JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
28 September 2022 (*)
(Common foreign and security policy – Restrictive measures taken in view of the situation in Libya – Freezing of funds – List of persons, entities and bodies subject to the freezing of funds and economic resources – Retention of the applicant’s name on the list – Error of assessment)
In Case T‑627/20,
Libyan African Investment Company (LAICO), established in Tripoli (Libya), represented by A. Bahrami and N. Korogiannakis, lawyers,
applicant,
v
Council of the European Union, represented by M.-C. Cadilhac and V. Piessevaux, acting as Agents,
defendant,
THE GENERAL COURT (Fifth Chamber),
composed, at the time of deliberation, of D. Spielmann (Rapporteur), President, U. Öberg and R. Mastroianni, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure
and further to the hearing on 26 January 2022,
gives the following
Judgment
Background to the dispute and facts subsequent to the bringing of the action
1 By its application under Article 263 TFEU, the applicant, Libyan African Investment Company (LAICO), seeks annulment, first, of Council Implementing Decision (CFSP) 2020/1137 of 30 July 2020 implementing Decision (CFSP) 2015/1333 concerning restrictive measures in view of the situation in Libya (OJ 2020 L 247, p. 40) and of Council Decision (CFSP) 2021/1251 of 29 July 2021 amending Decision (CFSP) 2015/1333 concerning restrictive measures in view of the situation in Libya (OJ 2021 L 272, p. 71), in so far as they maintain the applicant’s name on the list of entities set out in Annex IV to Council Decision (CFSP) 2015/1333 of 31 July 2015 concerning restrictive measures in view of the situation in Libya, and repealing Decision 2011/137/CFSP (OJ 2015 L 206, p. 34), and, secondly, of Council Implementing Regulation (EU) 2020/1130 of 30 July 2020 implementing Article 21(2) of Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya (OJ 2020 L 247, p. 14) and of Council Implementing Regulation (EU) 2021/1241 of 29 July 2021 implementing Article 21(2) of Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya and repealing Regulation (EU) No 204/2011 (OJ 2021 L 272, p. 1), in so far as they maintain the applicant’s name on the list of entities set out in Annex III to Council Regulation (EU) 2016/44 of 18 January 2016 concerning restrictive measures in view of the situation in Libya and repealing Regulation (EU) No 204/2011 (OJ 2016 L 12, p. 1).
2 The applicant was established in 1990 by virtue of Libyan Government Resolution No 660/1990. That Libyan joint stock company, initially known as Libyan Arab African Investment Company (‘LAAICO’), is registered in the Commercial Register of Tripoli (Libya). A new registration in the general commercial register was made further to Decision No 87 of the Presidential Council of the Government of National Accord for the year 2016, and further to Decision No 396 of the Minister for the Economy and Industry for the year 2018 regarding the merger of the commercial registry offices.
3 It is apparent from the applicant’s certificate of registration in the commercial register that it invests Libyan funds in African countries in the sectors of agriculture, industry, mining, fishing, shipping, trade, multipurpose investments and financial investments. Over the years, the applicant has specialised exclusively in the hospitality and real-estate sectors in Africa, as well as in investments in other multi-purpose subholding companies. Currently, the applicant’s investments include hotels in Zambia, Gambia, Guinea-Bissau, Burkina Faso, Tanzania, Benin, Uganda, Madagascar, Liberia, Chad, Kenya, South Africa, Mali, Tunisia, Niger, the Republic of the Congo and Ghana.
4 On 11 December 2006, the applicant’s capital shares were transferred to Libya Africa Investment Portfolio (‘LAIP’), an investment fund established in 2006 by Resolution No 15 of the General People’s Committee. LAIP is, in turn, owned by Libyan Investment Authority (‘LIA’), a holding company run by the Libyan State, the registered office of which is established in Tripoli.
5 On 26 February 2011, the United Nations Security Council (‘the UNSC’) adopted Resolution 1970 (2011), which introduced restrictive measures against Libya and against persons and entities involved in serious human rights abuses against persons, including attacks, in violation of international law, on civilian populations and facilities.
6 The applicant was not one of the entities targeted by UNSC Resolution 1970 (2011).
7 On 28 February and 2 March 2011, the Council of the European Union adopted, respectively, Decision 2011/137/CFSP (OJ 2011 L 58, p. 53) and Regulation (EU) No 204/2011 (OJ 2011 L 58, p. 1), both concerning restrictive measures in view of the situation in Libya (together, ‘the original 2011 measures’).
8 Article 5(1)(b) of Decision 2011/137 provided that Member States are to take the necessary measures to prevent the entry into, or transit through, their territories of persons not covered by Annex I to that decision involved in or complicit in ordering, controlling, or otherwise directing, the commission of serious human rights abuses against persons in Libya, including by being involved in or complicit in planning, commanding, ordering or conducting attacks, in violation of international law, including aerial bombardments, on civilian populations and facilities, or acting for or on their behalf or at their direction, as listed in Annex II to that decision.
9 Article 6(1)(b) of Decision 2011/137 and Article 5(1) of Regulation No 204/2011, read in conjunction with Article 6(2) of that regulation, provided, in essence, that funds, other financial assets and economic resources belonging to, owned, held or controlled, directly or indirectly, by persons and entities not covered by Annex III to that decision or Annex II to that regulation involved in or complicit in ordering, controlling or otherwise directing, the commission of serious human rights abuses against persons in Libya, including by being involved in or complicit in planning, commanding, ordering or conducting attacks, in violation of international law, including aerial bombardments, on civilian populations and facilities, or by individuals or entities acting on their behalf or at their direction, or by entities owned or controlled by them, as listed in Annex IV to that decision and Annex III to that regulation, are to be frozen.
10 The applicant was not included on the lists annexed to the original 2011 measures.
11 On 21 March 2011, the Council adopted Implementing Decision 2011/175/CFSP implementing Decision 2011/137 concerning restrictive measures in view of the situation in Libya (OJ 2011 L 76, p. 95) and Implementing Regulation (EU) No 272/2011 implementing Article 16(2) of Regulation No 204/2011 concerning restrictive measures in view of the situation in Libya (OJ 2011 L 76, p. 32) (together, ‘the 2011 listing measures’), by which it entered additional persons and entities on the lists of persons and entities to be subject to restrictive measures. One such entity was LAAICO, which was listed in Annex II to Implementing Decision 2011/175 and in the annex to Implementing Regulation No 272/2011 with the following identifying information and statement of reasons:
‘Libyan Arab African Investment Company – LAAICO. Controlled by Muammar Qadhafi’s regime and potential source of funding for it’.
