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Action brought on 27 July 2009 - Mugraby v Council and Commission

(Case T-292/09)

Language of the case: English

Parties

Applicant: Muhamad Mugraby (represented by: J. Regouw and L. Spigt, lawyers)

Defendant: Council of the European Union and Commission of the European Communities

Form of order sought

1)    find that the Commission has failed to act on:

i) the applicant's request that the Commission submit a recommendation to the Council regarding the suspension of Community assistance for Lebanon as set forth in Article 28 of Regulation (EC) No 1638/2006, such measures being both required and available under the said regulation;

ii) the applicant's request that the Commission, as the agency directly responsible for implementing the various Union assistance programs for Lebanon, suspend the implementation of these programs pending the resolution of Lebanon's continuing violation of fundamental rights, more specifically those of the applicant;

2)    find that the Council, in its function as part of the EU-Lebanon Association Council, has failed to act on the applicant's request to invite the Commission to recommend that the Council take specific and effective measures regarding Union assistance for Lebanon under the Association Agreement between Lebanon and the Community, in order to fulfil the parties' obligations under the Agreement;

3)    find that the Community, the Commission, in its function as guardian of the Treaties and as the agency directly responsible for implementing the various Union assistance programs for Lebanon, and the Council, in its function as part of the EU-Lebanon Association Council, have incurred non-contractual liability for damages suffered by the applicant as a result of their consistent failure from December 2002 onwards to effectively utilise the available resources and instruments towards effective enforcement of the human rights clause in the Association Agreement;

4)    order the Commission, in part as reparation in kind, to propose to the Council the suspension of the EU-Lebanon Association Agreement, pending the resolution of Lebanon's failure to comply with Article 2 of the Association Agreement with regard to the applicant;

5)    order the Commission to limit the performance of current assistance programs (which are carried out and/or supervised by the Commission) to those programs that are aimed specifically at promoting fundamental rights and which do not constitute financial aid to the Lebanese authorities, pending the resolution of Lebanon's failure to comply with Article 2 of the Association Agreement with regard to the applicant;

6)    order the Council to invite the Commission to make a recommendation as outlined under (4) above, and to act through the institutions of the Association Agreement to the same end;

7)    order the defendants to compensate the applicant's material and moral damages, in an amount to be fixed ex aequo et bono at not less than EUR 5 000 000 and to pay the costs.

Pleas in law and main arguments

The applicant, Dr Muhammad Mugraby, a Lebanese human rights lawyer and activist, claims to have suffered persecution, harassment and denial of justice, by the Lebanese authorities, because of his work in defence of human rights. He has allegedly been denied the right to practise law and has been deprived from a number of fundamental rights, such as the right to private property, to a fair hearing and the access to an effective judicial remedy.

The applicant submits that on the basis of Article 2 of the EU-Lebanon Association agreement¹, the Community should take reasonable care to prevent damages being caused by the Lebanon against individuals such as the applicant, by imposing restrictive measures against the Lebanese authorities, such as the suspension of the Association Agreement. In fact, the applicant claims that the benefits made available to Lebanon under the Association Agreement are conditional on compliance with the obligation to respect fundamental human rights and that in the event of persistent breaches of human rights, Article 2 of the Agreement serves to enable the Community to take restrictive measures against Lebanon in proportion to the gravity of the breaches. Meanwhile, the applicant claims that to this date, the Community has failed to exert any effective pressure on the Lebanese authorities to take their obligations to uphold human rights.

The applicant contends that he has formally called upon the defendants to act on 29 April 2009, while the defendants denied its request by letters of 26 May 2009 and 29 May 2009. The applicant relies on the human rights clause contained in Article 2 of the Association Agreement in order to establish the unlawfulness of the Commission's and the Council's consistent failure to effectively enforce the human rights clause against Lebanon.

Moreover, the applicant claims that the defendants have violated general principles of Community law, including the obligation to promote respect of its fundamental rights, which aim to protect the rights of individuals. He submits that there is a direct causal link between the defendant's breach of their obligation and the damages that he has suffered and that he is thus entitled to compensation. According to the applicant, the Lebanese authorities would have most likely ceased their unlawful harassment towards the applicant, had they been faced with the alternative of losing access to Community assistance. Hence, he submits that the damages amounting to loss of income suffered by the applicant would have probably not occurred to the same extent, had the defendants acted in a timely and appropriate manner.

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¹ - Interim agreement on trade and trade-related matters between the European Community, of the one part, and the Republic of Lebanon, of the other part (OJ 2002 L 262, p. 2)