Article 47 - Right to an effective remedy and to a fair trial
On those grounds, the Court (Fifth Chamber) hereby rules:
1. Article 3(1)(b) of Council Regulation (EC) No 765/2006 of 18 May 2006 concerning restrictive measures in respect of Belarus, as amended by Council Implementing Regulation (EU) No 84/2011 of January 2011 and by Council Regulation (EU) No 588/2011 of 20 June 2011, must be interpreted as meaning that, when taking a decision on whether to grant a derogation requested under that provision with a view to bringing an action challenging the lawfulness of restrictive measures imposed by the European Union, the competent national authority does not enjoy an absolute discretion, but must exercise its powers in a manner which upholds the rights provided for in the second sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union and observes the indispensable nature of legal representation in bringing such an action before the General Court of the European Union.
The competent national authority may verify that the funds release of which is requested are intended exclusively for payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services. It may also set the conditions it deems appropriate in order to guarantee, inter alia, that the objective of the sanction imposed is not frustrated and the derogation granted is not distorted.
2. Article 3(1)(b) of Regulation No 765/2006, as amended by Implementing Regulation No 84/2011 and by Regulation No 588/2011, must be interpreted as meaning that, in a situation such as that of the main proceedings, in which a freezing of funds and economic resources is based on that regulation, a derogation from the freezing of funds and economic resources in order to pay for legal services must be appraised in accordance with that provision, which makes no reference to the origin of the funds or possible unlawful acquisition thereof.
24) It should be borne in mind that, when deciding on a request for release of frozen funds pursuant to Article 3(1)(b) of Regulation No 765/2006, the competent national authority implements EU law. It follows that that authority is required to observe the Charter of Fundamental Rights of the European Union (‘the Charter’), as provided for in Article 51(1) thereof.
25) Article 3(1)(b) of Regulation No 765/2006, the purpose of which is to facilitate access to legal services, must therefore be interpreted in keeping with the requirements deriving from Article 47 of the Charter. The second sentence of the second paragraph of Article 47 of the Charter, concerning the right to an effective judicial remedy, provides that everyone is to have the possibility of being advised, defended and represented. The third paragraph of Article 47 of the Charter provides specifically that legal aid is to be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.
26) Thus, Article 3(1)(b) of Regulation No 765/2006 must be interpreted in accordance with Article 47 of the Charter, to the effect that a freeze of funds cannot have the effect of depriving the persons whose funds have been frozen from effective access to justice.
29) It follows from the foregoing that, when taking a decision on whether to grant a derogation for the release of funds and economic resources under Article 3(1)(b) of Regulation No 765/2006, the competent national authority does not enjoy an absolute discretion, but must exercise its powers in a manner which upholds the rights provided for in the second sentence of the second paragraph of Article 47 of the Charter and, in a situation such as that in the main proceedings, observes the indispensable nature of legal representation in bringing an action challenging the lawfulness of restrictive measures.
31) As regards the Lithuanian Government’s argument that the respondents in the main proceedings could obtain legal aid as provided for under national law in order to obtain legal representation, suffice it to note that, through Article 3(1)(b) of Regulation No 765/2006, the European Union legislature introduced a coherent system in order to ensure observance of the rights guaranteed by Article 47 of the Charter, irrespective of any freezing of funds. When a person included in the list in Annex I to that regulation must have recourse to necessary legal services, it cannot be that that person must be regarded as destitute due to that freezing of funds; rather, that person must be able to apply to have certain funds or economic resources released, provided that the conditions set out in that provision are satisfied. The very essence of Article 3(1)(b) precludes the competent national authority from refusing to authorise a release of funds on the ground that such a person may have recourse to legal aid.
34) In the light of the foregoing, the answer to the first to third questions is:
41) Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.