12 On 12 April 2011, the Council adopted Implementing Regulation (EU) No 360/2011 implementing Article 16(1) and (2) of Regulation No 204/2011 concerning restrictive measures in view of the situation in Libya (OJ 2011 L 100, p. 12), pursuant to which LAAICO’s name was maintained on the list set out in Annex III to Regulation No 204/2011.
13 On 11 July 2011, the applicant, together with other Libyan legal entities, made an application to the Court for annulment of Regulation No 204/2011 and of Implementing Regulation No 360/2011 in so far as those measures concerned it. By order of 22 September 2011, Libyan Investment Authority and Others v Council (T‑374/11, not published, EU:T:2011:520), the Court dismissed the applicant’s action as manifestly inadmissible.
14 On 27 March 2015, the UNSC adopted Resolution 2213 (2015), which provided, inter alia, for certain amendments to the listing criteria. With a view to implementing that resolution, on 26 May 2015, the Council adopted Decision (CFSP) 2015/818 amending Decision 2011/137 concerning restrictive measures in view of the situation in Libya (OJ 2015 L 129, p. 13) and Regulation (EU) 2015/813 amending Regulation No 204/2011 concerning restrictive measures in view of the situation in Libya (OJ 2015 L 129, p. 1).
15 The Council subsequently carried out a complete review of the lists of persons and entities set out in the annexes to the original 2011 measures and listing measures.
16 That review culminated in the adoption, on 31 July 2015, of Decision 2015/1333 and, on 18 January 2016, of Regulation 2016/44 (together, ‘the subsequent listing measures’).
17 Recital 3 of Decision 2015/1333 states the following:
‘On 26 May 2015, the Council adopted Decision (CFSP) 2015/818 … amending Decision 2011/137/CFSP taking into consideration the threat that continues to be posed to the peace, stability or security of Libya and the successful completion of its political transition, inter alia through the exacerbation of current divisions by persons and entities identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi in Libya, or otherwise formerly associated with that regime, and given that most of those persons or entities have not been held accountable for their actions. That Decision also took into consideration the threat posed by persons and entities owning or controlling Libyan State funds misappropriated during the former regime of Muammar Qadhafi in Libya which could be used to threaten the peace, stability or security of Libya, or to obstruct or undermine the successful completion of its political transition.’
18 Article 9(2) of Decision 2015/1333 provides as follows:
‘All funds, other financial assets and economic resources, owned or controlled, directly or indirectly, by persons and entities:
(a) involved in or complicit in ordering, controlling, or otherwise directing, the commission of serious human rights abuses against persons in Libya, including by being involved in or complicit in planning, commanding, ordering or conducting attacks, in violation of international law, including aerial bombardments, on civilian populations and facilities, or by the Libyan authorities, or by persons and entities that have violated or have assisted in violating the provisions of [UNSC Resolution] 1970 (2011) or of this Decision, or by persons or entities acting for or on their behalf or at their direction, or by entities owned or controlled by them or by persons and entities listed in Annex III to this Decision;
(b) identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi in Libya, or otherwise formerly associated with that regime, and who pose a continued risk to the peace, stability or security of Libya, or the successful completion of its political transition;
(c) engaged in or providing support for acts that threaten the peace, stability or security of Libya, or obstructing or undermining the successful completion of its political transition, including by:
(i) planning, directing, or committing acts that violate applicable international human rights law or international humanitarian law, or acts that constitute human rights abuses, in Libya;
(ii) attacks against any air, land, or sea port in Libya, or against a Libyan State institution or installation, or against any foreign mission in Libya;
(iii) providing support for armed groups or criminal networks through the illicit exploitation of crude oil or any other natural resources in Libya;
(iv) threatening or coercing Libyan State financial institutions and the Libyan National Oil Company, or engaging in any action that may lead to or result in the misappropriation of Libyan State funds;
(v) violating, or assisting in the evasion of, the provisions of the arms embargo in Libya established in [UNSC Resolution] 1970 (2011) and Article 1 of this Decision;
(vi) acting for or on behalf of or at the direction of listed persons or entities;
(d) that own or control Libyan State funds misappropriated during the former regime of Muammar Qadhafi in Libya which could be used to threaten the peace, stability or security of Libya, or to obstruct or undermine the successful completion of its political transition,
as listed in Annex IV, shall be frozen.’
19 Article 5(1) of Regulation 2016/44 provides that ‘all funds and economic resources belonging to, owned, held or controlled by the natural or legal persons, entities and bodies listed in Annexes II and III shall be frozen’.
20 Under Article 6(2) of Regulation 2016/44:
‘Annex III shall consist of natural or legal persons, entities and bodies, not covered by Annex II that:
(a) are involved in or complicit in ordering, controlling, or otherwise directing the commission of serious human rights abuses against persons in Libya, including by being involved or complicit in planning, commanding, ordering or conducting attacks, including aerial bombardments, in violation of international law on civilian populations or facilities;
(b) have violated or have assisted in violating the provisions of [UNSC Resolution] 1970 (2011), [UNSC Resolution] 1973 (2011) or of this Regulation;
(c) have been identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi in Libya, or otherwise formerly associated with that regime, and pose a continued risk to the peace, stability or security of Libya, or to the successful completion of the Libyan political transition;
(d) are engaged in or provide support for acts that threaten the peace, stability or security of Libya or obstruct or undermine the successful completion of Libya’s political transition, including by:
(i) planning, directing, or committing acts in Libya that violate applicable international human rights law or international humanitarian law, or acts that constitute human rights abuses, in Libya;
(ii) attacks against any air, land or sea port in Libya, or against a Libyan state institution or installation, or against any foreign mission in Libya;
(iii) providing support for armed groups or criminal networks through the illicit exploitation of crude oil or any other natural resources in Libya;
(iv) threatening or coercing Libyan State financial institutions and the Libyan National Oil Company, or engaging in any action that may lead to or result in the misappropriation of Libyan State funds;
(v) violating, or assisting in the evasion of, the provisions of the arms embargo in Libya established in [UNSC Resolution] 1970 (2011) and Article 1 of this Regulation;
(vi) being persons, entities or bodies acting for or on behalf or at the direction of any of the above, or being entities or bodies owned or controlled by them or by persons, entities or bodies listed in Annex II or III; or
(e) own or control Libyan State funds misappropriated during the former regime of Muammar Qadhafi in Libya which could be used to threaten the peace, stability or security of Libya, or to obstruct or undermine the successful completion of its political transition.’
21 The applicant’s name was included on the lists set out in Annex IV to Decision 2015/1333 and in Annex III to Regulation 2016/44 (‘the lists at issue’).
22 In the list set out in Annex IV to Decision 2015/1333, entitled ‘List of persons and entities referred to in Article 9(2)’, the applicant’s name was included with the following identifying information and statement of reasons:
‘Libyan Arab African Investment Company – LAAICO (a.k.a. LAICO). Closely associated with the former regime of Muammar Qadhafi.’
