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)
Judgment of the General Court (Second Chamber, Extended Composition), 5 february 2025
Joined Cases T-830/22 and T-156/23 and Case T-1033/23 Poland v Commission
Law governing the institutions – Partial failure to comply with an order of the Court of Justice imposing interim measures in the context of an action for failure to fulfil obligations – Periodic penalty payment – Recovery of amounts receivable by offsetting – Article 101(1) and Article 102 of Regulation (EU, Euratom) 2018/1046 – Jurisdiction of the General Court
Facts
On 1 April 2021, the European Commission brought an action for failure to fulfil obligations before the Court of Justice against Poland, seeking a declaration that certain legislative amendments to the organisation of the judicial system in Poland, adopted in December 2019, infringed EU law.
In the course of those proceedings, the Court required Poland, inter alia, to suspend the application of certain national provisions challenged by the Commission. Not having implemented that interim measure, Poland was ordered, on 27 October 2021, to pay the Commission a daily penalty payment of one million euro. That daily penalty payment began to run as of 3 November 2021.
On 9 June 2022, with a view to complying with the interim measure imposed by the Court of Justice, Poland adopted a Law. On 21 April 2021, the Court of Justice held that that legislative change enabled, to a significant degree, that interim measure to be implemented. Therefore, the amount of the daily penalty payment was reduced to €500,000 per day as of 21 April 2023.
Given Poland’s failure to pay the daily penalty payments, the Commission recovered their amounts periodically by means of offsetting against various claims held by that Member State with regard to the European Union.
Poland brought an action before the General Court of the European Union seeking the annulment, in total, of six set-off decisions covering the period from 15 July 2022 to 4 June 2023, that is between the entry into force of the Law of 9 June 2022 and the day before the delivery of the judgment of the Court of Justice bringing that case to an end. The sums thus recovered amount to approximately €320,200,000.
In the alternative, Poland submits that the legislative change which warranted the reduction by half of the penalty payment preceded the Court of Justice’s decision of 21 April 2023. Thus, from 15 July 2022 to 20 April 2023, the Commission could no longer require the payment of one million euro per day. Therefore, Poland claims that the Commission’s decisions should be partially annulled, in so far as they concern 50% of the offset amounts receivable in respect of the abovementioned period.
Decision
The General Court dismisses Poland’s actions in their entirety.
In recovering the amounts payable, the Commission did not infringe EU law. The General Court notes, in particular, that neither the case-law of the Polish Constitutional Court nor the entry into force of the Law of 9 June 2022 enable the existence of the debt itself to be challenged. Consequently, they were not such as to affect the lawfulness of the set-off decisions.
As regards the claim in the alternative to partially annul the set-off decisions, the General Court recalls that the reduction of the daily penalty payment granted by the Court on 21 April 2023 took effect only with regard to the future. Accordingly, it concerned only the amounts payable from that date.
Inasmuch as the amount of the daily penalty payment set by the order of 27 October 2021 remained unchanged until 21 April 2023, and inasmuch as Poland had not fully complied with its obligations, the Commission was obliged to ensure recovery of that amount in full. Moreover, to acknowledge that the Commission had the option, or even the obligation, to adjust the amount of the daily penalty payment in the event of partial compliance would have called in question the authority of the order of 27 October 2021.
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Judgment of the General Court (First Chamber, Extended Composition), 26 March 2025
Case T-307/22 A2B Connect and Others v Council
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
Facts
The General Court (hereinafter “GC”), sitting in extended composition, dismissed the action for annulment brought by several operators, established in the Netherlands that provide internet access services to individuals and businesses. These applicants sought the annulment of several regulations (“contested regulations”) and decisions (“contested decisions”) adopted by the Council of the European Union (henceforth the “Council”) which, firstly, prohibited operators established within the EU from broadcasting, authorizing, or otherwise facilitating the broadcasting of content by any entity listed in the annexes to the contested acts linked to the Russian regime. Secondly, prohibited any operator established in the EU from promoting products or services to entities targeted by these prohibitions
These measures are part of the broader context of restrictive measures adopted by the European Union following the military aggression launched by the Russian Federation against Ukraine on 24 February 2022.
On 1 March and 3 June 2022, the Council adopted the contested decisions based on Article 29 of the Treaty on the European Union (henceforth “TEU”) and the contested regulations on the basis of Article 215 of the Treaty on the Functioning of the European Union (henceforth “TFEU”). These acts aimed at prohibiting continuous and concerted propaganda actions supporting the Russian Federation’s military aggression against Ukraine, targeted at civil society in the EU and neighboring countries disseminated through various media outlets under the permanent direct or indirect control of the Russian leadership. The Council deemed that these propaganda actions posed a threat to the public order and security of the Union.
This case therefore allowed the GC to clarify the conditions under which it has jurisdiction to review the legality of acts adopted under the Common Foreign and Security Policy ( henceforth “CFSP”), particularly in relation to the scope of applicants affected by these prohibitions.
Decision
The applicants brought an action for annulment under article 263 TFEU against the contested decisions and contested regulations. In their first plea in law, the applicants argued that that the Council lacked competence to adopt these acts. By their second plea, the applicants claimed that the contested regulations had infringed the freedom of expression and information. Finally, by their third plea they argued that the Council infringed the right to good administration guaranteed by Article 41 of the Charter of Fundamental Rights of the EU (henceforth “the Charter”).
