Language of document : ECLI:EU:T:2015:249

Case T‑593/11

Fares Al-Chihabi

v

Council of the European Union

(Common foreign and security policy — Restrictive measures against Syria — Freezing of funds — Rights of the defence — Obligation to state reasons — Error of assessment — Right to property — Right to respect for private life — Proportionality)

Summary — Judgment of the General Court (Seventh Chamber), 30 April 2015

1.      EU law — Principles — Rights of 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 grounds for the decisions adopted — Scope — Notification to the person concerned by means of a publication in the Official Journal — Lawfulness

(Art. 296, second para., TFEU; Charter of Fundamental Rights of the European Union, Arts 41(2), 47 and 52(1); Council Decision 2011/522/CFSP; Council Regulation No 878/2011)

2.      Common foreign and security policy — Restrictive measures against Syria — Freezing of funds of persons, entities or bodies associated with the Syrian regime — Rights of defence — Disclosure of inculpatory evidence — Subsequent decision maintaining the name of a person on the list of persons concerned by those measures — No new grounds — No infringement of the right to be heard

(Council Decisions 2011/782/CFSP, 2012/739/CFSP and 2013/255/CFSP; Council Regulations No 36/2012, No 1117/2012 and No 363/2013)

3.      Acts of the institutions — Statement of reasons — Obligation — Scope — Restrictive measures against Syria — Freezing of funds of persons, entities or bodies having regard to the situation in Syria — Decision falling within a context known to the person concerned, enabling him to understand the scope of the measure taken against him — Whether a summary statement of reasons is sufficient

(Art. 296 TFEU; Council Decisions 2011/273/CFSP, 2011/522/CFSP, 2011/782/CFSP, 2012/739/CFSP and 2013/255/CFSP; Council Regulations No 878/2011, No 36/2012, No 1117/2012 and No 363/2013)

4.      Acts of the institutions — Statement of reasons — Obligation — Scope — Restrictive measures against Syria — Freezing of funds of persons, entities or bodies having regard to the situation in Syria — Limits to that obligation — Overriding considerations concerning the security of the Union and its Member States — Adverse effect on the legitimate interests of the person concerned

(Art. 296 TFEU; Council Decisions 2011/522/CFSP, 2011/782/CFSP, 2012/739/CFSP and 2013/255/CFSP; Council Regulations No 878/2011, No 36/2012, No 1117/2012 and No 363/2013)

5.      Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Clear and precise statement of the pleas relied on — Lack of clarity and precision — Inadmissibility

(Rules of Procedure of the General Court, Art. 44(1)(c))

6.      Common foreign and security policy — Restrictive measures against Syria — Prohibition of entry and transit and freezing of funds of certain persons and entities responsible for violent repression against the civilian population — Restriction of the right to property and respect for private life — No breach of principle of proportionality

(Charter of Fundamental Rights of the European Union, Art. 47; Council Decisions 2011/522/CFSP, 2011/782/CFSP, 2012/739/CFSP and 2013/255/CFSP; Council Regulations No 878/2011, No 36/2012, No 1117/2012 and No 363/2013)

1.      See the text of the decision.

(see paras 36-43, 54, 55)

2.      In the case of a decision maintaining a person’s name on the list of persons covered by restrictive measures, as opposed to cases where the name is listed for the first time, the competent EU authority is in principle under a duty to disclose to that person, before the decision is adopted, the evidence on which it bases that decision, so that that person will be able to defend his rights.

However, where the Council supplements the reasons for placing the applicant’s name on a list of persons covered by restrictive measures, a distinction must be made, according to the acts in question.

Whilst any subsequent fund-freezing decision must in principle be preceded by notification of the new inculpatory factors and a hearing, that is not the position where the grounds of a subsequent decision freezing funds are in substance the same as those already relied on for the adoption of an earlier decision. Accordingly, a simple statement to that effect may suffice.

Thus, lack of individual notification of such a decision, for which the Council simply repeated the reasons for the initial listing, without adding or amending anything, does not adversely affect defence rights.

However, in the case of a decision for the purposes of which the Council amended the reasons for the initial inclusion of the applicant’s name in the list in question, before such a measure is adopted, new evidence must be notified and the right to be heard respected.

(see paras 44-48)

3.      See the text of the decision.

(see paras 61-67, 71, 76)

4.      As regards the entry of a person’s name in the lists of persons covered by restrictive measures against Syria, in order correctly to discharge its obligation to give reasons for an act imposing restrictive measures, the Council must mention the elements of fact and law on which the legal justification of those measures depends and the considerations which have led it to take those measures. It follows that, in principle, the statement of reasons for such an act must cover not only the legal conditions for applying restrictive measures, but also the actual and specific reasons why the Council considers, in the exercise of its broad discretion, that the person concerned should be subject to such measures.

However, detailed publication of the complaints put forward against the parties concerned might not only conflict with the overriding considerations of public interest related to the security of the European Union and its Member States, or the conduct of their international relations, but also jeopardise the legitimate interests of the persons and entities in question, in that it would be capable of causing serious damage to their reputation, so that, exceptionally, it is permissible for only the operative part of the decision and a general statement of reasons to appear in the version of the fund-freezing decision published in the Official Journal, it being understood that the actual, specific statements of reasons for that decision must be formalised and brought to the knowledge of the parties concerned by any other appropriate means.

(see paras 72, 73)

5.      See the text of the decision.

(see paras 94-96)

6.      The right to property is one of the general principles of EU law and is enshrined in Article 17 of the Charter of Fundamental Rights of the European Union.

However, the rights enshrined in the Charter do not, under EU law, enjoy absolute protection, but must be viewed in relation to their function in society. Consequently, the exercise of those rights may be restricted, provided that those restrictions correspond to objectives of public interest pursued by the European Union and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the rights thus guaranteed.

In that regard, the adoption of restrictive measures against a person providing economic support to the Syrian regime is appropriate, since it is a step taken in pursuit of an objective of public interest as fundamental to the international community as the protection of civilian populations. The freezing of the funds, financial assets and other economic resources, and the prohibition of entry into the territory of the European Union, of persons identified as being involved in supporting the Syrian regime cannot, as such, be regarded as inappropriate.

Moreover, such restrictive measures are also necessary because the alternative and less restrictive measures possible, such as a system of prior authorisation or an obligation to justify, a posteriori, how the funds transferred were used, do not enable the objective pursued — namely, combating the financing of the Syrian regime — to be achieved as effectively, particularly given the possibility of circumventing such restrictions.

Furthermore, the measures entering or maintaining the name of the person concerned on the lists of persons covered by restrictive measures against Syria provide for the possibility of authorising the use of frozen funds in order to meet basic needs or to meet certain commitments and of granting specific authorisations permitting the release of funds, other financial assets or other economic resources and of revising periodically the entries in that list in order to ensure that, where persons or entities no longer meet the necessary criteria for inclusion, those persons or entities are removed from the list at issue.

Finally, the said measures also provide that the competent authority of a Member State may authorise entry into its territory, in particular, for urgent humanitarian reasons.

Consequently, given the paramount importance of the protection of civilian populations in Syria and of the derogations provided for by the contested measures, the restrictions imposed by those measures on the right to property and the right to respect for private life of the person concerned are not disproportionate in relation to the objective pursued.

(see paras 97-100, 102-104)