JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
24 November 2021 (*)
(Common foreign and security policy – Restrictive measures adopted against Syria – Freezing of funds – Errors of assessment – Proportionality – Right to property – Right to pursue an economic activity – Misuse of powers – Obligation to state reasons – Rights of the defence – Right to a fair trial)
In Case T‑256/19,
Bashar Assi, residing in Damascus (Syria), represented by L. Cloquet, lawyer,
applicant,
v
Council of the European Union, represented by S. Kyriakopoulou and V. Piessevaux, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU for annulment of Council Implementing Decision (CFSP) 2019/87 of 21 January 2019 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2019 L 18 I, p. 13), of Council Implementing Regulation (EU) 2019/85 of 21 January 2019 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2019 L 18 I, p. 4), of Council Decision (CFSP) 2019/806 of 17 May 2019 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2019 L 132, p. 36), of Council Implementing Regulation (EU) 2019/798 of 17 May 2019 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2019 L 132, p. 1), of 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 of 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) in so far as those acts concern the applicant,
THE GENERAL COURT (Fourth Chamber),
composed of S. Gervasoni, President, L. Madise and J. Martín y Pérez de Nanclares (Rapporteur), Judges,
Registrar: L. Ramette, Administrator,
having regard to the written part of the procedure and further to the hearing on 22 October 2020,
gives the following
Judgment (1)
Background to the dispute and events subsequent to the bringing of the action
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12 By Council Implementing Decision (CFSP) 2019/87 of 21 January 2019 implementing Decision 2013/255 (OJ 2019 L 18 I, p. 13), and by Council Implementing Regulation (EU) 2019/85 of 21 January 2019 implementing Regulation No 36/2012 (OJ 2019 L 18 I, p. 4) (together, ‘the initial measures’), the applicant’s name was inserted at line 270 of Table A of the lists of the names of natural and legal persons, entities or bodies subject to restrictive measures in Annex I to Decision 2013/255 and in Annex II to Regulation No 36/2012 (together, ‘the lists at issue’), with the following reasons being given:
‘Leading businessperson operating in Syria, with interests and activities in multiple sectors of Syria’s economy, including his roles as founding partner of Fly Aman airline and Chairman of the Board of Directors of “Aman [Dimashq]”; a joint venture involved in the development of Marota City, a regime-backed luxury residential and commercial development. Assi benefits from and/or supports the regime through his position as Chairman of the Board of Directors of “Aman [Dimashq]”.’
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16 On 17 May 2019, the Council adopted Decision (CFSP) 2019/806 amending Decision 2013/255 (OJ 2019 L 132, p. 36), which extended the application of the latter decision until 1 June 2020; on the same day, the Council also adopted Implementing Regulation (EU) 2019/798 amending Regulation No 36/2012 (OJ 2019 L 132, p. 1) (together, ‘the 2019 maintaining acts’). The applicant’s name was maintained at line 270 of Table A of the lists at issue on the basis of reasons identical to those set out in the initial measures (‘the 2019 reasons’).
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21 On 28 May 2020, the Council adopted Decision (CFSP) 2020/719 amending Decision 2013/255 (OJ 2020 L 168, p. 66), which extended the application of the latter decision until 1 June 2020, and Implementing Regulation (EU) 2020/716 implementing Regulation No 36/2012 (OJ 2020 L 168, p. 1) (together, ‘the 2020 maintaining acts’). The applicant’s name was maintained at line 270 of Table A of the lists at issue for reasons that differ in part from those set out in the 2019 maintaining acts (‘the 2020 reasons’). The Council justified the adoption of restrictive measures concerning the applicant by giving the following reasons:
‘Leading businessperson operating in Syria, with interests and activities in multiple sectors of Syria’s economy, including his roles as founding partner of Fly Aman airline and, until May 2019, Chairman of the Board of Directors of Aman [Dimashq], a joint venture involved in the development of Marota City, a regime‐backed luxury residential and commercial development. Assi benefits from and/or supports the Syrian regime through his business activities. On [30 January 2020], he founded the Aman Facilities company with and on behalf of Samer Foz.’
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Procedure and forms of order sought
23 By application lodged at the Court Registry on 15 April 2019, the applicant brought the present action for annulment of the initial measures in so far as they concern the applicant.
