Provisional text

18 December 2024 (*)

( Common Foreign and Security Policy – Restrictive measures taken in view of actions destabilising Moldova – Freezing of funds – Restriction on entry into the territories of the Member States – Lists of persons, entities and bodies subject to the freezing of funds and economic resources or to restrictions on entry into the territories of the Member States – Inclusion and maintenance of the applicant’s name on the lists – Planning and directing violent demonstrations – Article 1(1)(a)(ii) and Article 2(1)(a)(ii) of Decision (CFSP) 2023/891 and Article 2(3)(a)(ii) of Regulation (EU) 2023/888 – Obligation to state reasons – Plea of illegality – Error of assessment – Freedom to conduct a business – Right to property – Non-contractual liability )

In Case T‑489/23,

Ilan Mironovich Shor, residing in Caesarea (Israel), represented by T. Bontinck, L. Marchal, lawyers, and C. Zatschler, Senior Council,

applicant,

Council of the European Union, represented by A. Boggio-Tomasaz and E. Nadbath, acting as Agents, and by E. Raoult, lawyer,

defendant,

supported by

European Commission, represented by M. Carpus Carcea, L. Baumgart and T. Baumé, acting as Agents,

intervener,

THE GENERAL COURT (Fifth Chamber),

composed of J. Svenningsen (Rapporteur), President, C. Mac Eochaidh and M. Stancu, Judges,

Registrar: H. Eriksson, Administrator,

having regard to the written part of the procedure, in particular:

–the application lodged at the Registry of the General Court on 9 August 2023,

–the decision of 11 December 2023 granting the Commission leave to intervene in support of the Council,

–the statement of modification lodged at the Court Registry on 5 July 2024,

further to the hearing on 1 October 2024,

gives the following

1 By his action, the applicant, Mr Ilan Mironovich Shor, seeks, first, under Article 263 TFEU, annulment of (i) Council Decision (CFSP) 2023/1047 of 30 May 2023 amending Decision (CFSP) 2023/891 concerning restrictive measures in view of actions destabilising the Republic of Moldova (OJ 2023 L 140 I, p. 9), and of Council Implementing Regulation (EU) 2023/1045 of 30 May 2023 implementing Regulation (EU) 2023/888 concerning restrictive measures in view of actions destabilising the Republic of Moldova (OJ 2023 L 140 I, p. 1) (together, ‘the initial acts’), and (ii) Council Decision (CFSP) 2024/1242 of 26 April 2024 amending Decision (CFSP) 2023/891 concerning restrictive measures in view of actions destabilising the Republic of Moldova (OJ L 2024/1242), and Council Implementing Regulation (EU) 2024/1243 of 26 April 2024 implementing Regulation (EU) 2023/888 concerning restrictive measures in view of actions destabilising the Republic of Moldova (JO L 2024/1243) (together, ‘the maintaining acts’), in so far as those acts (together, ‘the contested acts’) concern the applicant and, second, under Article 268 TFEU, compensation in respect of the non-material harm he claims to have suffered as a result of the adoption of the initial acts.

Background to the dispute

2 The applicant is a businessman of Moldovan and Israeli nationality. He was the leader of the Moldovan political party ȘOR until its dissolution on 19 June 2023.

3 The present case has been brought in the context of the restrictive measures adopted by the European Union, at the request of the current leaders of the Republic of Moldova, in view of the destabilising actions facing that country, which have intensified since the start of the war of aggression being conducted by the Russian Federation against Ukraine and which threaten to impede its accession to the European Union.

4 On 28 April 2023, the Council of the European Union adopted, pursuant to Article 29 TEU, Decision (CFSP) 2023/891 concerning restrictive measures in view of actions destabilising the Republic of Moldova (OJ 2023 L 114, p. 15). On the same date, the Council adopted, pursuant to Article 215(2) TFEU, Regulation (EU) 2023/888 concerning restrictive measures in view of actions destabilising the Republic of Moldova (OJ 2023 L 114, p. 1).

5 Article 1(1) of Decision 2023/891 provides as follows:

‘Member States shall take the necessary measures to prevent the entry into, or transit through, their territories of:

(a) natural persons responsible for, supporting or implementing actions or policies which undermine or threaten the sovereignty and independence of the Republic of Moldova, or democracy, the rule of law, stability or security in the Republic of Moldova through any of the following actions:

(i) obstructing or undermining the democratic political process, including by obstructing or seriously undermining the holding of elections or attempting to destabilise or overthrow the constitutional order;

(ii) planning, directing, engaging in, directly or indirectly, supporting or otherwise facilitating violent demonstrations or other acts of violence; or

(iii) serious financial misconduct concerning public funds and the unauthorised export of capital …’.

