Case T-86/11
Nadiany Bamba
v
Council of the European Union
(Common foreign and security policy – Restrictive measures adopted in view of the situation in Côte d’Ivoire – Freezing of funds – Duty to state reasons)
Summary of the Judgment
1. Acts of the institutions – Statement of reasons – Obligation – Scope
(Art. 296 TFEU; Council Regulation No 560/2005, as amended by Regulation No 25/2011, Annex IA; Council Decision 2010/656, as amended by Decision 2011/18, Annex II)
2. Fundamental rights – Rights of the defence – Right to an effective judicial remedy – Scope
(Council Regulation No 560/2005, as amended by Regulation No 25/2011, Annex IA; Council Decision 2010/656, as amended by Decision 2011/18, Annex II)
3. Actions for annulment – Judgment annulling a measure – Effects
(Arts 264, second para., TFEU and 280 TFEU; Statute of the Court of Justice, Arts 56, first para., and 60, second para.; Council Regulation No 560/2005, as amended by Regulation No 25/2011; Council Decision 2010/656, as amended by Decision 2011/18)
1. The obligation to state reasons is the corollary to the principle of observance of the rights of the defence. Thus, the purpose of the obligation to state the reasons for a measure adversely affecting a person is, first, to provide that person with sufficient information to make it possible to ascertain whether the measure is well founded or whether it is vitiated by an error which may permit its legality to be contested before the European Union judicature and, second, to enable the judicature to review the legality of the measure.
Judicial review must be able to have regard in particular to the legality of the grounds on which the name of a person, entity or body is included in the list forming Annex II to Decision 2010/656 renewing the restrictive measures against Côte d’Ivoire and Annex IA to Regulation No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire by virtue of which a series of restrictive measures is imposed on that person, entity or body; if such review is to be effective, the European Union authority in question must communicate those grounds to the person or entity concerned, so far as possible, either when that inclusion is decided on or, at the very least, as swiftly as possible after that decision in order to enable that person or entity to exercise, within the periods prescribed, their right to bring an action. Where the party concerned is not afforded the opportunity to be heard before the adoption of an initial act imposing such measures, compliance with the obligation to state reasons is all the more important because it constitutes the sole safeguard enabling the party concerned, at least after the adoption of that act, to make effective use of the legal remedies available to it to challenge the lawfulness of that act.
Decision 2010/656 and Regulation No 560/2005 provide that persons, entities and bodies which are subject to restrictive measures must be informed of the grounds for their inclusion in the lists set out in Annex II to that decision and in Annex IA to that regulation.
In principle, the statement of reasons for an act of the Council which imposes such restrictive measures must refer not only to the legal conditions for application of that act, but also to the actual and specific reasons why the Council considers, in the exercise of its discretion, that such measures must be adopted in respect of the party concerned. Since the Council enjoys broad discretion with regard to the matters to be taken into consideration for the purpose of adopting or of maintaining in force a measure freezing funds, it cannot be required to state with greater precision in what way freezing a person’s funds may in concrete terms contribute to combating obstruction of the processes of peace and national reconciliation or to produce evidence to show that that person might use his or her funds to make such an obstruction in the future.
However, vague and general considerations, such as the indication that the person concerned is the director of the Cyclone group which publishes the newspaper Le Temps, are not of such a nature as to provide an adequate and specific statement of reasons for the contested acts against that person. That indication does not enable it to be understood how the person in question was involved in obstruction of the peace and reconciliation processes through public incitement to hatred and violence and through participation in disinformation campaigns in connection with the 2010 presidential election.
(see paras 38-40, 42, 47-48, 51-52)
2. Restrictive measures taken against a person as a result of their being included in the list set out in Annex II to Decision 2010/656 renewing the restrictive measures against Côte d’Ivoire and in Annex IA to Regulation No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire do not constitute criminal sanctions and, what is more, do not imply any accusation of a criminal nature.
Therefore, an allegation that that decision and that regulation do not provide for the communication, in a precise and detailed manner, of the nature and cause of the accusation must be dismissed, since it is based on the premiss that the restrictive measures in question in the present case are of a criminal nature and that Article 6(3)(a) of the European Convention for the Protection of Human Rights and Fundamental Freedoms is applicable. That provision, which provides that everyone charged with a criminal offence has the minimum right to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him, is applicable only in criminal matters.
(see para. 43)
3. Under the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union, by way of derogation from Article 280 TFEU, decisions of the General Court declaring a regulation to be void shall take effect only as from the date of expiry of the appeal period referred to in the first paragraph of Article 56 of that statute or, if an appeal has been brought within that period, as from the date of dismissal of the appeal. The Council therefore has a period of two months, with an additional extension of 10 days for distance, running from the date of notification of a judgment of the General Court declaring void, in so far as it concerns the applicant, a regulation imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire, to remedy the infringement found by adopting, if appropriate, a new restrictive measure against that applicant.
Moreover, the second paragraph of Article 264 TFEU – under which the General Court may, if it considers this necessary, state which of the effects of the regulation which it has declared void shall be considered as definitive – may also be applied, by analogy, to a decision when there are important reasons of legal certainty, comparable to those which arise where certain regulations are annulled, why the European Union judicature should exercise the power conferred upon it in this context by the second paragraph of Article 264 TFEU.
The existence of a difference between the date of effect of the annulment of Regulation No 25/2011 amending Regulation No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire and that of Decision 2011/18 amending Decision 2010/656 renewing the restrictive measures against Côte d’Ivoire, declared void, in so far as it concerns the same applicant, by the same judgment of the General Court, would be likely to entail a serious threat to legal certainty, since both acts impose identical measures on that applicant. The effects of Decision 2011/18 must therefore be maintained regarding that applicant until the annulment of Regulation No 25/2011 takes effect.
(see paras 58-59)