Judgments nº T-545/13 of The General Court, June 30, 2016

Resolution DateJune 30, 2016
Issuing OrganizationThe General Court
Decision NumberT-545/13

(Common foreign and security policy - Restrictive measures directed against certain persons and entities in view of the situation in Tunisia - Measures taken against persons responsible for misappropriation of public funds and associated persons and entities - Freezing of funds - List of persons, entities and bodies subject to the freezing of funds and economic resources - Inclusion of the applicant’s name - Inadequate factual basis - Error of fact - Error of law - Right to property - Freedom to conduct a business - Proportionality - Rights of defence - Right to effective judicial protection - Obligation to state reasons)

In Case T-545/13,

Fahed Mohamed Sakher Al Matri, residing in Doha (Qatar), represented by M. Lester, Barrister, G. Martin, Solicitor, and B. Kennelly, Barrister,

applicant,

v

Council of the European Union, represented by M. Bishop and I. Gurov, acting as Agents,

defendant,

APPLICATION for annulment, first, of Council Decision 2011/72/CFSP of 31 January 2011 concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2011 L 28, p. 62), implemented by Council Implementing Decision 2013/409/CFSP of 30 July 2013 (OJ 2013 L 204, p. 52), by Council Decision 2014/49/CFSP of 30 January 2014 (OJ 2014 L 28, p. 38) and by Council Decision (CFSP) 2015/157 of 30 January 2015 (OJ 2015 L 26, p. 29), and, secondly, of Council Regulation (EU) No 101/2011 of 4 February 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia (OJ 2011 L 31, p. 1), implemented by Council Implementing Regulation (EU) No 735/2013 of 30 July 2013 (OJ 2013 L 204, p. 23), by Council Implementing Regulation (EU) No 81/2014 of 30 January 2014 (OJ 2014 L 28, p. 2) and by Council Implementing Regulation (EU) No 147/2015 of 30 January 2015 (OJ 2015 L 26, p. 3), in so far as those acts apply to the applicant,

THE GENERAL COURT (Eighth Chamber),

composed of D. Gratsias (Rapporteur), President, M. Kancheva and C. Wetter, Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written part of the procedure and further to the hearing on 19 November 2015,

gives the following

Judgment

Background to the dispute

1 On 31 January 2011, following political developments in Tunisia during the months of December 2010 and January 2011, the Council of the European Union adopted, on the basis of Article 29 TEU, Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2011 L 28, p. 62).

2 Recitals 1 and 2 of Decision 2011/72 state:

‘(1) On 31 January 2011, the Council reaffirmed its full solidarity and support with Tunisia and its people in their efforts to establish a stable democracy, the rule of law, democratic pluralism and full respect for human rights and fundamental freedoms.

(2) The Council further decided to adopt restrictive measures against persons responsible for misappropriation of Tunisian State funds and who are thus depriving the Tunisian people of the benefits of the sustainable development of their economy and society and undermining the development of democracy in the country.’

3 Article 1 of Decision 2011/72, in its original version, provided:

‘1. All funds and economic resources belonging to, owned, held or controlled by persons responsible for misappropriation of Tunisian State funds, and natural or legal persons or entities associated with them, as listed in the Annex, shall be frozen.

  1. No funds or economic resources shall be made available, directly or indirectly, to, or for the benefit of, natural or legal persons or entities listed in the Annex.

  2. The competent authority of a Member State may authorise the release of certain frozen funds or economic resources, or the making available of certain funds or economic resources, under such conditions as it deems appropriate, after having determined that the funds or economic resources concerned are:

    (a) necessary to satisfy the basic needs of the persons listed in the Annex and their dependent family members, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges;

    (b) intended exclusively for the payment of reasonable professional fees and the reimbursement of incurred expenses associated with the provision of legal services;

    (c) intended exclusively for the payment of fees or service charges for the routine holding or maintenance of frozen funds or economic resources; or

    (d) necessary for extraordinary expenses...

  3. By way of derogation from paragraph 1, the competent authorities of a Member State may authorise the release of certain frozen funds or economic resources, provided that the following conditions are met:

    (a) the funds or economic resources are the subject of a judicial, administrative or arbitral lien established prior to the date on which the natural or legal person, entity or body referred to in Article 1(1) was included in the Annex, or of a judicial, administrative or arbitral judgment rendered prior to that date;

    (b) the funds or economic resources will be used exclusively to satisfy claims secured by such a lien or recognised as valid in such a judgment, within the limits set by applicable laws and regulations governing the rights of persons having such claims;

    (c) the lien or judgment is not for the benefit of a natural or legal person, entity or body listed in the Annex; and

    (d) recognising the lien or judgement is not contrary to public policy in the Member State concerned.

