Case T‑187/11

Mohamed Trabelsi and Others

v

Council of the European Union

(Common foreign and security policy — Restrictive measures directed against certain persons and entities in view of the situation in Tunisia — Freezing of funds — Article 17(1) of the Charter of Fundamental Rights of the European Union — Action for damages — Article 44(1)(c) of the Rules of Procedure of the General Court — Inadmissibility)

Summary — Judgment of the General Court (Third Chamber), 28 May 2013

1.      Action for annulment — Jurisdiction of the EU judicature — Pleas seeking to obtain protection for one of the applicants or authorisation of a right of reply to one or more applicants — Inadmissibility

(Art. 13 TEU; Art. 263 TFEU)

2.      Action for annulment — Jurisdiction of the EU judicature — Claim seeking that directions be issued to an institution — Inadmissibility

(Art. 263 TFEU)

3.      Applications for interim measures — Conditions of admissibility — Application — Formal requirements — Separate document  — Absence — Inadmissibility

(Art. 278 TFEU; Rules of Procedure of the General Court, Art. 104(2) and (3))

4.      Proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Summary of the pleas in law on which it is based — Application for compensation for damage allegedly caused by an EU institution — Imprecision as to the conduct alleged against that institution, the nature of the damage and the causal link — Inadmissibility

(Art. 340, second para., TFEU; Statute of the Court of Justice, Arts 21 and 53, first para.; Rules of Procedure of the General Court, Art. 44(1)(c))

5.      Actions for annulment — Jurisdiction of the EU judicature — Pleas directed against a Member State and submitted on the basis of provisions of national law — Inadmissibility

(Art. 263 TFEU)

6.      European Union — Common foreign and security policy — Restrictive measures against certain persons and entities in view of the situation in Tunisia — Freezing of funds of persons involved in misappropriation of public funds and of natural or legal persons, entities or organisations associated with them — Authority competent to sign the decision

(Arts 16(9) TEU and 18(3) TEU; Internal Council Regulation, Art. 2(5), second para; Council Decision 2011/79)

7.      Proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Error in designation of the applicable legislation — Not relevant — Conditions

(Statute of the Court of Justice, Arts 21 and 53, first para.; Rules of Procedure of the General Court, Art. 44(1)(c))

8.      Acts of the institutions — Statement of reasons — Obligation — Scope — Restrictive measures against certain persons and entities in view of the situation in Tunisia — Freezing of funds of persons involved in misappropriation of public funds and of natural or legal persons, entities or organisations associated with them — Decision falling within a context known to the person concerned and enabling him to understand the scope of the measure taken in his regard — Admissibility of a summary statement of reasons — Limits — Statement of reasons not capable of consisting of a general and stereotyped formulation

(Art. 296 TFEU; Charter of Fundamental Rights of the European Union, Art. 41; Council Decision 2011/79)

9.      European Union — Common foreign and security policy — Restrictive measures against certain persons and entities in view of the situation in Tunisia — Freezing of funds of persons involved in misappropriation of public funds and of natural or legal persons, entities or organisations associated with them — Restriction of the right to property — Conditions —Implementing decision not complying with the conditions laid down in the basic decision — Infringement of the right to property

(Art. 21(2)(b) and (d) TEU; Charter of Fundamental Rights of the European Union, Arts 17(1), and 52(1); Council Decisions 2011/72, Arts 1 to 3 and 5, and 2011/79)

10.    Proceedings — No obligation on the court to respect the framework of the dispute defined by the parties — No obligation on the court to rule solely on the basis of the arguments raised by the parties

(Rules of Procedure of the General Court, Art. 48(2))

11.    European Union — Common foreign and security policy — Restrictive measures against certain persons and entities in view of the situation in Tunisia — Freezing of funds of persons involved in misappropriation of public funds and of natural or legal persons, entities or organisations associated with them — Assessment of legality by reference to information available at the time the decision was adopted

(Art. 263 TFEU; Council Decisions 2011/72, Arts 1 to 3 and 5, and 2011/79)

12.    Actions for annulment — Judgment annulling act — Effects — Limitation by the Court — Restrictive measures against certain persons and entities in view of the situation in Tunisia — Freezing of funds of persons involved in misappropriation of public funds and of natural or legal persons, entities or organisations associated with them — Annulment involving the annulment of a regulation and depriving any restrictive measure of its legal basis — Risk of serious and irreversible undermining being caused to the effectiveness of any asset-freezing likely to be, in future, decided by the Council against the persons concerned by the annulled measure — Maintenance of the effects of the annulled decision until the expiry of the period for bringing an appeal or dismissal of the appeal

(Art. 264 TFEU; Statute of the Court of Justice, Art. 60, second para.; Council Regulation No 101/2011; Council Decision 2011/79)

1.      No provision in the Treaties or any principle gives the General Court jurisdiction to rule on a request to protect an applicant or authorise a right of reply to one or more applicants. In those circumstances, such a request must be rejected as it was brought before a court manifestly lacking in jurisdiction to hear it.