23 In the list set out in Annex III to Regulation 2016/44, entitled ‘List of natural and legal persons, entities or bodies referred to in Article 6(2)’, the applicant’s name was included with the following identifying information and statement of reasons:
‘Libyan Arab African Investment Company – LAAICO. Controlled by Muammar Qadhafi’s regime and potential source of funding for it.’
24 Following the adoption, on 31 July 2015, of Decision 2015/1333 and of Council Implementing Regulation (EU) 2015/1323 implementing Article 16(2) of Regulation No 204/2011 concerning restrictive measures in view of the situation in Libya (OJ 2015 L 206, p. 4), the inclusion of the applicant’s name on the list of entities subject to the abovementioned restrictive measures was confirmed, together with an unchanged statement of reasons, by subsequent acts of the Council adopted in 2016, 2017 and 2018.
25 By letter of 29 October 2018, the applicant submitted a request to the Council for the removal of its name from the lists at issue. In that letter, the applicant claimed that the conditions required for the application of those restrictive measures were no longer met. It stated that, in 2013, its board of directors had been almost entirely replaced and that the reason for maintaining its name on those lists was both inaccurate and insufficient. The applicant also claimed that the removal of its name from those lists was justified, since the restrictive measures imposed on it posed a serious economic threat to the Libyan people and to those employed by the applicant and its subsidiaries.
26 By letter of 10 December 2018, the Council refused to lift the restrictive measures imposed on the applicant. In particular, it stated that the information and documents provided by the applicant did not cast doubt on its view that the applicant should remain subject to restrictive measures. In that regard, the Council asserted that the applicant’s name had been included on the list set out in Annex IV to Decision 2015/1333 because it was closely associated with the former regime of Muammar Qadhafi. It stated that persons and entities identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi, or otherwise formerly associated with that regime, continued to pose a threat to the peace, stability or security of Libya and the successful completion of its political transition, which justified maintaining the applicant’s name on that list. Lastly, the Council took the view that the applicant’s claim that its activities helped to preserve resources for the overall benefit of Libyans could not call into question that assessment.
27 On 9 January 2019, pursuant to the corrigendum to Council Regulation (EU) 2016/44 of 18 January 2016 concerning restrictive measures in view of the situation in Libya and repealing Regulation (EU) No 204/2011 (OJ 2019 L 6, p. 10), the statement of reasons concerning the applicant was brought into line with the one contained in Annex IV to Decision 2015/1333 to read as follows:
‘Closely associated with the former regime of Muammar Qadhafi.’
28 By letter of 15 May 2019, the applicant again requested that the Council remove its name from the lists at issue. It submitted to the Council documents showing the changes made to the composition of its board of directors. The applicant also claimed that it was entirely controlled by the new Government of National Accord and that it did not pose any threat to the peace, stability or security of Libya or to the successful completion of its political transition.
29 By letter of 31 July 2019, the Council rejected that request. It stated, inter alia, that the assessment made when adopting Decision 2015/1333, namely that entities like the applicant which were formerly associated with the regime of Muammar Qadhafi continued to pose a threat to the peace, stability or security of Libya and to the completion of that country’s political transition, remained valid. It also stated that the applicant’s observations could not invalidate that assessment, since the applicant was identified as an entity formerly associated with that political regime and therefore satisfied the ground for listing laid down in Article 9(2)(b) of Decision 2015/1333.
30 Furthermore, on 31 July 2019, the Council adopted Implementing Decision (CFSP) 2019/1299 implementing Decision 2015/1333 concerning restrictive measures in view of the situation in Libya (OJ 2019 L 204, p. 44) and Implementing Regulation (EU) 2019/1292 implementing Article 21(2) of Regulation 2016/44 concerning restrictive measures in view of the situation in Libya (OJ 2019 L 204, p. 1), by which acts the applicant’s name was maintained on the lists at issue, without the reason for its designation being amended as compared with the previous listing measures.
31 On 30 July 2020, the Council adopted Implementing Decision 2020/1137 and Implementing Regulation 2020/1130 (together, ‘the 2020 measures’), by which acts the applicant’s name was maintained on the lists at issue, without the reason for its designation being amended as compared with the previous listing measures.
32 By letter of 31 July 2020, the Council informed the applicant that the restrictive measures against it were to be maintained. It also indicated the deadline for submitting observations before the adoption of any decision to maintain its name on the lists at issue.
33 On 29 July 2021, the Council adopted Decision 2021/1251 and Implementing Regulation 2021/1241 (together, ‘the 2021 measures’), by which acts the applicant’s name was maintained on the lists at issue, without the reason for its designation being amended as compared with the previous listing measures.
Forms of order sought
34 Following the modification of the application, the applicant claims, in essence, that the Court should:
– annul the 2020 measures and the 2021 measures (together, ‘the contested acts’), in so far as the applicant’s name was maintained on the lists at issue;
– order the Council to pay the costs.
35 Following its observations on the statement of modification, the Council contends, in essence, that the Court should:
– dismiss the action, following the modification of the application, as inadmissible;
– in the alternative, dismiss the action as unfounded;
– in the further alternative, if the contested acts were to be annulled in respect of the applicant, order that the effects of Decision 2021/1251 be maintained as regards the applicant until the annulment in part of Implementing Regulation 2021/1241 takes effect;
– order the applicant to pay the costs.
Law
36 In support of the action, the applicant relies on six pleas in law, alleging (i) infringement of Decision 2015/1333 and of Regulation 2016/44, (ii) infringement of the Council’s obligation to keep the restrictive measures imposed under review, (iii) ‘manifest errors of assessment’ committed when maintaining the applicant’s name on the lists at issue, (iv) infringement of the principle of equal treatment, (v) infringement of the principle of proportionality, and (vi) infringement of the obligation to state reasons and of the right to an effective remedy.
37 In its observations on the statement of modification, reiterated at the hearing in response to a question from the Court, the Council contends that, following the modification of the application, the present action no longer concerns the 2020 measures. It maintains that the applicant de facto withdrew its application for annulment of those measures and that the present action should be dismissed as inadmissible, since the measures forming the initial subject matter of the action are no longer contested. In the alternative, the Council alleges that, by its request for modification, the applicant essentially repeats the pleas in law already raised in its action. The Council refers to its written submissions and contends that, following that modification, the action should, like the ‘initial application’, be dismissed as unfounded.
Admissibility of the action and of the statement modifying the application
38 It is clear from Article 86(1) and (2) of the Rules of Procedure of the General Court that, where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter, the applicant may, before the oral part of the procedure is closed, modify the application to take account of that new factor. The modification of the application must be made by a separate document within the time limit laid down in the sixth paragraph of Article 263 TFEU within which the annulment of the measure justifying the modification of the application may be sought.