6 Article 2(1)(a) of Decision 2023/891 provides that all funds and economic resources belonging to, owned, held or controlled by natural persons, entities or bodies responsible for, supporting or implementing actions or policies which undermine or threaten the sovereignty and independence of the Republic of Moldova, or democracy, the rule of law, stability or security in the Republic of Moldova through any of the three actions referred to in paragraph 5 above, are to be frozen.

7 By the initial acts, the applicant’s name was included on the lists of persons, entities and bodies subject to restrictive measures set out in the annex to Decision 2023/891 and Annex I to Regulation 2023/888 (‘the lists at issue’) for the following reasons:

‘Ilan Shor is a Moldovan politician (leader of the ȘOR Political Party) and businessman from the Republic of Moldova who is involved in the illegal financing of political parties in the Republic of Moldova and in incitement to violence against the political opposition. The ŞOR Party, which Ilan Shor leads, is involved in the payment and training of persons in order to provoke disorder and unrest during the protests in the Republic of Moldova.

By a decision dated 13 April 2023, the Court of Appeal of Chișinău sentenced Ilan Shor for being guilty of fraud and money laundering in the “Bank Fraud” case to 15 years of imprisonment and the confiscation of assets for a value of EUR 254 million. Funds from this large-scale banking fraud and connections to corrupt oligarchs and Moscow-based entities have been and are still being used, according to authorities of the Republic of Moldova, to artificially create political unrest in the country.

His actions directed towards subverting democracy in the Republic of Moldova include providing illegal funding to support pro-Kremlin political activity in the Republic of Moldova. An example of the use of such funds is the organisation of violent protests and rallies, primarily in the capital Chișinău, with the help of protestors paid by the ŞOR Party, throughout 2022 and 2023.

…

By directing and planning violent demonstrations and through his serious financial misconduct concerning public funds and the unauthorised export of capital, Ilan Shor is responsible for actions which undermine and threaten the sovereignty and independence of the Republic of Moldova, and the democracy, the rule of law, stability and security in the Republic of Moldova.’

8 On 31 May 2023, the Council published in the Official Journal of the European Union a notice for the attention of the persons subject to the restrictive measures provided for in Decision 2023/891, as amended by Decision 2023/1047, and in Regulation 2023/888, as implemented by Implementing Regulation 2023/1045 (OJ 2023 C 190, p. 5). By that notice, the persons subject to restrictive measures were informed of the fact that they could submit to the Council a request for review of the inclusion of their names on the lists at issue.

9 On 8 June 2023, the applicant requested that evidence supporting the inclusion of his name on the lists at issue be communicated to him.

10 On 14 June 2023, the Council communicated to the applicant document WK 6381/2023 REV 1 containing the evidence concerning him (‘document WK 6381/2023’).

Facts subsequent to the bringing of the action

11 By e-mail of 27 February 2024, the Council informed the applicant of its intention to maintain his name on the lists at issue for reasons, in essence, identical to those justifying the initial listing of his name. The Council also communicated to him document WK 2428/2024 containing the evidence justifying the maintenance of his name on the lists at issue (‘document WK 2428/2024’) and informed him of the possibility of submitting observations before 13 March 2024.

12 By e-mail of 18 March 2024, the applicant submitted his observations on the e-mail of 27 February 2024 and on document WK 2428/2024.

13 On 26 April 2024, the Council adopted the maintaining acts, by way of which the restrictive measures taken against the applicant were extended to 29 April 2025.

14 In the maintaining acts, the Council justified the extension of the restrictive measures taken against the applicant, making two amendments to the initial reasons concerning the fact that his political party had been declared unconstitutional in June 2023. Thus, the reasons for the maintaining acts state that, first, ‘before being declared unconstitutional in June 2023, the [applicant’s party] was involved in the payment and training of persons in order to provoke disorder and unrest during the protests in the Republic of Moldova’ and, second, that ‘after the [applicant’s party] was declared unconstitutional, [he] continued to facilitate Russian influence on the political scene of the Republic of Moldova by illegally financing other parties and attempting to bribe politicians’.

Forms of order sought

16 The applicant claims that the Court should:

–annul the contested acts in so far as they concern him;

–order the Council to make a payment of EUR 100 000 in respect of the non-material harm suffered following the adoption of the initial acts;

–order the Council to pay the costs.

17 The Council contends that the Court should:

–dismiss the action;

–in the alternative, should Decision 2023/1047 or Decision 2024/1244 be annulled, order that their effects be maintained until the expiry of the period for bringing an appeal laid down in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union or, if an appeal is brought within that period, until such time as that appeal may be dismissed;

–order the applicant to pay the costs.