  4. Paragraph 2 shall not apply to the addition to frozen accounts of:

    (a) interest or other earnings on those accounts; or

    (b) payments due under contracts, agreements or obligations that were concluded or arose prior to the date on which those accounts became subject to this Decision,

    provided that any such interest, other earnings and payments remain subject to paragraph 1.’

    4 Council Decision 2012/724/CFSP of 26 November 2012 amending Decision 2011/72 (OJ 2102 L 327 p. 45) added to Article 1(5) of Decision 2011/72 a point (c) according to which ‘payments due under judicial, administrative or arbitral decisions rendered in the Union or enforceable in the Member State concerned’ are also to be excluded from the application of Article 1(2).

    5 Article 2 of Decision 2011/72 provides:

    ‘1. The Council, acting upon a proposal by a Member State or the High Representative of the Union for Foreign Affairs and Security Policy, shall establish and amend the list in the Annex.

  5. The Council shall communicate its decision, including the grounds for the listing, to the person or entity concerned, either directly, if the address is known, or through the publication of a notice, providing such person or entity with an opportunity to present observations.

  6. Where observations are submitted, or where substantial new evidence is presented, the Council shall review its decision and inform the person or entity concerned accordingly.’

    6 Article 3(1) of Decision 2011/72 provides:

    ‘The Annex shall include the grounds for listing the persons and entities.’

    7 Article 5 of Decision 2011/72 provides:

    ‘This Decision shall apply for a period of 12 months. It shall be kept under constant review. It shall be renewed, or amended as appropriate, if the Council deems that its objectives have not been met.’

    8 The list originally annexed to Decision 2011/72 contained only the names of Mr Zine el-Abidine Ben Hamda Ben Ali, former President of the Republic of Tunisia, and his wife, Mrs Leïla Bent Mohammed Trabelsi.

    9 On 4 February 2011, on the basis of Article 2(1) of Decision 2011/72 and of Article 31(2) TEU, the Council adopted Implementing Decision 2011/79/CFSP implementing Decision 2011/72 (OJ 2011 L 31, p. 40). Article 1 of that implementing decision provided that the annex to Decision 2011/72 was to be replaced by the text set out in the annex to that implementing decision. That annex listed the names of 48 natural persons including, in particular, in the first and second lines, the names of the two persons referred to in paragraph 8 above, and, in the fifth line, the name of the applicant, Mr Fahed Mohamed Sakher Al Matri. Also stated in the fifth line of that annex, in the column headed ‘Identifying information’, was the following: ‘Tunisian, born in Tunis 2 December 1981, son of Naïma BOUTIBA, married to Nesrine BEN ALI, holder of NIC No 04682068’, and, in the column headed ‘Grounds’: ‘Person subject to judicial investigation by the Tunisian authorities in respect of the acquisition of movable and immovable property, the opening of bank accounts and the holding of financial assets in several countries as part of money-laundering operations’.

    10 On 4 February 2011, on the basis of Article 215(2) TFEU and of Decision 2011/72, the Council also adopted Regulation (EU) No 101/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia (OJ 2011 L 31, p. 1). Article 2(1) and (2) of that regulation reproduces, in essence, the provisions of Article 1(1) and (2) of Decision 2011/72, while Articles 4, 5 and 6 reproduce, in essence, the provisions of Article 1(3), (4) and (5) of Decision 2011/72. Furthermore, the content of Annex I to that regulation is identical to that of the annex to Decision 2011/72, as amended by Implementing Decision 2011/79.

    11 On 1 April 2011, the applicant brought an action for annulment of Implementing Decision 2011/79 and Regulation No 101/2011 in so far as those acts concern him.

    12 On 23 February 2012, the applicant asked the Court to extend the form of order sought and the pleas of the action referred to in paragraph 11 above to Council Decision 2012/50/CFSP of 27 January 2012 amending Decision 2011/72 (OJ 2012 L 27, p. 11). That decision extended until 31 January 2013 the application of the restrictive measures...

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