Judgments nº T-593/11 of The General Court, April 30, 2015

• Resolution Date: April 30, 2015
• Issuing Organization: The General Court
• Decision Number: T-593/11

(Common foreign and security policy - Restrictive measures against Syria - Freezing of funds - Rights of the defence - Obligation to state reasons - Error of assessment - Right to property - Right to respect for private life - Proportionality)

In Case T-593/11,

Fares Al-Chihabi, residing in Aleppo (Syria), represented initially by L. Ruessmann and W. Berg, lawyers, and subsequently by L. Ruessmann and J. Beck, Solicitor,

applicant,

v

Council of the European Union, represented by M. Bishop and R. Liudvinaviciute-Cordeiro, acting as Agents,

defendant,

supported by

European Commission, represented initially by S. Boelaert and T. Scharf, and subsequently by T. Scharf and M. Konstantinidis, acting as Agents,

intervener,

APPLICATION for annulment of Council Decision 2011/522/CFSP of 2 September 2011 amending Decision 2011/273/CFSP concerning restrictive measures against Syria (OJ 2011 L 228, p. 16), Council Regulation (EU) No 878/2011 of 2 September 2011 amending Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 228, p. 1), Council Decision 2011/782/CFSP of 1 December 2011 concerning restrictive measures against Syria and repealing Decision 2011/273 (OJ 2011 L 319, p. 56), Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation No 442/2011 (OJ 2012 L 16, p. 1), Council Decision 2012/739/CFSP of 29 November 2012 concerning restrictive measures against Syria and repealing Decision 2011/782 (OJ 2012 L 330, p. 21), Council Implementing Regulation (EU) No 1117/2012 of 29 November 2012 implementing Article 32(1) of Regulation No 36/2012 (OJ 2012 L 330, p. 9), Council Implementing Regulation (EU) No 363/2013 of 22 April 2013 implementing Regulation No 36/2012 (OJ 2013 L 111, p. 1), and Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (OJ 2013 L 147, p. 14), and any subsequent legislation to the extent that it maintains or replaces those acts in so far as those acts concern the applicant,

THE GENERAL COURT (Seventh Chamber),

composed of M. van der Woude, President, I. Wiszniewska-Białecka and I. Ulloa Rubio (Rapporteur), Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 12 June 2014,

gives the following

Judgment

Background to the dispute

1 The applicant, Mr Fares Al-Chihabi, is a businessman of Syrian nationality.

2 Strongly condemning the violent repression of peaceful protest in various locations throughout Syria and calling on the Syrian authorities not to resort to force, the Council of the European Union adopted on 9 May 2011 Decision 2011/273/CFSP concerning restrictive measures against Syria (OJ 2011 L 121, p. 11). In view of the seriousness of the situation, the Council established an arms embargo, a ban on equipment that could be used for internal repression, restrictions on the admission into the European Union of certain persons and entities responsible for the violent repression of the civilian population in Syria, and the freezing of their funds and economic resources.

3 The names of the persons responsible for the violent repression of the civilian population in Syria are listed in the annex to Decision 2011/273, as are those of the persons - natural or legal - and entities associated with them. The applicant’s name is not listed there. Under Article 5 of that decision, the Council, acting upon a proposal by a Member State or the High Representative of the European Union for Foreign Affairs and Security Policy, may amend that annex.

4 Since some of the restrictive measures taken against the Syrian Arab Republic fall within the scope of the FEU Treaty, the Council adopted Regulation (EU) No 442/2011 of 9 May 2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 121, p. 1). That regulation is essentially identical to Decision 2011/273, but provides for the possibility of releasing frozen funds. The list set out in Annex II to Regulation No 442/2011 is identical to the list set out in the Annex to Decision 2011/273 and consequently does not mention the applicant’s name. Under Article 14(1) and (4) of Regulation No 442/2011, where the Council decides to subject a natural or legal person, entity or body to the restrictive measures referred to, it is required to amend Annex II accordingly and also to review the list set out therein at regular intervals and at least once every 12 months.

5 By Decision 2011/522/CFSP of 2 September 2011 (OJ 2011 L 228, p. 16), the Council amended Decision 2011/273, providing that the scope of that decision and the Annex thereto also covered ‘persons benefiting from or supporting the regime, and persons associated with them, as listed in the annex’. The applicant’s name appears in the first line of the table in the Annex to that decision, together with the date ‘2.09.2011’ and the following reasons:

‘President of Aleppo Chamber of Industry. Supports economically the Syrian regime.’