18 The European Commission contends that the Court should dismiss the action and order the applicant to pay the costs.

Law

Claims for annulment of the contested acts

19 It is clear from the reasons for including and maintaining the applicant’s name on the lists at issue that he is subject to restrictive measures because the Council considered that he was responsible for actions which undermined or threatened the sovereignty and independence of the Republic of Moldova, as well as democracy, the rule of law, stability and security in that State through two of the three actions referred to in Article 1(1)(a) and Article 2(1)(a) of Decision 2023/891.

20 First, the Council alleges that the applicant planned and directed violent demonstrations in the Republic of Moldova, within the meaning of the criterion laid down in Article 1(1)(a)(ii) and Article 2(1)(a)(ii) of Decision 2023/891 and Article 2(3)(a)(ii) of Regulation 2023/888 (‘criterion (ii)’). Second, the Council considers that the applicant is responsible for serious financial misconduct concerning public funds and the unauthorised export of capital within the meaning of the criterion laid down in Article 1(1)(a)(iii) and Article 2(1)(a)(iii) of Decision 2023/891 and Article 2(3)(a)(iii) of Regulation 2023/888 (‘criterion (iii)’).

21 Having regard to their alternative nature, it is sufficient, in order for the contested measures to be founded in law, that one of the two criteria which the Council used to include and maintain the applicant’s name on the lists at issued was justified, as the parties moreover acknowledged at the hearing (see, to that effect, judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 72 and the case-law cited). Accordingly, the Court considers it appropriate to examine first the applicant’s pleas and arguments criticising the legality of the contested acts in so far as they are based on criterion (ii).

22 In that regard, in support of his action the applicant relies on four pleas in law, alleging (i) illegality in respect of Decision 2023/891 and Regulation 2023/888, (ii) infringements of the obligation to state reasons and of the right to effective judicial protection, which it is appropriate to examine first, (iii) errors of assessment and (iv) infringement of fundamental rights.

Second plea, alleging breach of the obligation to state reasons and of the right to effective judicial protection

23 The applicant claims that the contested acts are vitiated by an inadequate statement of reasons, which prevents him from defending himself and thus infringes his right to effective judicial protection.

24 In particular, in so far as he is alleged to have ‘directed and planned violent demonstrations’, the reasons stated for the contested acts did not make it possible for him to ascertain which actions he was specifically alleged to have carried out. The grounds for the contested acts were imprecise and the matters of fact on which the Council relied in order to conclude that that criterion had been met could not be identified.

25 The Council disputes that line of argument.

26 According to case-law, the statement of reasons for an act of the Council which imposed a restrictive measure has not only to identify the legal basis for that measure but also the actual and specific reasons why the Council considers, in the exercise of its discretion, that such a measure had to be adopted in respect of the person concerned (see judgment of 13 September 2018, Sberbank of Russia v Council, T‑732/14, EU:T:2018:541, paragraph 97 and the case-law cited).

27 It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question 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 judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 53 and the case-law cited).

28 In the present case, the legal bases for the contested acts are readily identifiable since they are set out explicitly in the reasons referred to in paragraphs 7 and 14 above.

29 As noted in paragraph 19 above, the Council considered that the applicant was responsible for actions which undermined and threatened the sovereignty and independence of the Republic of Moldova and democracy, the rule of law, stability and security in that State through two of the three actions referred to in Article 1(1)(a) and Article 2(1)(a) of Decision 2023/891 and Article 2(3)(a) of Regulation 2023/888, namely criteria (ii) and (iii).

30 As regards criterion (ii), the Council set out in a comprehensible and unequivocal manner the actual and specific reasons why it considered, in the exercise of its discretion, that the demonstrations directed and planned by the applicant rendered him responsible for actions which undermined and threatened the sovereignty and independence of the Republic of Moldova and democracy, the rule of law, stability and security in that State.

31 First, the Council stated that the applicant had been involved in inciting violence against the current government of the Republic of Moldova. Second, it alleged that he was supporting pro-Russian political activity that country, in particular by remunerating people to take part in demonstrations planned by his party and training them artificially to provoke disorder in the country.

32 In accordance with the case-law cited in paragraph 27 above, that information must be read in the light of the context in which the contested measures were adopted. In that regard, it is apparent, in essence, from recitals 1 to 12 of Decision 2023/891 that the Council undertook to support the Republic of Moldova in the face of destabilisation actions carried out with the assistance and in the interests of the Russian Federation with a view to obstructing its accession to the European Union by targeting in particular persons who, through acts of violence such as those which the applicant is alleged to have carried out, pose a threat to democracy and the rule of law and stability and security in the Republic of Moldova.

