Judgments nº T-175/15 of Tribunal General de la Unión Europea, October 05, 2017

• Resolution Date: October 05, 2017
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-175/15

In Case T-175/15,

Mohamed Marouen Ben Ali Ben Mohamed Mabrouk, residing in Tunis (Tunisia), represented by J.-R. Farthouat, J.-P. Mignard, N. Boulay, lawyers, and S. Crosby, Solicitor,

applicant,

v

Council of the European Union, represented initially by Á. de Elera-San Miguel Hurtado and G. Étienne, and subsequently by Á. de Elera-San Miguel Hurtado, acting as Agents,

defendant,

APPLICATION pursuant to Article 263 TFEU for annulment of Council Decision (CFSP) 2015/157 of 30 January 2015 amending Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2015 L 26, p. 29), in so far as it concerns the applicant, the Council’s Decision of 16 November 2015 rejecting the applicant’s request of 29 May 2015 to remove his name from the list in the Annex to 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) and Council Decision (CFSP) 2016/119 of 28 January 2016 amending Decision 2011/72 (OJ 2016 L 23, p. 65), in so far as it concerns the applicant,

THE GENERAL COURT (Fifth Chamber),

composed of D. Gratsias (Rapporteur), President, I. Labucka and I. Ulloa Rubio, Judges,

Registrar: M. L. Grzegorczyk, Administrator,

having regard to the written part of the procedure and further to the hearing on 14 December 2016,

gives the following

Judgment

Background to the dispute and factual context

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 read as follows:

‘(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(1) and (2) of Decision 2011/72 provides as follows:

‘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.

2. 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.’

   4 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.

2. 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.

3. 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.’

   5 Article 3(1) of Decision 2011/72 reads as follows:

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

   6 Article 5 of Decision 2011/72, in its original version, provided:

   ‘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.’

   7 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 Ms Leïla Bent Mohammed Trabelsi, his wife.

   8 On 4 February 2011, on the basis of Article 2(1) of Decision 2011/72 and 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 the implementing decision. That annex listed the names of 48 natural persons including, in particular, on the first and second lines, the names of the two persons referred to in paragraph 7 above and, on line 28, the name of the applicant, Mr Mohamed Marouen Ben Ali Ben Mohamed Mabrouk. Line 28 of that annex also stated, in the column entitled ‘Identifying information’, as follows: ‘Tunisian, born in Tunis 11 March 1972, son of Jaouida El BEJI, married to Sirine BEN ALI, CEO, residing at 8 rue du Commandant Béjaoui - Carthage - Tunis, holder of NIC No 04766495’; and, in the column entitled ‘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.’

   9 The applicant’s initial listing in the Annex to Decision 2011/72, as amended by Implementing Decision 2011/79, was subsequently extended by Council Decision 2012/50/CFSP of 27 January 2012 (OJ 2012 L 27, p. 11), Council Decision 2013/72/CFSP of 31 January 2013 (OJ 2013 L 32, p. 20) and Council Decision 2014/49/CFSP of 30 January 2014 (OJ 2014 L 28, p. 38).

   10 Following the judgments of 28 May 2013, Trabelsi and Others v Council (T-187/11, EU:T:2013:273), of 28 May 2013, Chiboub v Council (T-188/11, not published, EU:T:2013:274), and of 28 May 2014, Al Matri v Council (T-200/11, not published, EU:T:2013:275), the Council modified the grounds for including the names of the persons listed in the Annex to Decision 2011/72, as amended by Implementing Decision 2011/79. In so far as the applicant is concerned, the grounds for his inclusion were modified by Decision 2014/49 as follows: ‘Person subject to judicial investigations by the Tunisian authorities for complicity in the misappropriation of public monies by a public office-holder, complicity in the misuse of office by a public office-holder to procure an unjustified advantage for a third party and to cause a loss to the administration, and complicity in exerting wrongful influence over a public office-holder with a view to obtaining directly or indirectly an advantage for another person.’

   11 By letter of 12 January 2015, the Council notified the applicant of its intention once again to extend the restrictive measures directed against him and enclosed with that letter an attestation dated 19 December 2014 provided by the Tunisian authorities, relating to ongoing judicial proceedings in Tunisia pertaining to him. By letter of 15 January 2015, the applicant submitted his observations and requested that the Council remove him from the list annexed to Decision 2011/72, as amended by Decision 2014/49, for the reasons set out in that letter.

   12 On 30 January 2015, the Council adopted Decision (CFSP) 2015/157 amending Decision 2011/72 (OJ 2015 L 26, p. 29). Article 1(1) of that decision provides that the text of Article 5 of Decision 2011/72 is to be replaced by the following: ‘This Decision shall apply until 31 January 2016. It shall be kept under constant review. It may be renewed or amended, as appropriate, if the Council deems that its objectives have not been met.’ The applicant’s name and the grounds for his inclusion on the list annexed to Decision 2011/72, as amended by Decision 2014/49, were maintained.

   13 By letter of 4 February 2015, the Council responded to the applicant’s observations dated 15 January 2015. In essence, it indicated that, for the reasons stated, it considered that the restrictive measures directed against him should remain in force and enclosed with that letter a copy of Decision 2015/157. However, it stated that, in the light of the applicant’s observations concerning the status of the ongoing judicial investigation concerning him in Tunisia, it would carry out a further review of those restrictive measures before 31 July 2015.

   14 The applicant submitted observations on 18 February, 29 May and 7 September 2015. By letter of 16 November 2015, the Council responded to those observations. In the first place, the Council rejected the request made by the applicant in his letter of 18 February 2015 for access to the file concerning him, stating that the attestation referred to in paragraph 11 above formed the basis of its decision to extend the restrictive measures directed against the applicant and that it did not possess any other documents. In the second place, the Council stated that it was enclosing with its letter extracts from two documents dated 11 May 2015, provided by the Tunisian authorities, relating to judicial proceedings against the applicant. In the third place, after addressing the arguments raised by the applicant in his observations of 29 May 2015 and rejecting his request for a hearing, the Council indicated that the restrictive measures directed against him were to be maintained.

   15 On 30 November 2015, the applicant submitted further observations, to which the Council replied by letter of 18 December 2015. The Council stated, in its conclusion to that letter, its intention to renew the restrictive measures directed against the applicant and to amend the ground for his designation as follows: ‘Person subject to judicial investigations by the Tunisian authorities for complicity in the misappropriation of public monies by a...