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Case T249/20

Abdelkader Sabra

v

Council of the European Union

 Judgment of the General Court (Fourth Chamber), 16 March 2022

(Common foreign and security policy – Restrictive measures adopted against Syria – Freezing of funds – Errors of assessment – Criterion of leading businessperson operating in Syria – Presumption of a link with the Syrian regime – Rebuttal of the presumption)

1.      European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures against Syria – Scope of the review – Proof that the measure is well founded – Obligation on the competent EU authority to establish, in the event of challenge, that the grounds relied on against the persons or entities concerned are well founded

(Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2020/212 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2020/211 and 2020/716, Annex II)

(see paragraphs 36-42, 224)

2.      Common foreign and security policy – Specific restrictive measures against certain persons and bodies in view of the situation in Syria – Decision 2013/255/CFSP and Regulation No 36/2012 – Criteria for adopting restrictive measures – Leading businesspersons operating in Syria – Association with the Syrian regime – Meaning

(Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2020/212 and (CFSP) 2020/719, Art. 27(1), (2)(a) and (3), and Art. 28(1), (2)(a) and (3); Council Regulation No 36/2012, as amended by Regulations 2015/1828, 2020/211 and 2020/716, Art. 15(1)(a), (1a)(a) and (1b))

(see paragraphs 43, 128)

3.      European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures against Syria – Scope of the review – Inclusion of the applicant in the list annexed to the contested decision by virtue of his status as a leading businessperson operating in Syria and of his association with the Syrian regime – Publicly accessible documents – Probative value

(Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2020/212 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2020/211 and 2020/716, Annex II)

(see paragraph 46)

4.      European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures against Syria – Scope of the review – Assessment of the legality by reference to the information available at the time of adoption of the decision

(Art. 263 TFEU; Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2020/212 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2020/211 and 2020/716, Annex II)

(see paragraphs 49, 50)

5.      Common foreign and security policy – Restrictive measures against Syria – Freezing of funds and economic resources – Action for annulment brought by a leading businessperson operating in Syria who is subject to a decision to freeze funds – Allocation of the burden of proof – Decision based on a series of indicators – Probative value – Scope

(Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2020/212 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2020/211 and 2020/716, Annex II)

(see paragraphs 53, 56, 81, 82, 85, 96, 107, 127)

6.      Judicial proceedings – Proof – Documentary evidence – Probative value – Assessment by the EU judicature – Criteria


 

(see paragraphs 63, 155)

7.      Common foreign and security policy – Specific restrictive measures against certain persons and bodies in view of the situation in Syria – Decision 2013/255/CFSP and Regulation No 36/2012 – Presumption of support for the Syrian regime in the case of leading businesspersons operating in Syria – Whether permissible – Conditions – Rebuttable presumption – Evidence to the contrary – Witness statements – Scope

(Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2020/212 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2020/211 and 2020/716, Annex II)

(see paragraphs 130-134, 139-142, 156-162, 164, 165, 170, 171, 182-188)

8.      Common foreign and security policy – Restrictive measures against Syria – Freezing of funds and economic resources – Action for annulment by a person associated with the Syrian regime who is subject to a decision to freeze funds – Allocation of the burden of proof – Decision based on a body of evidence – Probative value – Scope

(Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2020/212 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2020/211 and 2020/716, Annex II)

(see paragraph 189, 196, 201-203, 208, 209)

9.      Common foreign and security policy – Specific restrictive measures against certain persons and bodies in view of the situation in Syria – Decision 2013/255/CFSP and Regulation No 36/2012 – Criteria for adopting restrictive measures – Support provided to and benefit derived from the Syrian regime – Meaning – Autonomous legal criterion – Inclusion on the lists based on a specific, precise and consistent body of evidence

(Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2020/212 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2020/211 and 2020/716, Annex II)

(see paragraphs 191, 192)

10.    Common foreign and security policy – Restrictive measures against Syria – Freezing of funds and economic resources – Action for annulment by a person benefiting from the policies of the Syrian regime covered by a fund-freezing decision – Allocation of the burden of proof – Decision based on a body of evidence – Probative value – Scope

(Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2020/212 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2020/211 and 2020/716, Annex II)

(see paragraphs 210, 214-216, 221, 223)



Résumé

The applicant, Mr Abdelkader Sabra, is a Syrian and Lebanese businessman with, inter alia, economic interests in the shipping and tourism sectors.

His name had been included in 2020 on the lists of persons and entities covered by the restrictive measures against the Syrian Arab Republic by the Council, (1) then maintained there, (2) on the grounds that he was, according to the Council, a leading businessman operating in Syria, that he had benefited from his links with the Syrian regime in order to expand his activities in the real estate sector and that he provided financial and economic support to the regime, as a shipping magnate and close business associate of Mr Rami Makhlouf, regime supporter and cousin of Bashar Al-Assad, through his shareholding in Cham Holding. Mr Abdelkader Sabra had also been regarded by the Council as having been involved in money laundering and commercial activities in support of the Syrian regime. Those grounds were based on the one hand on the criterion of classification as a leading businessperson operating in Syria, laid down in Article 27(2)(a) and Article 28(2)(a) of Decision 2013/255, (3) as amended by Decision 2015/1836, and Article 15(1a)(a) of Regulation No 36/2012, (4) as amended by Regulation 2015/1828, and, on the other hand, on the criterion of classification as a person associated with the Syrian regime laid down in Article 27(1) and Article 28(1) of that decision and in Article 15(1)(a) of that regulation.