33 Having regard to that context, under criterion (ii) the reasons given for the contested acts were sufficient to enable the applicant to defend himself and to ascertain the actual and specific reasons for the inclusion and retention of his name on the lists at issue and for the Court to review their legality.

34 Moreover, in so far as they are founded on criterion (ii), it must be noted that the contested acts are not based on the decision of 13 April 2023 of the Court of Appeal of Chișinău (Moldova), to which reference is made in the contested acts in order to justify the inclusion and maintenance of the applicant’s name solely under criterion (iii).

35 Consequently, in order to satisfy its obligation to state reasons for the adoption of the contested acts under criterion (ii), the Council was not required to disclose the reasons why it considered that that judicial decision had been adopted in compliance with his rights of defence and right to effective judicial protection, as required by the case-law resulting in particular from the judgment of 19 December 2018 in Azarov v Council (C‑530/17 P, EU:C:2018:1031), as the applicant moreover acknowledged at the hearing.

36 Lastly, the argument put forward against the maintaining acts, based on the claim that, in the defence and the rejoinder, the Council stated that the applicant’s name had been included on the lists at issue under the criterion laid down in Article 2(1)(a)(i) of Decision 2023/891, concerning persons obstructing or undermining the democratic political process in the Republic of Moldova, must be rejected. The adequacy of the statement of reasons for the contested measures cannot be assessed in the light of the content of the pleadings lodged by the Council, particularly since the Council has acknowledged that those pleadings were vitiated by a clerical error on that point.

37 In view of the foregoing, the second plea must be dismissed as unfounded.

First plea, alleging illegality of Decision 2023/891 and Regulation 2023/888

38 The first plea is divided, in essence, into five parts, alleging (i) lack of a legal basis for Decision 2023/891 and Regulation 2023/888, (ii) breach of the principle of proportionality, (iii) breach of the principle of legal certainty, (iv) misuse of powers and (v) infringements of Article 2, Article 8 and Article 21(1) TEU.

Jurisdiction of the General Court

39 The Council submits that, by the first plea, the applicant is asking the Court to declare Decision 2023/891 and Regulation 2023/888 inapplicable in their entirety. However, pursuant to the second subparagraph of Article 24(1) TEU and Article 275 TFEU, the General Court does not have jurisdiction to rule on the appropriateness of the adoption of acts in the field of the common foreign and security policy (CFSP).

40 The Council disputes that line of argument.

41 Under the first paragraph of Article 275 TFEU, the EU judicature is not to have jurisdiction with respect to the provisions relating to the CFSP nor with respect to acts adopted on the basis of those provisions.

42 However, under the second paragraph of Article 275 TFEU the EU judicature is to have jurisdiction to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 TFEU, reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V TEU. The provision does not preclude the possibility of challenging, incidentally under Article 277 TFEU, the legality of a general provision, in support of an action for annulment brought against an individual restrictive measure (see, to that effect, judgment of 28 January 2016, Azarov v Council, T‑331/14, EU:T:2016:49, paragraph 62).

43 That being so, since the purpose of Article 277 TFEU is not to enable a party to contest the applicability of any act of general application in support of any action whatsoever, the scope of a plea of illegality must be limited to what is necessary for the outcome of the proceedings (see judgment of 30 April 2019, Wattiau v Parliament, T‑737/17, EU:T:2019:273, paragraph 56 and the case-law cited). Thus, in an action for annulment brought against Council decisions imposing restrictive measures against natural or legal persons, the Court has accepted that the provision of an act of general application that lays down the criterion on the basis of which the name of the person concerned had been included on the lists at issue may legitimately form the subject matter of an objection of illegality (see, to that effect, judgment of 15 September 2016, Yanukovych v Council, T‑346/14, EU:T:2016:508, paragraphs 57 to 59 and the case-law cited).

44 In the present case, therefore, the General Court has jurisdiction over pleas of illegality limited to the provisions of Decision 2023/891 and Regulation 2023/888 which lay down criteria (ii) and (iii), as the Council moreover acknowledged in response to a question from the Court at the hearing.

45 Having regard to paragraph 21 above, it is therefore necessary to examine the first plea in so far as it seeks to call into question the legality of the provisions which lay down criterion (ii).

