Case T‑256/19
(publication in extract form)
Bashar Assi
v
Council of the European Union
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)
1. Acts of the institutions – Statement of reasons – Obligation – Scope – Restrictive measures against Syria – Prohibition on entry and transit as well as freezing of funds of leading businesspersons operating in Syria – Decision falling within a context known to the person concerned, enabling him or her to understand the scope of the measure taken against him or her – Whether summary statement of reasons sufficient
(Art. 296 TFEU; Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2019/87, (CFSP) 2019/806 and (CFSP) 2020/719, Arts 27(2)(a) and 28(2)(a), and Annex I; Council Regulations No 36/2012, 2019/85, 2019/798 and 2020/716, Annex II)
(see paragraphs 40-45, 52, 56)
2. Common foreign and security policy – Specific restrictive measures against certain persons and entities 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 – Concept
(Art. 29 TEU; Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836 and (CFSP) 2020/719, Arts 27(2)(a) and (3), and 28(2)(a) and (3); Council Regulations No 36/2012, as amended by Regulation 2015/1828, Art. 15(1a)(a) and (1b), and 2020/716)
(see paragraphs 50, 51, 94, 171)
3. EU law – Principles – Rights of the defence – Right to effective judicial protection – Restrictive measures against Syria – Freezing of funds of persons, entities or bodies associated with the Syrian regime – Obligation to disclose individual and specific reasons for the decisions adopted – Scope – Notification to the person concerned through publication in the Official Journal – Whether permissible
(Charter of Fundamental Rights of the European Union, Arts 41(2)(a) and 52(1); Council Decision (CFSP) 2019/87; Council Regulation 2019/85)
(see paragraphs 61-70)
4. Common foreign and security policy – Specific restrictive measures against Syria – Freezing of funds of persons, entities or bodies associated with the Syrian regime – Rights of the defence – Notification of incriminating evidence – Subsequent decision maintaining the name of the applicant on the list of persons subject to those measures – No new reasons – Infringement of the right to be heard – None
(Council Decision (CFSP) 2019/806; Council Regulation 2019/798)
(see paragraphs 72-75, 77)
5. Common foreign and security policy – Restrictive measures against Syria – Freezing of funds of persons, entities or bodies associated with the Syrian regime – Rights of the defence – Notification of incriminating evidence – Subsequent decision maintaining the name of a person on the list of persons subject to those measures – New reasons – Communication of the new evidence to the person concerned for his or her observations – Infringement of the right to be heard – None
(Council Decision (CFSP) 2020/719; Council Regulation 2020/716)
(see paragraphs 78, 80)
6. 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 reasons held against the persons or entities concerned are well founded
(Charter of Fundamental Right of the European Union, Art. 47; Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2019/87, (CFSP) 2019/806 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2019/85, 2019/798 and 2020/716, Annex II)
(see paragraphs 87-93)
7. 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 on the list annexed to the contested decision on account of his status as a leading businessperson operation in Syria – Publicly accessible documents – Probative value
(Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2019/87, (CFSP) 2019/806 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2019/85, 2019/798 and 2020/716, Annex II)
(see paragraphs 96, 104, 107, 109, 114)
8. 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 set of indicia – Probative value – Scope
(Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2019/87, (CFSP) 2019/806 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2019/85, 2019/798 and 2020/716, Annex II)
(see paragraphs 115, 116, 121, 127, 129, 130, 135, 140, 151, 152, 158, 159, 170)
9. Common foreign and security policy – Specific restrictive measures against certain persons and entities in view of the situation in Syria – Decision 2013/255/CFSP and Regulation No 36/2012 – Presumption of support to the Syrian regime in the case of leading businesspersons operating in Syria – Whether permissible – Conditions – Rebuttable presumption – Evidence to the contrary – None
(Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2019/87 and (CFSP) 2019/806, Annex I; Council Regulations No 36/2012, 2019/85, and 2019/798, Annex II)
(see paragraphs 161-164, 166, 169)
10. Common foreign and security policy – Specific restrictive measures against certain persons and entities 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 – Concept – Autonomous legal criterion – Inclusion on the lists based on a specific, precise and consistent set of indicia – Absence
(Council Decision 2013/255/CFSP, as amended by Decision (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, and 2020/716, Annex II)
(see paragraphs 176, 180-182)
11. Common foreign and security policy – Restrictive measures against Syria – Freezing of the funds and restrictions on the admission of persons, entities or bodies associated with the Syrian regime – Restriction of the right to property and the freedom to pursue an economic activity – Breach of the principle of proportionality – None
(Art. 5(4) TEU; Charter of Fundamental Right of the European Union, Arts 15, 16 and 17; Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2019/87 and (CFSP) 2019/806, Arts 28(6) and (7), and 34, and Annex I; Council Regulations No 36/2012, as amended by Regulation 2015/1828, Art. 32(4), 2019/85 and 2019/798, Annex II)
(see paragraphs 192-194, 196-201)
Résumé
Mr Bashar Assi is a businessperson of Syrian nationality with interests and activities in multiple sectors of Syria’s economy. His name was included, in January 2019, then maintained in May 2019 and May 2020, on the lists of persons and entities subject to the restrictive measures against the Syrian Arab Republic adopted by the Council of the European Union (1) as, first, founding partner of an airline; secondly, chairman of the board of directors of Aman Dimashq, an undertaking involved in the development of a luxury residential and commercial project backed by the Syrian regime; and, thirdly, from 2020, on account of the creation of Aman Facilities with Mr Samer Foz, also included on those lists, and on his behalf. The Council considered that those activities allowed Mr Bashar Assi to benefit from and support the Syrian regime.
