Judgments nº T-288/15 of Tribunal General de la Unión Europea, September 27, 2018

Resolution DateSeptember 27, 2018
Issuing OrganizationTribunal General de la Unión Europea
Decision NumberT-288/15

(Common foreign and security policy - Restrictive measures taken in view of the situation in Egypt - Freezing of funds - Admissibility - Objectives - Criteria for inclusion of persons targeted - Renewal of designation of the applicants on the list of persons targeted - Factual basis - Plea of illegality - Legal basis - Proportionality - Right to fair trial - Presumption of innocence - Right to good administration - Error of law - Manifest error of assessment - Right to property - Rights of the defence - Right to effective judicial protection)

In Case T-288/15,

Ahmed Abdelaziz Ezz, residing in Giza (Egypt),

Abla Mohammed Fawzi Ali Ahmed Salama, residing in Cairo (Egypt),

Khadiga Ahmed Ahmed Kamel Yassin, residing in Giza,

Shahinaz Abdel Azizabdel Wahab Al Naggar, residing in Giza,

Represented initially by J. Lewis, B. Kennelly, QC, J. Pobjoy, Barrister, J. Binns, S. Rowe, Solicitors, and J.-F. Bellis, lawyer, and subsequently by B. Kennelly, J. Pobjoy, S. Rowe and H. de Charette, lawyer,

applicants,

v

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

defendant,

APPLICATION pursuant to Article 263 TFEU seeking, first, the annulment of Council Decision (CFSP) 2015/486 of 20 March 2015 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2015 L 77, p. 16), secondly, of Council Decision (CFSP) 2016/411 of 18 March 2016 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2016 L 74, p. 40) and, thirdly, of Council Decision (CFSP) 2017/496 of 21 March 2017 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2017 L 76, p. 22), in that those acts concern the applicants,

THE GENERAL COURT (Fifth Chamber, Extended Composition),

composed of D. Gratsias (Rapporteur), President, I. Labucka, A. Dittrich, I. Ulloa Rubio and P. G. Xuereb, Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written part of the procedure and further to the hearing on 4 July 2017,

gives the following

Judgment

  1. Background to the dispute and factual context

    1. Acts adopted by the Council in respect of the applicants

      1 In the wake of political events which took place in Egypt from January 2011, the Council of the European Union adopted, on 21 March 2011, on the basis of Article 29 TEU, Council Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 63).

      2 Recitals 1 and 2 of Decision 2011/172 read as follows:

      ‘(1) On 21 February 2011, the European Union declared its readiness to support the peaceful and orderly transition to a civilian and democratic government in Egypt based on the rule of law, with full respect for human rights and fundamental freedoms and to support efforts to create an economy which enhances social cohesion and promotes growth.

      (2) In this context, restrictive measures should be imposed against persons having been identified as responsible for misappropriation of Egyptian state funds and who are thus depriving the Egyptian 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) of Decision 2011/172, as amended by the corrigendum to that decision (OJ 2014 L 203, p. 113), provides as follows:

      ‘All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for misappropriation of Egyptian state funds, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.’

      4 The second paragraph of Article 5 of Decision 2011/172, in its original version, provided that that decision was applicable until 22 March 2012. The third paragraph of Article 5 of that decision provides that that decision is to be kept under constant review and is to be renewed, or amended as appropriate, if the Council deems that its objectives have not been met. Pursuant to the latter provision, the Council renewed that decision several times for a period of one year by adopting, successively, Decision 2012/159/CFSP of 19 March 2012 (OJ 2012 L 80, p. 18), Decision 2013/144/CFSP of 21 March 2013 (OJ 2013 L 82, p. 54), Decision 2014/153/CFSP of 20 March 2014 (OJ 2014 L 85, p. 9), Decision (CFSP) 2015/486 of 20 March 2015 (OJ 2015 L 77, p. 16), Decision (CFSP) 2016/411 of 18 March 2016 (OJ 2016 L 74, p. 40), and Decision (CFSP) 2017/496 of 21 March 2017 (OJ 2017 L 76, p. 22).