39 In that regard, it should be borne in mind that it would be inequitable if the institution in question were able, in order to counter criticisms of a measure, contained in an application to the EU judicature, to amend the contested measure or to substitute another for it and to rely in the proceedings on such an amendment or substitution in order to deprive the other party of the opportunity of extending its original pleadings to the later measure or of submitting supplementary pleadings directed against that decision (see, by analogy, judgment of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraph 46 and the case-law cited).
40 In the present case, the modification of the application concerns measures, namely the 2021 measures, which replace the measures covered by the original action, namely the 2020 measures. Moreover, it was lodged before the oral part of the procedure was closed, and within the prescribed time limit. The statement modifying the application is therefore admissible.
41 As regards the Council’s argument that the action is inadmissible because the applicant withdrew the claims for annulment made in the application, by seeking only the annulment of the 2021 measures in the modification of the application, this must be rejected.
42 It is true that, in the modification of the application, first, the applicant states that the 2021 measures are ‘identical’ to the 2020 measures initially contested and, secondly, the new claims set out in that modification expressly refer only to the 2021 measures. However, to accept the Council’s approach to the content of that modification and dismiss the action as inadmissible would be contrary to both the letter of the relevant provisions of the Rules of Procedure and the right of access to a tribunal, as guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union.
43 In particular, Article 86(1) of the Rules of Procedure expressly states that the applicant may modify the application ‘to take account [of the replacement or amendment of the measure the annulment of which is sought by another measure with the same subject matter]’. The expression ‘to take account’ indicates that, by the modification of the application, the applicant does not intend to withdraw its initial claims for annulment, but rather to replace or supplement them with those set out in that modification.
44 Furthermore, it should be noted that the Council’s approach to the content of the modification of the application implies that the applicant implicitly withdrew the claims for annulment made in the application. However, that would not comply with Article 125 of the Rules of Procedure, which states that the applicant is to ‘[inform] the General Court in writing or at the hearing that he wishes to discontinue the proceedings’. That provision requires an express declaration to that effect by the applicant. Therefore, the view cannot be taken in the present case that the applicant discontinued the proceedings implicitly, as the Council suggested at the hearing; on the contrary, the applicant did not do so, since it did not expressly inform the Court of this.
45 In the light of all the foregoing, the pleas of inadmissibility put forward by the Council must be rejected. It must be held that, by the modification of the application, the applicant, in essence, extends its claims for annulment to the 2021 measures so that the latter may be taken into account, within the meaning of Article 86(1) of the Rules of Procedure.
Substance
46 First of all, it is appropriate to examine together the first and third pleas in law, in so far as, by those pleas in law, the applicant alleges, inter alia, that the Council, first, infringed Decision 2015/1333 and Regulation 2016/44 when it included the applicant’s name on the lists at issue and, secondly, committed ‘manifest errors of assessment’ when it maintained the applicant’s name on those lists, as regards the factual basis for that retention.
47 First, the applicant submits that the inclusion of its name on the lists at issue did not satisfy the conditions required by Decision 2015/1333 and Regulation 2016/44. In particular, it claims, in essence, that there is no basis for that listing because it does not meet the listing criterion laid down in Article 9(2)(a) of Decision 2015/1333. It asserts that it has never been involved in human rights abuses or attacks on civilian populations and facilities.
48 Furthermore, the applicant submits, in essence, that there is no basis for the inclusion of its name on the lists at issue, since it also does not meet the listing criterion laid down in Article 9(2)(d) of Decision 2015/1333. It claims that the funds belonging to it or to its subsidiaries that have been frozen were not misappropriated and that the funds generated through its commercial activity have not been and will not be used to threaten the peace, stability or security of Libya or to obstruct or undermine the successful completion of its political transition.
49 The applicant also submits that the conditions for inclusion of entities on the lists for the purposes of recital 3 of Decision 2015/1333 are still cumulative and require that entities associated with Muammar Qadhafi’s regime own or control misappropriated State funds. It argues that the relevant provisions of that decision cannot be construed as having the objective of restricting the use of the assets belonging to the Libyan State by its current, internationally recognised government.
50 In its reply, the applicant submits that recital 3 and Article 9(2)(b) of Decision 2015/1333 require, in addition to the condition that a person has been identified by the Council as being associated with the former regime of Muammar Qadhafi, an additional element, namely that that person must pose a threat to the peace, stability or security of Libya and the successful completion of its political transition. As for the Council’s reference to the judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520), the applicant claims that that reference was taken out of context, since the Court makes it clear that, before exercising its broad discretion, the Council must duly observe the safeguards and requirements set out in the settled case-law referred to in paragraphs 98 to 103 of the judgment cited above.
51 Secondly, the applicant claims that the Council committed a manifest error of assessment by renewing the inclusion of its name on the lists at issue on the ground that it was ‘closely associated with the former regime of Muammar Qadhafi’. Specifically, it submits, first, that the Council failed to take account of the fact that it has no ties with the ‘Qadhafi regime’. It argues in that connection that its sole shareholder is LAIP, which is, in turn, a wholly owned subsidiary of LIA. Given that the applicant’s two successive parent companies are entities wholly owned by the Libyan State and its board of directors was last appointed by those entities on 22 August 2019, it maintains that there are no ties with that regime. Secondly, the applicant alleges that the Council failed to take into account that its board of directors is composed of independent, experienced and highly skilled professionals. Thirdly, the applicant submits that its parent companies, namely LIA and LAIP, are subject to much less restrictive measures, since only their assets existing prior to 16 September 2011 are frozen and, unlike the applicant’s situation, all funds and revenue generated after that date are free to be used by those companies. In the applicant’s submission, it is a paradox that the funds generated after the fall of the Qadhafi regime are freely available to LIA and LAIP, whereas one of their subsidiaries, which they themselves control, is deprived of the use of all its assets, funds and resources. According to the applicant, that difference in treatment between it and its parent companies confirms that the contested acts are vitiated by a manifest error of assessment.
52 The Council contends, first, that the applicant’s name is not included on the lists at issue under the criteria laid down in Article 9(2)(a) and (d) of Decision 2015/1333, as the applicant essentially claims, but on the basis of the criterion laid down in Article 9(2)(b) of that decision. It adds that the applicant incorrectly states in the application that entities formerly associated with the former regime of Muammar Qadhafi can be listed only if they own or control misappropriated State funds, since recital 3 of Decision 2015/1333 draws a distinction between the question of misappropriated funds and that of persons and entities identified as having ties with the former regime of Muammar Qadhafi. Referring to the judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520), the Council contends that it correctly took the view, in accordance with that recital, that, at the time of the adoption of that decision, persons and entities identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi in Libya, or otherwise formerly associated with that regime, posed a continued risk to the peace, stability or security of Libya and the successful completion of its political transition. Lastly, according to the Council, the letter sent to the applicant’s representative, dated 31 July 2019, confirms that the Council took into consideration the information provided by the applicant, but concluded that the applicant posed a continued risk to the peace, stability or security of Libya and the successful completion of its political transition.