First part of the first plea, alleging lack of a legal basis for Decision 2023/891 and Regulation 2023/888, the fourth part of the first plea, alleging misuse of powers, and the fifth part of the first plea, alleging infringements of Article 2, Article 8 and Article 21(1) TEU

46 In the context of the first, fourth and fifth parts of the first plea, which it is appropriate to examine together, the applicant submits, in essence, that Decision 2023/891 and Regulation 2023/888 pursue objectives other than those which the Council is empowered to pursue in the context of the CFSP.

47 According to the applicant, the objective of facilitating the accession of a third country to the European Union is not an objective of the CFSP since the accession process is governed by Article 49 TEU, which does not appear in a chapter of the Treaty relating to the CFSP. Moreover, the Council was in reality pursuing the objective of distorting the internal democratic process of a neighbouring country, and therefore recourse to Article 29 TEU and Article 215(2) TFEU to justify the adoption, respectively, of Decision 2023/891 and Regulation 2023/888, constitutes a misuse of powers. According to the applicant, the sole purpose of those restrictive measures is to target certain members of the political opposition, at the request of the Moldovan Government, which constitutes interference in the internal democratic political process of the Republic of Moldova in breach of Article 2, Article 8 and Article 21(1) TEU.

48 The Council, supported by the Commission, disputes that line of argument.

49 In the present case, the legal bases for Decision 2023/891 and Regulation 2023/888 are, respectively, Article 29 TEU and Article 215(2) TFEU, that is to say the relevant legal bases for matters relating to the CFSP, which is not as such disputed by the applicant. Rather, the applicant’s argument involves ascertaining whether those acts actually fall within the scope of the CFSP.

50 In that regard, in view of the broad scope of the aims and objectives of the CFSP as expressed in Article 3(5) TEU and Article 21 TEU, and specific provisions relating to that policy, in particular Articles 23 and 24 TEU, the EU judicature recognises that the Council has a broad discretion in determining the persons and entities that are to be subject to the restrictive measures that the European Union adopts in the field of the CFSP (see judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 52 and the case-law cited).

51 It is in the light of objective factors which are amenable to judicial review, which include in particular the aim and the content of the measure at issue, that the choice of legal basis must be reviewed (see, to that effect, judgment of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraph 42 and the case-law cited).

52 In the present case, according to recital 11 the purpose of Decision 2023/891 is to impose travel restrictions and asset freeze measures against persons responsible for, supporting or implementing actions or policies which undermine or threaten the sovereignty and independence of the Republic of Moldova, and democracy, the rule of law, stability or security in that State, and persons, entities or bodies associated with them.

53 According to recital 2 of Decision 2023/891, those restrictive measures form part of a policy of support for the current leadership of the Republic of Moldova, an EU candidate country, which are aimed at strengthening the country’s resilience, security, stability, economy and energy supply in the face of destabilising activities by external actors.

54 That policy of support itself forms part of the context referred to in recitals 3 and 4 of Decision 2023/891, according to which the Moldovan Government has made important progress in strengthening democracy and the rule of law, as well as fighting corruption, but has been tackling multiple crises and has been increasingly faced with direct threats to its stability coming from both internal groups with vested interests and from the Russian Federation, which often collude to derail the country from its reform path. It is also apparent from recital 6 of that decision that, in the Council’s view, such destabilising actions called for an immediate reaction in view of the importance of the Republic of Moldova’s stability as an EU candidate country bordering the European Union.

55 In that context, it must be considered that the planning and direction of, or engagement in, violent demonstrations or other acts of violence can justify action by the European Union under the CFSP based on the objective of consolidating and supporting democracy and the rule of law in a third country.

56 In contrast to peaceful demonstrations, which are an essential component of democracy in a State governed by the rule of law, violent demonstrations are liable to undermine the legal and institutional foundations of the country concerned and are not covered by the fundamental right to freedom of peaceful assembly guaranteed by Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (‘the ECHR’) and by Article 12(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

57 It follows that criterion (ii) could be introduced into the EU legal order by Decision 2023/891 and Regulation 2023/888 based, respectively, on Article 29 TEU and Article 215(2) TFEU.

58 That conclusion is not invalidated by the applicant’s arguments.

59 First of all, the argument that, in seeking to facilitate the accession to the European Union of a candidate country, the Council is pursuing an objective unrelated to the CFSP, must be dismissed.

60 Respect for the rule of law, which is an essential value on which the European Union is founded, is a precondition for accession to the European Union, and Article 21(2)(b) TEU empowers the Council to adopt restrictive measures to support, inter alia, the rule of law in a third country. The Council therefore has the power to adopt restrictive measures in support of the rule of law in an EU candidate country.

