JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
21 July 2016(*) (1)
(Common foreign and security policy — Restrictive measures imposed on certain persons and entities in view of the situation in Zimbabwe — Freezing of funds — Non-contractual liability)
In Case T‑66/14,
John Arnold Bredenkamp, residing in Harare (Zimbabwe),
Echo Delta (Holdings) PCC Ltd, established in Castletown, Isle of Man),
Scottlee Holdings (Private) Ltd, established in Harare,
Fodya (Private) Ltd, established in Harare,
represented by P. Moser QC, and G. Martin, Solicitor,
applicants,
v
Council of the European Union, represented by B. Driessen and E. Dumitriu-Segnana, acting as Agents,
and
European Commission, represented by S. Bartelt, D. Gauci and T. Scharf, acting as Agents,
defendants,
APPLICATION based on Article 268 TFEU for compensation for the loss allegedly suffered by the applicants following the adoption of Commission Regulation (EC) No 77/2009 of 26 January 2009 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2009 L 23, p. 5), Commission Regulation (EU) No 173/2010 of 25 February 2010 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2010 L 51, p. 13) and Commission Regulation (EU) No 174/2011 of 23 February 2011 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2011 L 49, p. 23),
THE GENERAL COURT (Eighth Chamber),
composed of D. Gratsias (Rapporteur), President, M. Kancheva and C. Wetter, Judges,
Registrar: L. Grzegorczyk, Administrator,
having regard to the written procedure and further to the hearing on 24 February 2016,
gives the following
Judgment
Background to the dispute
1 In its Common Position 2002/145/CFSP of 18 February 2002 concerning restrictive measures against Zimbabwe (OJ 2002 L 50, p. 1), adopted on the basis of Article 15 EU, the Council of the European Union expressed its serious concern about the situation in Zimbabwe, in particular the serious infringements, committed by the Government of the Republic of Zimbabwe, of human rights and specifically of freedom of opinion, freedom of association and freedom of peaceful assembly. The Council therefore imposed restrictive measures for a renewable period of 12 months, to be kept under constant review.
2 Council Common Position 2004/161/CFSP of 19 February 2004, renewing restrictive measures against Zimbabwe (OJ 2004 L 50, p. 66), provided for the renewal of the restrictive measures established by Common Position 2002/145. Article 4(1) of Common Position 2004/161, as amended by Article 1(1) of Council Common Position 2008/632/CFSP of 31 July 2008 amending Common Position 2004/161 (OJ 2008 L 205, p. 53), stated that ‘Member States [were to] take the measures necessary to prevent the entry into, or transit through, their territories of members of the Government of [the Republic of] Zimbabwe and of physical persons associated with them, as well as of other physical persons whose activities seriously [undermined] democracy, respect for human rights and the rule of law in Zimbabwe’ and that ‘the individuals referred to in [that] paragraph [were] listed in the Annex’. Article 5(1) of Common Position 2004/161, as amended by Article 1(5) of Common Position 2008/632, provided that ‘all funds and economic resources belonging to individual members of the Government of [the Republic of] Zimbabwe or to any natural or legal persons, entities or bodies associated with them, or belonging to any other natural or legal persons whose activities seriously [undermined] democracy, respect for human rights and the rule of law in Zimbabwe, [were to] be frozen’ and that ‘the persons and entities referred to in [that] paragraph [were] listed in the Annex’. Common Position 2004/161, as amended, was subsequently extended until 20 February 2010 by Council Common Position 2009/68/CFSP of 26 January 2009 renewing restrictive measures against Zimbabwe (OJ 2009 L 23, p. 43), and then, until 20 February 2011, by Council Decision 2010/92/CFSP of 15 February 2010 extending restrictive measures against Zimbabwe (OJ 2010 L 41, p. 6). Articles 4(1) and 5(1) of Council Decision 2011/101/CFSP of 15 February 2011 concerning restrictive measures against Zimbabwe (OJ 2011 L 42, p. 6), which repealed Common Position 2004/161 and was applicable until 20 February 2012, laid down measures identical to those in Articles 4(1) and 5(1) of Common Position 2004/161.
3 Council Regulation (EC) No 314/2004 of 19 February 2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2004 L 55, p. 1) was adopted, as stated in recital 5 thereof, to implement the restrictive measures provided for by Common Position 2004/161 in so far as they fall within the scope of the EC Treaty. It provided inter alia, in Article 6(1), that the funds and economic resources belonging to members of the Government of the Republic of Zimbabwe and to any natural or legal persons, entities or bodies associated with them as listed in Annex III to that regulation were to be frozen. Article 11(b) of that regulation states that the Commission of the European Communities was to be empowered to amend Annex III to that regulation on the basis of decisions taken in respect of the Annex to Common Position 2004/161.
4 The name of the first applicant, Mr John Arnold Bredenkamp, was added to the list of persons referred to in Articles 4 and 5 of Common Position 2004/161 under Article 2 and Part I of the Annex to Common Position 2009/68. The reasons for the inclusion of his name in item 7 of that annex are given as follows:
‘Businessman with strong ties to the Government of [the Republic of] Zimbabwe. He has provided, including through his companies, financial and other support to the regime (see also items [1 to 9], 12, 14, 20, 24, 25, 28, 29, 31 and 32 in part II).’
5 The name of the first applicant was added to the list of natural or legal persons, entities or bodies referred to in Article 6 of Regulation No 314/2004 by Article 1 of and the Annex to Commission Regulation (EC) No 77/2009 of 26 January 2009 amending Regulation No 314/2004 (OJ 2009 L 23, p. 5). The reasons for the inclusion of his name in item 7 of Part I of that annex are given as follows:
‘Businessman with strong ties to the Government of Zimbabwe. He has provided, including through his companies, financial and other support to the regime (see also items [1 to 9], 12, 14, 20, 24, 25, 28, 29, 31 and 32 in part II).’
6 The names of the second and third applicants, Echo Delta (Holdings) PCC Ltd and Scottlee Holdings (Private) Ltd, were also added to the list of persons referred to in Articles 4 and 5 of Common Position 2004/161 under Article 2 of and the Annex to Common Position 2009/68. Those names were also added to the list of natural or legal persons, entities or bodies referred to in Article 6 of Regulation No 314/2004 under Article 1 of and the Annex to Regulation No 77/2009. The reasons for their inclusion on the lists in question are given as follows: ‘owned by John Arnold Bredenkamp’ (Common Position 2004/161) and ‘owned by John Arnold Bredenkamp’ (Regulation No 77/2009). Moreover, the name ‘Breco International’ was added in item 7 of Part II of the list of persons referred to in Articles 4 and 5 of Common Position 2004/161 under Article 2 of and the Annex to Common Position 2009/68 and in item 7 of Part II of Annex III to Regulation No 314/2004 under Article 1 of and the Annex to Regulation No 77/2009. The reasons for the inclusion of that name on those lists are the same as those given for the inclusion of the names of the second and third applicants on those lists.
