Language of document : ECLI:EU:T:2018:138

Joined Cases T‑533/15 and T‑264/16

Il-Su Kim and Others

v

Council of the European Union

and

European Commission

(Common foreign and security policy — Restrictive measures against North Korea with the aim of preventing nuclear proliferation — List of persons and entities to which the freezing of funds and economic resources applies — Inclusion of the applicants’ names — Proof that inclusion on the list is well founded — Obligation to state reasons)

Summary — Judgment of the General Court (Third Chamber), 14 March 2018

1.      Actions for annulment — Interest in bringing proceedings — Action brought against an act imposing restrictive measures on the applicant — Repeal of the contested act in the course of the proceedings — Declaration that there is no need to adjudicate — Not permissible — Applicant maintaining an interest in obtaining recognition that the contested act is unlawful

(Art. 263 TFEU; Council Decisions (CFSP) 2015/1066, (CFSP) 2016/475 and (CFSP) 2016/849)

2.      Acts of the institutions — Statement of reasons — Obligation — Scope — Assessment of the obligation to state reasons by reference to the circumstances of the case — Need to specify all the relevant factual and legal elements — None

(Art. 296 TFEU)

3.      Acts of the institutions — Statement of reasons — Obligation — Scope – Restrictive measures against North Korea — Freezing of funds of persons, entities or bodies engaged in or supporting nuclear proliferation — Minimum requirements

(Art. 296, second para. TFEU; Council Decisions (CFSP) 2015/1066, (CFSP) 2016/475 and (CFSP) 2016/849; Commission Regulations 2015/1062 and 2016/659)

4.      Actions for annulment — Pleas in law — Infringement of essential procedural requirements — Obligation to state reasons — Separate ground from that concerning substantive legality

(Art. 263, second para., TFEU)

5.      European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures against North Korea — Freezing of funds of persons, entities or bodies engaged in or supporting nuclear proliferation — Ambit of the review — Restricted review for general rules — Review extending to the assessment of facts and verification of evidence for measures applying to specific entities

(Art. 29 TEU; Art. 215 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Decisions (CFSP) 2015/1066, (CFSP) 2016/475 and (CFSP) 2016/849; Commission Regulations 2015/1062 and 2016/659)

6.      European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures against North Korea — Measures in the context of the fight against nuclear proliferation — Ambit of the review — Evidence submitted as exculpatory evidence by the person subject to the restrictive measures — Included

(Art. 275, second para. TFEU)

7.      Common foreign and security policy – Restrictive measures against North Korea — Freezing of funds of persons, entities or bodies engaged in or supporting nuclear proliferation — Measures adopted pursuant to an implementing power – Interpretation of the implementing act in accordance with the basic act – Taking into account of the context of the legislation at issue

(Art. 215, second para. TFEU; Council Decisions (CFSP) 2015/1066, (CFSP) 2016/475 and (CFSP) 2016/849; Commission Regulations 2015/1062 and 2016/659)

8.      Common foreign and security policy — Restrictive measures against North Korea — Freezing of funds and economic resources — Action for annulment by an entity that could contribute to nuclear proliferation-related activities — Burden of proof — Decision based on a series of indicators — Lawfulness — Conditions

(Council Decisions (CFSP) 2015/1066, (CFSP) 2016/475 and (CFSP) 2016/849; Commission Regulations 2015/1062 and 2016/659)

9.      European Union — Judicial review of the legality of the acts of the institutions — Regulation imposing restrictive measures directed against persons, entities or bodies engaged in or providing support for nuclear proliferation — Ambit of the review

(Council Decisions (CFSP) 2015/1066, (CFSP) 2016/475 and (CFSP) 2016/849; Commission Regulations 2015/1062 and 2016/659)

10.    EU institutions — Protection of individuals with regard to the processing of personal data — Regulation No 45/2001 — Processing of personal data — Information obligations in the case of data not collected from the person concerned — Infringement — Impact on the lawfulness of acts adopted on the basis of the data concerned — None

(Art. 340 TFEU; European Parliament and Council Regulation No 45/2001, Arts 12(1) and 32; Council Decisions (CFSP) 2015/1066, (CFSP) 2016/475 and (CFSP) 2016/849; Commission Regulations 2015/1062 and 2016/659)

11.    European Union — Judicial review of the legality of the acts of the institutions — Regulation imposing restrictive measures directed against certain persons and entities that could contribute to nuclear proliferation-related activities — Ambit of the review — Proof of the position held by one of the applicants — Witness statement of that applicant who is subject to the restrictive measures concerned — Admissibility — Probative value — Principle of the free assessment of evidence

(Council Decisions (CFSP) 2016/475 and (CFSP) 2016/849; Commission Regulation 2016/659)

12.    Common foreign and security policy — Restrictive measures against North Korea — Freezing of funds of persons, entities or bodies engaged in or supporting nuclear proliferation — Category of persons acting on behalf of the designated entity or at its direction – Functions conferring power to manage the entity subject to the restrictive measures — Person having performed managerial functions within the entity subject to the restrictive measure — Included — Conditions – Link between the natural person subject to the restrictive measures and the activity of providing economic resources that could contribute to nuclear programmes