24 By separate document lodged at the Court Registry on 30 July 2019, the applicant modified the application under Article 86 of the Rules of Procedure of the General Court, with the result that the application also seeks annulment of the 2019 maintaining acts in so far as they concern the applicant. The applicant also reiterated the form of order set out in the application.
25 On 8 August 2019, the Council lodged the defence and the observations on the first statement of modification at the Court Registry.
26 The reply was lodged on 1 October 2019.
27 By decision of 17 October 2019, the President of the General Court, pursuant to Article 27(3) of the Rules of Procedure, reassigned the case to a new Judge-Rapporteur, attached to the Fourth Chamber.
28 The rejoinder was lodged on 8 January 2020.
29 The written part of the procedure was closed on 8 January 2020.
30 By way of measures of organisation of procedure provided for in Article 89(3)(a) of the Rules of Procedure, on 22 July 2020, the Court asked the Council to answer a series of questions. The Council answered the questions within the prescribed period.
31 By separate document lodged at the Court Registry on 13 August 2020, the applicant, under Article 86 of the Rules of Procedure, modified the application a second time, with the result that the application also seeks annulment of the 2020 maintaining acts in so far as they concern the applicant. The applicant also reiterated the form of order set out in the application and in the first statement of modification and put forward new arguments.
32 On 2 October 2020, the Council submitted its observations on the second statement of modification.
33 The parties presented oral argument and replied to the questions put by the Court at the hearing on 22 October 2020.
34 The applicant claims that the Court should:
– annul the initial measures, the 2019 maintaining acts and the 2020 maintaining acts (together, ‘the contested measures’) in so far as they concern the applicant;
– order the Council to pay the costs.
35 The Council contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs;
– in the alternative, should the Court annul the contested measures in so far as they concern the applicant, order that the effects of Implementing Decision 2019/87 and of Decisions 2019/806 and 2020/719 be maintained in so far as they concern the applicant, until the annulment of Implementing Regulations 2019/85, 2019/798 and 2020/716 takes effect in so far as they concern the applicant.
Law
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The first plea, alleging errors of assessment
82 In the first place, the applicant denies being a leading businessperson operating in Syria. In that regard, he disputes the evidence relied on by the Council to include his name on the lists at issue. In particular, the applicant claims that he is a mere employee of Aman Holding JSC. He acknowledges that, in the course of his duties, he was entrusted with the task of representing Aman Holding in the board of directors of Aman Damascus JSC (‘Aman Dimashq’) and held the position of chairman of the board of directors of the latter company. However, he maintains that he resigned from his position within Aman Holding and that, consequently, in the course of his duties, he no longer represents that company as a member of the board of directors of Aman Dimashq. In that regard, he claims that Aman Dimashq is not a regime-backed joint venture and that, in the context of the Marota City project, he has not developed expropriated land from persons displaced by the conflict in Syria, which would have prevented those persons from being able to return to their homes. In the reply, he claims that the land on which the Marota City project will be developed was not the scene of conflicts between opposition forces and the Syrian regime and that the neighbourhoods of Damascus (Syria) in that area were never destroyed during the armed conflict which took place in Syria. Lastly, he denies holding any share in the joint venture Aman Dimashq. In addition, the applicant disputes, first, holding any share in Fly Aman and, secondly, being a founding partner of that company since, before the formation of Fly Aman became effective, he was replaced as a founder and shareholder.
83 In the second place, as regards the 2020 maintaining acts, the applicant disputes the new reason for listing his name and submits, in that respect, that his position within Aman Facilities OPLLC is not such as to confer on him the status of leading businessperson operating in Syria, since that company has a low capital and a limited scope of activities. In addition, Aman Facilities is not a branch or a subsidiary of Aman Holding and is not sponsored by the latter or by Mr Foz.
84 In the third place, the applicant denies having any links to the Syrian regime.
85 In the fourth place, the applicant maintains that none of the exhibits in document WK 50/2019 INIT refers to his alleged link to the Syrian regime, but that those exhibits relate mainly to Mr Foz.