53 In the rejoinder, the Council contends, with reference to the judgment of 4 February 2014, Syrian Lebanese Commercial Bank v Council (T‑174/12 and T‑80/13, EU:T:2014:52), that the fact that the applicant was controlled by Muammar Qadhafi’s regime proves the close association between the applicant and that regime. It contends, in that regard, that the applicant has remained the same legal entity since its establishment in 1990. As regards the phrase ‘and who pose a continued risk to the peace, stability or security of Libya, or the successful completion of its political transition’ in Article 9(2)(b) of Decision 2015/1333, the Council argues that that phrase reflects merely its political assessment that all persons and entities that were involved in the repressive policies of Muammar Qadhafi’s regime in Libya continued to pose such a risk. Referring to the judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520), the Council contends that there are significant similarities between that case and the present case, since the names of the two persons concerned were included on the list on the basis of the same grounds, namely that they were closely associated with the regime in question. Furthermore, the Council states, with reference to Article 17(2) of Decision 2015/1333, that it is supposed to carry out an annual review of the restrictive measures at issue with a view to determining whether the conditions for their application are still met.
54 The Council contends, secondly, in relation to the applicant’s arguments based on the fact that it is a public undertaking with a board of directors that has no ties to the former regime of Muammar Qadhafi and that its board of directors is composed of highly skilled, independent and experienced professionals, that the rationale behind the designation of persons and entities such as the applicant is set out in recital 3 of Decision 2015/1333. In that regard, it recalls that that provision states that persons and entities identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi, or otherwise formerly associated with that regime, continue to pose a threat to the peace, stability or security of Libya and the successful completion of its political transition. According to the Council, that assessment was valid at the time of the adoption of the contested acts.
55 In addition, the Council contends that the fact that LIA and LAIP are not subject to the same type of restrictions can be easily explained by the fact that those companies are not in the same situation as the applicant. In particular, the Council argues that, while Article 9(3) of Decision 2015/1333 and the corresponding provision in Regulation 2016/44 amount to a mere transposition of UNSC Resolution 2009 (2011), Article 9(2) of Decision 2015/1333 and the corresponding provision in Regulation 2016/44 are the result of the Council exercising its broad discretion in defining the general listing criteria.
56 Lastly, the Council contends that the fact that the political situation in Libya is different from what it was in 2011 when the applicant’s name was initially included on the lists at issue does not necessarily mean that the restrictive measures against it are no longer justified. In that regard, it argues that a threat continued to be posed to the peace, stability or security of Libya and the successful completion of its political transition, inter alia through the exacerbation of current divisions by persons and entities identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi in Libya, or otherwise formerly associated with that regime.
57 As a preliminary point, it should be noted that the third plea in law must be regarded as alleging an error of assessment, and not ‘manifest errors of assessment’. The Council had no discretion, in the application of the listing criterion when renewing the restrictive measures at issue, to determine whether it had sufficient evidence to maintain the applicant’s name on the lists at issue (see, to that effect and by analogy, judgment of 21 December 2021, Klymenko v Council, T‑195/21, EU:T:2021:925, paragraph 65 and the case-law cited).
58 According to the case-law, in order to define the extent of the Council’s discretion and the intensity of the judicial review on the exercise of that power, a distinction must be drawn between, first, the general rules establishing the legal requirements surrounding the adoption of restrictive measures and, secondly, the adoption, on the basis of an individual examination, of decisions freezing funds and restricting movement pursuant to those legal requirements, in respect of specific persons and entities (see, to that effect, judgments of 12 June 2013, HTTS v Council, T‑128/12 and T‑182/12, not published, EU:T:2013:312, paragraph 45, and of 6 September 2013, Bateni v Council, T‑42/12 and T‑181/12, not published, EU:T:2013:409, paragraph 42).
59 As regards the general and abstract definition of the legal criteria and procedures for adopting restrictive measures, the Council has a broad discretion (see, to that effect, judgment of 21 April 2015, Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 41). Consequently, the rules of general application defining those criteria and procedures are subject to a limited judicial review, restricted to checking that the rules governing procedure and the statement of reasons have been complied with, that the facts are materially accurate, and that there has been no manifest error of assessment of the facts or misuse of power. That limited review applies, especially, to the assessment of the considerations of appropriateness on which the restrictive measures are based (see, to that effect, judgment of 9 July 2009, Melli Bank v Council, T‑246/08 and T‑332/08, EU:T:2009:266, paragraph 45).
60 However, generally, the EU judicature must, in accordance with the powers conferred on it by the FEU Treaty, ensure the review, in principle the full review, of the lawfulness of all EU acts in the light of the fundamental rights forming an integral part of the EU legal order. That obligation is expressly laid down by the second paragraph of Article 275 TFEU (see judgments of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 58 and the case-law cited, and of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 65 and the case-law cited).
61 The European Union is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EU and the FEU Treaties, the latter having established a complete system of legal remedies and procedures designed to enable the Court of Justice of the European Union to review the legality of acts of the institutions (see, to that effect, judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 281 and the case-law cited).
62 The effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights requires in particular that the EU judicature is to ensure that the decision by which restrictive measures were adopted or maintained, which affects the person or entity concerned individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119).
63 It is for the EU judicature, in order to carry out that examination, to request the competent EU authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination (see judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 120 and the case-law cited). By contrast, it is for that competent EU authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded. For that purpose, it is necessary that the information or evidence produced should support the reasons relied on against the person concerned (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 121 and 122).
64 It is in the light of those case-law principles that the Court must establish, first, whether the reason relied on for maintaining the applicant’s name on the lists at issue complied with the general criterion laid down by Decision 2015/1333 and Regulation 2016/44, and, secondly, whether that retention had a sufficiently solid basis.
65 As regards the first plea in law, it should be noted that the applicant’s complaints relate, in essence, to the consistency between the reasons for maintaining the applicant’s name on the lists at issue and the listing criterion, as laid down in Article 9(2)(b) of Decision 2015/1333. In that regard, it should be noted that, as is expressly acknowledged by the Council, that name was maintained on those lists by virtue of that provision and not of Article 9(2)(a) or (d) of that decision. Therefore, the applicant’s arguments, as formulated in the application and concerning the lack of involvement in human rights abuses or attacks against civilian populations or facilities, and the fact that the frozen funds belonging to it or belonging to its subsidiaries have not been misappropriated, must be rejected as ineffective.
