CJEU CASE T-307/22 / Judgment
-
CJEU CASE T-307/22 / Judgment
Key facts of the case:
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
Outcome of the case:
On those grounds, THE GENERAL COURT (First Chamber, Extended Composition) hereby:
- Dismisses the action;
- Orders A2B Connect BV, BIT BV and Freedom Internet BV to bear their own costs and to pay those incurred by the Council of the European Union;
- Orders the Republic of Estonia, the Republic of Latvia, the Republic of Lithuania, the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy to bear their own costs.
-
Paragraphs referring to EU Charter
64. By the third plea, the applicants allege infringement of the right to good administration guaranteed by Article 41 of the Charter as a result, in essence, of infringement of the obligation to state reasons enshrined in Article 296 TFEU.
65. According to the applicants, the Council has failed to fulfil its obligation to provide the actual and specific reasons why it found it necessary to adopt the restrictive measures at issue, relating, inter alia, to the context, gravity and particular urgency of the situation. As regards the context, the recitals of the contested regulations confine themselves to providing grounds relating only to the broadcasting activities of the media outlets, without taking account of the neutral role of ‘operators’ such as the applicants. As regards the gravity and urgency of the situation, the Council has not provided a sufficient statement of the reasons why in its view the media outlets named on the list at issue broadcast harmful propaganda justifying the adoption of the restrictive measures at issue.
...
70. As a preliminary point, it should be noted that, despite the heading of the present plea in law, in which the applicants refer generically to infringement of the right to good administration guaranteed in Article 41 of the Charter, in reality they are claiming only an infringement of the obligation to state reasons.71. According to settled case-law, the purpose of the obligation to state the reasons on which an act adversely affecting an applicant is based is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, second, to enable those Courts to review the legality of that act (see, to that effect, the judgment in RT France, paragraph 102 and the case-law cited).
72. It should also be borne in mind that the statement of reasons required by Article 296 TFEU and by Article 41(2)(c) of the Charter must be appropriate to the nature of the act at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in receiving explanations. It is in particular not necessary for the reasoning to go into all the relevant facts and points of law, since the question of whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see the judgment in RT France, paragraph 103 and the case-law cited).
...
87. By their second plea, the applicants claim that the contested regulations infringe the freedom of expression and information guaranteed in Article 11 of the Charter, which corresponds to Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’).
88. In particular, according to the applicants, the restrictive measures at issue restrict their freedom to impart information.
89. In that regard, the applicants claim that they are required to conduct comprehensive filtering in order to recognise any content from the media outlets named on the list at issue, irrespective of the platform on which it appears, who published it and the purpose and context of that publication, and that the foregoing constitutes a far-reaching interference with their right to freedom of expression and information.
90. Such a comprehensive prohibition also constitutes a restriction on the right of the users of the applicants’ services to impart and receive information, which is an integral part of the applicants’ right to impart information.
91. According to the applicants, a restriction of that nature on freedom of expression and information does not comply with the conditions set out in Article 52(1) of the Charter, in particular as regards those requiring that limitations on the exercise of that right must be provided for by law, proportionate and necessary. In that regard, the applicants claim, in the reply, that the reasoning in the judgment in RT France cannot be applied mutatis mutandis in the present case, in particular due to their ‘neutral position’ as internet service providers.
...
102. Under Article 11(1) of the Charter, everyone has the right to freedom of expression, which includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of borders. Under Article 11(2) of the Charter, the freedom and pluralism of the media are to be respected.103. Article 11 of the Charter is an essential foundation of a pluralist, democratic society and, in accordance with Article 2 TEU, is one of the values on which the Union is based (see, to that effect, judgments of 21 December 2016, Tele2 Sverige and Watson and Others, C‑203/15 and C‑698/15, EU:C:2016:970, paragraph 93, and of 23 April 2020, Associazione Avvocatura per i diritti LGBTI, C‑507/18, EU:C:2020:289, paragraph 48).
104. 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 (see, to that effect, judgment of 6 October 2020, La Quadrature du Net and Others, C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791, paragraph 120 and the case-law cited).
105. As is apparent from the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17) and in accordance with Article 52(3) of the Charter, the rights contained therein have the same meaning and scope as the corresponding rights guaranteed by the ECHR, which does not preclude EU law from affording more extensive protection (judgment of 22 June 2023, K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings), C‑660/21, EU:C:2023:498, paragraph 41).
106. In interpreting Article 11 of the Charter, it is therefore necessary to take into account the corresponding rights guaranteed by Article 10 ECHR, as interpreted by the European Court of Human Rights (see, to that effect, judgments of 15 March 2022, Autorité des marchés financiers, C‑302/20, EU:C:2022:190, paragraph 67, and of 12 January 2023, Migracijos departamentas (Reasons for persecution on the ground of political opinion), C‑280/21, EU:C:2023:13, paragraph 29 and the case-law cited).