7 By application lodged at the Court Registry on 6 April 2009, Mr Bredenkamp and 18 legal persons, including the second and third applicants in the present case, brought an action for the annulment of Regulation No 77/2009 (Case T‑145/09 Bredenkamp and Others v Commission).
8 The names of the first three applicants and Breco International were retained in the lists in question under Decision 2010/92, Commission Regulation (EU) No 173/2010 of 25 February 2010 amending Regulation No 314/2004 (OJ 2010 L 51, p. 13), Decision 2011/101 and Commission Regulation (EU) No 174/2011 of 23 February 2011 amending Regulation No 314/2004 (OJ 2011 L 49, p. 23).
9 The names of the first three applicants and Breco International were removed from the lists in question by Council Decision 2012/97/CFSP of 17 February 2012 amending Decision 2011/101 (OJ 2012 L 47, p. 50) and Commission Implementing Regulation (EU) No 151/2012 of 21 February 2012 amending Regulation No 314/2004 (OJ 2012 L 49, p. 2).
10 Following the adoption of Decision 2012/97 and Implementing Regulation No 151/2012, the Court concluded, in the order of 6 September 2012 in Bredenkamp and Others v Commission (T‑145/09, not published, EU:T:2012:407), that there was no need to rule on the action lodged on 6 April 2009.
Procedure and forms of order sought by the parties
11 By application lodged at the Court Registry on 24 January 2014, the applicants brought the present action.
12 The applicants claim that the Court should:
– order the Council and the Commission to pay the damages and interest specified in the application;
– order the Council and the Commission to pay compound interest at the Euribor rate + 2% from the date of the final judgment;
– order the Council and the Commission to pay the costs.
13 The Council and the Commission contend that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
14 The parties have submitted a number of written pleadings lodged in Case T‑145/09 Bredenkamp and Others v Commission. As there is no valid reason why those pleadings should not be accepted in the present case, they are definitively included in the case file. Moreover, none of the parties objects to the production of those pleadings by any of the other parties.
Law
15 In support of their action, the applicants claim to have suffered five different heads of damage, material and non-material, caused by a series of unlawful conduct affecting the initial inclusion and the retention of their names in the list of persons referred to in Article 6 of Regulation No 314/2004. That unlawful conduct is set out in four heads of claim.
16 The Council considers, as a preliminary point, that the application must be dismissed as manifestly inadmissible or as manifestly unfounded, owing to the manifest inadequacy of the evidence adduced in the chapter relating to the heads of damage which the applicants claim to have suffered.
17 It should be noted in that regard that, in order for the European Union to incur non-contractual liability under the second paragraph of Article 340 TFEU for unlawful conduct on the part of its institutions, a number of conditions must be satisfied: the institutions’ conduct must be unlawful; actual damage must have been suffered; and there must be a causal link between the conduct alleged and the damage pleaded. The cumulative nature of those three conditions governing the establishment of non-contractual liability means that, if one of them is not satisfied, the action for damages must be dismissed in its entirety, and there is no need to examine the other conditions (see judgment of 23 November 2011 in Sison v Council, T‑341/07, EU:T:2011:687, paragraphs 28 and 29 and the case-law cited).
18 With regard to the first applicant’s claim for compensation for the non-material damage he claims to have suffered, it is necessary to examine, first of all, the problems raised by the issue of whether the conduct adopted by the Council and the Commission towards that applicant was lawful. The Council’s arguments concerning whether the action is inadmissible or manifestly unfounded in the light of the evidence annexed to the application must be rejected, at the very least in so far as concerns the non-material damage alleged by the first applicant, as sufficient evidence describing circumstances that could justify such a claim has been put forward in the case. In that context, if it is established that those institutions have not acted unlawfully vis-à-vis the first applicant, the action will have to be dismissed in its entirety in relation to all the applicants, because the reason for the listings at issue is the inclusion of the first applicant on the list of persons referred to in Article 6 of Regulation No 314/2004.
19 The Commission, for its part, makes the preliminary point that the fourth applicant has never been subject to restrictive measures, so that the application must be dismissed as inadmissible as regards that applicant.
20 As stated in paragraph 6 above, the fourth applicant claims to be the legal successor to Breco International (Private), which was added, under the name ‘Breco International’, to the list of legal persons, entities or bodies referred to in Article 6 of Annex III to Regulation No 314/2004 under Article 1 of and the Annex to Regulation No 77/2009. It should be noted in that regard that item 7 of Part II of that annex indicates that Breco International is a legal person established in St Helier (Jersey). According to the explanations given by the Council at the hearing, the existence of such an entity based in Jersey was ascertained from a report by a company search agency annexed to the Council’s rejoinder. According to a change of name certificate issued by the Zimbabwean Register of Companies on 29 September 2010, which was produced by the applicants in connection with the regularisation of the application, the fourth applicant is the Zimbabwean company Breco International (Private) Ltd, which then became Fodya (Private) Ltd. Against that background, first, it is clear that the inclusion of Breco International on the lists in question was not based on evidence of the existence in law of that entity emanating from the Zimbabwean Register of Companies. Second, there is no evidence from which it may be inferred that, by including Breco International on those lists, the institutions concerned intended to add to the lists the name of the fourth applicant, which is established in Harare (Zimbabwe) and whose identification details therefore differ significantly from those of Breco International. Accordingly, the applicants are incorrect to claim that the name of the fourth applicant was included on the lists in question.
21 However, contrary to what is claimed by the Commission, the fact that the fourth applicant has failed to prove that its name was included on the lists at issue has no bearing on the admissibility of the present claim for damages, in so far as such a claim is made by that applicant. Indeed, the question whether the inclusion of the name of Breco International or the names of the first three applicants on the lists at issue caused the fourth applicant to suffer harm for which redress must be made in accordance with the rules set out in paragraph 17 above has no bearing on the admissibility of the action, but is linked to whether that applicant suffered actual harm and whether there is a causal link between the alleged unlawful conduct vitiating the inclusion of the first three applicants on the lists at issue and that harm.
22 As a consequence, while it is true that the applicants’ argument is not correct, in so far as they claim that the name of the fourth applicant was included on the lists in question, the fact nevertheless remains that the action is admissible as regards the fourth applicant.
23 As regards the claim that the Council, and the Commission acted unlawfully, it should be noted, first of all, that even though in the introduction to the application the applicants refer both to common positions and decisions adopted on the basis of provisions of the EU Treaty relating to common foreign and security policy (CFSP) and imposing restrictive measures on them, and to regulations adopted on the basis of EC and FEU Treaty provisions, in their complaints alleging unlawful conduct they refer only to those regulations. Accordingly, it must be concluded that the action seeks to establish the non-contractual liability of the European Union on the sole basis of the regulations in question, not on the basis of the common positions and decisions adopted under the CFSP.
24 In order to satisfy the condition for the European Union to incur non-contractual liability for the unlawfulness of the conduct of the institutions that is objected to, it is necessary to establish a sufficiently serious breach of a rule of law intended to confer rights on individuals. That is by definition the case where the fundamental right to property is at stake (judgment of 23 November 2011 in Sison v Council, T‑341/07, EU:T:2011:687, paragraphs 33 and 75).