66 In addition, it should be borne in mind that Article 9(2)(b) of Decision 2015/1333 provides as follows:
‘All funds, other financial assets and economic resources, owned or controlled, directly or indirectly, by persons and entities:
…
(b) identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi in Libya, or otherwise formerly associated with that regime, and who pose a continued risk to the peace, stability or security of Libya, or the successful completion of its political transition’.
67 Furthermore, the applicant’s name was included on the list set out in Annex IV to Decision 2015/1333, with the following statement of reasons:
‘Closely associated with the former regime of Muammar Qadhafi.’
68 The same reason is contained in the corrigendum to Regulation 2016/44 by which the statement of reasons concerning the applicant was brought into line with that set out in Annex IV to Decision 2015/1333 and was also not amended by the contested acts.
69 It is apparent from the reason for maintaining the applicant’s name on the lists at issue that the Council relied solely on the applicant’s close association with the former regime of Muammar Qadhafi. However, Article 9(2)(b) of Decision 2015/1333, unlike that reason, does not refer solely to the applicant’s association with that regime. That provision refers to persons or entities ‘otherwise formerly associated with that regime’, followed by the phrase ‘and who pose a continued risk to the peace, stability or security of Libya, or the successful completion of its political transition’. It is therefore clear from a simple reading of that provision that the listing criterion consists of two cumulative conditions: the person or entity whose name is included on the lists at issue must not only have been associated with the regime in question, but also continue to threaten the peace, stability or security of Libya or the successful completion of its political transition.
70 Accordingly, the reason for maintaining the applicant’s name on the lists at issue is at odds with the general listing criterion, since it does not satisfy the second condition expressly laid down by that criterion, namely that the applicant ‘pose[d] a continued risk to the peace, stability or security of Libya, or the successful completion of its political transition’.
71 Admittedly, the Council, referring to the judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520), argues that the part of the sentence which reads ‘who pose a continued risk to the peace, stability or security of Libya, or the successful completion of its political transition’ reflects merely its political assessment that all persons and entities identified as having been involved in the repressive policies of the former political regime of Muammar Qadhafi in Libya, or having otherwise been formerly associated with that regime, continue to pose such a risk.
72 However, that argument cannot be accepted. It is true that, in paragraph 105 of the judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520), the Court states that it is not for it ‘to call into question the Council’s continuous assessment of the situation in Libya, according to which a threat continues to be posed to the peace, stability or security of Libya and the successful completion of its political transition, inter alia through the exacerbation of current divisions by persons and entities identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi in Libya, or otherwise formerly associated with that regime, and given that most of those persons or entities have not been held accountable for their actions’.
73 However, such a finding relates to the Council’s general assessment of the political situation in Libya and not to a specific reason for including the name of the person concerned on the lists at issue. The Council, in the present case, was therefore under an obligation to ensure that the reason for maintaining the applicant’s name on the lists at issue complied with the general listing criterion laid down in Article 9(2)(b) of Decision 2015/1333.
74 Furthermore, it should be noted that, in paragraph 103 of the judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520), the Court states that ‘the EU judicature must determine whether the facts alleged are made out in the light of [the] information or evidence [in its possession] and assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person concerned’. Next, in paragraph 109 of that judgment, it examines the role of the applicant who, at the time of the adoption of the measures at issue, was the former Chief of Staff of Muammar Qadhafi’s cabinet in Libyan political life. In that regard, the Court notes, in particular, that ‘the applicant acknowledged that, despite his withdrawal from Libyan political life, he was still being consulted by forces present in Libya, precisely because of the very senior positions he had previously occupied and his expertise on Libya’, and concludes, in paragraph 113 of that judgment, that ‘the Council’s assertions that a threat continues to be posed to the peace, stability or security of Libya and the successful completion of its political transition, inter alia through the exacerbation of current divisions by persons and entities identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi in Libya, or otherwise formerly associated with that regime, must be regarded as established’.
75 Ultimately, in the light of the Court’s considerations set out in the judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520), although, in the present case, the Council’s assessment in recital 3 of Decision 2015/1333 that a threat continues to be posed to the peace, stability or security of Libya and the successful completion of its political transition, inter alia through the exacerbation of current divisions by persons and entities identified as having otherwise been associated with the former regime of Muammar Qadhafi, constitutes a political assessment which cannot be called into question by the Court, that did not relieve the Council of its obligation to provide a reason for maintaining the applicant’s name on the lists at issue which satisfies the two conditions laid down cumulatively in Article 9(2)(b) of that decision. In addition, the Council was also under an obligation to establish in the present case, in accordance with the criterion laid down in the latter provision, that the applicant, at the time of the adoption of the contested acts, posed a continued risk to the peace, stability or security of Libya or to the successful completion of its political transition.
76 In the light of the foregoing, and having regard to the finding made in paragraph 70 above, the reason for maintaining the applicant’s name on the lists at issue cannot be regarded as being in compliance with the listing criterion laid down in Article 9(2)(b) of Decision 2015/1333.
77 Secondly, as regards the errors of assessment alleged against the Council, it must be stated that, in the light of the case-law cited in paragraph 59 above, the choice of criteria for inclusion on the lists at issue comes within the Council’s political assessment. Moreover, their lawfulness and the designation of the applicant as meeting those criteria, in so far as it was considered to be closely associated with the former regime of Muammar Qadhafi, can no longer be called into question, since the applicant did not challenge in sufficient time before the EU judicature the 2011 listing measures and the subsequent listing measures, namely Decision 2015/1333 and Regulation 2016/44.
78 However, like the 2011 listing measures, the subsequent listing measures on the basis of which the contested acts were adopted provide, in Article 17(2) and Article 21(6) respectively, for the restrictive measures to be periodically reviewed to enable the Council to take account of any changes in circumstances concerning the individual situation of the persons targeted by those measures. The contested acts represent the outcome of that periodic review.
79 Therefore, and as is apparent from the case-law cited in paragraphs 62 and 74 above, it is necessary to examine whether the decision to maintain the restrictive measures against the applicant pursuant to the contested acts, in so far as it was closely associated with the former regime of Muammar Qadhafi, was taken on a sufficiently solid factual basis.
80 In that regard, it should be noted that the original 2011 measures had been adopted ‘in view of the seriousness of the situation in Libya’, seeking ‘an immediate end to the use of force and for steps to address the legitimate demands of the population’, and because the European Union considered it ‘necessary to impose additional restrictive measures’ to those introduced by the UNSC, as set out in recitals 1 to 5 of Decision 2011/137.
