JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
12 February 2015 (*)
(Common foreign and security policy — Freezing of funds — Rights of the defence — Obligation to state reasons — Manifest error of assessment — Right to life — Right to property — Right to respect for private life — Proportionality)
In Case T‑579/11,
Tarif Akhras, residing in Homs (Syria), represented by S. Ashley, S. Millar, S. Jeffrey, A. Irvine, Solicitors, D. Wyatt QC, and R. Blakeley, Barrister,
applicant,
v
Council of the European Union, represented initially by M. Bishop, F. Naert and M.-M. Joséphidès, and subsequently by M. Bishop and M. M. Joséphidès, acting as Agents,
defendant,
supported by
European Commission, represented initially by E. Paasivirta and F. Castillo de la Torre, and subsequently by M. Castillo de la Torre and D. Gauci, acting as Agents,
intervener,
APPLICATION for annulment of Council Decision 2011/522/CFSP of 2 September 2011 amending Decision 2011/273/CFSP concerning restrictive measures against Syria (OJ 2011 L 228, p. 16), Council Regulation (EU) No 878/2011 of 2 September 2011 amending Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 228, p. 1), Council Decision 2011/628/CFSP of 23 September 2011 amending Decision 2011/273/CFSP concerning restrictive measures against Syria (OJ 2011 L 247, p. 17), Council Regulation (EU) No 1011/2011 of 13 October 2011 amending Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 269, p. 18), Council Decision 2011/782/CFSP of 1 December 2011 concerning restrictive measures against Syria and repealing Decision 2011/273/CFSP (OJ 2011 L 319, p. 56), Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation (EU) No 442/2011 (OJ 2012 L 16, p. 1), Council Implementing Decision 2012/172/CFSP of 23 March 2012 implementing Decision 2011/782 (OJ 2012 L 87, p. 103), Council Implementing Regulation (EU) No 266/2012 of 23 March 2012 implementing Article 32(1) of Regulation (EU) No 36/2012 (OJ 2012 L 87, p. 45), Council Decision 2012/739/CFSP of 29 November 2012 concerning restrictive measures against Syria and repealing Decision 2011/782 (OJ 2012 L 330, p. 21), Council Implementing Decision 2013/185/CFSP of 22 April 2013 implementing Council Decision 2012/739 (OJ 2013 L 111, p. 77), Council Implementing Regulation (EU) No 363/2013 of 22 April 2013 implementing Regulation No 36/2012 (OJ 2013 L 111, p. 1), Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (OJ 2013 L 147, p. 14), Council Implementing Decision 2014/730/CFSP of 20 October 2014 implementing Decision 2013/255 (OJ 2014 L 301, p. 36) and Council Implementing Regulation (EU) No 1105/2014 of 20 October 2014 implementing Regulation No 36/2012 (OJ 2014 L 301, p. 7) in so far as those acts concern the applicant,
THE GENERAL COURT (Seventh Chamber),
composed of M. van der Woude, President, I. Wiszniewska-Białecka and I. Ulloa Rubio (Rapporteur), Judges,
Registrar: J. Palacio González, Principal Administrator,
having regard to the written procedure and further to the hearing on 21 May 2014,
gives the following
Judgment
Background to the dispute
1 The applicant, Mr Tarif Akhras, is a Syrian businessman. He controls the Akhras group of undertakings, he was for a number of years Chairman of the Chamber of Commerce of the city of Homs in Syria and he is a member of the Board of the Federation of Syrian Chambers of Commerce.
2 Strongly condemning the violent repression of peaceful protests in Syria and calling on the Syrian authorities to exercise restraint and not to use force, the Council of the European Union adopted, on 9 May 2011, Decision 2011/273/CFSP concerning restrictive measures against Syria (OJ 2011 L 121, p. 11). In view of the seriousness of the situation, the Council established an arms embargo, a ban on exports of material which might be used for internal repression, restrictions on admission to the European Union, and the freezing of funds of certain persons and entities responsible for the violent repression against the civilian population in Syria.
3 The names of the persons responsible for the violent repression against the civilian population in Syria and of the persons, natural or legal, and entities associated with them are listed in the annex to Decision 2011/273. Under Article 5 of that decision, the Council, acting upon a proposal by a Member State or the High Representative of the European Union for Foreign Affairs and Security Policy, may amend that annex. The applicant’s name does not appear in that annex.
4 Given that some of the restrictive measures taken against the Syrian Arab Republic fall within the scope of the FEU Treaty, the Council adopted Regulation (EU) No 442/2011 of 9 May 2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 121, p. 1). That regulation is, essentially, identical to Decision 2011/273, but provides for the possibility that frozen funds may be released. The list of persons, entities or bodies identified as being responsible for the repression in question, or associated with those responsible, in Annex II, is identical to the list in the annex to Decision 2011/273. The name of the applicant is therefore not on that list. Under Article 14(1) and (4) of the regulation in question, where the Council decides to subject a person, entity or body to the restrictive measures referred to, it is to amend Annex II accordingly and furthermore it is to review the list in Annex II at regular intervals and at least every 12 months.
