Judgments nº T-5/17 of Tribunal General de la Unión Europea, April 04, 2019

Resolution DateApril 04, 2019
Issuing OrganizationTribunal General de la Unión Europea
Decision NumberT-5/17

(Common foreign and security policy - Restrictive measures against Syria - Freezing of funds - Rights of the defence - Right to effective judicial protection - Manifest error of assessment - Right to property - Proportionality - Damage to reputation)

In Case T-5/17,

Ammar Sharif, residing in Damascus (Syria), represented by B. Kennelly QC, and J. Pobjoy, Barrister,

applicant,

v

Council of the European Union, represented by S. Kyriakopoulou, P. Mahnič and V. Piessevaux, acting as Agents,

defendant,

supported by

European Commission, represented by L. Havas and J. Norris, acting as Agents,

intervener,

APPLICATION, principally, pursuant to Article 263 TFEU for annulment of Council Implementing Decision (CFSP) 2016/1897 of 27 October 2016 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2016 L 293, p. 36), of Council Implementing Regulation (EU) 2016/1893 of 27 October 2016 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2016 L 293, p. 25), of Council Decision (CFSP) 2017/917 of 29 May 2017 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2017 L 139, p. 62), of Council Implementing Regulation (EU) 2017/907 of 29 May 2017 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2017 L 139, p. 15), of Council Decision (CFSP) 2018/778 of 28 May 2018 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2018 L 131, p. 16), and of Council Implementing Regulation (EU) 2018/774 of 28 May 2018 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2018 L 131, p. 1), in so far as those acts concern the applicant; and, in the alternative, pursuant to Article 277 TFEU for a declaration that the following provisions are inapplicable, in so far as they apply to the applicant: Article 28(2)(a) of Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (OJ 2013 L 147, p. 14), as amended by Council Decision (CFSP) 2015/1836 of 12 October 2015 (OJ 2015 L 266, p. 75), and Article 15(1a)(a) of 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), as amended by Council Regulation (EU) 2015/1828 of 12 October 2015 (OJ 2015 L 266, p. 1),

THE GENERAL COURT (Fifth Chamber),

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

Registrar: F. Oller, Administrator,

having regard to the written part of the procedure and further to the hearing on 7 September 2018,

gives the following

Judgment

Background to the dispute

1 The applicant, Mr Ammar Sharif, is a businessman of Syrian nationality.

2 Strongly condemning the violent repression of peaceful protest in various locations across Syria and calling on the Syrian security forces to exercise restraint instead of force, on 9 May 2011 the Council of the European Union adopted 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 imposed an arms embargo, a ban on exports of matériel which might be used for internal repression, restrictions on admission to the European Union, and the freezing of funds and economic resources of certain persons and entities responsible for the violent repression against the civilian population in Syria.

3 The names of the persons responsible for the violent repression against the civilian population in Syria and those of the natural or legal persons and entities associated with them are mentioned in the Annex to Decision 2011/273. Under Article 5(1) of that decision, the Council, acting upon a proposal by a Member State or the High Representative of the 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 largely identical to Decision 2011/273, but provides for the possibility of frozen funds being released. The list of persons, entities and bodies identified as being either responsible for the repression in question or associated with those responsible, in Annex II to that regulation, is identical to the list in the Annex to Decision 2011/273. 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 to amend Annex II accordingly and, furthermore, to review the list in that annex at regular intervals and at least every 12 months.

5 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 considered it necessary, in view of the gravity of the situation in Syria, to impose additional restrictive measures. For the sake of clarity, the measures imposed by Decision 2011/273 and the additional measures were integrated into a single legal instrument. Decision 2011/782 provides, in Article 18, for restrictions on admission to the territory of the European Union and, in Article 19, for the funds and economic resources of the persons and entities whose names are listed in Annex I to the decision to be frozen.

6 Regulation No 442/2011 was replaced by 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).

7 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 in question were integrated into a single legal instrument.

8 Decision 2012/739 was replaced by Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (OJ 2013 L 147, p. 14). Decision 2013/255 was renewed until 1 June 2015 by Council Decision 2014/309/CFSP of 28 May 2014 amending Decision 2013/255 (OJ 2014 L 160, p. 37).

9 On 12 October 2015, the Council adopted Decision (CFSP) 2015/1836 amending Decision 2013/255 (OJ 2015 L 266, p. 75). On the same day, it adopted Regulation (EU) 2015/1828 amending Regulation No 36/2012 (OJ 2015 L 266, p. 1).

10 According to recital 6 of Decision 2015/1836, ‘the Council has assessed that because of the close control exercised over the economy by the Syrian regime, an inner cadre of leading businesspersons operating in Syria is only able to maintain its status by enjoying a close association with, and the support of, the regime, and by having influence within it’ and ‘the Council considers that it should provide for restrictive measures to impose restrictions on admission and to freeze all funds and economic resources belonging to, owned, held or controlled by those leading businesspersons operating in Syria, as identified by the Council and listed in Annex I, in order to prevent them from providing material or financial support to the regime and, through their influence, to increase pressure on the regime itself to change its policies of repression’.

11 The wording of Articles 27 and 28 of Decision 2013/255 was amended by Decision 2015/1836. Those articles now provide for restrictions on the entry into, or transit through, the territories of the Member States and for the funds of ‘leading businesspersons operating in Syria’ to be frozen, unless there is ‘sufficient information that [those persons] are not, or are no longer, associated with the regime or do not exercise influence over it or do not pose a real risk of circumvention’.

12 By Implementing Decision (CFSP) 2016/1897 of 27 October 2016 implementing Decision 2013/255 (OJ 2016 L 293, p. 36), the Council amended Decision 2013/255 in order in particular to apply the restrictive measures concerned to other persons and entities, whose names were added to the list in the annex to the latter decision. The applicant’s name was inserted in that list at line 212 of Table A of the annex, together with the date of his listing, 28 October 2016, and the following reasons:

‘Leading Syrian businessman operating in Syria, active in the banking, insurance, and hospitality sectors. Founding partner of Byblos Bank Syria, major shareholder in Unlimited Hospitality Ltd, and board member of the Solidarity Alliance Insurance Company and the Al-Aqueelah Takaful Insurance Company’.

13 On 27 October 2016, the Council adopted Implementing Regulation (EU) 2016/1893 implementing Regulation No 36/2012 (OJ 2016 L 293, p. 25). The applicant’s name was listed in Table A of the annex to that implementing regulation with the same information and reasons as those set out in Implementing Decision 2016/1897.

14 On 28 October 2016, the Council published in the Official Journal of the European Union a Notice for the attention of the persons subject to the restrictive measures provided for in Decision 2013/255 and in Regulation No 36/2012 (OJ 2016 C 398, p. 4).

15 On 29 May 2017, the Council adopted Decision (CFSP) 2017/917 amending Decision 2013/255 (OJ 2017 L 139, p. 62). By Article 1 of Decision 2017/917, Article 34 of Decision 2013/255 was amended to provide for the restrictive measures imposed by the annex to the latter decision to be extended until 1 June 2018. In addition, in accordance with Article 2 of Decision 2017/917, 55 of the references in Annex I to Decision 2013/255, concerning persons other than the applicant, were amended. Last, under Article 3, Decision 2017/917 entered into force on the date of its publication.

16 On the same day, the Council adopted Implementing...

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