JUDGMENT OF THE GENERAL COURT (Third Chamber)
28 May 2013 (*)
(Common foreign and security policy – Restrictive measures directed against certain persons and entities in view of the situation in Tunisia – Freezing of funds – No legal basis)
In Case T‑200/11,
Fahed Mohamed Sakher Al Matri, residing in Doha (Qatar), represented by M. Lester, Barrister, and G. Martin, Solicitor,
applicant,
v
Council of the European Union, represented by M. Bishop and I. Gurov, acting as Agents,
defendant,
supported by
European Commission, represented by A. Bordes and M. Konstantinidis, acting as Agents,
and by
Republic of Tunisia, represented by W. Bourdon, lawyer,
interveners,
APPLICATION for annulment, first, of Council Implementing Decision 2011/79/CFSP of 4 February 2011 implementing Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2011 L 31, p. 40); secondly, of Council Regulation (EU) No 101/2011 of 4 February 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia (OJ 2011 L 31, p. 1); and, thirdly, of Council Decision 2012/50/CFSP of 27 January 2012 amending Decision 2011/72 (OJ 2012 L 27, p. 11), in so far as they apply to the applicant,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz, President, I. Labucka and D. Gratsias (Rapporteur), Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 20 November 2012,
gives the following
Judgment
Background to the dispute
1 Following political developments in Tunisia during the months of December 2010 and January 2011, the Council of the European Union adopted, on 31 January 2011, pursuant in particular to Article 29 TEU, Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2011 L 28, p. 62).
2 Recitals 1 and 2 in the preamble to Decision 2011/72 state:
‘On 31 January 2011, the Council reaffirmed its full solidarity and support with Tunisia and its people in their efforts to establish a stable democracy, the rule of law, democratic pluralism and full respect for human rights and fundamental freedoms.
The Council further decided to adopt restrictive measures against persons responsible for misappropriation of Tunisian State funds and who are thus depriving the Tunisian people of the benefits of the sustainable development of their economy and society and undermining the development of democracy in the country.’
3 Under Article 1 of Decision 2011/72:
‘1. All funds and economic resources belonging to, owned, held or controlled by persons responsible for misappropriation of Tunisian State funds, and natural or legal persons or entities associated with them, as listed in the Annex, shall be frozen.
2. No funds or economic resources shall be made available, directly or indirectly, to, or for the benefit of, natural or legal persons or entities listed in the Annex. …’.
4 Article 2(1) of Decision 2011/72 provides that ‘[t]he Council, acting upon a proposal by a Member State or the High Representative of the Union for Foreign Affairs and Security Policy, shall establish and amend the list in the Annex’.
5 Article 3(1) of Decision 2011/72 provides that ‘(t)he Annex shall include the grounds for listing the persons and entities’.
6 Under Article 5 of Decision 2011/72:
‘This Decision shall apply for a period of 12 months. It shall be kept under constant review. It shall be renewed, or amended as appropriate, if the Council deems that its objectives have not been met.’
7 The list annexed to Decision 2011/72 featured only the names of two natural persons, namely Mr Zine el-Abidine Ben Hamda Ben Ali, former President of the Republic of Tunisia, and Mrs Leïla Bent Mohammed Trabelsi, his wife.
8 Pursuant to ‘Decision 2011/72…, and in particular Article 2(1) thereof, in conjunction with Article 31(2) [TEU]’, the Council adopted, on 4 February 2011, Implementing Decision 2011/79/CFSP implementing Decision 2011/72 (OJ 2011 L 31, p. 40).
9 Article 1 of Decision 2011/79 stated that the list annexed to Decision 2011/72 was to be replaced by a new list, set out in the annex to Decision 2011/79. The entry ‘Fahd Mohamed Sakher Ben Moncef Ben Mohamed Hfaiez MATERI’ in the column entitled ‘Name’ was the fifth entry in that new list. In the column entitled ‘Identifying information’, the following information was set out: ‘Tunisian, born in Tunis 2 December 1981, son of Naïma BOUTIBA, married to Nesrine BEN ALI, holder of NIC No 04682068’. Finally, in the column entitled ‘Grounds’, the following information was entered: ‘Person subject to judicial investigation by the Tunisian authorities in respect of the acquisition of movable and immovable property, the opening of bank accounts and the holding of financial assets in several countries as part of money-laundering operations’.