61 Next, the applicant’s line of argument based on a misuse of power cannot succeed. According to settled case-law, a measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken solely, or at the very least chiefly, for ends other than those for which the power in question was conferred or with the aim of evading a procedure specifically prescribed by the Treaties for dealing with the circumstances of the case (see judgment of 15 November 2023, OT v Council, T‑193/22, EU:T:2023:716, paragraph 208 and the case-law cited).

62 The applicant has not provided evidence capable of establishing that the Council pursued objectives other than those set out in Decision 2023/891. In particular, the mere fact that the Council responded positively to a request for EU support in the face of actions threatening to destabilise the Republic of Moldova does not mean that the acts adopted in that regard are vitiated by a misuse of powers. Similarly, the allegation that the restrictive measures were designed ‘to target … specifically [the] main opposition leaders’ is contradicted by the general wording of the listing criteria at issue, which makes them applicable to categories of persons other than political figures.

63 Finally, since it is established that the Council was empowered to adopt Decision 2023/891 and Regulation 2023/888, in particular in order to support democracy and the rule of law in the Republic of Moldova in accordance with Article 21(2)(b) TEU, the line of argument based on infringements of Article 2, Article 8 and Article 21(1) thereof cannot succeed.

64 Contrary to what the applicant claims in the statement of modification, the above findings are likewise not undermined by the fact that the Council stated that it had no documents concerning the request for support made by the Republic of Moldova, to which reference is made in recital 10 of Decision 2023/891.

65 In that regard, the applicant does not explain how the lack of documents relating to that request could establish that Decision 2023/891 and Regulation 2023/888 are vitiated by any illegality.

66 The first, fourth and fifth parts of the first plea in law must therefore be dismissed as unfounded.

69 The applicant argues that the Council’s interpretation of criterion (ii) is disproportionate and means that many politicians in the European Union could meet it. In his view, having regard to the fundamental right to freedom of peaceful assembly, only demonstrations planned intentionally with the objective of committing acts of violence could be subject to restrictive measures.

70 The Council, supported by the Commission, disputes that line of argument.

71 In that respect, with regard to judicial review of compliance with the principle of proportionality, the Court of Justice has held that the EU legislature must be allowed a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. The Court has concluded that the legality of a measure adopted in those areas can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 146 and the case-law cited).

72 In the present case, contrary to what the applicant claims, in essence, the category of persons potentially targeted by restrictive measures based on criterion (ii) cannot be regarded as disproportionate.

73 It is apparent from the very wording of Article 1(1)(a)(ii) and Article 2(1)(a)(ii) of Decision 2023/891 that not all planning and direction of, or engagement in, a violent demonstration or other acts of violence justifies the adoption of restrictive measures.

74 First of all, for restrictive measures to be adopted on the basis of this criterion, the actions of the person concerned must be such as to undermine or threaten the sovereignty and independence of the Republic of Moldova, or democracy, the rule of law, stability or security in that State. In other words, the actions must be such as to undermine the legal and institutional foundations of that country (see, by analogy, judgment of 15 September 2016, Yanukovych v Council, T‑346/14, EU:T:2016:497, paragraph 101).

75 Next, as the applicant notes, the use of the terms ‘violent demonstrations’ and ‘other acts of violence’ necessarily implies that restrictive measures cannot be adopted against persons responsible for planning, directing or engaging in demonstrations covered by the right to freedom of peaceful assembly enshrined in Article 11 of the ECHR and Article 12(1) of the Charter.

76 In that regard, it follows from the case-law of the European Court of Human Rights relating to Article 11 of the ECHR, which must be taken into account pursuant to Article 52(3) of the Charter in order to determine the meaning and scope of the right to freedom of peaceful assembly enshrined in Article 12(1) thereof, that not all demonstrations in which violence has been established can justify the adoption of restrictive measures against their organisers.

77 According to the European Court of Human Rights, the right to freedom of peaceful assembly applies to all gatherings, with the exception of those where the organisers or participants are motivated by violent intentions, incite violence or otherwise reject the foundations of democratic society (see ECtHR, 15 October 2015, Kudrevičius and Others v. Lithuania, CE:ECHR:2015:1015JUD003755305, § 92 and the case-law cited). Moreover, a person does not cease to enjoy the right to freedom of peaceful assembly as a result of sporadic acts of violence or other misconduct committed by other persons during the demonstration, provided that the intentions or conduct of the person concerned remain peaceful (see ECtHR, 5 January 2016, Frumkin v. Russia, CE:ECHR:2016:0105JUD007456812, § 99 and the case-law cited).