81 Decision 2015/1333 and Regulation 2016/44 were adopted with the aim of consolidating into new legal instruments the restrictive measures imposed by the original 2011 measures, as amended and implemented by several subsequent measures, ‘in view of the specific threat to international peace and security in the region posed by the situation in Libya’.
82 In that regard, it should be noted that, by its letter of 10 December 2018 (see paragraph 26 above), the Council rejected the applicant’s request for the restrictive measures imposed on it to be lifted. It took the view, inter alia, that the applicant’s name had been included on the list set out in Annex IV to Decision 2015/1333 because it was closely associated with the former regime of Muammar Qadhafi, adding that persons and entities identified as having been involved in the repressive policies of that regime, or otherwise formerly associated with it, continued to pose a threat to the peace, stability or security of Libya and the successful completion of its political transition, which justified maintaining that listing.
83 Furthermore, in its letter of 31 July 2019, by which the Council rejected the applicant’s new request, dated 15 May 2019, that its name be removed from the lists at issue, the Council reiterated the same reasoning as that used in its letter of 10 December 2018. It thus replied to the applicant, stating that, in its view, the applicant continued to pose a threat to the peace, stability or security of Libya and to the successful completion of the political transition on account of it being formerly associated with the regime of Muammar Qadhafi. As regards the applicant’s arguments based on the absence of ties with that regime and the fact that it was wholly controlled by the Libyan Government of National Accord, the Council replied by stating that such arguments could not invalidate that assessment, since the applicant was identified as an entity which had been formerly associated with that regime and therefore met the criterion laid down in Article 9(2)(b) of Decision 2015/1333.
84 However, the Council cannot presume merely from the fact that the applicant was ‘closely associated with the former regime of Muammar Qadhafi’ at the time when the acts giving rise to the sanctions against that regime were committed, that it still had ties to that regime after the latter’s fall, or even around 10 years after the adoption of the 2011 listing measures.
85 First of all, the applicant expressly stated in its letter to the Council of 29 October 2018, in which it submitted supporting documents, that, in 2013, the composition of its board of directors had been almost entirely reconstituted in comparison with the period before 2011. In particular, it stated that, following the changes to its board of directors in 2013, only one of the board’s seven members was performing the same functions before 2011. It also cited Article 27 of its articles of association, according to which decisions of the board of directors were taken on the basis of the majority of members present, in order to claim that the vote of the member sitting before 2011 could not influence its decision-making policy.
86 Furthermore, as the applicant submits in the application without being contradicted by the Council, its board of directors was recently appointed, in 2019, by the general assembly of its shareholders, in other words, LAIP. Given that the latter is wholly controlled by LIA, which, in turn, is controlled by the current Libyan Government, it must be stated that the applicant’s board of directors, appointed by that government after the fall of the ‘Qadhafi regime’, does not, by definition, have ties with the ‘former regime of Muammar Qadhafi’.
87 It should be noted that, at the hearing, the Council argued that the current Libyan Government no longer controls the applicant. As the applicant replied at the hearing, without being contradicted by the Council, that is a new argument raised by the Council which is not apparent either from the reasoning of the contested acts or from its written submissions. Under Article 84(1) of the Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. Since the argument put forward by the Council at the hearing is not based on matters of law or of fact which came to light in the course of the procedure, it must be rejected.
88 Consequently, the Council was incorrect to assume, in essence, that the applicant was associated with the former political regime of Muammar Qadhafi solely on the basis that its name was included on the lists at issue in 2011. In the light of the arguments and evidence put forward by the applicant before the Council, the latter should have relied on specific information making it possible to establish that the applicant’s management bodies still maintained such ties with the ‘former regime of Muammar Qadhafi’, despite their appointment, in essence, by the current Libyan Government.
89 Next, it should be noted that Article 9(2)(b) of Decision 2015/1333 which, as the Council has acknowledged, lays down the listing criterion applicable in the present case, provides for the inclusion on the lists at issue of the names of natural or legal persons ‘identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi in Libya, or otherwise formerly associated with that regime, and who pose a continued risk to the peace, stability or security of Libya, or the successful completion of its political transition’. It is clear that, in the light of that criterion, and as noted in paragraph 75 above, the Council should not have merely relied on the applicant’s past association with that regime, but, on the contrary, was required to establish that, at the time of the adoption of the contested acts, the applicant continued to pose a threat to the peace, stability or security of Libya or the successful completion of its political transition.
90 In that regard, recital 3 of Decision 2015/1333 states, along the same lines, that the Council took into consideration the threat that continued to be posed to the peace, stability or security of Libya and the successful completion of its political transition, inter alia through the exacerbation of current divisions by persons and entities identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi in Libya, or otherwise formerly associated with that regime, and given that most of those persons or entities have not been held accountable for their actions. The reference in that recital to ‘the exacerbation of current divisions’ confirms the Council’s obligation to demonstrate that the applicant, which was formerly associated with that regime, still played an active role in exacerbating current social and political divisions in Libya. The current threat to the peace, stability or security of Libya or the successful completion of its political transition was not in any way examined in the present case by the Council, which, on the contrary, relied solely on the applicant’s initial association with the regime in question in order to maintain the applicant’s name on the lists at issue.
91 Lastly, the Council’s reasoning for maintaining the applicant’s name on the lists at issue by the contested acts lacks consistency. The Council contends, in essence, that the mere participation of a natural or legal person in the policies of the former political regime of Muammar Qadhafi or its association with that regime means that it automatically and irrevocably poses a threat to the peace, stability or security of Libya or to the country’s political transition. To accept that position, namely that, once associated with that regime, the applicant still poses a threat to the peace, stability or security of Libya, would lead to its situation being frozen (see, to that effect, judgment of 3 July 2014, Alchaar v Council, T‑203/12, not published, EU:T:2014:602, paragraph 155) and the periodic review provided for by the subsequent listing measures, namely Decision 2015/1333 and Regulation 2016/44, being deprived of any practical effect.
92 It is true that, in its letter of 31 July 2019 (see paragraph 29 above), the Council reiterated its position that the applicant continued to pose a threat on account of its association with the former political regime, stating that that assessment had been confirmed by the Court in its judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520).
93 In the light of the considerations set out in paragraph 75 above, the Council’s argument based on the judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520), must be rejected. Unlike in the present case, the evidence produced by the applicant in the case which gave rise to that judgment was not capable of calling into question the material accuracy of the facts as they had been presented by the Council (paragraph 108 of that judgment). The applicant in that case had even acknowledged that, despite his withdrawal from Libyan political life, he was still being consulted by forces present in Libya, precisely because of the very senior positions he had previously occupied and his expertise on Libya (paragraph 109 of that judgment).