...
111. Even if the temporary prohibition on contributing to the broadcasting of content of the media outlets subject to the restrictive measures at issue, imposed by the first contested regulation, and that on advertising products or services in content broadcast by those outlets, imposed by the second contested regulation, could amount to interference with the exercise of the applicants’ freedom to impart information, it should be borne in mind that Article 52(1) of the Charter allows limitations on the exercise of the rights it enshrines. Thus, in order to comply with EU law, an interference with freedom of expression must satisfy four conditions. First, the limitation in question must be ‘provided for by law’, in the sense that the EU institution adopting measures liable to restrict a natural or legal person’s freedom of expression must have a legal basis for its actions. Second, the limitation in question must respect the essence of freedom of expression. Third, it must effectively meet an objective of general interest, recognised as such by the European Union. Fourth, it must be proportionate. Those conditions correspond, in essence, to those provided for by the case-law of the European Court of Human Rights, according to which, in order to be justified under Article 10(2) ECHR, an interference with the exercise of the right to freedom of expression must be ‘prescribed by law’, pursue one or more legitimate aims and be ‘necessary in a democratic society’ to achieve them (see, to that effect, the judgment in RT France, paragraphs 143 to146).
...
122. As regards the third condition, relating to pursuit of an objective of general interest, recognised as such by the European Union, it should be noted that the Court has held, as is apparent from recitals 5 to 10 of the first contested regulation and from recitals 7 to 11 of the second contested regulation, that the restrictive measures at issue pursued the objective, referred to in Article 21(2)(a) TEU, of safeguarding the Union’s values, fundamental interests, security and integrity; that they formed part of the pursuit by the European Union of the objectives, including the peaceful objectives, assigned to it in Article 3(1) and (5) TEU; that they were consistent with the objective, referred to in Article 21(2)(c) TEU, of preserving peace, preventing conflicts and strengthening international security, in accordance with the purposes and principles of the United Nations Charter; and, last, that they sought to put an end to the state of war and to the violations of international humanitarian law to which war is liable to lead, which also meets an objective of fundamental general interest for the international community (see the judgment in RT France, paragraphs 161 to 166 and the case-law cited).123. In those circumstances, it must be found that, in the present case, the condition relating to the pursuit of an objective of general interest recognised as such by the European Union is satisfied.
124. As regards the fourth condition, that the restrictive measures at issue must be proportionate, it should be noted that the principle of proportionality requires that the limitations which may be imposed by acts of EU law on rights and freedoms enshrined in the Charter do not exceed the limits of what is appropriate and necessary in order to meet the legitimate objectives pursued or the need to protect the rights and freedoms of others; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see the judgment in RT France, paragraph 168 and the case-law cited).
125. The Court has held, in the judgment in RT France, that the Council did not err by considering it necessary to prevent, in compliance with Article 11 of the Charter, forms of expression designed to justify and support an act of military aggression perpetrated in violation of international law and the United Nations Charter, and that, taking account, inter alia, of the extraordinary context of that case, it was appropriate to find that the limitations which were liable to result from the restrictive measures at issue on the freedom of expression of RT France and, by definition, of the other media outlets subject to the prohibition at issue, were proportionate, inasmuch as they were appropriate and necessary for the aims pursued (see the judgment in RT France, paragraphs 192 to 213 and the case-law cited). It must be noted, however, that in the foregoing analysis the proportionality of the contested regulations was examined in relation to RT France, which is one of the entities expressly subject to the restrictive measures at issue.
...
140. Nor can that conclusion be called into question by the applicants’ arguments to the effect that their right to impart information and the right of the users to receive and impart information, guaranteed in Article 11(1) of the Charter, are inseparable. It should be pointed out that, even if the applicants could rely on a right of their own to impart information, the limitations thereon that are liable to result from the restrictive measures at issue comply with Article 52(1) of the Charter (see paragraph 135 above). In any event, it is clear that if interference with the right to broadcast content that involves support for an act of aggression is justified and proportionate, the same applies a fortiori to a limitation of the public’s right to receive the information conveyed by that content (see, to that effect, the judgment in RT France, paragraph 214).
141 Last, as regards Article 11(2) of the Charter, it is clear that the applicants merely invoked it, for the first time, at the hearing, and did not in fact specify on what basis that provision, which relates specifically to respect for the freedom and pluralism of the media, whether that freedom be that of journalists or of publishers and media organisations, applies to the applicants, which are not media outlets but internet service providers.
-
Paragraphs referring to EU Charter (original language)