86 The Council disputes the applicant’s arguments.
Preliminary observations
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94 It should be borne in mind, as is apparent from paragraphs 50 and 51 above, that the listing of applicant’s name is based, first, on the criterion defined in Articles 27(2)(a) and 28(2)(a) of Decision 2013/255, as amended by Decision 2015/1836, and in Article 15(1a)(a) of Regulation No 36/2012, as amended by Regulation 2015/1828 (criterion of a leading businessperson operating in Syria), and, secondly, on the criterion defined in Articles 27(1) and 28(1) of that decision and in Article 15(1)(a) of that regulation (criterion of association with the regime).
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The status of leading businessperson operating in Syria
115 It is necessary to ascertain whether all of the evidence submitted by the Council discharges the burden of proof incumbent on it under the case-law referred to in paragraph 89 above and thus constitutes a set of indicia sufficiently specific, precise and consistent to substantiate the first reason for listing.
116 In that regard, the Council took the view that the applicant is a leading businessperson operating in Syria because of his interests and activities in multiple sectors of Syria’s economy. As regards the initial measures and the 2019 maintaining acts, the evidence submitted by the Council in document WK 50/2019 INIT relates to three activities, namely his status as founding partner of Fly Aman airline, then his status as chairman of the board of directors of Aman Dimashq, a joint venture involved in the Marota City project, and, lastly, his duties within Aman Holding which are linked to his status as chairman of the abovementioned board of directors. As regards the 2020 maintaining acts, in addition to the abovementioned activities, the additional evidence submitted by the Council in document WK 3599/2020 REV 1 mentions the applicant’s creation of Aman Facilities, with and on behalf of Mr Foz.
117 It is therefore necessary to examine each of those elements.
– Status as founding partner of Fly Aman
118 As regards the reason set out in the contested measures relating to his status as founding partner of Fly Aman, it is apparent from the evidence from the websites ‘Aliqtisadi’, ‘Eqtsad News’ and ‘7al.net’ that the applicant is a founding partner of Fly Aman. In addition, the website ‘7al.net’ states that the Syrian Ministry of Trade and Consumer Protection has ratified the articles of association of Fly Aman, 10% of which belong to the applicant.
119 In that regard, first, the applicant denies holding any share in Fly Aman and submits that, in any event, it would be a minority share. In support of his claim, he produces the first version of Fly Aman’s articles of association, dated 22 February 2018 and signed by the Syrian Companies Directorate, and Fly Aman’s registration certificate dated 28 May 2018. Secondly, the applicant denies being a founder of Fly Aman and submits that, before the formation of Fly Aman became effective, company B had replaced him as a founding member.
120 It should be noted that Fly Aman’s registration certificate of 28 May 2018 states that the founders of the undertaking are Mr Al Zoubi and company B. Furthermore, it is apparent that company B is a shareholder of Fly Aman alongside Mr Al Zoubi. However, the applicant’s name is not mentioned. Nonetheless, the first version of the articles of association of Fly Aman, dated 22 February 2018 and signed by the Syrian Companies Directorate, designates the applicant as founder and partner of Fly Aman and states that he owns 10% of the undertaking’s capital. In that regard, it should be noted that the applicant has not shown that Fly Aman’s articles of association of 22 February 2018 had not produced legal effects between that date and the date of the registration certificate of 28 May 2018, in view of the fact that the company was not formed even though its articles of association were ratified by the Syrian Companies Directorate. At the hearing, however, he confirmed that it was not a first version, but rather the definitive statutes of Fly Aman, pending registration with the Syrian Companies Directorate. Lastly, the applicant acknowledges that he has not adduced evidence of the transfer of his title to company B, designated as founding partner in the registration certificate dated 28 May 2018. It must be recalled that the applicant’s name was included on the lists at issue because of his status as founding partner of Fly Aman airline and not as a mere shareholder. In any event, the applicant contradicts himself in his pleadings, since, while disputing being a shareholder, he acknowledges that he is one by submitting that he is only a minority shareholder. Furthermore, it should be added, as regards the 2020 maintaining acts, that the evidence from the websites ‘Aliqtisadi’ and ‘Eqtsad News’, taken from document WK 3599/2020 REV 1, mention that the applicant is a founding partner of Fly Aman.
121 It follows from the foregoing that the applicant has not succeeded in challenging the reason stating that he was a founding partner of Fly Aman when it was formed on 22 February 2018. Thus, the reason for listing concerning the fact that the applicant is a founding partner of Fly Aman airline, which is stated in the contested measures, is well founded.