25 In the present case, the applicants contend that, insofar as Regulations No 77/2009, No 173/2010 and No 174/2011 concern them, those regulations (i) lack any proper legal basis, (ii) are vitiated by errors of law and of fact, (iii) are vitiated by breaches of essential procedural requirements and (iv), in view of the unlawful conduct referred to above, constitute a breach of the right to property.
26 It should be observed, as a preliminary point, that, with regard to the requirement that the legal rule alleged to have been infringed must be intended to confer rights on individuals, the purpose of restrictive measures is to limit the exercise of certain rights by certain targeted persons, primarily their right to property. However, in the light of the objectives which a system of restrictive measures such as the system in question seeks to attain, the limitation on the right to property satisfies the criteria laid down in Article 52(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) (judgment of 27 February 2014 in Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraphs 195 to 205). Moreover, the applicants do not claim that that system infringes their right to property as such. It should, however, be recalled that the right to restrict the right to property must be exercised in accordance with the procedural and substantive rules laid down for that purpose. If those rules are not adhered to, the court will find that there has been an unjustified restriction on the right to property in a given case (see, to that effect, judgment of 3 September 2008 in Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraphs 352, 353 and 368 to 370). In consequence, insofar as the pleas raised in support of the action seek to establish that the regulations which froze the assets of the first three applicants are vitiated by unlawful application of the procedural and substantive rules governing the power to restrict their right to property, they are based on rules conferring rights on individuals.
27 It is necessary, first of all, to examine the complaint that there is no legal basis for the contested acts, then the complaint alleging breach of essential procedural requirements and, lastly, the two other complaints concerning the substantive legality of those acts.
The claim that there is no legal basis for the contested acts
28 The applicants state that Articles 60 and 301 EC, on which Regulation No 314/2004 is based, concern, at most, third countries and their leaders as well as individuals and entities associated with those leaders or controlled by them. However, none of the applicants falls into any of those categories, even if it were accepted that the first applicant had strong ties with the Zimbabwean Government, which the applicants dispute. It is not any type of association at all, irrespective of personal conduct, that warrants the inclusion of the name of a Zimbabwean business man on the list of persons referred to in Article 6 of that regulation. According to the applicants, the right to effective judicial protection means that they may seek reparation for the harm suffered as a result of the fact that there was no legal basis for the contested acts, which were therefore unlawful. At all events, they submit that even if the first applicant were to be considered to have links with the Zimbabwean Government, that would not entitle the institutions concerned automatically to add the names of the second and third applicants and that of Breco International to the lists in question.
29 By that line of argument, the applicants claim, in essence, that, interpreted in the light of Articles 60 and 301 EC, which form its legal basis, Article 6 of Regulation No 314/2004 is directed at third countries and their leaders and, insofar as concerns natural or legal persons, at most those directly associated with or controlled by those leaders, not business men and undertakings such as the applicants.
30 Article 60(1) EC provides that, if, in the cases envisaged by Article 301 EC, action by the Community is deemed necessary, the Council may take the necessary urgent measures on the movement of capital and on payments as regards the third countries concerned. According to Article 301 EC, where provision is made, in a common position or in a joint action adopted according to the Treaty on European Union relating to the CFSP, for action by the Community to interrupt or to reduce, in part or completely, economic relations with one or more third countries, the Council is to take the necessary urgent measures.
31 Having regard to the wording of Articles 60 and 301 EC, especially to the expressions ‘as regards the third countries concerned’ and ‘with one or more third countries’ used there, those provisions concern the adoption of measures vis-à-vis third countries, since that concept may cover the leaders of such a country and also individuals and entities associated with or controlled, directly or indirectly, by them. The possibility cannot be ruled out that those in charge of certain businesses may be subject to restrictive measures adopted on the basis of Articles 60 and 301 EC, provided it is established that they are associated with the leaders of the third country targeted (see, to that effect, judgment in Tay Za v Council, C‑376/10 P, EU:C:2012:138, paragraphs 53 and 55).
32 Regulation No 314/2004 and the contested regulations amending it cited in paragraph 25 above concern the adoption of restrictive measures against the Republic of Zimbabwe.
33 According to recital 2 of Regulation No 314/2004, in view of the serious violations of human rights perpetrated by the government of that country, it was necessary to maintain the restrictive measures that had been in place since February 2002.
34 The restrictive measures in question took the form of the freezing of all the funds and economic resources belonging to the persons falling within the categories described in Article 6 of Regulation No 314/2004. Those persons are members of the Zimbabwean Government and natural or legal persons, entities and bodies associated with those members.
35 In the present case, it is apparent from the Annex to Regulation No 77/2009 that the name of the first applicant was included on the list of natural and legal persons, entities and bodies referred to in Article 6 of Regulation No 314/2004 on the ground that he had ‘strong ties to the Government of Zimbabwe’ and had ‘provided, including through his companies, financial and other support to the regime’ (see paragraph 5 above). The inclusion of that name was made under the power conferred on the Commission by Article 11(b) of that regulation and following the adoption of Common Position 2009/68.
36 As submitted by the Council and the Commission, the reasons for the inclusion of that name are wholly consistent with the concept of a person ‘associated with’ the leaders of the country affected by the restrictive measures. Indeed, in the light of the objectives of the restrictive measures, namely to prevent any assistance being given to the government targeted, the concept of a person ‘associated with’ must also include persons engaged in activities such as those described in paragraph 35 above. As a consequence, the inclusion of the name of the first applicant by Regulation No 77/2009 on the list of natural and legal persons, entities and bodies referred to in Article 6 of Regulation No 314/2004 is legitimately based on Articles 60 and 301 EC, on which Regulation No 77/2009 is itself, in turn, based.
37 That conclusion is also applicable with regard to the legal persons whose names are included on the list of persons referred to in Article 6 of Regulation No 314/2004 which are owned by the first applicant. As the Council argued, in order for restrictive measures to be effective, it clearly must be possible to adopt such measures in respect of any legal person owned by a natural person associated with the leaders of the country concerned. It follows that, as the names of the second and third applicants were included on the lists in question on the basis that they were owned by the first applicant, the inclusion of those names is legitimately based on Articles 60 and 301 EC. The same applies with regard to the inclusion of Breco International, which is based on exactly the same reason, so that Regulation No 314/2004 was legitimately based on those articles as regards the inclusion of that company.
38 The Court therefore finds that the legal basis for the inclusion of the first three applicants and Breco International on the list of persons referred to in Article 6 of Regulation No 314/2004 was not unlawful.
39 Furthermore, insofar as the applicants’ argument that their conduct does not warrant them being classified as being associated with the Government of Zimbabwe may be interpreted as a submission that they are not associated with that government within the meaning of Article 6 of Regulation No 314/2004, as interpreted in paragraph 34 above, such an argument is essentially the same as the plea alleging errors in the assessment of the facts, which will be examined in paragraphs 65 to 94 below.