6 By Regulation (EU) No 878/2011 of 2 September 2011 amending Regulation No 442/2011 (OJ 2011 L 228, p. 1), the Council extended the scope of Annex II to Regulation No 442/2011 to cover ‘persons and entities benefiting from or supporting the regime, or persons and entities associated with them’. The applicant’s name appears in the first line of the table in that annex, together with the same reasons and information as in the Annex to Decision 2011/522.

7 On 3 September 2011, the Council published a Notice for the attention of the persons and entities to which restrictive measures provided for in Decision 2011/522 and Regulation No 878/2011 apply (OJ 2013 C 261, p. 4).

8 By Decision 2011/782/CFSP of 1 December 2011 concerning restrictive measures against Syria and repealing Decision 2011/273 (OJ 2011 L 319, p. 56), the Council found that, in view of the seriousness of the situation in Syria, it was necessary to impose additional restrictive measures, such as restrictions on financing enterprises or participating in certain infrastructure projects. For the sake of clarity, the measures imposed by Decision 2011/273 were grouped together with the additional measures into a single legal instrument. The applicant’s name appears in line 51 of the table in Annex I to that decision, together with the same information and reasons as in the Annex to Decision 2011/522.

9 On 2 December 2011, the Council published a Notice for the attention of the persons and entities to which restrictive measures provided for in Decision 2011/782 and Regulation No 442/2011, as implemented by Council Implementing Regulation (EU) No 1244/2011 concerning restrictive measures in view of the situation in Syria, apply (OJ 2011 C 351, p. 14).

10 Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation (EU) No 442/2011 (OJ 2012 L 16, p. 1) lays down further restrictive measures and amends the list of persons and entities covered. The applicant’s name appears in line 51 of the table in Annex II to that regulation, together with the same information and reasons as in the Annex to Decision 2011/522.

11 On 24 January 2012, the Council published a Notice for the attention of the persons and entities to which restrictive measures provided for in Decision 2011/782, as implemented by Council Implementing Decision 2012/37/CFSP, and in Regulation No 36/2012, as implemented by Council Implementing Regulation (EU) No 55/2012 concerning restrictive measures against Syria, apply (OJ 2012 C 19, p. 5).

12 By Council Decision 2012/739/CFSP of 29 November 2012 concerning restrictive measures against Syria and repealing Decision 2011/782 (OJ 2012 L 330, p. 21), the restrictive measures at issue were grouped together into a single legal instrument. The applicant’s name appears in line 49 of the table in Annex I to that decision, together with some of the same reasons and information as in the Annex to Decision 2011/522. The Council also mentioned a new reason, that is to say, it inserted the annotation ‘Vice-chairman of Cham Holding’.

13 Council Implementing Regulation (EU) No 1117/2012 of 29 November 2012 implementing Article 32(1) of Regulation No 36/2012 (OJ 2012 L 330, p. 9) amends Annex II to Regulation No 36/2012. The applicant’s name appears in line 1 of the table in that annex, together with the same information and reasons as in the Annex to Decision 2012/739.

14 On 30 November 2012, the Council published a Notice for the attention of the persons and entities to which restrictive measures provided for in Decision 2012/739 and Regulation No 36/2012, as implemented by Implementing Regulation No 1117/2012, apply (OJ 2012 C 370, p. 6).

15 Council Implementing Decision 2013/185/CFSP of 22 April 2013 implementing Decision 2012/739 (OJ 2012 L 111, p. 77) is intended to update the list, set out in Annex I to Decision 2012/739, of persons and entities subject to restrictive measures. The applicant’s name appears in line 49 in that annex, together with the same information and reasons as in Decision 2012/739.

16 Council Implementing Regulation (EU) No 363/2013 of 22 April 2013 implementing Regulation No 36/2012 (OJ 2013 L 111, p. 1) amends Annex II to Regulation No 36/2012. The applicant’s name appears in line 49 of the table in that annex, together with the same information and reasons as in the Annex to Decision 2012/739.

17 On 23 April 2013, the Council published a Notice for the attention of the persons and entities to which restrictive measures provided for in Decision 2012/739, as implemented by Implementing Decision 2013/185, and in Regulation No 36/2012, as implemented by Implementing Regulation No 363/2013, apply (OJ 2013 C 115, p. 5).

18 On 31 May 2013, the Council adopted Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2013 L 147, p. 14). The...