Judgments nº T-358/17 of Tribunal General de la Unión Europea, December 12, 2018

• Resolution Date: December 12, 2018
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-358/17

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

In Case T-358/17,

Mohamed Hosni Elsayed Mubarak, residing in Cairo (Egypt), represented by B. Kennelly QC, J. Pobjoy, Barrister, G. Martin, M. Rushton and C. Enderby Smith, Solicitors,

applicant,

v

Council of the European Union, represented initially by J. Kneale and M. Veiga, and subsequently by J. Kneale and A. Sikora-Kalėda, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU for annulment (i) 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); (ii) of Council Implementing Regulation (EU) 2017/491 of 21 March 2017 implementing Regulation (EU) No 270/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2017 L 76, p. 10); (iii) of Council Decision (CFSP) 2018/466 of 21 March 2018 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2018 L 78I, p. 3); and (iv) of Council Implementing Regulation (EU) 2018/465 of 21 March 2018 implementing Regulation (EU) No 270/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2018 L 78I, p. 1), in so far as those acts apply to the applicant,

THE GENERAL COURT (Fifth Chamber),

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

Registrar: F. Oller, Administrator,

having regard to the written part of the procedure and further to the hearing on 18 September 2018,

gives the following

Judgment

1. Background to the dispute and factual context

   1 Since the adoption, on 21 March 2011, of 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), and of Council Regulation (EU) No 270/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 4), the applicant, Mr Mohamed Hosni Elsayed Mubarak, has been designated in the first line of the lists included in the annex to that decision and in Annex I to that regulation (‘the lists at issue’). The identifying information concerning the applicant mentioned in those annexes is as follows: ‘Former President of the Arab Republic of Egypt - Date of birth 04.05.1928 - Male’.

   2 The grounds for the designation of the applicant on the lists at issue were originally 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 for designation was maintained throughout successive renewals of Decision 2011/172, until the adoption of Council Decision (CFSP) 2017/496 of 21 March 2017 amending Decision 2011/172 (OJ 2017 L 76, p. 22). The latter decision amended that ground to read as follows: ‘Person subject to judicial proceedings or an asset recovery process by the Egyptian authorities following a final court ruling in respect of the misappropriation of State Funds on the basis of the United Nations Convention against Corruption’. Council Implementing Regulation (EU) 2017/491 of 21 March 2017 implementing Regulation No 270/2011 (OJ 2017 L 76, p. 10) introduced an identical amendment in relation to the applicant’s designation in Annex I to Regulation No 270/2011.

   3 On 21 March 2018, the Council of the European Union adopted Decision (CFSP) 2018/466 amending Decision 2011/172 (OJ 2018 L 78I, p. 3) and Implementing Regulation (EU) 2018/465 implementing Regulation No 270/2011 (OJ 2018 L 78I, p. 1). Decision 2018/466 extended the application of Decision 2011/172 until 22 March 2019. Furthermore, that decision and Implementing Regulation 2018/465 amended the grounds of designation in respect of some of the individuals named on the lists at issue and deleted references to other individuals from those lists. The applicant’s name was maintained on those lists and the grounds for his designation remained unaltered.

2. Procedure and forms of order sought

   4 By application lodged at the General Court Registry on 31 May 2017, the applicant brought the present action.

   5 On 14 August 2017, the Council lodged the defence.

   6 The reply and the rejoinder were lodged on 28 September 2017 and 15 November 2017, respectively.

   7 On 24 November 2017, the applicant requested that a hearing be held.

   8 On 31 May 2018, pursuant to Article 86 of the Rules of Procedure of the General Court, the applicant lodged a statement of modification.

   9 On 29 June 2018, the Council submitted its observations on the statement of modification.

   10 On 10 September 2018, the applicant submitted, on the basis of Article 88(1) and Article 89(3) of the Rules of Procedure, a request that the Court adopt measures of organisation of procedure concerning the disclosure, by the Council and the European External Action Service (EEAS), of certain documents that were not provided to the applicant.

   11 The hearing was held on 18 September 2018. At the hearing, the Council contended that the application for the adoption of measures of organisation of procedure should be dismissed. The parties were invited to make submissions on the admissibility of the applicant’s claim for annulment of Regulation 2018/465.

   12 In the application, the applicant claims that the Court should:

   - annul Decision 2017/496 and Implementing Regulation 2017/491, in so far as they apply to him;

   - order the Council to pay the costs.

   13 In the statement of modification, the applicant claims, moreover, that the Court should annul Decision 2018/466 and Implementing Regulation 2018/465.

   14 The Council contends that the Court should:

   - dismiss the action in its entirety;

   - order the applicant to pay the costs;

   - in the alternative, should Decisions 2017/496 and 2018/466 and Implementing Regulations 2017/491 and 2018/465 be annulled as regards the applicant, order that the effects of those decisions be maintained with regard to the applicant until the annulment of those regulations takes effect.

3. Law

   1. Application for the adoption, by the Court, of measures of organisation of procedure

      15 The measures of inquiry requested by the applicant relate, on the one hand, to the provision by the Council of the request from the EEAS dated 7 August 2017, referred to on page 1 of the memorandum from the Egyptian authorities of 29 August 2017, and the note verbale from the EEAS, referred to on page 1 of the memorandum from the Egyptian authorities dated 20 February 2018, and, on the other, to the provision by the EEAS of the documents referred to above and any other correspondence between that service and the Egyptian authorities relating to the maintenance of the applicant’s designation in 2017 and 2018.

      16 The Council claims that those documents are not in its possession.

      17 In that regard, it is sufficient to note that the documents which the applicant seeks to have disclosed concern letters sent by the EEAS to the Egyptian authorities, which are referred to in the memoranda from those authorities that were provided to him and which have been placed on the file. The applicant does not dispute that the Council relied on the information contained in the documents provided by the Egyptian authorities, and notably the memoranda mentioned above, in order to maintain the applicant’s name on the lists at issue, rather than on the requests contained in the notes verbales and letters from the EEAS to which those documents are intended to respond. Nor does he dispute that the Council disclosed to him all the documents from the Egyptian authorities concerning him that were in its possession.

      18 Although the applicant claims that those letters and notes are necessary in order to understand the relevance of the memoranda mentioned above and to ascertain whether the questions of the EEAS which they were intended to answer were sufficient to address the concerns he had raised, it is nevertheless apparent from the content of those memoranda that the relevance of the information therein to the maintenance of the applicant’s listing is readily inferred, without there being any need to resort to contextual material. In addition, those documents are sufficient for the purpose of assessing whether the Council fulfilled its duty, to the requisite legal standard, to verify whether the evidence made available to it constituted a sufficiently solid basis for that listing to be maintained.

      19 The same reasoning applies to the rest of the correspondence between the EEAS and the Egyptian authorities, in relation to the maintenance of the applicant’s designation in 2017 and in 2018, disclosure of which is also sought by the applicant.

      20 Accordingly, there is no need to adopt the measures of organisation of procedure requested by the applicant.

   2. Substance

      21 By the present action, the applicant seeks annulment of Decision 2017/496 and Implementing Regulation 2017/491 (‘the 2017 acts’) and also of Decision 2018/466 and Implementing Regulation 2018/465 (‘the 2018 acts’), in so far as those acts maintained his designation on the lists at issue (together, ‘the contested acts’).

      22 The applicant puts forward five pleas in law...