(Council Decisions 2013/183/CFSP, Art. 15(1)(b)(ii), (CFSP) 2016/475 and (CFSP) 2016/849, Art. 27(1)(b); Commission Regulation 2016/659)

1.      See the text of the decision.

(see para. 62)

2.      See the text of the decision.

(see paras 69, 71, 72, 82, 192)

3.      See the text of the decision.

(see para. 70)

4.      See the text of the decision.

(see para. 73)

5.      See the text of the decision.

(see paras 91, 93-99)

6.      While the lawfulness of acts by which the EU institutions adopt restrictive measures may, in principle, be assessed only on the basis of the elements of fact and of law on the basis of which those acts were adopted, the fact remains that a piece of evidence that has been submitted as exculpatory evidence by the person subject to the restrictive measures can be taken into consideration by the Courts of the European Union for the purpose of confirming an assessment of the lawfulness of the contested acts that is based on the elements of fact and of law underpinning the adoption of those acts.

(see para. 115)

7.      A regulation providing for restrictive measures must be interpreted in the light not only of the decision adopted in the framework of the common foreign and security policy referred to in Article 215(2) TFEU, but also of the historical context in which the provisions were adopted by the European Union, that regulation being one such provision. The same applies to a decision adopted in the area of the common foreign and security policy, which must be interpreted taking into account the context in which it is adopted.

(see paras 122, 148)

8.      The Council is not obliged to present evidence that the resources of a particular entity have been used directly for the purposes of the nuclear proliferation-related programmes of the Democratic People’s Republic of Korea; rather, it is for the Council to substantiate its decision in the most plausible manner possible with a body of evidence showing that those resources may contribute to that end.

(see para. 152)

9.      In the context of a judicial review of the lawfulness of the grounds underpinning a decision to enter the name of a person or entity on a list of persons subject to a restrictive measure, if, at the very least, one of the reasons mentioned in the summary provided is sufficiently detailed and specific, is substantiated and constitutes in itself sufficient basis to support that measure, the fact that the same cannot be said of other such reasons cannot justify the annulment of that measure.

(see para. 161)

10.    Even if the Council and the Commission had processed personal data concerning the applicants in a way that was inconsistent with Regulation No 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, that could not lead to the annulment of the contested measures. However, were the applicants to be in a position to prove that data were processed in that way, they could invoke an infringement of that regulation, in the context of an action for damages.

(see paras 173, 269, 345)

11.    See the text of the decision.

(see paras 224, 225, 258-260, 327, 328)

12.    As regards proof of the ability of a person included on a list of persons and entities to which the freezing of funds and economic resources applies to influence the activities of the entity that is subject to restrictive measures, a person exercising functions which confer on him the power to manage an entity covered by restrictive measures may, as a general rule, himself be considered to be involved in the activities that justified the adoption of the restrictive measures covering the entity in question.

In an action for annulment of certain restrictive measures taken against North Korea with the aim of preventing nuclear proliferation, brought by an individual performing managerial functions within the designated entity that may be involved in generating money that could contribute to the nuclear proliferation-related activities of North Korea and who falls within a listing criterion covering ‘persons or entities acting on their behalf or at their direction’ within the meaning of Article 15(1)(b)(ii) of Decision 2013/183 concerning restrictive measures against the Democratic People’s Republic of Korea, and Article 27(1)(b) of Decision 2016/849 concerning restrictive measures against the Democratic People’s Republic of Korea, that criterion does not necessarily require that individual to be the person deciding on the transfer of financial assets that could contribute to the nuclear proliferation-related activities of the Democratic People’s Republic of Korea, or to be in a position to influence such a transfer. That individual must, however, have a link to the activity referred to in the grounds at issue read in the light of the relevant criteria, namely the generation of foreign currency revenue which could contribute to the nuclear programmes of the Democratic People’s Republic of Korea.

The individual subject to the restrictive measures must simply maintain a link with the activity of providing financial services or transfers of funds, assets or resources that could contribute to the nuclear programmes of the Democratic People’s Republic of Korea, and it is not necessary for that person to be specifically linked to nuclear proliferation activities.

Thus, the criteria and the disputed grounds underpinning the listing of that person’s name merely require that a link be established between the person concerned and the entity which provides or ensures the transfer of financial assets that could contribute to the programmes of the Democratic People’s Republic of Korea that are related to nuclear proliferation.

It may be concluded from that person’s performance of managerial functions that his role in the business of the entity subject to the restrictive measures is sufficient for the conclusion to be drawn that he has a link with that entity’s activity of generating foreign currency, acting on that entity’s behalf or at its direction, and moreover that, beyond verifying the accuracy of the other grounds relating to that person, it is not necessary to rely on the evidence concerning his individual actions for the purpose of establishing that he was designated in accordance with the listing criteria adopted.

(see paras 332-338)