      5 The applicants, Ahmed Abdelaziz Ezz, Abla Mohamed Fawzi Ali Ahmed Salama, Khadiga Ahmed Ahmed Kamel Yassin and Shahinaz Abdel Azizabdel Wahab Al Naggar, were designated since the adoption of Decision 2011/172, respectively, in the seventh, eighth, ninth and tenth lines of the list in the annex to that decision. The identifying information relating to each of them, which appeared on that list, was, with respect to the first applicant, ‘Former Member of Parliament; Date of birth: 12.01.1959; Male’, in relation to the second applicant, ‘Wife of Ahmed Abdelaziz Ezz; Date of birth: 31.01.1963; Female’, in relation to the third applicant, ‘Wife of Ahmed Abdelaziz Ezz; Date of birth: 25.05.1959; Female’, and, in relation to the fourth applicant, ‘Wife of Ahmed Abdelaziz Ezz; Date of birth: 09.10.1969; Female’. Decision 2017/496 made a correction concerning the name of the second applicant.

      6 The ground for the designation of the applicants, as amended by the corrigendum to Decision 2011/172, was as follows: ‘Person subject to judicial proceedings by the Egyptian authorities in respect of the misappropriation of state funds on the basis of the United Nations Convention against corruption’. That ground has remained identical in successive renewals of that decision. In particular, the amendments relating to the ground for designation, introduced by Decision 2017/496, did not concern the applicants, but only other persons designated on the same list.

      7 On the basis of Article 215(2) TFEU and Decision 2011/172, the Council adopted Regulation (EU) No 270/2011 of 21 March 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 4). That regulation reproduces, in essence, the provisions of Decision 2011/172 and the list in Annex I thereto is identical to that in the annex to that decision. Council Implementing Regulation (EU) 2017/491 of 21 March 2015 implementing Regulation No 270/2011 (OJ 2017 L 76, p. 10), made amendments to the list in Annex I to that regulation, corresponding to those introduced by Decision 2017/496.

    2. Proceedings brought by the applicants before the courts of the European Union before or at the same time as the present proceedings

      8 By an action brought on 20 May 2011, registered at the Registry of the General Court under number T-256/11, the applicants sought the annulment of Decision 2011/172 and Regulation No 270/2011, in so far as those acts concern them.

      9 On 24 May 2013, the applicants brought a new action, registered at the Registry of the General Court under number T-279/13, by which they sought the annulment of Decision 2011/172, as amended by Decision 2013/144 and Regulation No 270/2011, ‘renewed by decision of the Council notified to the applicants by letter dated 22 March 2013’ in so far as those acts concern them.

      10 The action brought by the applicants in Case T-256/11 was dismissed by the judgment of 27 February 2014, Ezz and Others v Council (T-256/11, EU:T:2014:93). On 5 May 2014, the applicants brought an appeal against that judgment.

      11 On 30 May 2014, each of the applicants brought a separate action against Decision 2014/153 (Cases T-375/14, Al Naggar v Council, T-376/14, Yassin v Council, T-377/14, Ezz v Council and T-378/14, Salama v Council).

      12 The judgment of 5 March 2015, Ezz and Others v Council (C-220/14 P, EU:C:2015:147), dismissed the applicants’ appeal referred to in paragraph 10 above.

      13 On 29 May 2015, the applicants lodged a statement of modification intended to extend the original form of order sought in the action brought by them in Case T-279/13 to ‘Council Decision (CFSP) 2015/485 of 20 March 2015 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt’.

      14 By order of 15 February 2016, Ezz and Others v Council (T-279/13, not published, EU:T:2016:78), made on the basis of Article 126 of the Rules of Procedure of the General Court, the applicants’ action in the case at issue was dismissed. First, the General Court rejected as manifestly inadmissible the form of order sought in the statement of modification referred to in paragraph 13 above on the ground of lis pendens. The General Court held that the parties, submissions and subject matter in the present action and in the statement of modification were identical and that the latter had been lodged after that action (order of 15 February 2016, Ezz and Others v Council, T-279/13, not published, EU:T:2016:78, paragraphs 22 to 30). Secondly, it rejected the form of order sought in the action as manifestly lacking any foundation in law (order of 15 February 2016, Ezz and Others v Council, T-279/13, not published, EU:T:2016:78, paragraphs 43 to 79).

      15 By orders of 21 March 2016 of the President of the Eighth Chamber of the General Court, Cases T-375/14, T-376/14, T-377/14 and T-378/14 were removed from the register following the withdrawal from the proceedings of the applicants (orders of 21 March 2016, Al Naggar v Council, T-375/14, not published, EU:T:2016:185, of 21 March 2016, Yassin v Council, T-376/14, not published...

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