– Status as chairman of the board of directors of Aman Dimashq
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127 Secondly, concerning the 2020 maintaining acts, it should be noted that, as regards the reason relating to the applicant’s status as chairman of the board of directors of Aman Dimashq, the Council maintained the applicant’s name on the lists at issue, citing precisely the date of his resignation as alleged by the applicant, namely May 2019. It means that the Council has admitted as established the fact that the applicant was no longer chairman of the board of directors of Aman Dimashq as from May 2019.
128 It is clear from the case-law that the fact that a person has ceased to hold a position within a structure does not, in itself, mean that that former position is irrelevant, since past activities could influence that person’s behaviour. However, the case-law shows that, taken in isolation, a person’s former positions cannot justify the inclusion of that person’s name on the lists in question. If the Council wished to rely on that person’s past activities, it would have to put forward sound and consistent evidence from which it could reasonably be inferred that that person maintains links with the structure which employed him or her at the date of adoption of the contested act, justifying the inclusion of that person’s name on the lists, after the termination of that person’s activities within that structure (see, by analogy, judgments of 6 September 2013, Bateni v Council, T‑42/12 and T‑181/12, not published, EU:T:2013:409, paragraphs 64 and 65, and of 18 February 2016, Jannatian v Council, T‑328/14, not published, EU:T:2016:86, paragraph 40).
129 In the present case, it is not apparent from document WK 3599/2020 REV 1 that the Council submitted sound and consistent evidence, within the meaning of the case-law referred to in paragraph 128 above, from which it could reasonably be inferred that the applicant maintained links with the structure which employed him on the date of adoption of the contested measure. Thus, document WK 3599/2020 REV 1 does not contain any evidence capable of justifying that, despite the applicant’s resignation in May 2019, that entry should be maintained in the reasons for listing. In particular, the Council neither explains nor demonstrates how the fact that the applicant was chairman of the board of directors of Aman Dimashq until May 2019 justifies, on the date of adoption of the 2020 maintaining acts, using that factor to establish his status as a leading businessperson operating in Syria. In that regard, it has not shown that the applicant maintained special links with Aman Dimashq. It must also be noted that, at the hearing, the Council acknowledged that the applicant had left his position by resigning, but only referred to his other commercial activities in order to justify, on account of their importance, the applicant’s classification as a leading businessperson operating in Syria.
130 Accordingly, it must be concluded that, as regards the 2020 maintaining acts, the Council could not rely on the reason relating to his status as chairman of the board of directors of Aman Dimashq until May 2019 in order to demonstrate his status as a leading businessperson operating in Syria.
– The applicant’s participation, as chairman of the board of directors of Aman Dimashq, a joint venture involved in the development of the Marota City project, in a regime-backed luxury residential and commercial development
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135 As regards, secondly, the reasons set out in the 2020 maintaining acts, it is sufficient to note that, since it has been established, in paragraph 130 above, that, in order to demonstrate the applicant’s status as a leading businessperson operating in Syria, the Council could not rely on the reason relating to his position as chairman of the board of directors of Aman Dimashq until May 2019, it cannot, a fortiori, use his participation in the Marota City project in that capacity in order to demonstrate that status.
– Status as an employee of Aman Holding
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138 Secondly, in the context of the examination of the legality of the 2020 maintaining acts, it must be recalled that the applicant was no longer chairman of the board of directors of Aman Dimashq, as the Court has found in paragraph 130 above.
139 Furthermore, it is apparent from the file that the applicant kept his position at Aman Holding for approximately one year after the date of his resignation. Moreover, in response to a question put by the Court at the hearing, the applicant stated that his salary had been reduced by half. In particular, his contract of employment with Aman Holding stipulated that he was paid SYP 1 250 000 (approximately EUR 2 526.60) per month. In addition, he claims that he is no longer as involved in Aman Holding’s projects, given that he oversees fewer projects. Moreover, in his pleadings and as was confirmed at the hearing, the applicant requested from Aman Holding authorisation to create Aman Facilities, on account of the fact that he was receiving remuneration from Aman Holding and intended to adopt a trade name close to that of Aman Holding, which indicates that he did not have complete freedom to lead as he pleased his business endeavour. Lastly, the applicant claims that Aman Holding would assist him in finding a lawyer to represent him and pay any legal costs he would incur in an action against the restrictive measures in dispute.
