Judgments nº T-190/12 of The General Court, April 22, 2015

• Resolution Date: April 22, 2015
• Issuing Organization: The General Court
• Decision Number: T-190/12

(Common foreign and security policy - Restrictive measures imposed on certain persons and entities in view of the situation in Zimbabwe - Restrictions on entry into and transit through the European Union - Freezing of funds - Legal basis - Manifest error of assessment - Obligation to state reasons - Rights of the defence - Fundamental rights - Proportionality)

In Case T-190/12,

Johannes Tomana, residing in Harare (Zimbabwe), and the 120 other applicants named in the annex hereto, represented initially by D. Vaughan QC, M. Lester and R. Lööf, Barristers, and by M. O’Kane, Solicitor, and subsequently by D. Vaughan, M. Lester and M. Lööf,

applicants,

v

Council of the European Union, represented by B. Driessen, M. Veiga and A. Vitro, acting as Agents,

and

European Commission, represented by M. Konstantinidis, T. Scharf and E. Georgieva, acting as Agents,

defendants,

supported by

United Kingdom of Great Britain and Northern Ireland, represented by E. Jenkinson, C. Murrell and M. Holt, acting as Agents, and by S. Lee, Barrister,

intervener,

APPLICATION for annulment of Council Decision 2012/97/CFSP of 17 February 2012 amending Decision 2011/101/CFSP concerning restrictive measures against Zimbabwe (OJ 2012 L 47, p. 50), Commission Implementing Regulation (EU) No 151/2012 of 21 February 2012 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures against Zimbabwe (OJ 2012 L 49, p. 2), and Council Implementing Decision 2012/124/CFSP of 27 February 2012 implementing Decision 2011/101/CFSP concerning restrictive measures against Zimbabwe (OJ 2012 L 54, p. 20), in so far as those acts concern the applicants,

THE GENERAL COURT (Eighth Chamber),

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

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 10 June 2014,

gives the following

Judgment

Background to the dispute

1 In Common Position 2002/145/CFSP of 18 February 2002 concerning restrictive measures against Zimbabwe (OJ 2002 L 50, p. 1), adopted under Article 15 of the EU Treaty, prior to its amendment by the Treaty of Lisbon, the Council of the European Union expressed its deep concern about the situation in Zimbabwe, in particular with regard to the serious infringements of human rights - notably the right to freedom of speech, association and peaceful assembly - committed by the Government of Zimbabwe. It therefore imposed restrictive measures for a renewable 12-month period, which would be subject to annual review. Those measures included, in particular, the obligation on Member States to prevent the entry into, or transit through, their territories of the natural persons listed in the Annex to that common position, as well as the freezing of funds and economic resources of the persons and entities listed in that annex. Common Position 2002/145 was amended and extended for a period of 12 months, that is to say until 20 February 2004, by Council Common Position 2003/115/CFSP of 18 February 2003 amending and extending Common Position 2002/145 (OJ 2003 L 46, p. 30).

2 The freezing of assets and economic resources provided for in Common Position 2002/145 was implemented by Council Regulation (EC) No 310/2002 of 18 February 2002 concerning certain restrictive measures in respect of Zimbabwe (OJ 2002 L 50, p. 4). The period of application of that regulation was limited to 12 months from the date of its publication in the Official Journal of the European Union. It was extended for a further period of 12 months, that is to say until 20 February 2004, by Council Regulation (EC) No 313/2003 of 18 February 2003 extending Regulation No 310/2002 (OJ 2003 L 46, p. 6).

3 Council Common Position 2004/161/CFSP of 19 February 2004 renewing restrictive measures against Zimbabwe (OJ 2004 L 50, p. 66) made provision for the renewal of the restrictive measures established by Common Position 2002/145. In accordance with the second paragraph of Article 8 thereof, Common Position 2004/161 applied as from 21 February 2004. Article 9 thereof provided that it would apply for a period of 12 months and would be kept under constant review. That article also provided that the common position had to be ‘renewed, or amended as appropriate, if the Council deem[ed] that its objectives ha[d] not been met’.

4 Council Regulation (EC) No 314/2004 of 19 February 2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2004 L 55, p. 1) was adopted, in accordance with recital 5 in the preamble thereof, in order to implement the restrictive measures provided for in Common Position 2004/161. Article 6(1) of Regulation No 314/2004 provides, inter alia, that all funds and economic resources belonging to members of the Government of Zimbabwe and to any natural or legal persons, entities or bodies associated with them, as listed in Annex III to that regulation, are to be frozen. Article 11(b) of that regulation states that the Commission is to be empowered to amend Annex III to that regulation on the basis of decisions taken in respect of the Annex to Common Position 2004/161.

