu/juris/document/document.jsf?docid=261376&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=2531939.

[2] See Pedro Madeira Froufe, “Editorial of March 2022 – Europe and War”, The Official Blog of UNIO – Thinking and Debating Europe, March 9, 2022, https://officialblogofunio.com/2022/03/09/editorial-of-march-2022/.

[3] See Council of the European Union and the European Council, “EU sanctions against Russia explained”, last reviewed on March 15, 2023, https://www.consilium.europa.eu/en/policies/sanctions/restrictive-measures-against-russia-over-ukraine/sanctions-against-russia-explained/?elqTrackId=4A9423727AAB240BA732CB14430D5145&elqTrack=true.

[4] Council of the European Union and the European Council, “EU sanctions against Russia explained”.

[5] Official Journal of the European Union, L 078, 17 March 2014, 16.

[6] Official Journal of the European Union, L 042I, 23 February 2022, 3.

[7] In this regard, Recital 6 and Recitals 9 and 10 of the judgment in question (still only available in French), which we quote for greater contextualisation of the position adopted in relation to Ms. Prigozhina:

“6 – Le 24 janvier 2022, le Conseil de l’Union européenne a approuvé des conclusions dans lesquelles il avait condamné les actions agressives et les menaces répétées de la Fédération de Russie contre l’Ukraine et a invité la Fédération de Russie à apaiser la situation, à respecter le droit international et à participer de manière constructive au dialogue dans le cadre des mécanismes internationaux établis. Rappelant les conclusions du Conseil européen du 16 décembre 2021, le Conseil a réaffirmé que toute nouvelle agression militaire aurait des conséquences massives et un coût sévère, y compris par l’intermédiaire d’un large éventail de mesures restrictives sectorielles et individuelles qui seraient adoptées en coordination avec les partenaires. Par déclaration du 19 février 2022, le haut représentant a exprimé la préoccupation suscitée par le renforcement massif des forces armées russes en Ukraine et à ses portes et a notamment indiqué que toute nouvelle agression militaire de la Fédération de Russie contre l’Ukraine aurait des conséquences massives et un coût sévère en réponse, y compris des mesures restrictives coordonnées avec des partenaires” (…)

“9 – Le 23 février 2022, le Conseil a adopté une première série de mesures restrictives. Celles-ci concernaient, premièrement, des restrictions applicables aux relations économiques avec les régions de Donetsk et de Lougansk non contrôlées par le gouvernement, deuxièmement, des restrictions à l’accès au marché des capitaux, notamment en interdisant le financement de la Fédération de Russie, de son gouvernement et de sa banque centrale, et, troisièmement, l’ajout de membres du gouvernement, de banques, d’hommes d’affaires, de généraux ainsi que de 336 membres de la Gosudarstvennaya Duma Federal’nogo Sobrania Rossiskoï Federatsii (Douma d’État de l’Assemblée fédérale de la Fédération de Russie) sur la liste des personnes et entités faisant l’objet de mesures restrictives” (…)

“10 – Dans ce contexte, le 23 février 2022 également, compte tenu de la gravité de la situation, par les actes attaqués, le Conseil a ajouté le nom de la requérante sur les listes litigieuses.”

[8] See João Mota de Campos and João Luiz Mota de Campos, Manual de Direito Europeu. O sistema institucional, a ordem jurídica e o ordenamento económico da União Europeia, 6^th Ed. (Coimbra Editora, 2010), 468. [Freely translated by the author].

[9] Recital 16: “(…) en tout état de cause, «dire et juger» que son nom devra être retiré sans délai des listes litigieuses.”

[10] Recitals 18 and 19.

[11] “If the action is well founded, the Court of Justice of the European Union shall declare the act concerned to be void. However, the Court shall, if it considers this necessary, state which of the effects of the act which it has declared void shall be considered as definitive.”

[12] See, regarding individual restrictive measures against Iran with the aim of halting nuclear proliferation, judgment Borborudi v Council, 9 June 2021, Case T-580/19, ECLI:EU:T:2021:330.

[13] According to the second paragraph of Article 296 TFEU, ‘legal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives, recommendations, requests or opinions required by the Treaties.”

[14] Recital 24: “La motivation exigée par l’article 296 TFUE doit être adaptée à la nature de l’acte en cause et au contexte dans lequel il a été adopté”.

[15] See Recital 40: “40 – C’est à la lumière de ces considérations qu’il convient d’examiner le présent moyen, dans le cadre duquel la requérante soulève, d’une part, l’absence de base factuelle suffisante et, d’autre part, l’erreur manifeste d’appréciation”.

[16] See Judgment Commission and Others v Kadi, 18 July 2013, Joined Cases C‑584/10 P, C‑593/10 P and C‑595/10 P, ECLI:EU:C:2013:518.

[17] Otherwise, the person concerned by the act or decision would be required to provide negative proof (the “diabolical proof”). See Recital 38: “la preuve négative de l’absence de bien-fondé desdits motifs”.

[18] See Recital 45: “Premièrement, la requérante soutient qu’elle n’est plus propriétaire de Concord Management and Consulting depuis le 28 février 2017 et que, de 2008 à 2017, elle n’a fait qu’assurer la continuité de l’entreprise sans jouer aucun rôle direct dans l’exploitation” and Recitals 46 and 47.

Picture credits: Pixabay on Pexels.com.