Language of document : ECLI:EU:T:2017:694

Case T-175/15

Mohamed Marouen Ben Ali Ben Mohamed Mabrouk

v

Council of the European Union

(Common foreign and security policy — Restrictive measures directed against certain persons and entities in view of the situation in Tunisia — Measures taken against persons responsible for misappropriation of State funds and associated persons and entities — Freezing of funds — List of persons, entities and bodies subject to the freezing of funds — Continued listing of the applicant’s name — Inadequate factual basis — Manifest error of assessment — Error of law — Right to property — Principle of good administration — Obligation to adjudicate within a reasonable time — Presumption of innocence — Request for modification — Confirmatory measure — Inadmissibility)

Summary – Judgment of the General Court (Fifth Chamber), 5 October 2017

1.      Common foreign and security policy – Restrictive measures against certain persons and entities in view of the situation in Tunisia – Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them – Person responsible for the misappropriation of public funds – Meaning – Broad interpretation

(Council Decisions 2011/72/CFSP, Art. 1(1) and 2011/172/CFSP, Art. 1(1))

2.      Common foreign and security policy – Restrictive measures against certain persons and entities in view of the situation in Tunisia – Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them – Nature of those measures – Purely protective measures – No criminal character

(Council Decision 2011/72/CFSP, first and second recitals, Art. (1))

3.      European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures against certain persons and entities in view of the situation in Tunisia – Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them – Ambit of the review – Proof the measure well-founded – Obligation on the Council systematically to verify evidence submitted by the authorities of a non-Member country – None

(Council Decisions 2011/72/CFSP, Art. 1(1) and (CFSP) 2015/157)

4.      European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures against certain persons and entities in view of the situation in Tunisia – Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them – Ambit of the review – Proof the measure well-founded – Obligation, for the Council, to assess whether it is necessary to seek disclosure of further information or evidence from the national authorities – Scope – Respect of the principles of the rule of law and of human rights

(Arts 21(1), paras 1, 2(b) and 3, TEU and 23 TEU; Charter of Fundamental Rights of the European Union, Art. 41; Council Decisions 2011/72/CFSP, Art. 1(1) and (CFSP) 2015/157)

5.      European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures against certain persons and entities in view of the situation in Tunisia – Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them – Ambit of the review – Assessment of the legality by reference to the information available at the time of adoption of the decision

(Council Decisions 2011/72/CFSP and (CFSP) 2015/157)

6.      EU law – Principles – Right to effective judicial protection – Duty to act within a reasonable time – Scope – Restrictive measures against certain persons and entities in view of the situation in Tunisia – Judicial proceedings in a third country serving as a basis for the decision to adopt restrictive measures – Not included

(Charter of Fundamental Rights of the European Union, Arts 47 and 51(1) and (2); Council Decision (CFSP) 2015/157)

7.      Common foreign and security policy – Restrictive measures against certain persons and entities in view of the situation in Tunisia – Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them – Restriction of the right to property – Breach of principle of proportionality – None

(Charter of Fundamental Rights of the European Union, Art. 17; Council Decisions 2011/72/CFSP and (CFSP) 2015/157)

8.      Actions for annulment – Action brought against a decision which merely confirms an earlier decision – Inadmissibility – Concept of confirmatory decision – Decision by the Council not to remove the name of a person from the Annex to a decision establishing restrictive measures, adopted following a review of that person’s circumstances based on new and substantial facts – Not included

(Council Decision 2011/72/CFSP, Arts 2(3) and 5(6))

1.      See the text of the decision.

(see paras 30-32, 34, 83)

2.      See the text of the decision.

(see paras 33, 140)