10 Decision 2011/79 entered into force, in accordance with Article 2 thereof, on the date of its adoption.
11 Pursuant to Article 215(2) TFEU and Decision 2011/72, the Council adopted, on 4 February 2011, that is the same date as Decision 2011/79, Regulation (EU) No 101/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia (OJ 2011 L 31, p. 1). As is apparent from recital 2 in the preamble thereto, that regulation was adopted because the measures introduced by Decision 2011/72 ‘[fell] within the scope of the [TFEU] and regulatory action at the level of the Union [was] therefore necessary in order to implement them’.
12 Article 2(1) and (2) of Regulation No 101/2011 reproduced, in essence, the provisions of Article 1(1) and (2) of Decision 2011/72. The regulation also included an ‘Annex I’ that was identical to the annex to Decision 2011/72, as amended by Decision 2011/79.
13 Council Decision 2012/50/CFSP of 27 January 2012 amending Decision 2011/72 (OJ 2012 L 27, p. 11) and Council Decision 2013/72/CFSP of 31 January 2013 amending Decision 2011/72 (OJ 2013 L 32, p. 20) extended until 31 January 2013 and 31 January 2014, respectively, the application of the restrictive measures provided for by Decision 2011/72, as amended by Decision 2011/79.
Procedure and forms of order sought
14 By application lodged at the Court Registry on 1 April 2011, the applicant, Mr Fahed Mohamed Sakher Al Matri, brought the present action. He claims that the Court should:
– annul Decision 2011/79 and Regulation No 101/2011 in so far as they apply to him;
– order the Council to pay the costs.
15 By document received at the Court Registry on 27 April 2011, the applicant’s representative clarified how his client’s name should be shown. It follows from this that the names stated in paragraph 9 and in paragraph 14 above both designate the applicant. This has not been contested by the Council.
16 On 29 July 2011 the Council lodged its defence at the Court Registry, by which it contends that the General Court should dismiss the action and order the applicant to pay the costs.
17 The reply and the rejoinder were lodged at the Court Registry, respectively, by the applicant on 27 September 2011 and by the Council on 14 November 2011.
18 By order of 28 September 2011 the President of the Third Chamber of the General Court granted the European Commission leave to intervene in support of the form of order sought by the Council.
19 By order of 24 November 2011 the President of the Third Chamber of the General Court granted the Republic of Tunisia leave to intervene in support of the form of order sought by the Council.
20 On 9 November 2011 the Commission indicated that it did not intend to lodge a statement in intervention. The Republic of Tunisia did lodge a statement in intervention at the Court Registry on 19 January 2012. However, as that statement was not drawn up in the language of the case, it was not added to the case-file.
21 As the application of the measures introduced by Decision 2011/72, as amended by Decision 2011/79, had been extended by Decision 2012/50 (see paragraph 13 above), the applicant requested the Court, by document received at the Court Registry on 23 February 2012, to annul that new decision in so far as it applied to him. It was decided to add that document to the case-file.
22 By document received at the Court Registry on 23 April 2012, the Council stated that, in the interests of procedural economy, the form of order sought in the application should be extended in line with the applicant’s request of 23 February 2012. The Commission expressly waived its right to submit observations.
23 Acting upon a proposal from the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure. By way of measures of organisation of procedure, it requested the Council to produce various documents. The Council fully complied with that request.
24 At the hearing on 20 November 2012, the applicant, the Council and the Commission presented oral argument and answered the questions put by the Court.
Law
Claim for annulment of Decision 2011/79
25 In support of his claim for annulment of Decision 2011/79, the applicant relies in his application on five pleas in law. The first alleges a failure to observe the obligation to state reasons; the second, non-fulfilment of the criteria laid down in Article 1(1) of Decision 2011/72; the third, breach of the rights of the defence and of the right to effective judicial protection; the fourth, infringement of the right to property and of the freedom to conduct a business; and the fifth, a manifest error of assessment.
Plea alleging breach of the obligation to state reasons
26 The applicant submits that the statement of reasons for Decision 2011/79 is insufficient. In support of this plea he argues, first of all, that the statement of reasons is too vague and, moreover, stereotyped.
27 The second paragraph of Article 296 TFEU provides: ‘Legal acts [adopted by the European Union institutions] shall state the reasons on which they are based.’
28 Under Article 41(2)(c) of the Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 389), the right to good administration includes, inter alia, ‘the obligation of the administration to give reasons for its decisions’.