As a preliminary point, before analysing the pleas of law raised by the applicants, the GC decided to examine of its own motion its jurisdiction to review the legality of the contested decisions.
The GC recalled that the contested decisions were adopted under Article 29 TEU and that therefore, under the second paragraph of Article 275 TFEU, it is the individual nature of the acts adopted on the basis of CFSP provisions that grants the GC jurisdiction to review their legality. Furthermore, the GC noted that according to the case-law a decision providing for restrictive measures may be considered to be of individual nature if the person concerned is expressly named in that decision. However, since the names of the applicants do not appear either in the body of the contested decisions nor in their annexes, the GC found that the contested decisions do not constitute restrictive measures vis-à-vis the applicants.
Consequently, the GC ruled that it did not have jurisdiction to examine the contested decisions, adopted by the Council, given that they are of general application as regards to the applicants, as they belong to the general and abstract category of “operators” who are prohibited from broadcasting content from media outlets linked to the Russian regime.
In contrast, the GC found that it had jurisdiction to review the legality of the contested regulations, which correspond to EU acts implemented pursuant to Article 215 TFEU and give effect to the contested decisions.
In the first plea, the applicants argued that, in adopting the contested regulations, the Council acted outside the framework of its CFSP competences as these regulations sought to regulate media content in order to protect EU citizens from harmful disinformation for an indeterminate period and were unrelated to the war in Ukraine.
The GC recalled that, under Article 215(2) TFEU, the Council may adopt the contested regulations against persons or non-State entities only if there is a prior decision adopted under Chapter 2 of Title V TEU. Consequently, the GC judged that in order to ascertain whether the Council has, competence to adopt the contested regulations it must first be determined if it was competent to adopt the contested decisions, which confer on it the power to adopt these regulations.
In that regard, the GC reasoned that the contested decisions were adopted on the basis of Article 29 TEU, which allows the Council to define the EU’s approach to specific issues of a geographical or thematic nature, in the context of the CFSP. The GC ruled that, having regard to the broad objectives of the CFSP set out in Article 3(5) and Article 21 TEU, the Council has a wide discretion in defining the content of the restrictive measures. As a result, the GC concluded that the contested decisions are directly linked to the aims of the CFSP referred to in Article 21(2)(a) and (c) TEU, since they seek, first, to safeguard the values, fundamental interests, security, independence and integrity of the EU and, second, to preserve peace, prevent conflicts and strengthen international security.
The GC therefore rejected the applicants’ claims and concluded that the Council properly exercised the power conferred on it by the Treaties to adopt the contested regulations, respecting the division of the internal competences of the EU. In this regard, the GC ruled that the contested regulations did not aim to regulate media, but respond to a concrete context of disinformation promoted by Russian State actors.
In the second plea, the applicants submitted that the Council infringed the freedom of expression and information, enshrined in Article 11 of the Charter and Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. They argued; firstly, that, their freedom to impart information is restricted since they are required to conduct comprehensive filtering in order to recognize any content from the media outlets named on the list of the contested regulations. Secondly, that the right of the users of their services to impart and receive information is also unlawfully restricted. Thirdly, the applicants claim that these restrictions do not comply with the conditions set out in Article 52(1) of the Charter. Finally, according to the applicants the Council had failed to take into account the neutral role of the operators, namely their “neutral position” as internet service providers.
The GC recalled that the rights and freedoms set out in Article 11 of the Charter are not absolute in nature, but must be interpreted in the light of their function in society. In that regard, The GC examined the four cumulative criteria set out Article 52(1) of the Charter, namely, that the restriction; must be provided for by law; does not interfere with the essence of the applicants’ freedom; is appropriate for achieving the objectives of general interest pursued by the EU and; finally, is proportionate to the aims sought. Consequently, the GC ruled that in the light of the circumstances of the present case the limitation to the exercise of the right to freedom of expression complied with all the aforementioned criteria.
The GC further rejected the applicants’ argument that the neutrality of internet service providers exempted them from being subject to such restrictions. According to the GC in view of the nature and purpose of the prohibitions, the Council was entitled to regard internet providers as intermediaries or transmission channels capable of ensuring the application and effectiveness of those prohibitions throughout the territory of the EU.
Finally, the GC ruled that the applicants had not indicated to what extent or in what capacity, they could rely on the right to freedom of expression of their users to access the media outlets targeted by the restrictions given that their role as internet service providers is that of a “mere conduit” of the information transmitted.
Lastly, in the third plea, the applicants argued that the Council had infringed the right to good administration guaranteed by Article 41 of the Charter as well as the obligation to state reasons enshrined in Article 296 TFEU. According to the applicants, the Council 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, namely, to the context, gravity and particular urgency of the situation.
The GC recalled that in light of the relevant case law pertaining to measures of general application such as the ones at issue, the Council is not required to provide the actual and specific reasons, which led to the adoption of those measures. The GC judged that the statement of reasons may be limited to indicating, first, the general situation, which led to the adoption of these measures, and, second, the general objectives pursued. The GC therefore rejected the applicants’ arguments and ruled that the Council had provided an adequate statement of reasons for the contested regulations.
In light of these findings, the General Court thus rejected all pleas in law raised by the applicants dismissing the appeal in its entirety and upholding the contested regulations.