3.      In the context of Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia, it is not, in principle, for the Council itself to examine and assess the relevance and accuracy of the evidence relied on in the judicial proceedings concerning the persons listed in the annex to that decision. By adopting that decision and the subsequent decisions, the Council is not seeking to punish the misappropriation of State funds being investigated by the Tunisian authorities itself, but to ensure that it remains possible for those authorities to establish misappropriation and to recover the proceeds thereof. It is therefore for the competent Tunisian authorities to verify that evidence and to draw the appropriate conclusions. Accordingly, in principle, it is not for the Council or the General Court to ascertain whether such proceedings are well founded but simply to establish whether the decision freezing the funds is justified in the light of the information provided by the Tunisian authorities. If that were not the case, there could be situations in which the Council would draw premature conclusions as regards the merits of the investigation which might differ from those drawn by the Tunisian authorities themselves. Such a situation could have the paradoxical result that, when the person concerned is tried and, as the case may be, found guilty of misappropriation of State funds by those authorities, that person’s assets in the European Union would no longer be frozen, thus precluding the possibility of recovering the proceeds of the misappropriation with which that person is charged. Obviously, the effectiveness of Decision 2011/72 would not be guaranteed.

(see paras 40, 46)

4.      In the context of Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia, the Council cannot adopt, in all circumstances, the findings made by the Tunisian judicial authorities in the documents provided by those authorities. It is for the Council to examine carefully and impartially the evidence that had been sent to it by the competent authorities in the light, in particular, of the comments and any exculpatory evidence submitted by the applicant. That obligation also arises from the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union. In discharging its duty of careful and impartial examination, it is for the Council to assess whether it is necessary to seek disclosure of further information or evidence from the competent authorities, in the light of the observations and factual evidence submitted by the applicant. In particular, while it is not for the Council to take the place of the Tunisian judicial authorities in assessing whether the ongoing judicial investigations concerning the applicant are well founded, it is not inconceivable that the Council might be obliged to seek clarification from those authorities with regard to the material on which those investigations are based. As the Council has adduced evidence of the existence of an ongoing judicial investigation concerning the applicant, the reliability of which is not in dispute, it is for the applicant to indicate the concrete evidence on which he relies in order to challenge the validity of that investigation.

5.      In that regard, compliance with the principles of the rule of law and human rights, as well as respect for human dignity, is required of all actions of the European Union, including actions under the Common Foreign and Security Policy, as is clear from the provisions, read together, set out in the first subparagraph of Article 21(1), Article 21(2)(b) and (3) TEU, and Article 23 TEU. In particular, Article 21(1) TEU provides that the Union’s action on the international scene is to seek to advance in the wider world, inter alia, the rule of law, the universality and indivisibility of human rights and respect for international law. The principle that proceedings should be concluded within a reasonable time forms part of the right to a fair trial, which is safeguarded by the provisions of a number of binding instruments of international law. As a consequence, it cannot be ruled out that, where there is objective, reliable, specific and consistent evidence such as to raise legitimate questions concerning observance of an applicant’s right to have his case heard within a reasonable time in the context of the ongoing judicial investigation concerning him, which serves as the basis for the freezing of his assets in the European Union, the Council may be required to carry out the necessary verifications.

(see paras 41, 42, 48, 64, 65)

6.      See the text of the decision.

(see para. 61)

7.      The first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.

8.      In the light of Article 51(1) and (2) of the Charter, the provisions of Article 47 thereof must be interpreted as being directed at the right to effective judicial protection only in proceedings in which the rights and freedoms guaranteed by EU law are at stake. Thus, Article 47 of the Charter is applicable in the sense that it provides the applicant with the assurance that the contested asset freeze will be subject to effective judicial review by the General Court, entailing, inter alia, verification that the decision to adopt those measures was taken on a sufficiently solid factual basis. Such an obligation to verify, pursuant to Article 47 of the Charter, therefore rests with the General Court, not with the Council. On the other hand, the provisions of Article 47 of the Charter cannot apply to the applicant’s right to effective judicial protection in the context of the judicial proceedings concerning him in Tunisia, which is a third country. Moreover, the fact that the decision to adopt restrictive measures targeting the applicant was based on those judicial proceedings cannot have the effect of justifying a review of the lawfulness of that decision in the light of those provisions. First, that decision emanated from an EU institution which is not empowered by the Treaties to exercise judicial functions. Second, the decision, which was, moreover, adopted under the CFSP, is not in the nature of a judicial decision, as its object is neither to rule on an action nor to settle a dispute.

(see paras 89-92)

9.      See the text of the decision.

(see paras 150, 151)

10.    8.      See the text of the decision.

(see paras 155-157)