140 It follows that links do remain between the applicant and Aman Holding, but that they have significantly changed compared with those that existed when the initial measures and the 2019 maintaining acts were adopted. The applicant maintains, without being contradicted by the Council, that he no longer oversees projects and that Aman Holding allowed him to keep that position until he found another source of income. Furthermore, since the applicant is no longer a company representative but a mere employee of Aman Holding, it cannot be accepted that his activities within that company would make him a leading businessperson. Accordingly, it must be concluded that, as regards the 2020 maintaining acts, the Council could not, in order to establish the applicant’s status as a leading businessperson operating in Syria, rely on his status as an employee of Aman Holding.
– Status as founding member of Aman Facilities with and on behalf of Mr Foz
141 As regards the new reason set out in the 2020 maintaining acts, it should be noted that the applicant admits having created Aman Facilities and justifies this in the light of the difficulties in finding employment following the adoption by the Council of the initial measures and of the 2019 maintaining acts.
142 First, it should be noted that the date of creation of Aman Facilities indicated in the reasons on which the 2020 maintaining acts are based does not correspond to the date relied on by the applicant in the second statement of modification. Those reasons state that the company was created on 30 January 2020, which is confirmed by the article from the website ‘Aliqtisadi’. By contrast, the applicant states that the company was formed in May 2019, only a few days before his resignation from his position as company representative of Aman Holding took effect, namely on 28 May 2019. Furthermore, according to the registration certificate of Aman Facilities, produced by the applicant, the company was created on 23 May 2019. Lastly, the statement by Syria International Islamic Bank also confirms that it was created prior to 30 January 2020, since repayment of the loan granted for setting up that company began on 10 November 2019. That difference in the dates is not, however, such as to affect the legality of the 2020 maintaining acts because, even if the Council relied on an incorrect date, the fact remains that the applicant acknowledges having set up that company before the adoption of those acts.
143 Secondly, it is apparent from the article from the website ‘Aliqtisadi’ that Aman Facilities operates in the tourism sector and provides hotel services. According to that article, the company’s fields of activity are as follows: management of hotels, private facilities and establishments dedicated to tourism, services or the administration, consultancy activities in the field of tourism and services. The applicant claims that Aman Facilities provides cleaning and sterilisation services to certain undertakings and facilities, which may include hotels, but he denies, however, that that company operates or develops hotel and tourist activities. In support of his argument, he produces two contracts for the provision of services the object of which confirms that Aman Facilities provides cleaning and sterilisation services in a hotel. The applicant also produces the registration certificate of Aman Facilities, dated 22 January 2020, which, however, confirms the description of the objects of Aman Facilities as reproduced in the article ‘Aliqtisadi’. Therefore, the two contracts for the provision of services and the registration certificate for Aman Facilities do not call into question the list of the fields of activity referred to in the article ‘Aliqtisadi’ and, therefore, the relevance of that article.
144 Thirdly, as regards the part of the 2020 reasons mentioning that the applicant created Aman Facilities with and on behalf of Mr Foz, it should be noted that the Council produced only one article intended to substantiate this, namely the article headed ‘Bashar Assi, Mr Foz’s New Henchman for Investments’, from the website ‘Eqtsad News’, which refers to the links between Mr Foz and the applicant. According to that article, Mr Foz uses the name of the applicant to set up new companies. It was in the context of that collaboration that the applicant allegedly received authorisation from the Syrian Ministry of Trade and Consumer Protection for setting up Aman Facilities.
145 It should be noted that, on that point, the applicant lodged a sworn statement, drawn up by a manager of Syria International Islamic Bank and dated 13 August 2020, which attests to the existence of a loan amounting to SYP 20 million (approximately EUR 26 000), granted to the applicant as well as the repayment schedule for that loan, starting on 10 November 2019. According to the applicant, that bank loan was used to finance part of the start-up costs of Aman Facilities, the other part being financed from his private funds. In that regard, the Council stated at the hearing that it could not be ruled out that the applicant had other sources of funding through Mr Foz or another bank, even though it admitted having no evidence to support that statement.