The alleged breach of essential procedural requirements
40 The applicants maintain that the measures by which the names of the first three applicants and that of Breco International were included on the list of persons referred to in Article 6 of Regulation No 314/2004 do not contain concrete, specific reasons such as to enable them to ascertain whether the inclusion of those names is well founded, having regard to the relevant legal requirements, or, therefore, to contest those measures on the ground that they are unlawful. According to the applicants, the statement of reasons for the measures in question should have been provided to them at the time the measures were adopted and failure to do so cannot be remedied once proceedings have been commenced. In any event, evidence substantiating those reasons should have been produced and the applicants given an opportunity to be heard before the first decision to renew the listings was made. They were given no such evidence or opportunity, the correspondence with the Council being limited to procedural questions.
41 By those arguments, the applicants raise two complaints. The first alleges failure to state adequate reasons and the second breach of the rights of the defence on the ground that (i) none of the evidence relied on against them was provided and (ii) it was not possible for them to address their arguments to the Council and the Commission. The alleged breach of the right to be heard also compromised their right to effective judicial protection.
The alleged failure to state adequate reasons
42 It is settled case-law that the purpose of the obligation to state the reasons for an act adversely affecting a person, which is the corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to determine whether the act is well founded or whether it is vitiated by an error permitting its validity to be contested before the EU judicature and, second, to enable that judicature to review the lawfulness of the act. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the statement of reasons to specify all the relevant matters of fact and law, since the question whether the statement of reasons is adequate must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. In particular, the reasons given for a decision are sufficient if it was adopted in circumstances known to the party concerned which enable him to understand the scope of the measure adversely affecting him (judgment of 15 November 2012 in Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraphs 49, 53 and 54).
43 In the present case, first, it should be noted that the names of the first three applicants and that of Breco International were included on the list of persons referred to in Article 6 of Regulation No 314/2004 against a background of serious general violations of human rights in Zimbabwe and the blocking of the implementation of the global political agreement signed on 15 September 2008 by the party in power and the opposition. That situation was described in a series of CFSP instruments, such as in recital 1 of Common Position 2002/145, recital 2 of Common Position 2003/115/CFSP of 18 February 2003 amending and extending Common Position 2002/145 (OJ 2003 L 46, p. 30), recital 6 of Common Position 2004/161, recital 3 of Common Position 2009/68 and recital 3 of Decision 2010/92. Recitals 1 and 2 of Regulation No 314/2004 also refer to Common Position 2002/145 and to the serious threat to human rights in Zimbabwe, while recital 2 of Regulation No 77/2009 refers to the adoption, on the same day, of Common Position 2009/68. The first applicant, a well-known businessman in that country according to his own statement, who lives in Harare, does not claim that he was unaware of that background.
44 Second, with regard to the initial inclusion of the first applicant on the list in Annex III to Regulation No 314/2004, Regulation No 77/2009 states that he is a ‘businessman with strong ties to the Government of Zimbabwe’ and that he ‘has provided, including through his companies, financial and other support to the regime (see also items 1 [to 9], 12, 14, 20, 24, 25, 28, 29, 31 and 32 in part II)’. It is possible to understand from those reasons that the first applicant is regarded as having strong ties and, therefore, as being ‘associated with’ (see paragraphs 35 to 37 above) that government because he has provided financial support to the regime, including through his companies. The reference to ‘items 1 [to 9], 12, 14, 20, 24, 25, 28, 29, 31 and 32 in part II)’of Annex III relates to 18 companies. In view of that content, it must be concluded that the reasons underlying the inclusion of the first applicant on the lists of persons referred to in Article 6 of Regulation No 314/2004 enable him — as the reasons relate to his personal conduct — to assess whether the listing was justified and to challenge it before the EU judicature, which, in turn, is able to exercise the powers of review conferred on it. The same applies to the legal persons concerned, which are included on that list because they are owned by the first applicant and constitute, according to the reason given, the instruments through which the first applicant provides support to the Zimbabwean regime.
45 As a consequence, the information provided by the Council and the Commission in Regulation No 77/2009 was sufficient for it to be possible to be apprised of the factors which led to the freezing of the funds of the first three applicants and Breco International. The statement of reasons necessary was therefore provided at the same time as the adoption of the decision freezing the funds, which, in view of the surprise effect required of a measure freezing funds (judgment of 15 November 2012 in Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 74), fulfills the requirements relating to the communication of the grounds for such a measure.
46 Moreover, given that the decision to maintain the name of the first three applicants and Breco International on the list of persons referred to in Article 6 of Regulation No 314/2004 put into effect by Regulation No 173/2010 and No 174/2011 is based on the same grounds as those underlying their original inclusion, the statement of reasons for those regulations must be considered to be of the requisite legal standard in that regard.
47 In so far as the applicants contend that the reasons in question do not chime with the truth of the facts, it is sufficient to observe that that argument concerns the substantive legality of the acts in question (judgment of 15 November 2012 in Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 60) and will therefore be examined in connection with the complaint alleging errors in the assessment of the facts in paragraphs 65 to 94 below.
The alleged infringement of the right to be heard
48 In view of the surprise effect necessary for a measure freezing funds (see paragraph 45 above), the right to be heard, which must be observed in cases involving restrictive measures, does not require, according to established case-law, either the European Union authorities to communicate to the person or entity concerned the grounds for the inclusion of his or its name on the list imposing restrictive measures before the name of the person or entity is entered in the list for the first time (see judgment of 4 February 2014 in Syrian Lebanese Commercial Bank v Council, T‑174/12 and T‑80/13, EU:T:2014:52, paragraph 137 and the case-law cited) or the Council to hear that person or entity of its own motion (judgment of 14 October 2009 in Bank Melli Iran v Council, T‑390/08, EU:T:2009:401, paragraph 93 and 98).
49 On the other hand, where the Council initially froze assets for a fixed period, it must, in principle, give the persons concerned an opportunity to be heard before extending the application of such a measure. In order for them to be effective, acts extending the application of such a measure are not necessarily required to have a surprise effect (see, to that effect, judgment of 12 March 2014 in Al Assad v Council, T‑202/12, EU:T:2014:113, paragraph 70).
50 While it is true that where, as in the present case (see paragraphs 43 to 46 above), sufficiently precise information enabling the person concerned to state his point of view effectively on the evidence adduced against him by the institutions concerned has been communicated, observance of the rights of the defence does not mean that the institutions are obliged spontaneously to grant access to the documents in their file, the fact nonetheless remains that, on the request of the party concerned, the institutions are required to provide access to all non-confidential official documents concerning the measure at issue (see, to that effect, judgment of 14 October 2009 in Bank Melli Iran v Council, T‑390/08, EU:T:2009:401, paragraph 97).
51 Furthermore, the right to be heard prior to the adoption of decisions maintaining restrictive measures against persons already covered by such measures presupposes that the Council has new incriminating evidence against those persons (see, to that effect, judgment of 12 March 2014 in Al Assad v Council, T‑202/12, EU:T:2014:113, paragraph 71).
