Case C‑417/11 P

Council of the European Union

v

Nadiany Bamba

(Appeal – Common foreign and security policy – Specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire – Freezing of funds – Article 296 TFEU – Obligation to state the reasons on which a decision is based – Rights of the defence – Right to an effective legal remedy – Right to respect for property)

Summary — Judgment of the Court (Third Chamber), 15 November 2012

1.        Appeal — Grounds — Inadequate statement of reasons — Admissibility

(Statute of the Court of Justice, Art. 58)

2.        Acts of the institutions — Statement of reasons — Obligation — Scope — Restrictive measures freezing funds

(Art. 296 TFEU; Council Regulation No 560/2005, as amended by Regulation No 25/2011, Annex I A, para. 6; Council Decision 2010/656, as amended by Decision 2011/18, Annex II A, para. 6)

3.        Appeal — Grounds — Inadequate statement of reasons — Separate ground from the one concerning substantive legality

(Arts 256 TFEU and 296 TFEU)

4.        European Union — Judicial review of the legality of the acts of the institutions — Regulation imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire and decision renewing those measures — No obligation for the institution adopting an act to hear the person concerned before he is included for the first time in the list of persons annexed to that act

(Council Regulation No 560/2005, as amended by Regulation No 25/2011, Annex I A; Council Decision 2010/656, as amended by Decision 2011/18, Annex II)

1.        See the text of the decision.

(see paras 39-41)

2.        The statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the person concerned to ascertain the reasons for the measures and to enable the court having jurisdiction to exercise its power of review. However, since the statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and the context in which it was adopted, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him to understand the scope of the measure concerning him.

Thus, where the person concerned is not afforded the opportunity to be heard before the adoption of an initial decision to freeze funds, compliance with the obligation to state reasons is all the more important because it constitutes the sole safeguard enabling the person concerned, at least after the adoption of that decision, to make effective use of the legal remedies available to him in order to challenge the lawfulness of that decision.

In that regard, in a situation where the name of the person concerned has been included in the list of persons subject to restrictive measures freezing funds because of that person’s alleged responsibility, as supposed director of a newspaper, for acts of public incitement to hatred and violence and for disinformation campaigns, the obligation to state reasons is fulfilled if the institution adopting the act provides notes in the statement of reasons for the decision to freeze funds which allow the person concerned to understand the basis for the actual and specific reason which led that institution to adopt restrictive measures against that person. Such is the case if the act identifies the actual and specific evidence, in terms of professional position, publishing group, newspaper and types of activities and press campaigns covered. From those notes, the person concerned is in a position to dispute the merits of the act. In the light of those notes, it is possible for that person, if appropriate, to dispute the truth of the claims made in the act or to dispute the relevance of all or any of those claims or their classification.

(see paras 50, 51, 53, 54, 56, 57, 59)

3.        In the context of an appeal, the question of the statement of reasons, which concerns an essential procedural requirement, is separate from that of the evidence of the alleged conduct, which concerns the substantive legality of the act in question and involves assessing the truth of the facts set out in that act and the characterisation of those facts as evidence justifying the use of restrictive measures against the person concerned.

(see para. 60)

4.        In order to attain the objective pursued by acts concerning the inclusion of the name of a person, entity or body in the lists forming Annex II to Decision 2010/656 renewing the restrictive measures against Côte d’Ivoire and Annex I A 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, the restrictive measures in question must, by their very nature, have a surprise effect. For that reason, the institution adopting the measure is not obliged to hear the person concerned before his name is included for the first time in the lists in question.

(see para. 74)