Those reasons were based, first, on the criterion of a leading businessperson operating in Syria defined in Article 27(2)(a) and Article 28(2)(a) of Decision 2013/255, (2) as amended by Decision 2015/1836, and in Article 15(1a)(a) of Regulation No 36/2012, (3) as amended by Regulation 2015/1828, and, secondly, on the criterion of association with the regime defined in Article 27(1) and Article 28(1) of that decision and in Article 15(1)(a) of that regulation.
The Court upholds the applicant’s action for annulment of Decision (CFSP) 2020/719 and of Implementing Regulation (EU) 2020/716 (‘the 2020 maintaining acts’), since the Council, which had relied, inter alia, on past activities of the applicant, had failed to gather a set of indicia sufficiently specific, precise and consistent to establish that those reasons for listing are well founded, in particular in view of the evidence to the contrary adduced by the applicant.
Findings of the Court
As regards, in the first place, the alleged status as a leading businessperson operating in Syria, the Court examines the evidence submitted by both the Council and the applicant concerning the applicant’s economic activities.
As regards the status as chairman of the board of directors of Aman Dimashq, the Court considers that if the Council intended to rely on past activities of the applicant, in the 2020 maintaining acts, it had to put forward sound and consistent evidence from which it could reasonably be concluded that the applicant, after resigning from that structure in May 2019, maintained links with it, which the Council did not do. Since Aman Dimashq was actively involved in the Marota City development project supported by the Syrian regime, the Court also finds that the Council could not rely on the applicant’s participation, as director of Aman Dimashq, in that development project when he no longer had any links with that company.
Finally, as regards the status as founding member of Aman Facilities with and on behalf of Mr Foz, the Court finds that, although the applicant admitted having set up that company, it is not possible to assert, given the documents in the file, that he acted on behalf of Mr Foz.
In the light of the foregoing, the Court concludes that the Council has not demonstrated, to the requisite standard, the applicant’s status as a leading businessperson operating in Syria at the date of adoption of the 2020 maintaining acts.
As regards, in the second place, the support to the Syrian regime and the benefit which the applicant allegedly derived from it by reason of his commercial activities, the Court notes, first of all, that, for a specific person, the reasons for listing might overlap and that a person may therefore be considered to be a leading businessperson operating in Syria and be regarded, at the same time and through those same activities, as benefiting from or supporting the Syrian regime.
In the present case, since he was no longer chairman of the board of directors of Aman Dimashq at the date of adoption of the 2020 maintaining acts, the applicant could not be regarded, on account of that company’s involvement in the Marota City development project, as benefiting from or as supporting the Syrian regime. Similarly, since Fly Aman was not yet operational, there is no evidence to show that, in his capacity as founding partner, the applicant benefited from or supported the Syrian regime. Finally, as regards Aman Facilities, the mere fact of forming a company and registering it for its formation cannot, moreover, be sufficient for the applicant to be regarded as benefiting from or supporting the Syrian regime.
The Court therefore concludes that the second reason for listing the applicant’s name on account of his association with the Syrian regime is not sufficiently substantiated by the Council and that the maintenance of the applicant’s name in the 2020 acts is unfounded.
The Court annuls accordingly Council Decision (CFSP) 2020/719 and Council Implementing Regulation (EU) 2020/716 in so far as they concern the applicant.