29 It has consistently been held that the statement of reasons required by Article 296 TFEU and Article 41 of the Charter of Fundamental Rights must be appropriate to the contested measure and the context in which it was adopted. It must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the person concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case (see Case C‑417/11 P Council v Bamba [2012] ECR I‑0000, paragraphs 50 and 53 and the case-law cited).
30 It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for a measure satisfies the requirements of Article 296 TFEU and Article 41 of the Charter of Fundamental Rights 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. Thus, 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 (see Council v Bamba, paragraph 29 above, paragraphs 53 and 54 and the case-law cited). Moreover, the degree of precision of the statement of the reasons for a measure must be weighed against practical realities and the time and technical facilities available for taking the measure (see Case T‑228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II‑4665, paragraph 141 and the case-law cited).
31 In particular, the statement of reasons for an asset-freezing measure cannot, as a rule, consist merely of a general, stereotypical formulation (see, to that effect, Organisation des Modjahedines du peuple d’Iran v Council, paragraph 30 above, paragraph 143). Without prejudice to the preceding paragraph, such a measure must, on the contrary, indicate the actual and specific reasons why the Council considers that the relevant rules are applicable to the party concerned (see Organisation des Modjahedines du peuple d’Iran v Council, paragraph 30 above, paragraph 143 and the case-law cited; and, to that effect, Council v Bamba, paragraph 29 above, paragraph 52).
32 In the present case, Decision 2011/79 indicates, unequivocally, the legal considerations on which it is based. The citations in that decision refer to ‘Decision 2011/72 …, and in particular [to] Article 2(1) thereof, in conjunction with Article 31(2) [TEU]’. The annex to Decision 2011/79 refers to Article 1 of Decision 2011/72.
33 Moreover, it is apparent from the annex to Decision 2011/79, read in conjunction with the actual title of that decision, that the applicant was made subject to the restrictive measures ‘in view of the situation in Tunisia’, on the ground that he was ‘subject to judicial investigation by the Tunisian authorities in respect of the acquisition of movable and immovable property, the opening of bank accounts and the holding of financial assets in several countries as part of money-laundering operations’. The factual considerations on the basis of which the applicant was made subject to an asset freeze are thus stated with clarity and precision.
34 Contrary to the applicant’s assertions, those considerations are not of a stereotypical nature either. They are not modelled on the wording of a general provision. Also, while they are admittedly the same as those on the basis of which the other natural persons covered by Decision 2011/79 were made subject to an asset freeze, they concern the particular situation of the applicant who, according to the Council, has, like others, been subject to judicial investigation by the Tunisian authorities in respect of money-laundering.
35 It follows from this that Decision 2011/79 contains the statement of the points of law and facts which, according to the Council, constitute the basis for its decision. In other words, the wording of that decision discloses in a clear and unequivocal fashion the reasoning followed by the Council. Consequently, there is no need at all to refer to the factual or legal context in which that decision was adopted in order to conclude that it fully satisfies the requirements laid down by Article 296 TFEU and Article 41 of the Charter of Fundamental Rights.
36 In those circumstances, the plea alleging non-compliance with the obligation to state reasons must be rejected.
37 That conclusion cannot be called into question by the argument that the statement of reasons for Decision 2011/79 was not communicated to the applicant prior to publication of that decision. By that argument, the applicant challenges neither the existence nor the sufficiency of the statement of reasons for Decision 2011/79. He merely argues that he was unable to ascertain in sufficient time the reasons for his inclusion in the group of persons whose funds were required to be frozen pursuant to that decision.
Plea alleging non-fulfilment of the criteria laid down in Article 1(1) of Decision 2011/72
38 The applicant maintains, in essence, that Decision 2011/79 lacks any legal basis.
39 In support of that plea, he states that the reason why Decision 2011/79 included him among the persons to be made subject to an asset freeze does not feature among the reasons listed in Article 1(1) of Decision 2011/72. According to the applicant, Decision 2011/79 must fulfil the criteria laid down by that article. However that article provides that only the persons ‘responsible for misappropriation of Tunisian State funds’ and those associated with them may be subject to an asset freeze, whereas Decision 2011/79 imposes an asset freeze on the applicant on the ground that he is subject to ‘judicial investigation by the Tunisian authorities in respect of the acquisition of movable and immovable property, the opening of bank accounts and the holding of financial assets in several countries as part of money-laundering operations’.