146 It follows from the foregoing that the applicant has demonstrated, without being effectively contradicted by the Council, that he took out a personal loan to set up Aman Facilities. Similarly, it is apparent from the article from the website ‘Eqtsad News’ that the applicant was given authorisation to create that company by the Syrian Ministry of Trade and Consumer Protection. However, it does not follow that Aman Facilities was officially created by the applicant and Mr Foz.
147 Fourthly, at the hearing, the Council relied on the similarity between the names Aman Holding and Aman Facilities to highlight the link between Mr Foz and the applicant and thus demonstrate that, in reality, Aman Facilities was created on behalf of Mr Foz. The applicant, for his part, justifies that choice as being an asset for marketing purposes, in order to gain visibility and develop his activities, by benefiting from the prestige of Aman Holding.
148 In that regard, it is sufficient to note that the fact that the names of those two companies have the word ‘Aman’ in common does not constitute sufficient evidence in itself to show that Aman Facilities was created with and on behalf of Mr Foz. Similarly, even though the applicant stated that he chose the name Aman Facilities in order to benefit from Aman Holding’s reputation, it is not apparent from any evidence in document WK 3599/2020 REV 1 that Aman Facilities was thus named as a result of his association with Aman Holding or that Mr Foz approved such a course of action.
149 Fifthly, there is no evidence in document WK 3599/2020 REV 1 that Aman Facilities’ activity benefits Mr Foz, or even Aman Holding.
150 Sixthly and lastly, even though it is apparent from the file that Mr Foz owns Aman Holding, it is important to note that the reasons for listing in the 2020 maintaining acts relate to the link between Aman Facilities and Mr Foz and makes no mention of a link between Aman Holding and Aman Facilities.
151 It follows from all of the foregoing that, although the applicant admits having created Aman Facilities, it cannot be said that he acted on behalf of Mr Foz by creating that company. It follows from the case-law that in view of the situation in Syria, the Council discharges the burden of proof borne by it if it presents to the EU judicature a set of indicia sufficiently specific, precise and consistent to establish that there is a sufficient link between the person subject to measures freezing his or her funds and the regime being combated (judgment of 21 April 2015, Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 52). In that sense, the only piece of evidence produced by the Council to demonstrate that the new reason for listing is well founded does not satisfy the requirements stemming from that case-law, having regard in particular to the applicant’s submission of evidence and arguments to the contrary.
– Conclusion on the applicant’s status as a leading businessperson operating in Syria
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170 In the second place, as regards the 2020 maintaining acts, it follows from the foregoing that the Council has adduced a set of indicia sufficiently specific, precise and consistent to establish that the applicant was the founding partner of Fly Aman and had set up Aman Facilities. However, it failed to prove that the applicant had an important position within Aman Holding, as is apparent from paragraphs 139 and 140 above. Similarly, the Council has adduced no evidence that Aman Facilities was created with and on behalf of Mr Foz. Lastly, the Council wrongly relied on the applicant’s status as chairman of the board of directors of Aman Dimashq until May 2019 and on his participation on that basis in the Marota City project.
171 First, it must be noted that, as is apparent from the article of the website ‘Eqtsad News’, Fly Aman has yet to be set up. The applicant also submitted, without being challenged by the Council on this point, that Fly Aman was not operational. Secondly, the applicant confirms that he created Aman Facilities. However, the formation of Aman Facilities, the company objects of which are described in paragraph 143 above, is not sufficient to establish by itself the status of leading businessperson operating in Syria. The applicant also stated at the hearing, in reply to a question from the Court, that that company employed a very small number of employees, no more than five, which the Council has not disputed. In those circumstances, the Council cannot be regarded as having demonstrated, to the requisite standard, the applicant’s status as a leading businessperson operating in Syria when the 2020 maintaining acts were adopted.
172 Therefore, as regards the 2020 maintaining acts, the first reason for listing is not sufficiently substantiated; it is therefore necessary to examine the second reason for listing.
Association with the Syrian regime
173 It should be borne in mind that, as is apparent from the 2020 maintaining acts, the second reason for listing concerns the applicant’s support to the Syrian regime and the benefit that he derives from that regime by reason of his commercial activities.
174 It is therefore necessary to identify the commercial activities in question.
175 Clearly, the commercial activities for which the applicant is regarded by the Council as supporting, and as benefiting from, the Syrian regime are the same as those which led it to regard him as a leading businessperson operating in Syria.
