ORDER OF THE GENERAL COURT (Eighth Chamber)
10 December 2014 (*)
(Common foreign and security policy — Restrictive measures directed against certain persons and entities in view of the situation in Tunisia — Freezing of funds — Action for failure to act — Request for access to the evidence used by the Council against a natural person affected by those measures — Access granted by the Council — Action becoming devoid of purpose — No need to adjudicate)
In Case T‑277/14,
Mohamed Marouen Ben Ali Ben Mohamed Mabrouk, residing in Tunis (Tunisia), represented by J.-R. Farthouat, J.-P. Mignard, N. Boulay, lawyers, and S. Crosby, Solicitor,
applicant,
v
Council of the European Union, represented by A. De Elera and G. Étienne, acting as Agents,
defendant,
ACTION seeking a declaration of a failure to act on the part of the Council in that it unlawfully failed to act upon the applicant’s request for access to the file containing the evidence on which the Council relied in ordering the freezing of his assets in the European Union,
THE GENERAL COURT (Eighth Chamber),
composed of D. Gratsias (Rapporteur), President, M. Kancheva and C. Wetter, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 Following political developments in Tunisia in December 2010 and January 2011, the Council of the European Union adopted, on 31 January 2011, Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2011 L 28, p. 62).
2 Article 1(1) of Decision 2011/72 provides:
‘1. All funds and economic resources belonging to, owned, held or controlled by persons responsible for misappropriation of Tunisian State funds, and natural or legal persons or entities associated with them, as listed in the Annex, shall be frozen.
2. No funds or economic resources shall be made available, directly or indirectly, to, or for the benefit of, natural or legal persons or entities listed in the Annex.
…’
3 Article 5 of Decision 2011/72 provides:
‘This Decision shall apply for a period of 12 months. It shall be kept under constant review. It shall be renewed, or amended as appropriate, if the Council deems that its objectives have not been met.’
4 The list originally annexed to Decision 2011/72 contained only the names of Mr Zine el-Abidine Ben Hamda Ben Ali, former President of the Republic of Tunisia, and Ms Leïla Bent Mohammed Trabelsi, his wife.
5 On 4 February 2011, the Council adopted Implementing Decision 2011/79/CFSP implementing Decision 2011/72 (OJ 2011 L 31, p. 40). Article 1 of that implementing decision provides that the list annexed to Decision 2011/72 is to be replaced by a new list. The new list refers to 48 natural persons, including the applicant, Mr Mohamed Marouen Ben Ali Ben Mohamed Mabrouk. The reason given to justify the inclusion of the applicant’s name on that list is as follows: ‘Person subject to judicial investigation by the Tunisian authorities in respect of the acquisition of movable and immovable property, the opening of bank accounts and the holding of financial assets in several countries as part of money-laundering operations’.
6 On the same date, the Council also adopted Regulation (EU) No 101/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia (OJ 2011 L 31, p. 1). Article 2(1) and (2) of that regulation reproduces, in essence, the provisions of Article 1(1) and (2) of Decision 2011/72. Furthermore, Annex I to that regulation is identical to the annex to Decision 2011/72, as amended by Implementing Decision 2011/79.
7 On 27 January 2012, the Council adopted Decision 2012/50/CFSP amending Decision 2011/72 (OJ 2012 L 27, p. 11), which, in Article 1, extends until 31 January 2013 the application of the restrictive measures imposed by the annex to Decision 2011/72, as amended by Implementing Decision 2011/79.
8 The application of those restrictive measures was subsequently further extended until 31 January 2014 by Council Decision 2013/72/CFSP of 31 January 2013 amending Decision 2011/72 (OJ 2013 L 32, p. 20).
9 By letter of 18 December 2013, the Council informed the applicant of its intention to amend the reason for the inclusion of his name on the list in the annex to Decision 2011/72, as amended by Implementing Decision 2011/79, and on the list in Annex I to Regulation No 101/2011 as follows: ‘Person subject to judicial investigations by the Tunisian authorities for complicity in the misappropriation of public monies by a public office-holder, complicity in the misuse of office by a public office-holder to procure an unjustified advantage for a third party and to cause a loss to the administration, and complicity in exerting wrongful influence over a public office-holder with a view to obtaining directly or indirectly an advantage for another person’. The letter, moreover, invited the applicant to submit observations before 7 January 2014.