40 In order to respond to the present plea, it is necessary first to ascertain the relationship between Decisions 2011/72 and 2011/79, as well as to determine the meaning and scope of Article 1(1) of Decision 2011/72, and of Decision 2011/79.
– Relationship between Decisions 2011/72 and 2011/79
41 The provisions of Articles 1 to 3 and 5 of Decision 2011/72 establish a set of rules on the freezing of assets that is applicable to all persons, entities or bodies meeting the objective criteria set out in Article 1(1) of that decision. The persons in question are persons ‘responsible for misappropriation of Tunisian State funds’ and those associated with them. Accordingly, those provisions relate to a category of persons, entities and bodies defined in objective, general and abstract terms.
42 The annex to Decision 2011/72 is a ‘list of persons and entities referred to in Article 1’. In its original form, that list seeks to apply the freezing of assets – the rules on which were set out in Articles 1 to 3 and 5 of that decision – to two natural persons mentioned by name (see paragraph 7 above).
43 The sole purpose of Decision 2011/79, as is apparent from Article 1, is to amend the list annexed originally to Decision 2011/72 to include 46 additional persons, including the applicant.
44 It follows from this that Decision 2011/79 must, in particular, accord with Article 1(1) of Decision 2011/72, on which it is based.
– Meaning and scope of Article 1(1) of Decision 2011/72
45 As stated in paragraph 3 and recalled in paragraph 41 above, Article 1(1) of Decision 2011/72 requires that all assets held by persons responsible for ‘misappropriation of Tunisian State funds’ or by associates of those persons be frozen. In other words, that provision, the wording of which is clear and precise, mentions a specific category of conduct that may be characterised as criminal under Tunisian law: not any economic offence or crime, but only actions that may be characterised as ‘misappropriation of Tunisian State funds’.
46 In that, the wording of that provision is, moreover, perfectly consistent with the Council’s objectives. It is evident from the recitals in the preamble to Decision 2011/72 that that decision is intended to support the efforts of the Tunisian people to establish a ‘stable democracy’, while helping them to enjoy the ‘benefits of the sustainable development of their economy and society’. Such objectives, which are among those referred to in Article 21(2)(b) and (d) TEU, are designed to be achieved by a freezing of assets the scope of which is, as in this instance, restricted to those ‘responsible’ for misappropriation of ‘Tunisian State funds’ and their associates, that is to say, to the persons whose actions are liable to have jeopardised the proper functioning of Tunisian public institutions and bodies linked to them.
– Meaning and scope of Decision 2011/79, in so far as it concerns the applicant
47 As stated in paragraph 9 above, under Decision 2011/79, the applicant’s name was included among the persons covered by the freezing of assets provided for in Article 1 of Decision 2011/72, on the ground that he was ‘subject to judicial investigation by the Tunisian authorities’ in respect of acts carried out ‘as part of money-laundering operations’.
48 That ground refers to a term – ‘money-laundering’ – which is not used in Article 1(1) of Decision 2011/72. Consequently, in order for that ground to be regarded as being among those listed in Article 1(1) of Decision 2011/72, it must at the very least be established that, under the national law applicable, namely Tunisian law, the concept of ‘misappropriation of State funds’, as used in Article 1(1) of Decision 2011/72, covers, or at least necessarily entails, ‘money-laundering’. In this particular case, however, the Council has neither established nor even claimed that, notwithstanding the difference that exists, prima facie, between the concepts of ‘money-laundering’ and ‘misappropriation of State funds’, an individual may be regarded, under Tunisian criminal law, as ‘responsible for misappropriation of … State funds’ or as being associated with such a person solely because he is subject to ‘judicial investigation’ for ‘money-laundering’.
49 For the sake of completeness, it may be noted that, in the context of European Union law, ‘money-laundering’ covers inter alia the intentional conversion and transfer of property deriving from criminal activity of any kind for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of such activity to evade the legal consequences of his action. That is evident, in particular, from the definition stated in Article 1(2) of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (OJ 2005 L 309, p. 15), the wording of which reproduces, in essence, that of Article 9 of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, opened for signature on 16 May 2005, signed by the European Union on 2 April 2009, but not yet approved by it. It must be observed that, as thus defined, ‘money-laundering’ does not cover solely actions that enable concealment of the illicit origin of assets deriving from misappropriation of State funds.
50 It follows from this that Decision 2011/79 applied a criterion other than that laid down in Article 1(1) of Decision 2011/72 when it included the applicant among the persons whose assets were required to be frozen pursuant to Decision 2011/72.