176 In that regard, it cannot be excluded that, for a specific person, the reasons for listing might overlap to a certain extent, in that a person may be considered to be a leading businessperson operating in Syria and also regarded as benefiting, in the course of his or her activities, from the Syrian regime or supporting it through those same activities. That is apparent, specifically, from the fact that, as is established in recital 6 of Decision 2015/1836, close association with the Syrian regime and support to it by that category of persons are one of the reasons for which the Council decided to establish that category. The fact remains that, even in such a situation, these are separate criteria (judgment of 23 September 2020, Kaddour v Council, T‑510/18, EU:T:2020:436, paragraph 77).
177 First, it must be inferred from the conclusions drawn in paragraphs 130 and 135 above that, since the applicant was not chairman of the board of directors of Aman Dimashq on the date on which the 2020 maintaining acts were adopted, he cannot be regarded as benefiting from the Syrian regime on that basis nor as supporting it on account of his participation in the Marota City project.
178 Secondly, it has been established, in paragraph 121 above, that the applicant is the founding partner of Fly Aman. However, the applicant claims that Fly Aman is not operational. It should be noted, in that regard, that it is apparent from the article from the website ‘Eqtsad News’ that Fly Aman has yet to be set up. There is no evidence in documents WK 50/2019 INIT and WK 3599/2020 REV 1 that the applicant benefits, in his capacity as founding partner of that company, from the Syrian regime or that he supports it. Admittedly, according to the website ‘7al.net’, the civil aviation sector in Syria is experiencing great difficulties as a result of ongoing military operations, which have led to the cessation of tourist traffic and the termination of services at certain airports. However, the Council did not rely on that consideration in its pleadings to justify a possible link between the formation of the company and the Syrian regime.
179 Thirdly, although it is apparent from paragraph 139 above that links remain between the applicant and Aman Holding, it is not apparent from any of the evidence in documents WK 50/2019 INIT and WK 3599/2020 REV 1 that the applicant benefits, in that capacity, from the Syrian regime or that he supports it. In that regard, the applicant stated that he no longer oversees projects within Aman Holding. In particular, he adduced evidence that he had been replaced as representative of Aman Holding and elected chairman of the board of directors of Aman Dimashq. He justified keeping his status as an employee temporarily, pending his finding another source of income. Thus, the support and benefit which the applicant receives from his former employer do not constitute direct evidence that he supports or benefits from the Syrian regime.
180 Fourthly and lastly, as regards Aman Facilities, although it is apparent from paragraph 146 above that the applicant obtained authorisation from the Syrian Ministry of Trade and Consumer Protection for its formation, the mere fact of forming a company, employing a limited number of employees, is not sufficient to support the conclusion that the applicant benefits from and supports the Syrian regime. In that regard, the website ‘Eqtsad News’ mentions ties between the applicant and Mr Foz, in that the latter is said to use the applicant’s name to set up new companies, including Aman Facilities. However, that information is not borne out by any other evidence contained in WK 3599/2020 REV 1. In addition, it must be noted that no information contained in document WK 3599/2020 REV 1 shows that the applicant supports, specifically, the Syrian regime through Aman Facilities.
181 In the light of all of the foregoing, it must be found that the second reason for including the applicant’s name on the lists at issue because of his association with the Syrian regime is not sufficiently substantiated, with the result that the decision to maintain the applicant’s name is unfounded.
182 Therefore, as regards the 2020 maintaining acts, the first plea must be upheld and, accordingly, they must be annulled in so far as they concern the applicant, without it being necessary to examine the fourth, second and third pleas raised in support of the action in respect of those acts.
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On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Annuls Council Decision (CFSP) 2020/719 of 28 May 2020 amending Decision 2013/255/CFSP concerning restrictive measures against Syria 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 in so far as they concern Mr Bashar Assi;
2. Dismisses the action as to the remainder;
3. Orders the Council of the European Union to bear its own costs and to pay half of those of Mr Assi;
4. Orders Mr Assi to bear half of his own costs.
Gervasoni | Madise | Martín y Pérez de Nanclares |
Delivered in open court in Luxembourg on 24 November 2021.
[Signatures]