78 Lastly, there is a reasonable relationship between criterion (ii) and the objectives pursued by Decision 2023/891 and Regulation 2023/888. In so far as the Council intended to support, inter alia, democracy and the rule of law in the Republic of Moldova by preventing destabilising actions by external actors from threatening to impede that country’s accession to the European Union, the approach of targeting those responsible for planning, directing or engaging in violent demonstrations or other acts of violence liable to undermine that accession is consistent with those objectives.

79 In the light of the above, criterion (ii) does not appear manifestly inappropriate in the light of the objectives pursued by the Council.

80 The second part of the first plea must therefore be dismissed as unfounded.

81 The applicant claims that the Council breached the principle of legal certainty on the ground that the criteria set out in Decision 2023/891 and Regulation 2023/888 make it impossible for a person concerned to escape the restrictive measures, regardless of his or her conduct. In that regard, in its reply of 13 May 2024 to the application for access to documents made by the applicant pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), the Council asserted that disclosure of the preparatory acts of the contested acts might deprive the restrictive measures of their useful effect by showing how the persons concerned could more easily escape the system of restrictive measures, which is incompatible with the principle of legal certainty.

82 Furthermore, criterion (ii) sought to impose criminal penalties retroactively by reason of past conduct and it is not sufficiently clear.

83 The Council, supported by the Commission, disputes that line of argument.

84 The principle of legal certainty requires that EU legislation must be certain and its application foreseeable by those subject to it (see judgment of 17 February 2017, Islamic Republic of Iran Shipping Lines and Others v Council, T‑14/14 and T‑87/14, EU:T:2017:102, paragraph 192 and the case-law cited). That legislation must be clear and precise, so that individuals may ascertain unequivocally what their rights and obligations are and may take steps accordingly (see judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 161 and the case-law cited).

85 In the present case, first of all the applicant did not identify the aspects of criterion (ii) which, in his view, lacked clarity or precision.

86 Next, the allegation that criterion (ii) was intended to penalise certain persons by reason of their past conduct must be dismissed.

87 Generally speaking, the restrictive measures cannot be classified as a criminal penalty as the funds in question are frozen as a precaution and thus provisionally.

88 In the present case, the precautionary nature of the restrictive measures at issue is evidenced by recitals 4 and 5 and 7 to 10 of Decision 2023/891, from which it is apparent that the various listing criteria which it lays down are intended to combat acts of destabilisation which pose a ‘threat’ to democracy and the rule of law in the Republic of Moldova.

89 In other words, the persons responsible for such destabilising actions are not penalised by reason of their past conduct, but are subject to restrictive measures because the Council considered that, by reason of their actions, they posed, when those measures are adopted, a threat to democracy and the rule of law in that country.

90 In that respect, those measures are intended essentially to prevent the perpetration of such acts or their repetition and are based more on the appraisal of a present or future threat than on the evaluation of past conduct (see, by analogy, judgment of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraph 110). Any other interpretation would mean that the Council was required to rely solely on actions subsequent to the establishment of the criteria at issue, thus negating the effectiveness of the powers conferred on it by Article 29 TEU and Article 215 TFEU.

91 Lastly, the allegation that the wording of that criterion makes it impossible to evade the restrictive measures cannot succeed.

92 The validity of the measures always depends on whether the factual and legal circumstances which led to their adoption continue to apply and on the need to persist with them in order to achieve their objective. It is thus for the Council, in the course of its periodic review of those restrictive measures, to conduct an updated assessment of the situation and to appraise the impact of such measures, in order to determine whether they have made it possible to attain the objectives pursued by the initial inclusion of the names of the persons and entities concerned on the list at issue or whether the same conclusion in respect of those persons and entities can still be drawn (see judgment of 15 November 2023, OT v Conseil, T‑193/22, EU:T:2023:716, paragraph 168 and the case-law cited).

93 In that regard, the argument based on the content of the Council’s reply of 13 May 2024 to the confirmatory request for access made by the applicant’s representatives pursuant Regulation No 1049/2001 also fails to establish that Decision 2023/891 and Regulation 2023/888 breach the principle of legal certainty.

94 The purpose of that argument is, in fact, to criticise the legality of the Council Decision of 13 May 2024 partially refusing access to certain documents. Since that decision may be the subject of an action for annulment under the fourth paragraph of Article 263 TFEU, the applicant cannot rely on its illegality in the context of the present proceedings (see, by analogy, judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 128 and the case-law cited).

95 The third part of the first ground of appeal must therefore be dismissed as unfounded.

96 In the light of the foregoing, the first plea must be dismissed in its entirety as unfounded.

97 First, the applicant claims that the press articles contained in the Council’s evidence file cannot be attributed any evidential value whatsoever since the Moldovan press is not independent. Moreover, it is only where the Council has no investigative powers in a third country that it can rely on such press articles. In the present case, the EU delegation in the Republic of Moldova was perfectly capable of carrying out investigations on the ground.