– Arguments of the defence
51 In attempting to challenge the conclusion set out in the preceding paragraph, the Council, supported by the Commission, essentially contended that a literal interpretation of Decision 2011/79 had to be ruled out and that that decision had to be read, on the contrary, in the light of its factual context.
52 It put forward three arguments in support of that proposition.
53 By the first argument, which was emphasised at the hearing, the Council, supported by the Commission, claimed that the evidence on the basis of which it had been decided that the applicant should be included in the list of persons whose assets were required to be frozen pursuant to Decision 2011/72 showed that the applicant was regarded by the Tunisian authorities as ‘responsible for misappropriation of Tunisian State funds’ or likely to have been associated with a person responsible for such misappropriation. That is apparent, in particular, from the information supplied to the Council by the Tunisian authorities in response to a request from the European Union Delegation to Tunisia, and the information must be understood in the light of that request.
54 That argument must, in any event, be rejected.
55 It is apparent from a letter which the Council sent to the applicant’s lawyer on 29 July 2011 and from the documents enclosed with that letter that Decision 2011/79 was adopted after two documents had been taken into consideration.
56 The first document is a note of 20 January 2011 from the General Directorate of Public Safety of the Republic of Tunisia to the senior investigating judge at the Court of First Instance of Tunis. It is apparent from the very wording of that note that it contains a list of the ‘relatives and associates’ of the former Head of State of Tunisia. The applicant’s name appears on that list.
57 The second document is a note verbale sent on 29 January 2011 by the Ministry of Foreign Affairs of the Republic of Tunisia to the European Union Delegation to Tunisia. That note indicates that the persons listed in the first document are subject, in Tunisia, to judicial investigation in connection with ‘blanchiment d’argent par suite d’utilisation abusive des fonctions et des activités professionnelles et sociales’ (according to the Council: ‘money-laundering resulting from the abuse of … official positions and professional and social activities’).
58 At the hearing, the Council also claimed that it had taken account of an additional document when adopting Decision 2011/79. That document, added to the case-file following a request to that effect from the Court (see paragraph 23 above), is a note verbale from the European Union Delegation to Tunisia dated 25 January 2011. It is evident from that note that, ‘with a view to … preparing a decision [to freeze] the assets of the persons [recognised as] or suspected of having acted against the interests of the Tunisian State and/or against its people’, the European Union Delegation requested the Tunisian authorities to provide it with a ‘list of the natural and/or legal persons referred to by the Tunisian Government’.
59 The first document, referred to in paragraph 56 above, does indeed clearly set out the family connections between the applicant and the former Head of State of Tunisia. However, in any event, that document does not in any way show that the applicant or members of his family were being prosecuted in Tunisia, at the date of the adoption of Decision 2011/79, for ‘misappropriation of State funds’. As has just been stated, that document is a list detailing only the ‘full identities’ of the ‘relatives and associates’ of the former Head of State of Tunisia.
60 As for the note verbale described in paragraph 57 above, it does not mention the applicant’s particular situation. Furthermore, it refers to a judicial investigation concerning two categories of conduct: money-laundering operations consequent on an ‘abuse [of] official positions’, on the one hand, and money-laundering operations consequent on the abuse of ‘professional and social activities’, on the other.
61 However, while that note verbale refers to a judicial investigation of money-laundering operations consequent on an ‘abuse [of] official positions’, it does not specify whether the official positions in question are private or public. Thus, it certainly cannot be ruled out that, as far as some of the persons listed in the first document are concerned, the judicial investigation mentioned in that note verbale does indeed relate to acts that may be characterised as ‘money-laundering resulting from an abuse of [public] official positions’, acts for which the perpetrators might reasonably be characterised as being responsible or ‘associated’ with those responsible for misappropriation of State funds. None the less, the Court is not in a position to conclude, in the light of the documents described in paragraphs 56 and 57 above, that such acts were specifically alleged against the applicant. That conclusion is all the more compelling since the Council has neither maintained nor even suggested that the applicant held public office.
62 Furthermore, even if the applicant were to be the subject of an investigation into money-laundering resulting from the abuse of ‘professional and social activities’, none of the documents described above indicates that the activities involved were linked to the exercise of State authority or fell within a Tunisian public service.