5 The period of validity of Common Position 2004/161 was extended on several occasions, most recently until 20 February 2011 by Council Decision 2010/92/CFSP of 15 February 2010 extending restrictive measures against Zimbabwe (OJ 2010 L 41, p. 6).

6 Council Decision 2011/101/CFSP of 15 February 2011 concerning restrictive measures against Zimbabwe (OJ 2011 L 42, p. 6) repealed Common Position 2004/161. That decision made provision for the imposition, on the persons whose names appeared in the Annex thereto, of restrictive measures similar to those provided for in Common Position 2004/161.

7 In particular, Article 4(1) of Decision 2011/101 provides:

‘Member States shall take the measures necessary to prevent the entry into, or transit through, their territories of members of the Government of Zimbabwe and of natural persons associated with them, as well as of other natural persons whose activities seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe. The individuals referred to in this paragraph are listed in the Annex.’

8 Article 5(1) of Decision 2011/101 provides:

‘All funds and economic resources belonging to individual members of the Government of Zimbabwe or to any natural or legal persons, entities or bodies associated with them, or belonging to any other natural or legal person whose activities seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe, shall be frozen. The persons and entities referred to in this paragraph are listed in the Annex.’

9 Article 6(1) of that decision provides:

‘The Council, acting upon a proposal by a Member State or the High Representative of the Union for Foreign Affairs and Security Policy, shall adopt modifications to the list contained in the Annex as required by political developments in Zimbabwe.’

10 Further, Article 7 of Decision 2011/101 provides:

‘1. The Annex shall include the grounds for listing the natural or legal persons and entities.

2. The Annex shall also contain, where available, the information necessary to identify the natural or legal persons or entities concerned. With regard to natural persons, such information may include names, including aliases, date and place of birth, nationality, passport and ID card numbers, gender, address, and function or profession. With regard to legal persons or entities, such information may include names, place and date of registration, registration number and place of business.’

   11 Lastly, as provided for in Article 10(2), Decision 2011/101 was to apply until 20 February 2012. Under that same article, the decision was to be kept under constant review and was to be renewed, or amended as appropriate, if the Council deemed that its objectives had not been met.

   12 Article 1(1) of Council Decision 2012/97/CFSP of 17 February 2012 amending Decision 2011/101 (OJ 2012 L 47, p. 50), which is the first act against which this action is directed, replaced Article 10 of Decision 2011/101 with the following provision:

   ‘1. This Decision shall enter into force on the date of its adoption.

2. This Decision shall apply until 20 February 2013.

3. The measures referred to in Article 4(1), in so far as they apply to persons listed in Annex II, shall be suspended until 20 February 2013.

4. This Decision shall be kept under constant review and shall be renewed, or amended as appropriate, if the Council deems that its objectives have not been met.’

   13 In addition, Article 1(2) of Decision 2012/97 provides that the term ‘Annex’ used in Decision 2011/101 is to be replaced by the term ‘Annex I’ and that the text of that annex is to be replaced by the text set out in Annex I to Decision 2012/97. Last, Article 1(3) of Decision 2012/97 provides that Annex II thereto is to be added as Annex II to Decision 2011/101.

   14 Recitals 1 to 5 in the preamble of Decision 2012/97 are worded as follows:

   ‘(1) On 15 February 2011, the Council adopted Decision 2011/101 …

   (2) On the basis of a review of Decision 2011/101 … the restrictive measures should be extended until 20 February 2013.

   (3) However, there are no longer grounds for keeping certain persons and entities on the list of persons and entities to which the restrictive measures provided for in Decision 2011/101 … apply.

   (4) In order to facilitate further the dialogue between the EU and the Government of Zimbabwe, the travel ban imposed on the two members of the re-engagement team of the Zimbabwe Government listed under Decision 2011/101 … should be suspended.

   (5) The information relating to certain persons and entities included on the list in the Annex to Decision 2011/101 … should be updated.’

   15 Annex I to Decision 2011/101, as replaced by Decision 2012/97, includes the names of Mr Johannes Tomana and the 120 other applicants, as listed in Annex A.4 to the application. The...