The General Court upholds the action for annulment brought by the applicant in finding, for the first time, that the presumption of a link between leading businesspersons operating in Syria and the Syrian regime has been rebutted, while specifying, with regard to the criterion of association with the Syrian regime, the standard of proof required for recognising that a person or entity supports or benefits from that regime.

Findings of the Court

As regards, in the first place, the rebuttable presumption of a link with the Syrian regime that applies to leading businesspersons operating in Syria, the Court examines first of all the evidence provided by the Council in order to determine the links between the applicant’s economic activities and the Syrian regime. It observes that the only evidence put forward by the Council in that regard, in addition to the presumption of a link with the Syrian regime, concerns, first, the conclusion of a contract by Phoenicia Tourism Company, belonging to the applicant, with the Syrian Ministry of Tourism, relating to the implementation of a tourism project. Secondly, it relates to the fact that Cham Holding, belonging to Mr Rami Makhlouf, in which the applicant had been a shareholder but had shown that he left the board of directors, has links with the Syrian regime. As regards Phoenicia Tourism Company, the Court holds that, in order to demonstrate the link with the Syrian regime, as defined in recital 6 of Decision 2015/1836, the Council cannot rely on a contract, although concluded with a Syrian ministry, if the circumstances surrounding the conclusion of that contract and its implementation are not clear. The Court notes that the Council did not state how the applicant, despite having distanced himself from Cham Holding, maintains special links with Cham Holding and Mr Rami Makhlouf, and, more broadly, with the Syrian regime. The Court finds that the Council relies only on the presumption of a link with the Syrian regime in order to establish the link between the applicant and that regime and that the Council must therefore assess whether or not the evidence adduced by the applicant is capable of rebutting the presumption of a link with the Syrian regime.

As regards the various statements produced by the applicant in that regard, the Court notes that they must be assessed in the light of the principles of the freedom as to the form of evidence adduced and of the unfettered assessment of evidence, as enshrined in the case-law. As regards the four witness statements that are favourable to the applicant, which were provided by him and were prepared by third persons, the Court finds that the persons who made the statements in question did so for the Court’s express attention in the context of the present proceedings, without it being possible to presume that the persons making them acted in concert to do so; the Court further finds that the statements are consistent in describing the applicant as openly critical of the Syrian regime and as having provided financial support to humanitarian and civil organisations supporting Syrian refugees. Since objective evidence in the file corroborates their content, the Court acknowledges that those statements are sound and reliable. Moreover, since the Council has not put forward any evidence to discredit the content of those statements, the Court concludes that they show that the applicant distanced himself from the Syrian regime and finances humanitarian missions assisting Syrian refugees.

Since the applicant has, moreover, effectively cast doubt on the assertion that he is a close business associate of Mr Rami Makhlouf, the Court considers that it is unlikely that the applicant will have links with the Syrian regime, as a result of which it is not clear that the applicant, as a result of the restrictive measures adopted against him, is able to exercise the influence on the Syrian regime necessary to increase pressure on it to change its policy of repression. Since one of the possibilities for an applicant to rebut the presumption of a link with the Syrian regime is to provide a body of evidence of the absence of influence over the Syrian regime, the Court finds that the applicant has succeeded in rebutting that presumption and that the first ground for including the applicant’s name, linked to the status of ‘leading’ businessperson operating in Syria, has therefore not been established to the requisite legal standard.

As regards, in the second place, the second ground for listing relating to the association with the Syrian regime, the Court states that it is necessary, in order to substantiate that ground, for the Council to have demonstrated to the requisite legal standard that it was indeed because of links with the Syrian regime that the applicant obtained the contract with the Syrian Ministry of Tourism. It cannot be accepted that the mere fact of being successful in a call for tenders, even if it led to the conclusion of a contract with a ministry of the Syrian regime, is sufficient to permit the conclusion that there are links enabling the person concerned to take advantage of that regime, within the meaning of Article 27(1) and Article 28(1) of Decision 2013/255, as amended by Decision 2015/1836. The Court finds that the Council has not demonstrated to the requisite legal standard that the applicant benefited from his links with the Syrian regime in order to obtain that contract and thus to further his activities in the tourism sector.

It therefore annuls the contested measures in so far as they concern the applicant.


1      Council Implementing Decision (CFSP) 2020/212 of 17 February 2020 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2020 L 431, p. 6) and Council Implementing Regulation (EU) 2020/211 of 17 February 2020 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2020 L 43 I, p. 1).


2      Council Decision (CFSP) 2020/719 of 28 May 2020 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2020 L 168, p. 66) and Council Implementing Regulation (EU) 2020/716 of 28 May 2020 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2020 L 168, p. 1).


3      Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (OJ 2013 L 147, p. 14), as amended by Council Decision (CFSP) 2015/1836 of 12 October 2015 (OJ 2015 L 266, p. 75).


4      Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation (EU) No 442/2011 (OJ 2012 L 16, p. 1), as amended by Council Regulation (EU) 2015/1828 of 12 October 2015 (OJ 2015 L 266, p. 1).