63 Lastly, the additional document relied on by the Council is specific in referring not to those responsible for ‘misappropriation of State funds’ or to their associates, but to another category, that of ‘persons recognised as or suspected of having acted against the interests of the Tunisian State and/or against its people’.
64 In any event, even if those two concepts were to be one and the same, the first and second documents referred to above cannot be regarded as relating to persons ‘responsible for misappropriation of Tunisian State funds’ or to the persons associated with those responsible solely because they respond to a question put in the additional document. The first two documents are indeed intended as a response to a question formulated in the additional document. However, that does not mean that the response that they give is appropriate. It was for the Council to ascertain that the documents which were sent to it by the Tunisian authorities properly answered the question put by the European Delegation to Tunisia. In the present case, however, it must be observed, as stated in the preceding paragraphs, that it is apparent on reading both of the first two documents mentioned above that the Tunisian authorities sent a list of persons subject to judicial investigation for ‘money-laundering resulting from the abuse of … official positions and professional and social activities’, without indicating whether those persons were, on that basis, persons responsible for ‘misappropriation of State funds’ or associates of such persons, and without even specifying whether those persons were to be regarded as having ‘acted against the interests of the Tunisian State and/or against its people’.
65 Moreover, it must be noted that the additional document does not mention the applicant specifically, much less contain any indication of the subject-matter of the investigation in respect of the applicant carried out in Tunisia.
66 Accordingly, on the basis of the three documents described in paragraphs 56 to 59 above, it is impossible to conclude with certainty that, at the date of the adoption of Decision 2011/79, the applicant was subject to judicial investigation for money-laundering consequent on the misappropriation of State funds and could be regarded, on that basis, as a person ‘responsible for misappropriation of Tunisian State funds’ or as an associate of such a person.
67 By its second argument, the Council contended that it was apparent from Decision 2011/79 and from the document described in paragraph 56 above that the applicant was the son-in-law of the former Head of State of Tunisia. It asserted, moreover, that ‘there [was] nothing … to indicate that [the applicant had] dissociated himself from his family-in-law and that he [had] not benefited extensively from his close relationship with the former presidential couple of Tunisia’. At the hearing, the Council, supported by the Commission, concluded from this, in essence, that the reason for the freezing of the applicant’s assets was one that fell within the provisions of Article 1(1) of Decision 2011/72.
68 That is in all events not the case, however.
69 First of all it must be noted that, by its second argument, the Council maintains, in essence, that since the applicant belongs to the family of the former Head of State of Tunisia and, moreover, is subject to judicial investigation for money-laundering, it is incumbent on the applicant to prove that he dissociated himself from his own family and that he did not benefit from his family connection to the former Head of State of Tunisia and, if he does not do so, he may be subject to a freezing of his assets as a person ‘responsible for misappropriation of Tunisian State funds’ or as an associate of such a person. Yet it is for the Council to demonstrate that the reason for the freezing of the applicant’s assets is one that falls within the provisions of Article 1(1) of Decision 2011/72. The Court cannot assume that any act of money-laundering committed by members of the family of the former Head of State of Tunisia is necessarily related to the misappropriation of State funds, since no provision is made for such a presumption in any legislation (see, by analogy, Case C‑376/10 P Tay Za v Council [2012] ECR I‑0000, paragraph 69).
70 Moreover, in view of what has been stated in paragraph 48 above, even if the Council had demonstrated that the former Head of State of Tunisia or certain members of his family entourage other than the applicant could be described, at the date of the adoption of Decision 2011/79, as being ‘responsible for misappropriation of Tunisian State funds’, this Court would not be able to infer from that, in the absence of corresponding evidence or indicia to that effect, that the ‘money-laundering operations’ of which the applicant is accused were linked, directly or indirectly, to the ‘misappropriation of Tunisian State funds’ that may have been committed by those persons.
71 By the third argument, the Council, relying on a diplomatic cable sent by the United States Embassy to Tunis but which was not added to the case-file, maintained, first of all, that the applicant had had an ‘enormous and garish mansion’ built on highly valuable land that was expropriated from its owner by the Government of Tunisia for the water authority, and which had subsequently been granted to the applicant for his private use. Next, relying on another diplomatic cable from the United States Embassy to Tunis, which was not added to the case-file either, the Council claimed that the applicant had also been very active within the diplomatic community and had attempted to serve as a ‘point of contact between the regime and key ambassadors’.