52 In the present case, it is apparent from the documents before the Court that, on 5 February 2009, a lawyer made an application to the Commission for access to the documents relied on to justify the initial inclusion of the first applicant, pursuant to Regulation No 77/2009, on the list of persons referred to in Article 6 of Regulation No 314/2004. The application was made on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). By letter of 5 March 2009, the Commission acknowledged that it was in possession of two documents relevant to the application. In particular, it acknowledged that it had two documents emanating from the ‘European correspondence’ (COREU) system containing, inter alia, information on the inclusion of the first applicant and the companies owned by him on the list of persons referred to in Article 6 of Regulation No 314/2004. However, the Commission refused to grant access to those documents on the basis of the third indent of Article 4(1)(a) of Regulation No 1049/2001, concerning the public interest as regards international relations.
53 By letter of 9 March 2009, a ‘confirmatory application’ was submitted, this time on behalf of the first applicant and 16 companies, including the second and third applicants and Breco International. By letter of 3 July 2009, the Commission refused to grant access to the documents in question on the same ground as that relied on in its first refusal.
54 Moreover, by letter of 6 June 2012, the first applicant submitted an application to the Council for access to information concerning the inclusion of his name, that of several of his companies, including the second and third applicants, and of Breco International on the list of persons referred to in Article 6 of Regulation No 314/2004. That application was made on the basis of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2000 L 8, p. 1). By letter of 18 September 2012, the Council answered that letter, providing copies of four documents from the General Secretariat of the Council to the Delegations of the Member States. Those documents contained, essentially, information concerning the identity of the first three applicants and Breco International. One of the documents, entitled ‘Coreu CFSP/0053/09’, refers to restrictive measures imposed on the first applicant by the Federal authorities of the United States of America on account of the financial support which he provided to the Zimbabwean Government through his web of companies. That document also states that the first applicant is an associate of a Minister in that government and of the President of Zimbabwe, Mr Robert Mugabe.
55 It is apparent from the above that the first three applicants and Breco International approached the Commission, no later than 9 March 2009, requesting access to evidence relied on to justify the inclusion of the first three applicants and Breco International on the list of persons referred to in Article 6 of Regulation No 314/2004. However, the Commission, which adopted both Regulation No 77/2009, under which the applicants were first included on the lists in question, and Regulations No 173/2010 and No 174/2011, did not comply with that request.
56 Even if that failure to comply on the part of the Commission may be regarded as capable of having prevented the first three applicants from stating their point of view effectively on the measure which the Commission had adopted in their regard, it must nonetheless be ascertained whether, given the circumstances of the case, that simply amounts, in any event, to an immaterial error on the basis that, had there been no error, the applicants would not have been better able to defend themselves (judgment of 4 February 2014 in Syrian Lebanese Commercial Bank v Council, T‑174/12 and T‑80/13, EU:T:2014:52, paragraph 146).
57 In that regard, it should be noted that the applicants state that, on 19 February 2009, they submitted to the Foreign & Commonwealth Office (FCO), pursuant to the Freedom of Information Act 2000, an application for access to documents concerning the inclusion of the first three applicants and Breco International on the list of persons referred to in Article 6 of Regulation No 314/2004. In answer to that request, on 2 June 2009 the FCO provided a list of 17 documents and copies of 2 other documents, all of which were available to the public. Those documents included a report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo (‘the Panel of Experts’) of 8 October 2002, endorsed by the United Nations Security Council (UN) (‘the report of 8 October 2002’), a series of press articles concerning the first applicant and a number of internet links to information on the companies in question.
58 Furthermore, following the adoption of Decision 2011/101 and Regulation No 174/2011, the first applicant submitted a further request to the FCO on 4 November 2011 relating to documents concerning his inclusion on the list of persons referred to in Article 6 of Regulation No 314/2004. In reply to that request, the FCO provided the first applicant with a list of 15 documents, including, inter alia, the report of 8 October 2002 and a series of press articles.
59 It should also be noted that, as observed by the Council, the Commission informed the first applicant that his name had been included on the list of persons referred to in Article 6 of Regulation No 314/2004 by letter of 27 January 2009 and invited him, by letter of 18 December 2009, to submit his observations and any request to remove his name from the list to the Council. The first applicant also wrote, by letters of 26 October and 26 November 2009 and 10 February 2010, to all the members of the Council, setting out his observations on the inclusion of his name and the names of his companies on the lists in question. By letter of 16 February 2010, the Council disputed the first applicant’s arguments, referring, inter alia, to the evidence contained in the second report drawn up under the aegis of the UN on 15 October 2003 (‘the report of 15 October 2003’) by the Panel of Experts. The Council informed the first applicant that those names would be maintained on the lists in question under Decision 2010/92. The first applicant replied to that letter by letter of 19 April 2010, to which the Council replied by letter of 7 June 2010. Lastly, by letter of 13 May 2011, the first applicant submitted his observations to the High Representative of the Union for Foreign Affairs and Security Policy and received a reply from the European External Action Service dated 29 June 2011. Moreover, in reply to two letters from the first applicant of 11 October and 3 November 2011, the Council pointed out, by letter of 9 November 2011, that he could at any time submit a request, with supporting documentation, for the restrictive measures to be reconsidered.
60 First, it is clear from the foregoing that the first three applicants and Breco International were given access, through the FCO, to a body of data, comprising the main evidence and information that served as the basis for their inclusion on the list of persons referred to in Article 6 of Regulation No 314/2004. On the one hand, the applicants repeatedly claim, in paragraphs 52.3 and 55 of the application, that the name of the first three applicants and Breco International was included on the lists in question at the initiative of the United Kingdom and that it is unlikely that the Council or the Commission have in their possession any evidence other than that provided to them by the FCO. On the other hand, the Council states that the evidence obtained by the applicants from the FCO comprises the bulk of the evidence taken into account.
61 Second, it is apparent that, after being given access to that evidence, the first three applicants and Breco International established and maintained regular contact with the Council concerning the substantive issues relating to the inclusion and maintenance of their names on the list of persons referred to in Article 6 of Regulation No 314/2004.
62 In the light of the above considerations, it is clear that the fact that the Commission did not disclose to the first three applicants the evidence relied on for the inclusion of their names on the list of persons referred to in Article 6 of Regulation No 314/2004 did not have the effect of infringing their rights of defence. Indeed, that did not prevent them from putting their case, after being apprised of a body of evidence which they themselves regard as comprising the bulk of the information used by the institutions concerned as the basis for a statement of reasons which, moreover, did not change throughout the period of their inclusion on the lists in question. Furthermore, in view of the considerations set out in paragraph 20 above, from which it is apparent that the fourth applicant was not included on the lists in question, there can have been no infringement of that applicant’s rights of defence.