(see paras 36-38)

2.      See the text of the decision.

(see paras 40, 41)

3.      See the text of the decision.

(see paras 43, 45)

4.      See the text of the decision.

(see paras 46-48)

5.      The law stemming from the EU Treaty and the FEU Treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without the legal basis of the European Union itself being called into question. Therefore, a national provision cannot be usefully relied upon in support of an action for annulment directed against an EU measure.

(see paras 50, 61)

6.      It follows from Articles 16(9) TEU, 18(3) TEU, and 2(5), second paragraph of the internal rules of the Council that the competent authority for signing measures adopted by the Council configuration in charge of foreign affairs is, in principle, the High Representative of the Union for Foreign Affairs and Security Policy. However, the latter may, where necessary, be replaced by the member of that configuration representing the Member State holding the six-monthly presidency of the Council, without needing to justify a delegation of signature.

(see paras 57, 58)

7.      An error made in designating the text applicable cannot lead to the inadmissibility of the complaint put forward, where the purpose and the summary of that complaint appear sufficiently clearly from the application. Nor, therefore, is an applicant obliged expressly to state on which particular rule of law his complaint is based, provided that his line of argument is sufficiently clear for the opposing party and the EU judicature to be able to identify the rule without difficulty.

(see para. 63)

8.      See the text of the decision.

(see paras 66-72)

9.      Article 17(1) of the Charter of Fundamental Rights guarantees the right to property. That right does not, however, constitute an absolute prerogative. It follows from Article 52(1) of that charter that, to be held to comply with EU law, a limitation on the exercise of the right to property must, in any event, satisfy three conditions. First, the limitation must be provided for by law and the measure in question must thus have a legal basis. Secondly, the limitation must refer to an objective of public interest, recognised as such by the European Union. Thirdly, the limitation may not be excessive. With regard to that latter condition, first, the limitation must be necessary and proportional to the aim sought, and second, the essential content of the right or freedom at issue must not be impaired.

A decision to implement a fund-freezing decision in relation to certain persons and entities in view of the situation in Tunisia which applies a criterion other than that laid down by the decision which constitutes its legal basis fails the first of those conditions. That is the case where such an implementing decision includes the applicant amongst the persons covered by a freezing of funds on the ground that he was subject to a judicial investigation for money-laundering activities, whereas the basic decision requires the freezing of funds held by persons responsible for misappropriation of public funds, where, first, it is not established that, under the criminal law of the State concerned, the concept of misappropriation of funds covers money laundering and, second, the definition of money laundering under Article 1(2) of Directive 2005/60 on the prevention of the use of the financial system for the purpose of money-laundering and terrorist financing does not cover solely actions that enable concealment of the illicit origin of assets deriving from misappropriation of State funds. Such an implementing decision cannot be regarded as being provided for by law for the purposes of Article 52(1) of the Charter of Fundamental Rights of the European Union.

(see paras 75, 78-81, 91, 93-96)

10.    See the text of the decision.

(see para. 82)

11.    See the text of the decision.

(see para. 115)

12.    Judgments by which the General Court annuls a decision taken by an institution or body of the European Union take, in principle, immediate effect in that the annulled act is eliminated retroactively from the legal order and is deemed never to have existed. Nevertheless, on the basis of the second paragraph of Article 264 TFEU, the General Court may provisionally maintain the effects of an annulled decision.

By analogy with the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union, which covers the case of annulled regulations, it is necessary to maintain the effects of the contested decision until the expiry of the period for bringing an appeal or, if an appeal is lodged in that period, until it is dismissed, where to give the judgment of the General Court immediate effect would render the regulation concerning measures freezing the applicant’s funds devoid of legal basis and, under the first paragraph of Article 266 TFEU, require the Council to annul it in his regard. The applicant would accordingly be able to transfer all or part of his assets out of the European Union, so that a serious and irreversible undermining would risk being caused to the effectiveness of any asset-freezing likely to be, in future, decided by the Council against him, whereas it cannot be excluded that, for reasons other than those referred to in the decision, it may be justified to include that person on the list annexed to that decision.

(see paras 118, 121-123)