The applicant being a national of a Member State, the case T-498/22 allowed the General Court to specify the conditions for limiting the right to freedom of movement of Union citizens by clarifying, inter alia, that in accordance with Article 1(2) of Decision 2014/145 those limitations comply first of all with the principle of international law according to which a State cannot refuse its own nationals the right to enter its territory and remain there, the recalling, moreover, the obligation of the national authorities to interpret the provisions of Decision 2014/145 concerning humanitarian derogations, in the light of Article 24(2) of the Charter, taking into account the best interests of the child.
The EU Council imposed restrictive measures against Aleksandra Melnichenko on 3 June 2022 for being an “associate” with her husband for his alleged ties with the Russian Government. In March 2024, the Council maintained the restrictive measures on her alleging that “(…) Aleksandra Melnichenko takes advantage of the fortune and benefits from the wealth of her husband. (…) she is an immediate family member benefitting from her husband and linked to him by common financial interests”. Switzerland followed suit by including her in its sanctions list based on the “Ordinance on Measures in Connection with the Situation in Ukraine”. In January 2025 the General Court dismissed her husband‘s plea for delisting in case T-271/22.
The applicant Aleksandra Melnichenko claimed that the inclusion of her name on the lists at issue constitutes an unjustified, arbitrary and disproportionate limitation of her fundamental rights, which include, inter alia, the right to respect for private and family life, home and communications, and the right to property. In addition, the applicant questioned the proportionality of the restrictions on her freedom of movement and that of her minor children, all of whom are citizens of the European Union, and of her husband, a national of Russia and the United Arab Emirates. Last, she took the view that none of the interferences referred to are legitimate under Article 52(1) of the Charter.
The Court recalled that the right to respect for private and family life, home and communications, the right to property and the right of Union citizens to move and reside freely within the territory of the Member States are enshrined in Articles 7, 17 and 45 of the Charter, respectively. However, the Court reaffirmed the general view taken in similar cases that contested acts apply for six months and are kept under constant review, as provided for in Article 6 of Decision 2014/145, as amended, thus the limitations above are temporary and reversible. Therefore, it must be held that they do not infringe the essence of her right to respect for private and family life, and home, and her right to property. In addition, the contested acts provide for the possibility of granting exemptions to the restrictive measures applied. In particular, with regard to the freezing of funds, Article 2(3) and (4) of Decision 2014/145, as amended, and Article 4(1), Article 5(1) and Article 6(1) of Regulation No 269/2014, as amended, provide for the possibility, first, of authorising the use of frozen funds to meet essential needs or to satisfy certain commitments and, second, of granting specific authorisations to unfreeze funds, other financial assets or other economic resources.
With regard to the principle of proportionality, the Court noted that, as a general principle of EU law, this requires that measures adopted by the EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued by the legislation in question.
The Court moved to declare that imposed limitations comply with the principle of international law according to which a State cannot refuse its own nationals the right to enter its territory and remain there. Besides, under Article 6 of Decision 2014/145, as amended, the lists at issue are to be periodically reviewed so that the names of persons who no longer meet the listing criteria are removed from the lists. Last, those limitations do not call into question that right as such, since they have the effect of temporarily suspending, under specific conditions and on account of their individual situation, the right of certain persons to move freely within the territory of the Member States, provided that those conditions continue to be satisfied (see, to that effect and by analogy, judgment of 6 October 2015, Delvigne, C‑650/13, EU:C:2015:648, paragraph 48).
However, since the concern of the applicant was the impossibility of going to the family residence in Switzerland, the Court found that this factor is not relevant in the context of the analysis of her argument alleging infringement of her right to move freely within the territory of the Member States.
As regards the applicant’s reference to the right of her minor children to move and reside freely within the territory of the Member States, the Court recalled that Article 24(2) of the Charter provides that, in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. In proper words of the Court: „The applicant merely claims that the restrictive measures imposed on her would oblige her children to leave the territory of the Member States. Furthermore, when questioned on that point at the hearing, she merely stated in general terms that the members of her family are prevented from living together at their homes in the European Union and in Switzerland, and referred to the disruption to her children’s relationship with their grandparents living in Europe and to their education being put on hold. It should be noted that the restrictive measures at issue, first, do not cover the applicant’s children and, second, do not restrict the applicant’s right to enter and reside freely in the territory of the Member State of the European Union of which she is a national. Therefore, the applicant is wrong to claim that, as a result of those measures, her children are forced into leaving that territory. Moreover, it should be recalled that Article 1(6) of Decision 2014/145, as amended, authorises Member States to grant exemptions from the measures at issue, inter alia, where a person’s travel is justified on the grounds of urgent humanitarian need, and that provision is to be interpreted and applied, in the light of Article 24(2) of the Charter, taking into account the best interests of the child.“
The examination of the evidence and information regarding the proportionality of the restrictive measures is only possible at a later stage – in the event of challenge. As quoted by the Court, „the Council discharges the burden of proof borne by it if it presents to the Courts of the European Union a sufficiently concrete, precise and consistent body of evidence to establish that there is a sufficient link between the person or entity subject to a measure freezing his, her or its funds and the regime or, in general, the situations, being combated (74)“. This creates a situation that prevents taking into account the best interests of the child (Article 3 of the Convention of the Rights of a Child). ‘Best interests assessment’ involves evaluating and balancing all the elements necessary to make a decision in the specific situation for a specific individual child or group of children” before taking the decision. As GC No.14 notes “the passage of time is not perceived in the same way by children and adults [and] delays in or prolonged decision-making have particularly adverse effects on children as they evolve”. In summary, the procedural obligations consist of the need for an individualised assessment with particular attention to the best interests of the child, a consideration of the child’s views, and a positive, humane, and expeditious handling of the procedure. The obligation to ensure the child’s best interests procedurally prohibits the States Parties to the Convention to base decisions concerning the rights of a child on general considerations. The outcome of the assessment needs to be made transparent. This is hardly the case when adopting EU restrictive measures.
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