The alleged errors in the assessment of the facts
63 According to the applicants, the institutions concerned did not refer to precise and serious information or evidence relating to activities seriously undermining democracy, respect for human rights and the rule of law in Zimbabwe, as required for the purpose of inclusion in the list of persons to whom Article 6 of Regulation No 314/2004 applies. The contention that there is insufficient evidence capable of justifying such a listing is borne out, according to the applicants, by a series of documents relating to the first applicant which were exchanged by certain United Kingdom officials. According to the applicants, the majority of the evidence relied on by the Council in the present proceedings was not taken into account by the Council or the Commission at the time when the first three applicants and Breco International were included on the lists at issue. With regard, in particular, to the reports of 8 October 2002 and 15 October 2003 referred to by the Commission, the applicants contend that they do not concern the first applicant’s relationship with the Zimbabwean Government in 2009 and that it is apparent from the report of 15 October 2003 that all the matters raised had in the meantime been resolved, the first applicant having, moreover, ended his involvement in investment in the exploitation of minerals in the Democratic Republic of the Congo in response to pressure put on him by the Zimbabwean Government. The imposition of restrictive measures on the first applicant by the United States authorities cannot justify the adoption of the restrictive measures at issue. On the other hand, it is public knowledge that the first applicant was in fact in dispute with that government following the part he played in the delivery of a letter proposing that President Mugabe retire and a Government of National Unity be formed. Following those events, the Zimbabwean Government prosecuted and jailed the first applicant in 2006 and even withdrew his Zimbabwean nationality on the ground that he also possessed South African nationality. The status of the first applicant’s immovable property was also very uncertain as a result of action taken against him by that government.
64 By their arguments, first, the applicants maintain, in essence, that the Council and the Commission categorised the first three of them and Breco International as ‘associated’ with the Zimbabwean Government without claiming or proving that they were involved in activities which seriously undermined democracy, respect for human rights and the rule of law in Zimbabwe. Second, the applicants submit that, in any event, the grounds for the inclusion of the first three applicants and Breco International on the lists at issue are not substantiated by sufficient evidence.
65 The applicants’ argument that there is not sufficient information or evidence to warrant the claim that they were involved in activities that seriously undermined democracy, respect for human rights and the rule of law in Zimbabwe is based on an incorrect legal premiss. Article 5(1) of Common Position 2004/161, as amended by Article 1(3) of Common Position 2008/632, provides as follows:
‘All funds and economic resources belonging to individual members of the Government of Zimbabwe or to any natural or legal persons, entities or bodies associated with them, or belonging to any other natural or legal persons whose activities seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe, shall be frozen. The persons and entities referred to in this paragraph are listed in the Annex.’
66 Accordingly, association with members of the Zimbabwean Government constitutes a ground for inclusion of the name of a person on the list referred to in Article 6(1) of Regulation No 314/2004, in accordance with the provisions of that article, without there being any need for it also to be shown that such a person directly engages in activities which seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe.
67 That conclusion is not called into question by the wording of recital 4 of the English version of Common Position 2009/68, relied on by the applicants, which states ‘moreover, certain persons and entities associated with the Government of Zimbabwe and whose activities seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe should be added to the list set out in the Annex to Common Position 2004/161/CFSP’.
68 Given that the applicants claim that the inclusion of the first three applicants and Breco International on the list of persons referred to in Article 6 of Regulation No 314/2004 is unlawful because they do not meet the requirements for inclusion laid down in that provision, the question whether the reasons given for the inclusion of the first applicant on that list are well founded must be determined by reference to that provision. Moreover, since, according to Article 301 EC, to which Article 60 EC refers, the adoption of a common position is a prerequisite for the adoption of a regulation such as Regulation No 314/2004, Article 6 of the latter must, in turn, comply with the provisions of Common Position 2004/161, which forms the basis of that regulation. That article refers to the members of the Zimbabwean Government and any person, entity or body associated with those members. The same description appears in Article 5(1) of Common Position 2004/161, as amended by Article 1(3) of Common Position 2008/632 (see paragraph 65 above), and in Article 5(1) of Decision 2011/101.
69 It is apparent from the above that the first applicant’s association with the Zimbabwean Government is capable of justifying his inclusion on the list of persons to whom Article 6 of Regulation No 314/2004 applies without the Council or the Commission also being required to show that he was involved in activities that seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe.
70 As regards the applicants’ argument calling into question the assessment of the institutions concerned as to the first applicant’s association with the Zimbabwean Government, it should be noted, first of all, that the effectiveness of the judicial review guaranteed by Article 47 of the Charter requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to include a person’s name on the list of persons subject to restrictive measures, the Courts of the European Union are to ensure that that decision, which affects that person individually, has been taken on a sufficiently solid factual basis. That entails, in this instance, a verification of the factual allegations in the summary of reasons underpinning Regulations No 77/2009, No 173/2010 and No 174/2011, in order to review whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support those regulations, are substantiated (see, to this effect, judgment of 21 April 2015 in Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 46).
71 Furthermore, in line with the action taken by the European Union at international level to promote democracy, the rule of law, human rights and the other principles referred to in Article 11 EU and Article 21 TEU, the restrictive measures at issue in the present case are intended to step up the political pressure on a foreign regime whose actions seriously undermine those principles by constantly threatening the survival of certain sections of the population. The freezing of the funds or other economic resources of any person, entity or body that is ‘associated’ with such a regime in the sense that that person, entity or body has a special relationship with the regime that contributes to its survival constitutes, according to Article 5 of Common Position 2004/161, Article 5 of Decision 2011/101 and Article 6 of Regulation No 314/2014, such a measure.
72 Accordingly, in carrying out the assessment of the importance of what was at stake, account may be taken of the context of the measures at issue in the present case, of the fact that there was an urgent need to adopt such measures intended to put pressure on the Zimbabwean regime in order for it to stop the policy of violence and large-scale intimidation directed against the population of that country, and of the difficulty in obtaining more specific evidence in a State in such a situation with an authoritarian regime. In such a context, the institutions concerned discharge the burden of proof borne by them if they present to the Courts of the European Union a set of indicia sufficiently specific, precise and consistent to establish that there is a sufficient link between the person subject to a measure freezing his funds and the regime being combated (see, to that effect, judgment of 21 April 2015 in Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraphs 47 and 53).
73 In the present case, first, the Council and the Commission contend that the first applicant is a businessman of considerable standing who has, of his own admission, continuously had a direct relationship with the regime in power in Zimbabwe. That relationship took the form of the first applicant’s involvement in sensitive political issues of major importance, such as the negotiations in connection with the agricultural land redistribution policy. According to a press report of 24 May 2002, the first applicant had connections that gave him privileged access to politicians, which justified his involvement as intermediary between the Zimbabwean Government and the Commercial Farmers’ Union of Zimbabwe, whose members were the target of the government’s land confiscation policy. Those connections are also apparent from the provision by the first applicant of services of a more personal nature, such as the provision of air transport to members of that government or their family members. The first applicant confirmed those facts in the appeal which he lodged with the Office of Foreign Asset Control (OFAC) of the United States Treasury.
