Case T‑257/19
(publication in extract form)
Khaldoun Al Zoubi
v
Council of the European Union
Judgment of the General Court (Fourth Chamber), 24 November 2021
(Common foreign and security policy – Restrictive measures against Syria – Freezing of funds – Errors of assessment)
1. 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, (CFSP) 2019/87, (CFSP) 2019/806 and (CFSP) 2020/719, Art. 27(2)(a) and (3), and Art. 28(2)(a) and (3); Council Regulations No 36/2012, as amended by Regulation 2015/1828, Art. 15(1a)(a) and (1b), 2019/85, 2019/798 and 2020/716)
(see paragraphs 51, 52)
2. 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 operating in Syria – Publicly available 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 55, 70, 73, 80)
3. 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 date of adoption of the decision
(Art. 263 TFEU; 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 paragraph 58)
4. 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 81, 82, 91, 94-96, 99, 102-104, 110, 116-121)
5. 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 Rights 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)
6. 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
(Art. 263 TFEU; 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 125, 128)
Résumé
Mr Khaldoun Al Zoubi is a businessperson of Syrian nationality who has, according to the Council, interests and activities in multiple sectors of Syria’s economy. His name was included, in January 2019,(1) on the lists of persons and entities subject to the restrictive measures against the Syrian Arab Republic adopted by the Council and then maintained on those lists in May 2019 and May 2020 (2) as a leading businessperson operating in Syria, Vice President of Aman Holding and majority shareholder of an airline, activities in respect of which he had links to Mr Samer Foz, who was also included on the lists. The Council of the European Union also stated that Aman Holding held a majority stake in Aman Dimashq, an undertaking involved in the development of a luxury residential and commercial project backed by the Syrian regime and that Mr Khaldoun Al Zoubi benefited from and supported 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, (3) as amended by Decision 2015/1836, and in Article 15(1a)(a) of Regulation No 36/2012, (4) as amended by Regulation 2015/1828, and, secondly, on the criterion of association with the Syrian 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 the contested measures (‘the initial acts’, ‘the 2019 maintaining acts’ and ‘the 2020 maintaining acts’), since the fact that interests are held in a single entity does not, in itself, demonstrate the existence of interests and activities in multiple sectors of the economy justifying classification as a leading businessperson operating in Syria.
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.
Concerning the status as majority shareholder of the airline Fly Aman, the Court finds, first, that that reason is ultimately founded only in respect of the initial measures, since the applicant has not demonstrated that he was no longer the majority shareholder at the date of adoption of the 2019 and 2020 maintaining acts. As regards the status as Vice President of Aman Holding, the Court also finds that the applicant has not properly demonstrated that he did not hold such a position. Therefore, as regards that company’s stake on the board of Aman Dimashq, an undertaking involved in the Marota City development project backed by the Syrian regime, the Council was not entitled to take into account, in order to demonstrate the applicant’s status as a leading businessperson, Aman Holding’s participation in that development project and the applicant’s alleged position as Vice President of Aman Holding, when he was merely an employee of Aman Holding and did not sit on the board of Aman Dimashq. Concerning the applicant’s links to Mr Samer Foz, the Court finds, moreover, that the Council has not adduced a sufficiently specific, precise and consistent set of indicia capable of substantiating to the requisite standard the links between the applicant and Mr Foz. Concerning, lastly, the constitution of Asas Iron Company, the Court finds that the applicant has properly demonstrated that he did not own any shares in that company at the date of adoption of the 2020 maintaining acts and that he was not a founding member of that company.
In the light of the foregoing, the Court concludes that the Council – in being able properly to rely, as regards the initial measures alone, only on the applicant’s capacity as majority shareholder of Fly Aman – has not succeeded in demonstrating that the applicant was a leading businessperson operating in Syria. As regards the 2019 and 2020 maintaining acts, the Court states that the Council has also failed to demonstrate that the applicant was a leading businessperson operating in Syria at the date of adoption of those acts. Accordingly, the Court concludes that the first reason for listing is not sufficiently substantiated.
As regards, in the second place, the support to the Syrian regime and the benefit which the applicant allegedly derived from it, the Court points out, first, 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 at the same time regarded as benefiting from the Syrian regime or supporting it through those same activities.
In the present case, since he was not Vice President of Aman Holding at the date of adoption of the contested measures, the applicant could not 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. Similarly, since the applicant was no longer the majority shareholder of Fly Aman, the Court finds that there is no evidence to show that the applicant benefited, in that capacity, from the Syrian regime or that he supported it. Since the Council has not adduced a specific, precise and consistent set of indicia capable of demonstrating that the applicant supported and benefited from the Syrian regime, the Court concludes that the listing of the applicant’s name for that reason is also unfounded.
It therefore annuls the contested measures in so far as they concern the applicant.