Action brought on 1 April 2011 - El-Materi v Council

(Case T-200/11)

Language of the case: English

Parties

Applicant: Fahd Mohamed Sakher Ben Mohamed El-Materi (Doha, Qatar) (represented by: M. Lester, Barrister and G. Martin, Solicitor)

Defendant: Council of the European Union

Form of order sought

Annul Council Implementing Decision 2011/79/CFSP of 4 February 2011 implementing Decision 2011/72/CSFP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2011 L 31, p. 40) and Council Regulation (EU) No 101/2011 of 4 February 2011 concerning restrictive measures directed against certain persons and bodies in view of the situation in Tunisia (OJ 2011 L 31, p. 1), insofar as they apply to the applicant; and

Order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

1.    First plea in law, alleging that the criterion for including the applicant in the Annex to Council Implementing Decision 2011/79/CFSP has not been fulfilled, as:

-    The only permissible basis for including the applicant in the said annex would be if he fulfilled the criterion set out in Article 1 of Council Decision 2011/72/CFSP¹ namely if he were someone "responsible for the misappropriation of Tunisian State funds" or someone associated with such a person, since, as recital 2 explains, such persons "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".

2.    Second plea in law, alleging that the Council has violated the applicant's rights of defence and the right to effective judicial protection, as:

-    The restrictive measures provide no procedure for communicating to the applicant the evidence on which the decision to freeze his assets was based, or for enabling him to comment meaningfully on that evidence;

-    The reasons given in the contested measures contain a general, unsupported, vague allegation of a judicial investigation;

-    The Council has not given sufficient information to enable the applicant effectively to make known his views in response, which does not permit a Court to assess whether the Council's decision and assessment was well founded and based on compelling evidence.

3.    Third plea in law, alleging that the Council has failed to give the applicant sufficient reasons for his inclusion in the contested measures, in violation of its obligation to give a clear statement of the actual and specific reasons justifying its decision, including the specific individual reasons that led it to consider that the applicant was responsible for misappropriating Tunisian State funds.

4.    Fourth plea in law, alleging that the Council has infringed, without justification or proportion, the applicant's right to property and to conduct his business, as:

-    The asset freezing measures have a marked and long-lasting impact on his fundamental rights;

-    They are unjustified in their application to the applicant; and

-    The Council has not demonstrated that a total asset freeze is the least onerous means of ensuring such an objective, nor that the very significant harm to the applicant is justified and proportionate.

5.    Fifth plea in law, alleging that the Council committed a manifest error of assessment in deciding to apply these restrictive measures to the applicant, as no evaluation has apparently been carried out by the Council as regards the applicant or, if such assessment has been carried out, the Council erred in concluding that there was justification for including the applicant in the restrictive measures.

____________

¹ - Council Decision 2011/72/CFSP of 31 January 2011 concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2011 L 28, p. 62).