74 Next, the Council and the Commission rely on the reports of 8 October 2002 and 15 October 2003 (see paragraphs 57 and 59 above).
75 It is apparent from the report of 8 October 2002 that, notwithstanding a diminishing in the intensity of the conflicts involving seven African armies within the Democratic Republic of the Congo, certain groups linked to the armed forces of the Republic of Rwanda, the Republic of Uganda and the Republic of Zimbabwe exercised economic control over certain areas of the Democratic Republic of the Congo and appropriated revenue from the extraction of diamonds, cobalt, copper and germanium under the pretext, for example, in the case of the Republic of Zimbabwe, of payment for security services provided by that State’s armed forces to the Government of the Democratic Republic of the Congo. That exploitation network, which, according to the report, involves Congolese and Zimbabwean politicians and government officials and businessmen, succeeded in transferring from the Congolese public sector ownership in mineral deposits with a value of at least 5 million US dollars (USD) over a period of three years. In that context, according to the report, the first applicant had the right to exploit, via Tremalt Ltd, a company he represents, rights in deposits held as concessionaire by Générale des carrières et des mines (Gécamines), a Congolese public company. Those deposits comprised 2 700 000 t of copper and 325 000 t of cobalt and the right to exploit them was granted for 25 years. The value of those deposits is estimated at more than USD 1 billion, the first applicant having paid to the Democratic Republic of the Congo only USD 400 000 for those rights. Tremalt participated in the operation in question through a joint venture with Kababankola Mining Company Sprl, in which Tremalt had an 80% share to Gécamine’s 20%, though the latter derived no tangible benefit from that operation. The Panel of Experts states that it has in its possession the confidential tripartite profit sharing agreement relating to the operation in question. Under that agreement, Tremalt retained 32% of the net profits, the remaining 68% being shared equally by the Democratic Republic of the Congo and the Republic of Zimbabwe. Under that agreement, which was the subject of a memorandum from the Zimbabwe Defence Minister to President Mugabe in August 2002, Tremalt undertook to supply the armed forces of the Democratic Republic of the Congo and the Republic of Zimbabwe with motor vehicles, trucks, buses and cash payments as necessary, the cost of so doing being deducted from the two countries’ profit share. Furthermore, Tremalt and the armed forces of the Republic of Zimbabwe established a forum ‘to look after the interests of the Zimbabweans’, consisting of a Zimbabwean General, Brigadier and Air Commodore, the first applicant and two other members of the Board of Kababankola Mining Company. The Panel of Experts refers to certain information relating to the exploitation of the deposits in question prior to the transfer to Tremalt. It also refers to the view of mining industry experts that Tremalt’s claim that it suffered significant losses between February 2001 and July 2002 lacks credibility.
76 Furthermore, according to the report of 8 October 2002, through his companies Aviation Consultancy Services and Raceview Enterprises, the first applicant was a major supplier of spare parts for military aircraft, camouflage cloth, batteries, fuels and lubricating oils, boots and rations to the Zimbabwean armed forces.
77 On that basis, the Panel of Experts included the names of Tremalt and the first applicant in Annex I and Annex II to the report of 8 October 2002 respectively as members of networks contributing, directly or indirectly, to the funding of the conflicts in question and in respect of which a wealth of information and documentary evidence had been gathered. Annex I is entitled ‘Companies on which the Panel recommends the placing of financial restrictions’. Annex II it entitled ‘Persons for whom the Panel recommends a travel ban and financial restrictions’.
78 In the observations which he submitted to the Panel of Experts in January 2003, the first applicant maintained that the confidential tripartite agreement for sharing the profits arising from the exploitation of deposits for which Gécamines enjoyed the concession in the Congo had in fact been signed but that ‘events overtook’ the agreement, which was not therefore ultimately put into effect.
79 After receiving and examining those comments and those submitted by the other parties concerned, the Panel of Experts adopted the report of 15 October 2003. Following discussions with the parties concerned, it divided them into five categories. The first category included the names of persons and entities with which the panel considered that it had found a solution that was in the interest of both the persons and entities concerned and the Democratic Republic of the Congo. The names of those persons and entities were to be regarded as having been removed from the lists in the annexes to the report of 8 October 2002. The Panel stressed that that resolution did not invalidate the information obtained previously on the activities of those parties, but simply meant that there were no outstanding issues and that the problems which led to their inclusion in the annexes to that report had been resolved to the panel’s satisfaction and to that of the undertakings and individuals concerned.
80 The second category included persons who had reached a provisional resolution with the Panel of Experts, subject to fulfillment of a number of commitments on corporate governance and the establishment of improved controls and procedures. Compliance with the commitments would be verified after the end of the panel’s mandate. That task was therefore entrusted to the ‘contact point’ of the Organisation for Economic Cooperation and Development (OECD) in the United Kingdom. It that regard, it is apparent from the document prepared by the panel entitled ‘Reaction No 25’ that the first applicant, Tremalt and the Kababankola Mining Company gave five series of undertakings concerning their cooperation with the Congolese authorities, the possible renegotiation of the terms of the joint venture agreement and financial transparency. Unlike the provisions made in respect of the first category (see paragraph 79 above), there is nothing in that part of the report of 15 October 2003 to suggest that the names of the persons and entities in the second category were to be regarded as having been removed from the lists in the annexes to the report of 8 October 2002. As a consequence, the report of 15 October 2003 does not have the effect of removing the name of the first applicant from the list of persons for whom the Panel of Experts proposed restrictive measures and a travel ban.
81 Lastly, the Council and the Commission refer to a series of public sources.
82 The Council refers to documents identified in the response of the United Kingdom authorities to the request for access to documents submitted by the applicants on 19 February 2009 (see paragraph 57 above). Those documents include articles available on the internet providing accounts of the first applicant’s relationship with the Zimbabwean Government as intermediary in negotiations for land redistribution, as fuel supplier in 2002, but also as supplier of arms and as intermediary in connection with mining in the Congo, according to the report of 8 October 2002. Reference is also made to a document of the Nederlands instituut voor Zuidelijk Afrika (Netherlands Institute for Southern Africa, the Netherlands) that is available online and provides certain information from public sources on the first applicant’s career path, his relationship with the regime of Ian Smith, his circumvention of international sanctions imposed on that regime, his tobacco trading concession business and his relationship with the regime of President Mugabe involving the supply of arms and fuel, mediation in the redistribution of agricultural land and involvement in mining in the Congo. Those activities are also covered by reports dated May 2000 and October 2002 produced by the Council.
83 The Commission, for its part, refers to press articles covering the first applicant’s involvement in the struggle for power within the ZANU-PF party in 2006 as financial backer of certain members of the government who were potential successors to President Mugabe. Moreover, those articles relate to the first applicant’s close ties with that president but also refer to an investigation subsequently launched by the Zimbabwean authorities into the first applicant. According to those reports, the first applicant fled Zimbabwe as a result of that investigation, although his associates claimed that he was on a business trip.
