Case T‑168/12

Aguy Clement Georgias and Others

v

Council of the European Union

and

European Commission

(Common foreign and security policy — Restrictive measures adopted against certain persons and entities in view of the situation in Zimbabwe — Freezing of funds — Non-contractual liability — Causal link — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Manifest error of assessment — Obligation to state reasons)

Summary — Judgment of the General Court (Eighth Chamber), 18 September 2014

1.      Non-contractual liability — Conditions — Unlawfulness —Damage — Causal link — Burden of proof — One of the conditions not satisfied — Claim for compensation dismissed in its entirety

(Art. 340, second para., TFEU)

2.      Actions for damages — Limitation period — Point from which time starts to run — Liability for a legislative act — Date of appearance of the prejudicial effects of the act — Date on which the measure listing the applicant’s name was adopted

(Art. 340, second para., TFEU; Statute of the Court of Justice, Arts 46 and 53, first para.; Council Regulation No 314/2004, as amended by Regulation No 412/2007)

3.      Plea of illegality — Incidental nature — Fund-freezing measures — Action for compensation brought within the prescribed period, but without an action for annulment — Admissibility

(Arts 263 TFEU and 277 TFEU; Statute of the Court of Justice, Arts 46 and 53, first para.)

4.      Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — Regulation imposing restrictive measures without provisions prohibiting entry to a Member State or transit through its territory — Refusal of access to national territory and of transit falling within national sovereign jurisdiction concerning control of access by citizens of third countries — No causal link

(Art. 340, second para., TFEU; Council Regulation No 314/2004, as amended by Regulation No 412/2007)

5.      Non-contractual liability — Conditions — Unlawfulness — Assessment of the legality of the institutions’ conduct — Lack of or inadequate statement of reasons — Question distinct from that of legality on the substance

(Arts 296 TFEU and 340, second para., TFEU)

6.      European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures against Zimbabwe — Freezing of funds of certain persons and bodies in view of the situation in Zimbabwe — 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

(Arts 60 EC and 301 EC; Council Regulation No 314/2004, as amended by Regulation No 412/2007)

7.      EU law — Principles — Rights of defence — Freezing of funds of certain persons and bodies in view of the situation in Zimbabwe — Obligation on the institutions to review regularly the situation which justified the adoption of the act containing restrictive measures and the appropriateness of extending them — Scope — Unlawfulness of the act depending on proving the procedural relevance of the infringement of the said obligation

(Council Regulation No 314/2004, as amended by Regulation No 412/2007)

1.      See the text of the decision.

(see paras 24-26)

2.      See the text of the decision.

(see paras 29-31)

3.      See the text of the decision.

(see paras 34, 35)

4.      See the text of the decision.

(see paras 43, 45, 46)

5.      See the text of the decision.

(see paras 69, 71)

6.      Concerning the intensity of judicial review, the Council has broad discretion as to what to take into consideration for the purpose of adopting economic and financial sanctions on the basis of Articles 60 EC and 301 EC, in accordance with a common position adopted on the basis of the common foreign and security policy (CFSP). Since the courts of the European Union may not, in particular, substitute their assessment of the evidence, facts and circumstances justifying the adoption of such measures for that of the Council, the review carried out by the Court must, therefore, be restricted to checking that the rules governing procedure and the statement of reasons have been complied with, that the facts are materially accurate, and that there has been no manifest error of assessment of the facts or misuse of power. That limited review applies, especially, to the assessment of the considerations of appropriateness on which such decisions are based.

It is however necessary in that context also to take into consideration the case-law relating to the concept of a third country, for the purposes of Articles 60 EC and 301 EC, according to which that concept includes the leaders of such a country and the individuals and entities associated with those leaders or directly or indirectly controlled by them. It follows that, when exercising its broad discretion in the matter, the Council, where it intends to adopt, on the basis of those articles, restrictive measures against the leaders of such a country and individuals and entities associated with those leaders or controlled directly or indirectly by them, may, it is true, define more or less broadly the leaders and their associates who are to be subject to the measures to be adopted, but the Council may not extend the scope of those measures to persons or entities who do not fall into one or the other of the abovementioned categories.

Further, in a situation where the Council defines abstractly the criteria which may justify the listing of a person, or entity, in the list of persons or entities subject to restrictive measures adopted on the basis of Articles 60 EC and 301 EC, it is the task of the Court to determine, on the basis of the pleas in law raised by the person or entity concerned or, where necessary, raised of its own motion, whether the case in point corresponds to the abstract criteria defined by the Council. That review extends to the assessment of the facts and circumstances relied on as justifying the listing of the person or entity concerned on the list of persons and entities subject to restrictive measures, and to verifying the evidence and information on which that assessment is based. The Court must likewise ensure that the rights of the defence are observed and that the requirement of a statement of reasons is satisfied and also, where applicable, that the overriding considerations relied on exceptionally by the Council in order to justify disregarding those rights are well founded.

(see paras 52, 72-74)

7.      Observance of the rights of the defence is, in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law which must be guaranteed even in the absence of any rules governing the procedure in question. That principle requires that the person concerned must have been afforded the opportunity effectively to make known his views on any information against him which might have been taken into account in the measure to be adopted.

In that regard, concerning the listing of the applicant pursuant to Regulation No 412/2007, amending Regulation No 314/2004 concerning certain restrictive measures in respect of Zimbabwe, there was an obligation on the EU institutions to review regularly the situation which justified the adoption of the restrictive measures at issue and whether it was appropriate to extend them. That is even more the case when those measures entailed a restriction, on the exercise by the persons concerned of their right to property, that had, moreover, to be classified as considerable, having regard to the general application of the asset freezing measure at issue.

However, in the context of an action for annulment, it is also settled case-law that, before such an infringement of the rights of the defence can result in the annulment of the act at issue, it must be demonstrated that, had it not been for that irregularity, the outcome of the procedure might have been different. In a case where the applicant seeks, by means of an action for damages, compensation for the damage which he claims to have suffered because of the adoption of an act or the extension of its validity, in breach of his rights of defence, and where that party has not brought an action for annulment of the act concerned, the claim of an alleged breach of his rights of defence is not by itself sufficient to establish that his action for damages is well founded. It is also necessary to explain what arguments and evidence the person concerned would have relied on if his rights of defence had been respected and to demonstrate, where appropriate, that such arguments and evidence might have led in his case to a different result, and more particularly to the restrictive measure at issue, the freezing of his assets, not being renewed against him.

(see paras 100, 105-107)