94 In the present case, although the applicant’s association with the former regime of Muammar Qadhafi could justify its designation in the initial and subsequent listing measures, namely Decision 2015/1333 and Regulation 2016/44, the lawfulness of which can no longer be called into question, the Council should, when reviewing the retention of the applicant’s name on the lists at issue, have taken account of the fact that its situation differed from that of the former Chief of Staff of Muammar Qadhafi’s cabinet.
95 In that regard, as has been noted in paragraphs 85 and 86 above, the applicant’s situation changed after the fall of the former regime of Muammar Qadhafi, and indeed since the adoption of the 2011 listing measures and the subsequent listing measures. In particular, while Mr Alsharghawi was, at the time of the subsequent listing measures, still being consulted by forces present in Libya, precisely because of the very senior positions he had previously occupied and his expertise on Libya, the applicant’s current board of directors was appointed by its parent companies which are 100% controlled by the current Government of National Accord. Given that that is the new political regime in Libya, it cannot be ruled out, in the absence of evidence to the contrary put forward by the Council, that the applicant’s current board of directors does not, by definition, have ties to the ‘former regime of Muammar Qadhafi’.
96 In the absence of evidence put forward by the Council to establish that the applicant’s management bodies still maintained such ties with the former regime of Muammar Qadhafi and in view of the evidence put forward by the applicant, in particular the fact that they were appointed indirectly by the current Libyan Government, which makes it possible to distinguish its situation from that of Mr Alsharghawi, it was incorrectly concluded in the contested acts that, at the time of their adoption, the applicant still had ties to that regime.
97 While the Council has a broad discretion in the field of the common foreign and security policy to examine the ongoing situation in Libya and to make the choices it deems appropriate, it must be held that the decision to maintain the restrictive measures against the applicant pursuant to the contested acts, solely on account of its association in 2011 with the former regime of Muammar Qadhafi, was not taken on a sufficiently solid factual basis. The Council merely reiterated the justification for including the applicant’s name on the lists at issue, without refuting, in its review of that listing before the adoption of the contested acts, the information in its possession and the changes relied on by the applicant concerning its factual and individual situation.
98 In the light of all the foregoing considerations, the applicant’s complaints that the contested acts have no factual basis that would justify maintaining its name on the lists at issue are well founded.
99 Therefore, in the light of the conclusions in paragraphs 76 and 98 above, the first and third pleas in law must be upheld and, consequently, the contested acts must be annulled in so far as they concern the applicant.
The Council’s alternative claim that the effects of Decision 2021/1251 should be maintained
100 Following the modification of the application, the Council requests, in the alternative, that, in the event that the 2021 measures were to be annulled in part, the effects of Decision 2021/1251 be maintained until the annulment in part of Implementing Regulation 2021/1241 takes effect. In that regard, the Council contends that the annulment of the contested acts would result in the immediate disappearance of the applicant’s name from the list set out in Annex IV to Decision 2015/1333. According to the Council, the existence of a difference between the effective date of the annulment in part of Implementing Regulation 2021/1241 and that of the annulment in part of Decision 2021/1251 would likely jeopardise legal certainty, since those acts provide for measures which are identical in substance.
101 The applicant argues that the Council’s request to defer the effects of the annulment is disproportionate and unreasonable, since the contested acts are incompatible with a number of general principles of EU law, they are devoid of any individual and in concreto statement of reasons and, lastly, the applicant itself is not subject to restrictive measures taken by the UNSC.
102 Under the first paragraph of Article 60 of the Statute of the Court of Justice of the European Union, an appeal is not to have suspensory effect. The second paragraph of that article provides, however, that, by way of derogation from Article 280 TFEU, decisions of the General Court declaring a regulation to be void are to take effect only as from the date of expiry of the period for bringing an appeal or, if an appeal has been brought within that period, as from the date of its dismissal.
103 In the present case, Implementing Regulation 2021/1241 has the nature of a regulation, since it provides that it is to be binding in its entirety and directly applicable in all Member States, which corresponds to the effects of a regulation as provided for in Article 288 TFEU (see, to that effect, judgment of 21 April 2016, Council v Bank Saderat Iran, C‑200/13 P, EU:C:2016:284, paragraph 121).
104 Therefore, the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union is applicable in the present case (see, by analogy, judgment of 21 April 2016, Council v Bank Saderat Iran, C‑200/13 P, EU:C:2016:284, paragraph 122).
105 Finally, as regards the temporal effects of the annulment of Decision 2021/1251, it should be noted that, under the second paragraph of Article 264 TFEU, the General Court may, if it considers it necessary, state which of the effects of the act which it has declared void are to be considered as definitive.
106 In the present case, a difference between the date when the annulment of Implementing Regulation 2021/1241 takes effect and that of Decision 2021/1251 would be liable seriously to jeopardise legal certainty, since both acts impose identical measures on the applicant (see, to that effect, judgment of 21 February 2018, Klyuyev v Council, T‑731/15, EU:T:2018:90, paragraph 263). The effects of Decision 2021/1251 must therefore be maintained in respect of the applicant until the annulment of Implementing Regulation 2021/1241 takes effect.
Costs
107 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Annuls Council Implementing Decision (CFSP) 2020/1137 of 30 July 2020 implementing Decision (CFSP) 2015/1333 concerning restrictive measures in view of the situation in Libya and Council Decision (CFSP) 2021/1251 of 29 July 2021 amending Decision (CFSP) 2015/1333 concerning restrictive measures in view of the situation in Libya in so far as they maintain the name of Libyan African Investment Company (LAICO) on the list of entities set out in Annex IV to Council Decision (CFSP) 2015/1333 of 31 July 2015 concerning restrictive measures in view of the situation in Libya, and repealing Decision 2011/137/CFSP;
2. Annuls Council Implementing Regulation (EU) 2020/1130 of 30 July 2020 implementing Article 21(2) of Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya and Council Implementing Regulation (EU) 2021/1241 of 29 July 2021 implementing Article 21(2) of Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya and repealing Regulation (EU) No 204/2011 in so far as they maintain the name of LAICO on the list of entities set out in Annex III to Council Regulation (EU) 2016/44 of 18 January 2016 concerning restrictive measures in view of the situation in Libya and repealing Regulation (EU) No 204/2011;
3. Orders the effects of Article 1 of Decision 2021/1251 to be maintained in respect of LAICO until the date of expiry of the period for bringing an appeal, as provided for in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union, or, if an appeal is brought within that period, until the date of any dismissal of that appeal;
4. Orders the Council of the European Union to pay the costs.
Spielmann | Öberg | Mastroianni |
Delivered in open court in Luxembourg on 28 September 2022.