84 In those circumstances, it is clear that the institutions concerned have presented a set of indicia sufficiently specific, precise and consistent to establish that there is a sufficient link between the first applicant and the regime against which the restrictive measures in question were directed. The circumstances described in the texts referred to in paragraphs 82 and 83 above give grounds for believing that, for long periods of time, the first applicant had links with the Zimbabwean regime such as to enable him to pursue a broad range of activities from which that regime profited as a direct result.
85 Thus, contrary to the applicants’ assertions, the report of 15 October 2003 does not invalidate either the findings of fact or the conclusions of the report of 8 October 2002. On the contrary, according to the latter report, a recommendation remained in place that the first applicant be subject to financial restrictions and a travel ban, as his activities were still to be monitored (see paragraphs 79 and 80 above). Moreover, even if the confidential tripartite agreement for the distribution of profits arising from the exploitation of deposits for which Gécamines held the concession in the Congo was not put into effect (see paragraph 78 above), the fact that he does not dispute that the agreement was signed or the terms of the agreement is at odds with the first applicant’s central claim that the Zimbabwean Government had no connection with that investment and the first applicant has failed to adduce any evidence to explain the nature of that government’s involvement, albeit in an agreement that was not put into effect.
86 The first applicant’s claims that he was obliged by the Zimbabwean Minister for National Security to abandon his investment in the Congo no later than the end of 2004 and was persecuted by the Zimbabwean regime in 2006 cannot alter the conclusion set out in paragraph 84 above.
87 Indeed, even if the first applicant was obliged to dispose of his investment in the Congo at the end of 2004 and his relationship with the Zimbabwean Minister for National Security deteriorated subsequently, it is apparent from a number of press reports produced by the Commission dated 2006 and 2009 that he remained a business man who had an important relationship with ZANU-PF and other members of that party who were prospective candidates to succeed President Mugabe.
88 As regards the measures purportedly taken by the Zimbabwean Government against the first applicant following the part he played in the delivery of a letter proposing the retirement of President Mugabe, the first applicant’s argument is not convincing. First, as observed by the Commission, the fact that he was chosen to facilitate the delivery of such a letter to the President suggests that the first applicant was seen as an appropriate person to perform such a task in view of his relationship with the regime. Next, according to the apology letter annexed to the application and dated 18 July 2006, which the first applicant sent to President Mugabe, the first letter had been delivered to the President three years earlier. Questioned on that subject at the hearing, the applicants submitted that the reference to the first letter having been sent three years earlier is probably due to a typing error and that the author of the letter meant to indicate three months, not three years. Be that as it may, it remains to be explained why the regime reacted by imprisoning the first applicant for four days and withdrawing his Zimbabwean nationality, not when the letter proposing that President Mugabe should retire was received but only when the apology letter was delivered subsequently. Lastly, as observed by the institutions concerned, the way in which the latter letter was written indicates a pre-existing relationship with President Mugabe and expressly confirms not only the first applicant’s loyalty to the President but also his willingness and intention to play a constructive role in the future if the President so wished.
89 As a consequence, far from showing that, from a certain point in time, the first applicant became an opponent of the Zimbabwean regime or, at least, in fact severed his relationship with the regime, those circumstances are to be understood in a context characterised by a continuous relationship with that regime and by the first applicant’s intention to maintain that relationship in the future and dispel any doubt as to that intention.
90 That finding is confirmed by the fact that, according to a letter from Zimbabwean lawyers acting on behalf of the first applicant, the investigation launched in his regard did not result in any charges being brought and was abandoned.
91 There is therefore nothing to suggest that the events examined in paragraph 88 above, which, for the reasons given, appear to be but one episode in the first applicant’s long-term relationship with the Zimbabwean regime, led to a definitive breaking off of the relationship in question. As submitted by the institutions concerned, that type of information is especially important in view of the fact that the first applicant still has considerable landholdings in the vicinity of Harare, notwithstanding the confiscation campaign, which, according to the first applicant, was conducted by the Zimbabwean Government for many years against the members of the Commercial Farmers’ Union of Zimbabwe.
92 Accordingly, it is also clear that the fact, relied on by the applicants, that a number of officials of the United Kingdom Government have on various occasions expressed a certain scepticism as to the reliability of the evidence adduced against the applicants can have no bearing on the conclusions set out above as regards the adequacy of the evidence for the purpose of the inclusion and maintenance of the first three applicants and Breco International on the list of persons referred to in Article 6 of Regulation No 314/2004.
93 The same applies as regards the applicants’ argument that a number of items of information available to the public relied on by the Council were downloaded after the inclusion of the first three applicants and Breco International on the list of persons referred to in Article 6 of Regulation No 314/2004. As those items were dated prior to that inclusion, the fact that the relevant copies were printed in 2014 in order for them to be produced in the present proceedings is immaterial from a legal standpoint.
94 In the light of the evidence described in paragraphs 73 to 83 above and in view of the importance of what was at stake (see paragraph 72 above), it must be concluded that the Council and the Commission did not err in including the first applicant on the list of persons referred to in Article 6 of Regulation No 314/2004 on the ground that he was a ‘businessman with strong ties to the Government of Zimbabwe’ and that he ‘[had] provided, including through his companies, financial and other support to the regime (see also items [1 to 9], 12, 14, 20, 24, 25, 28, 29, 31 and 32 in part II)’. Furthermore, for the reasons set out in paragraph 37 above, the inclusion of the second and third applicants and Breco International on that list is similarly not unlawful.
The alleged breach of the applicants’ right to property
95 The applicants submit that, given the allegedly unlawful acts relied on in the complaints examined above, their right to property was undermined to a disproportionate degree, thus giving rise to non-contractual liability on the part of the European Union.
96 It is sufficient to note in that regard, as is clear from the foregoing analysis, that the inclusion of the first three applicants on the list of persons referred to in Article 6 of Regulation No 314/2004 is not unlawful. As a consequence, in view of the fact that, as explained in paragraph 26 above, a system of restrictive measures such as the system in question constitutes a limitation that satisfies the criteria laid down in Article 52(1) of the Charter, no breach of the applicants’ right to property has been established.
97 Accordingly, the fourth applicant, which, as stated in paragraph 20 above, was not included on the lists in question, cannot claim to have suffered loss as a result of the unlawfulness of the decision to include the first three applicants and Breco International on those lists.
98 In view of the cumulative nature of the conditions for incurring the non-contractual liability of the European Union (see paragraph 17 above), the action must be dismissed, without there being any need to rule on the admissibility of the document referring to the various forms of loss allegedly suffered by the applicants, which was submitted after the closure of the written procedure.
Costs
99 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
100 Since the applicants have been unsuccessful, they must be ordered to pay the costs, as applied for by the Council and the Commission.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1. Dismisses the action;
2. Orders John Arnold Bredenkamp, Echo Delta (Holdings) PCC Ltd, Scottlee Holdings (Private) Ltd and Fodya (Private) Ltd to pay the costs of the Council of the European Union and the European Commission.
Delivered in open court in Luxembourg on 21 July 2016.
[Signatures]