10 By letter of 6 January 2014, the applicant, represented by his lawyers, first sought an extension until 17 January 2014 of the deadline for the submission of observations, on the ground that he had not received the Council’s letter dated 18 December 2013 until 2 January 2014 and that, as a result, he was not in a position to formulate his observations effectively and with due respect for the rights of the defence. The applicant also stated in that letter that that was all the more the case given that he had not been granted access to the Council’s file, in particular the evidence which the Council intended to use to justify its action. Accordingly, he requested permission to inspect that file. Lastly, the applicant disputed the new reason put forward by the Council with a view to extending the freezing of his funds, relying, in essence, on the Council’s lack of competence to make such an extension, on the stereotyped and thoroughly vague nature of the new reason and, lastly, on the lack of justification for the extension of the freezing of his funds.
11 By letter of 17 January 2014, the applicant renewed his request for access to the Council’s file relating to him and formally called upon the Council to act. In the first place, he explained his interest in being given access to that file by the need to assert his rights before the Council and in court proceedings, as the case may be. In the second place, he claimed, in essence, that a refusal by the Council to disclose the evidence relied on in ordering that his funds be frozen infringed his right to a fair trial and his rights of defence. Consequently, the Council was obliged to grant him access to the file relating to him so as to enable him to comment and/or rebut any evidence against him. Lastly, he claimed that the Council was at fault for failing to offer him access to the evidence used against him of its own accord, and invited the Council to grant him such access within 10 days of receipt of his letter, notwithstanding the time-limit laid down by Article 265 TFEU. In addition, his letter included an annex entitled ‘Specific Documents’ in which were listed 14 items which, at the very least, the applicant wished to see.
12 On 30 January 2014, the Council adopted Decision 2014/49/CFSP amending Decision 2011/72 (OJ 2014 L 28, p. 38), which extends until 31 January 2015 the application of the restrictive measures imposed by Decision 2011/72. Decision 2014/49 also amends the annex to Decision 2011/72 by providing new grounds for the designation of 45 of the persons listed therein, including the applicant. Thus, as regards the applicant, the reason for his inclusion in the annex to the decision is now identical to that which the Council indicated to him, in its letter of 18 December 2013, that it intended to use (see paragraph 9 above).
13 On the same date, the Council also adopted Implementing Regulation (EU) No 81/2014 implementing Regulation No 101/2011 (OJ 2014 L 28, p. 2). That implementing regulation makes the same changes to Annex I to Regulation No 101/2011 as those made by Decision 2014/49 to the annex to Decision 2011/72, in particular the amendment relating to the reason for the inclusion of the applicant’s name in that annex.
14 By letter dated 31 January 2014, the Council replied to the letter from the applicant dated 6 January 2014, stating that the reason it had given to him for maintaining the restrictive measures against him was based on a certificate by the Tunisian Ministry of Justice dated 4 November 2013, which provided information about the judicial investigations underway with regard to the applicant.
15 In particular, according to that certificate, the applicant was subject to an ongoing judicial investigation into acts of complicity in the misappropriation of public monies by a public office-holder, complicity in the misuse of office by a public office-holder to procure an unjustified advantage for a third party and to cause a loss to the administration, and complicity in exerting wrongful influence over a public office-holder with a view to obtaining directly or indirectly an advantage for another person.
16 According to the Council in its letter of 31 January 2014, the facts alleged in that certificate were sufficiently detailed and precise for the applicant to be able to understand them. In addition, the Council took the view in that letter that there were sufficient grounds to conclude that the applicant had been complicit in acts of misappropriation of Tunisian public monies, and that the freezing of his assets continued to be justified by the need to avert the risk of those public monies being used in such a way as to make their recovery impossible should the applicant be convicted. Lastly, the Council enclosed with its letter copies of Decision 2014/49 and Implementing Regulation No 81/2014 and a copy of the certificate by the Tunisian Ministry of Justice dated 4 November 2013.
17 By application dated 8 April 2014, the applicant brought an action that was registered at the General Court Registry under reference T‑218/14, seeking, first, annulment of Decision 2014/49 and, secondly, annulment of Implementing Regulation No 81/2014, in so far as those two acts concern him.