98 Second, the rallies of 19 June 2022 and 12 March 2023 cannot be classified as ‘violent’ within the meaning of criterion (ii).

99 According to the applicant, those demonstrations, which made legitimate demands connected with the fall in living standards in the Republic of Moldova, took place peacefully and had no connection with attempts to destabilise that country. On the contrary, they merely reflected work of the democratically elected opposition. Furthermore, the only violent actions observed during those rallies were attributable to the police, who blocked the participants’ access to the meeting venues and detained demonstrators without justification. Moreover, remunerating people to take part in demonstrations was not illegal. In that respect, the funding referred to by the Council was merely intended to provide transport for the demonstrators and to offer them food and equipment to enable them to take part in the demonstrations. Lastly, the applicant denies having organised ‘trips’ to Türkiye to train young Moldovans in techniques for causing mass disturbances during demonstrations. He maintains that his party, which had experience of organising events, merely helped a youth organisation to book a hotel in Türkiye and organise activities.

100 As regards the maintaining acts, the applicant claims that the investigations and judicial proceedings initiated in a context of high levels of corruption and without ensuring respect for the rights of the defence cannot be used to support the maintenance of his name on the lists at issue. He adds, moreover, that the articles contained in document WK 6381/2023 were more than a year old and that the Council had failed to explain how, after the dissolution of his party in June 2023, he continued to plan violent demonstrations within the meaning of criterion (ii).

101 The Council, supported by the Commission, disputes that line of argument.

102 First, as regards whether the Council can adopt the contested measures without itself carrying out checks on the ground, it should be borne in mind that, in the absence of investigative powers in third countries, the assessment of the EU authorities adopting restrictive measures must rely on publicly available sources of information, reports, articles in the press or other similar sources of information (see judgment of 20 March 2024, Belshyna v Council, T‑115/22, EU:T:2024:187, paragraph 68 and the case-law cited).

103 In the present case, the fact that the European Union has a delegation in the Republic of Moldova does not mean that it has investigative powers in that country. That delegation does not have the power to conduct investigations on Moldovan territory for the purpose of seeking evidence which could be used as a basis for the adoption of restrictive measures by the Council.

104 The fact that the system of restrictive measures at issue was adopted in response to a request for support from the Republic of Moldova and the fact that it is an EU candidate country do not invalidate the finding that the European Union has no investigative powers in that third country.

105 Consequently, for the purposes of adopting the contested measures, the Council was able to rely on publicly available information, such as links to websites, press articles and screenshots relating to demonstrations planned by the applicant and his party.

106 Second, as regards the reliability of the evidence on which the Council relied in adopting the contested measures, it should be noted that the principle which prevails in EU law is that of the unfettered evaluation of evidence, from which it results that, where evidence has been obtained lawfully, the only relevant criterion for the purpose of assessing the probative value of evidence lawfully adduced relates to its credibility (see judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 65 and the case-law cited).

107 That said, it is for the applicant to identify precisely the evidence which might raise doubts as to its reliability (see judgment of 8 March 2023, Assaad v Council, T‑426/21, EU:T:2023:114, paragraph 86 and the case-law cited).

108 In that context, in the absence of any specific argument concerning the evidence on which the Council relied to adopt the contested measures under criterion (ii), the applicant’s general presentation of the ‘Moldovan media landscape’ is insufficient to deprive of probative value the press articles contained in those documents, which, moreover, come not only from Moldovan but also Romanian, English and American sources, the reliability of which is not called into question.

109 Admittedly, by way of example, the applicant criticised the alleged lack of independence of the websites ‘anticorupție.md’ and ‘deschide.md’.

110 However, first, documents WK 6381/2023 and WK 2428/2024 each contain a single press article from the ‘anticorupție.md’ website and relate solely to allegations of illegal financing of political parties by the applicant, which are claimed to make him responsible for serious financial misconduct concerning public funds within the meaning of criterion (iii). Those articles do not therefore support the Council’s assessment that the applicant is responsible for planning and directing violent demonstrations within the meaning of criterion (ii). They are therefore irrelevant to the assessment of the legality of the contested acts in so far as they are based on criterion (ii).

111 Second, as regards the criticisms of the ‘deschide.md’ website, it is sufficient to note that the Council’s evidence files do not contain any press articles from that website.

112 In those circumstances, the argument based on the lack of probative value of the evidence contained in documents WK 6381/2023 and WK 2428/2024 must be dismissed as ineffective.