72 However, it has not in any event been established that the diplomatic cables to which the Council refers were available to it at the date of the adoption of Decision 2011/79. It must be noted that, while those cables may, as the Council indicates, be viewed on the pages of an internet site mentioning the date of 8 December 2010, it is not evident from the content of those pages that that date corresponds to the date on which they were put on line. Yet the legality of a decision to freeze assets is to be assessed in the light of the information available to the Council when the decision was adopted (see, by analogy, Joined Cases C‑74/00 P and C‑75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I‑7869, paragraph 168).
73 In any event, even if the facts described in the diplomatic cables in question were brought to the Council’s attention prior to the adoption of Decision 2011/79, they do not establish that the ‘money-laundering’ operations covered by the judicial investigation mentioned in Decision 2011/79 were linked to the ‘misappropriation of State funds’.
74 It follows from all of the above that the present plea must be upheld, and therefore that Decision 2011/79 must be annulled in so far as it concerns the applicant.
Claim for annulment of Regulation No 101/2011
75 Under Article 215(2) TFEU:
‘Where a decision adopted in accordance with Chapter 2 of Title V of the [EU Treaty] so provides, the Council may adopt restrictive measures … against natural or legal persons and groups or non-State entities.’
76 In the present case, in accordance with paragraph 74 above, it must be concluded that Decision 2011/79 must be deemed never to have existed in so far as it concerns the applicant (see paragraph 74 above). Accordingly, no decision adopted in accordance with Chapter 2 of Title V of the EU Treaty can be regarded as having provided, as at the date on which Regulation No 101/2011 was adopted, for the imposition of restrictive measures on the applicant. Consequently, the Council was not, on that date, empowered to impose, on the basis of Article 215(2) TFEU, an asset freeze on the applicant by means of Regulation No 101/2011.
77 It follows from this that Regulation No 101/2011 must be annulled in so far as it concerns the applicant, in consequence of the annulment of Decision 2011/79.
78 Since the claims for annulment of Decision 2011/79 and Regulation No 101/2011 have been upheld in their entirety, it is not necessary to rule on the other pleas.
Claim for annulment of Decision 2012/50
79 After the rejoinder had been lodged, the applicant requested of the Court that all his grounds for annulment ‘now extend and apply to [Decision 2012/50] in so far as [it applies] to [him]’. He thus put forward a new claim for annulment, directed against Decision 2012/50, even though the written procedure had been closed.
Nature and admissibility of that claim
80 Where the measure originally contested is, during the proceedings, replaced by another measure with the same subject-matter, the latter is to be considered a new factor allowing the applicant to adapt his claims and pleas in law. It cannot be accepted that a European Union institution or body should be able, in order to counter criticisms contained in an application against one of its measures, to amend that measure or to substitute another for it and to rely in the proceedings on such an amendment or substitution in order to deprive the other party of the opportunity of extending his original pleadings to the later measure or of submitting supplementary pleadings directed against that measure (Case 14/81 Alpha Steel v Commission [1982] ECR 749, paragraph 8, and Organisation des Modjahedines du peuple d’Iran v Council, paragraph 30 above, paragraph 28).
81 In the present case, Decision 2012/50 merely replaced the original wording of Article 5 of Decision 2011/72, as set out in paragraph 6 above, with the following: ‘This Decision shall apply until 31 January 2013. It shall be kept under constant review. It may be renewed or amended, as appropriate, if the Council deems that its objectives have not been met.’ In so doing, that decision replaced neither Decision 2011/79, which amended the list annexed to Decision 2011/72, nor Regulation No 101/2011 or Annex I thereto. Its only effect was to extend the period for which the asset freeze laid down by those measures was to apply. None the less, it must be held that there was an ‘amendment’ of those measures, for the purpose of the case-law arising from Alpha Steel v Commission (paragraph 80 above, paragraph 8), which was intended to modify their scope ratione temporis. Such an amendment of the measures forming the subject-matter of the proceedings constitutes a basis for amendment of the pleadings submitted by the applicant.
82 In those circumstances, the claim directed against Decision 2012/50, which was submitted by document received at the Court Registry on 23 February 2012, that is to say, within the time-limit for bringing an action against that decision, should be declared admissible.
Plea that there is no need to adjudicate
83 An interest in bringing proceedings must, in the light of the purpose of the claim, exist at the time at which that claim is submitted, failing which it will be inadmissible. That purpose must continue to exist, like the interest in bringing proceedings, until the final decision, otherwise there will be no need to adjudicate; this presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it (see Case C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 42 and the case-law cited).