18 By letter dated 23 June 2014, in reply to the applicant’s letter dated 17 January 2014, the Council noted that, by its letter dated 18 December 2013, it had informed the applicant of its intention to maintain the restrictive measures directed against him on the basis of a new statement of reasons. Moreover, it noted that, by its letter of 31 January 2014, it had explained that that new statement of reasons was based on the certificate by the Tunisian Ministry of Justice dated 4 November 2013 and that it had communicated a copy of that certificate at the same time. Accordingly, the Council concluded from this that it had already provided access to the information and evidence available to it which justified the restrictive measures directed against the applicant.
19 However, in that letter of 23 June 2014, ‘[f]or the sake of completeness’, the Council also informed the applicant that its initial decision to impose restrictive measures against him was based on a note verbale from the Tunisian Ministry of Foreign Affairs No 000136 of 29 January 2011 which had been addressed to the EU Delegation in Tunisia in response to the note verbale from that delegation dated 25 January 2011; both notes verbales were, moreover, enclosed with the Council’s letter.
20 Furthermore, in the same letter, the Council stated that it did not possess any other information or documents regarding the matters mentioned in the annex to the applicant’s letter dated 17 January 2014. Thus, the only other documents concerning the restrictive measures against the applicant which the Council had in its possession were documents recording the procedure followed within the Council for the adoption and renewal of those restrictive measures. Those documents were also enclosed with the Council’s letter.
Procedure and forms of order sought
21 By application lodged at the General Court Registry on 30 April 2014, the applicant brought the present action.
22 The applicant claims that the Court should:
– declare that the Council has infringed Article 265 TFEU ‘by not acting in response to the applicant’s formal request of 17 January 2014 to see the evidence which the Council holds against him’;
– order the Council to pay the costs.
23 By a separate document lodged on the same day, the applicant applied for the present application to be decided under an expedited procedure in accordance with Article 76a of the Rules of Procedure of the General Court.
24 By decision of 13 June 2014, the Court refused that application for the use of an expedited procedure.
25 On 23 July 2014, the Council lodged its defence in which it maintains, principally, that the action is inadmissible on the ground that it was not under any obligation to act. In the alternative, the Council contends that the action is devoid of purpose, on the ground that it did in fact reply to the applicant’s letter of 17 January 2014 by its letter of 23 June 2014, in which, for the sake of completeness, it communicated all the additional information which it had regarding the adoption of the restrictive measures against the applicant. In the annex to its defence, the Council included its letter of 23 June 2014 and all the documents communicated to the applicant with that letter.
26 The Council contends that the Court should:
– principally, dismiss the action as inadmissible;
– in the alternative, dismiss the action as devoid of purpose;
– order the applicant to pay the costs.
27 On 29 September 2014, the applicant lodged a reply in which, having acknowledged that his action had become devoid of purpose, he nevertheless took the view that the Council was obliged to give him access to the file relating to him and that, therefore, the Council’s plea of inadmissibility had to be rejected. As regards the loss of purpose of the action, the applicant submits that this has been brought about not by some extraneous event but by the Council’s transmission of the file relating to him, as a result of his bringing of the action. Furthermore, the applicant takes the view that, ‘[s]ince the action is now devoid of purpose’, the costs are the only issue still to be resolved. In that regard, the applicant submits that the Council must be ordered to pay all the costs, because it is only by bringing the present action that he has been able to have access to the evidence held by the Council that will enable him to pursue the proceedings in Case T‑218/14. In the alternative, should the Court consider that it is not possible to rule on the costs without determining whether or not the Council was under an obligation to disclose the file, the applicant submits that a ruling on costs must be suspended until the Court has given its definitive ruling in Case T‑218/14.
28 In the light of the foregoing, the applicant claims in his reply that the Court should:
– in any event, declare the action devoid of purpose;
– principally, order the Council to pay all the costs;
– in the alternative, suspend any ruling on costs until the Court has given its definitive ruling in Case T‑218/14.
Law
29 Under Article 113 of the Rules of Procedure, the Court may at any time, of its own motion, after hearing the parties, declare that the action has become devoid of purpose and that there is no need to adjudicate on it.
30 In this instance, the Court considers that it has sufficient information from the documents in the file and has decided, pursuant to that article, to give a decision without taking further steps in the proceedings.
31 First of all, it should be noted that, relying expressly on Article 265 TFEU, the applicant claimed in his application that the Court should declare that the Council had failed to act, in that it had not responded to his letter of 17 January 2014 by which he had asked for the file relating to him to be communicated to him.
32 It must be borne in mind in that regard that, according to settled case-law, where the act whose absence constitutes the subject-matter of the proceedings was adopted after the action was brought but before judgment, a declaration by the Court of the EU to the effect that the initial failure to act is unlawful can no longer bring about the consequences prescribed by Article 266 TFEU. It follows that in such a case the subject-matter of the action has ceased to exist, with the result that there is no longer any need to adjudicate on it (see orders of 13 December 2000 in Sodima v Commission, C‑44/00 P, ECR, EU:C:2000:686, paragraph 83 and the case-law cited, and of 7 January 2013 in Alfastar Benelux v Council, T‑274/12, EU:T:2013:1, paragraph 16 and the case-law cited).
33 The fact that the position adopted by the institution has not satisfied the applicant is of no relevance in this respect because Article 265 TFEU refers to failure to act in the sense of failure to take a decision or to define a position, not the adoption of a measure different from that desired or considered necessary by the persons concerned (order in Sodima v Commission, cited in paragraph 32 above, EU:C:2000:686, paragraph 83, and order of 17 December 2010 in Verein Deutsche Sprache v Council, T‑245/10, EU:T:2010:555, paragraph 15).
34 Thus, in the present case, it is sufficient to find that, as the Council stated in paragraph 18 of its defence, the Council did in fact reply to the applicant’s letter of 17 January 2014 in its letter of 23 June 2014.
35 In that letter, the Council indicated to the applicant that, by its letters of 18 December 2013 and 31 January 2014, it had already given him access to the information justifying the restrictive measures against him.
36 In the same letter, moreover, for what the Council referred to as the sake of completeness, it also mentioned the note verbale from the Tunisian Ministry of Foreign Affairs No 000136 of 29 January 2011, and the note verbale from the EU Delegation dated 25 January 2011. Next, having indicated to the applicant that the only other items it possessed regarding the restrictive measures directed against him concerned the internal procedure which it followed in respect of the adoption and renewal of those measures, the Council listed those items. In addition, the Council enclosed with that letter copies of all the documents and items mentioned above.
37 Consequently, it must be held, in accordance with the case-law recalled in paragraphs 32 and 33 of this Order, that, in giving a decision on the applicant’s request of 17 January 2014 regarding the communication of the file relating to him, the Council’s letter of 23 June 2014 caused the subject-matter of the present action for failure to act to cease to exist, irrespective of whether or not that letter satisfied the applicant.
38 In any event, even on the assumption that the present action must be interpreted as an action for annulment in respect of the Council’s implied refusal of the applicant’s request dated 17 January 2014, as might be inferred either from Decision 2014/49 dated 30 January 2014, which extends the restrictive measures directed against the applicant, or from the Council’s letter of 31 January 2014, that action has nevertheless become devoid of purpose.
39 It should be borne in mind that, according to settled case-law, in an action based on Article 263 TFEU, the subject-matter of the dispute, as determined by the application initiating proceedings, must continue, like the interest in bringing proceedings, until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it (judgment of 7 June 2007 in Wunenburger v Commission, C‑362/05 P, ECR, EU:C:2007:322, paragraph 42, and order of 14 January 2014 in Miettinen v Council, T‑303/13, EU:T:2014:48, paragraph 16).
40 In the present case, the Council granted the applicant’s request dated 17 January 2014 by enclosing with its letter of 23 June 2014 all the material in its possession concerning the applicant. The present action is therefore no longer liable to procure an advantage to the applicant, which is confirmed by his reply.
41 First, as is apparent from paragraphs 8, 11, 14 and 15 of his reply, the applicant acknowledges that the transmission of those documents has meant that he has achieved the outcome he was seeking, that is to say, to obtain the entire file that the Council held in respect of the restrictive measures directed against him.
42 Secondly, as is apparent from paragraphs 3, 12, 13 and 19 of his reply, the applicant agrees with the Council that his action has become devoid of purpose and, moreover, asks the Court to declare it as such.
43 Consequently, since, as the Court has found in paragraphs 40 to 42 above, the applicant himself acknowledges that he has obtained full satisfaction and, like the Council, concludes from this that his action has become devoid of purpose, there is in any event no need to adjudicate on that action.
Costs
44 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.
45 The Court considers it to be fair in the circumstances of the case to order that the Council bear its own costs and pay those incurred by the applicant in the context of the present proceedings.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby orders:
1. There is no need to adjudicate on the action.
2. The Council of the European Union shall pay the costs.
Luxembourg, 10 December 2014.