84 In the present case, as stated in paragraph 81 above, the sole purpose of Decision 2012/50 is to extend the application of the asset freeze laid down by Decision 2011/72 and Regulation No 101/2011 until 31 January 2013. However, owing to the retroactive effect of the annulment pronounced in paragraphs 74 and 77 above, the applicant is to be deemed never to have been covered by that asset freeze. As a result, the applicant now no longer has an interest in seeking the annulment of Decision 2012/50.
85 The parties having been heard in that regard at the hearing, there is therefore no need to adjudicate on that claim.
Effect in time of the partial annulment of Decision 2011/79 and Regulation No 101/2011
86 Article 60 of the Statute of the Court of Justice of the European Union states that the effects of a regulation that has been declared to be void are to be maintained until the date of expiry of the period for bringing an appeal or, if an appeal has been brought within that period, as from the date of dismissal of the appeal. In any event, the annulment of Regulation No 101/2011 cannot, therefore, have an immediate effect.
87 By contrast, the annulment in part of Decision 2011/79 has, in principle, an immediate effect, in the sense that the act that is annulled is eliminated retroactively from the legal order and is deemed never to have existed (see, to that effect, Organisation des Modjahedines du peuple d’Iran v Council, paragraph 30 above, paragraph 35).
88 Nevertheless, the Court may, under Article 264 TFEU, maintain the effects of that decision provisionally (see, to that effect, Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351, paragraphs 373 to 376, and judgment of 16 September 2011 in Case T‑316/11 Kadio Morokro v Council, not published in the ECR, paragraph 39).
89 In the present case, a difference between the dates on which the annulment of Regulation No 101/2011 and that of Decision 2011/79 take effect would be likely seriously to jeopardise legal certainty (see, to that effect, Kadio Morokro v Council, paragraph 88 above, paragraph 39). If only for that reason, it is necessary to use the power conferred on the Court by Article 264 TFEU.
90 It is appropriate, therefore, so far as the applicant is concerned, to maintain the effects of Decision 2011/79 until the annulment of Regulation No 101/2011 has taken effect.
Costs
91 According to Article 87(2) of the Rules of Procedure, ‘[t]he unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings. …’.
92 According to Article 87(4) of the Rules of Procedure:
‘The Member States and institutions which intervened in the proceedings shall bear their own costs.
The States, other than the Member States, which are parties to the EEA Agreement, and also the EFTA Surveillance Authority, shall bear their own costs if they intervene in the proceedings.
The General Court may order an intervener other than those mentioned in the preceding subparagraph to bear his own costs.’
93 In the present case, since the Council has been largely unsuccessful, it should be ordered to pay the costs, as applied for by the applicant. Furthermore, as an intervening institution, the Commission is to bear its own costs. Lastly, the same is to apply as regards the Republic of Tunisia.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Annuls Council Implementing Decision 2011/79/CFSP of 4 February 2011 implementing Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia and Council Regulation (EU) No 101/2011 of 4 February 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia, in so far as they concern Mr Fahed Mohamed Sakher Al Matri;
2. Declares that the effects of Implementing Decision 2011/79 with respect to Mr Al Matri shall be maintained until the annulment of Regulation No 101/2011 takes effect in so far as it concerns Mr Al Matri;
3. Declares that there is no need to adjudicate on the remainder of the action;
4. Orders the Council of the European Union to bear its own costs and to pay those incurred by Mr Al Matri;
5. Orders the European Commission and the Republic of Tunisia to bear their own costs.
Delivered in open court in Luxembourg on 28 May 2013.
[Signatures]
Table of contents
Background to the dispute
Procedure and forms of order sought
Law
Claim for annulment of Decision 2011/79
Plea alleging breach of the obligation to state reasons
Plea alleging non-fulfilment of the criteria laid down in Article 1(1) of Decision 2011/72
– Relationship between Decisions 2011/72 and 2011/79
– Meaning and scope of Article 1(1) of Decision 2011/72
– Meaning and scope of Decision 2011/79, in so far as it concerns the applicant
– Arguments of the defence
Claim for annulment of Regulation No 101/2011
Claim for annulment of Decision 2012/50
Nature and admissibility of that claim
Plea that there is no need to adjudicate
Effect in time of the partial annulment of Decision 2011/79 and Regulation No 101/2011
Costs