5 By Decision 2011/522/CFSP of 2 September 2011 (OJ 2011 L 228, p. 16), the Council amended Decision 2011/273 in order to incorporate new criteria for including a person in the list, by providing that its scope, including that of its annex, now covered ‘persons benefiting from or supporting the regime, and persons associated with them, as listed in the annex’. The applicant’s name features in the third line of the table in the annex to that decision, with the following reasons:
‘Founder of the Akhras Group (commodities, trading, processing and logistics), Homs. Provides economic support for the Syrian regime.’
6 On the same day, the Council adopted Regulation (EU) No 878/2011, amending Regulation No 442/2011 (OJ 2011 L 228, p. 1), by which the Council introduced new criteria for inclusion in the list, thereby extending the scope of that regulation to ‘persons and entities benefiting from or supporting the regime, or persons and entities associated with them’. The applicant’s name appears in the annex to Regulation No 878/2011 with the same reasons and information as set out in the annex to Decision 2011/522.
7 On 3 September 2011 the Council published a notice for the attention of the persons and entities to which restrictive measures provided for in Decision 2011/522 and Regulation No 878/2011 apply (OJ 2011 C 261, p. 4).
8 By Decision 2011/628/CFSP of 23 September 2011, amending Decision 2011/273 (OJ 2011 L 247, p. 17), the Council amended the entry relating to Mr Akhras in Annex I to Decision 2011/273 by adding as identifying information the following: ‘Date of birth: 1949; Place of birth: Homs, Syria’.
9 On 24 September 2011 the Council published a notice for the attention of the persons and entities to which the restrictive measures provided for in Decision 2011/273, as amended by Decision 2011/628, and in Regulation No 442/2011, as amended by Regulation (EU) No 950/2011 concerning restrictive measures against Syria, apply (OJ 2011 C 281, p. 17).
10 On 13 October 2011 the Council adopted Regulation (EU) No 1011/2011 amending Regulation No 442/2011 (OJ 2011 L 269, p. 18). The name of the applicant features in line 3 of the table in Annex II to that regulation, with the same information and reasons as set out in the annex to Decision 2011/628.
11 On 14 October 2011 a further notice was published by the Council for the attention of the persons and entities to which the restrictive measures provided for in Decision 2011/273, as amended by Council Decision 2011/684/CFSP and by Council Regulation (EU) No 1011/2011 concerning restrictive measures against Syria, apply (OJ 2011 C 303, p. 5).
12 By Decision 2011/782/CFSP of 1 December 2011 concerning restrictive measures against Syria and repealing Decision 2011/273 (OJ 2011 L 319, p. 56), the Council expressed the view that, in light of the gravity of the situation in Syria, it was necessary to impose additional restrictive measures, such as restrictions on the financing of enterprises and on participation in certain infrastructure projects. For the sake of clarity, the measures imposed by Decision 2011/273 and the additional measures were integrated into a single legal instrument. The name of the applicant features in line 53 of the table in Annex I to that decision, with the same information and reasons as set out in the annex to Decision 2011/628.
13 On 2 December 2011 the Council published a notice for the attention of the persons and entities to which the restrictive measures provided for, inter alia, in Decision 2011/782 and in Regulation No 442/2011, as implemented by Council Implementing Regulation (EU) No 1244/2011 concerning restrictive measures in view of the situation in Syria, apply (OJ 2011 C 351, p. 14).
14 Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation No 442/2011 (OJ 2012 L 16, p. 1) makes provision for additional restrictive measures and amends the list of persons and entities referred to. The applicant’s name features in line 53 of Annex II to that regulation, with the same information and reasons as set out in the annex to Decision 2011/628.
15 By Implementing Decision 2012/172/CFSP of 23 March 2012 implementing Decision 2011/782 (OJ 2012 L 87, p. 103), the Council added to the annex to the latter decision, with regard to the applicant, information relating to his passport number and corrected his date of birth (‘Born 2 June 1951 in Homs, Syria. Syrian passport nr. 0000092405’). With regard to the reasons for his being listed in the annex in question, the Council worded those as follows:
‘Prominent businessman benefiting from and supporting the regime. Founder of the Akhras Group (commodities, trading, processing and logistics) and former Chairman of the Homs Chamber of Commerce. Close business relations with President Al-Assad’s family. Member of the Board of the Federation of Syrian Chambers of Commerce. Provided industrial and residential premises for improvised detention camps, as well as logistical support for the regime (buses and tank loaders).’
16 On the same day, the Council adopted Implementing Regulation (EU) No 266/2012 implementing Article 32(1) of Regulation No 36/2012 (OJ 2012 L 87, p. 45). The applicant’s name features in the annex to that regulation, with the same information and reasons as set out in the annex to Implementing Decision 2012/172.
17 On 24 March 2012 the Council published a notice for the attention of the persons and entities to which the restrictive measures provided for in Decision 2011/782, as implemented by Implementing Decision 2012/172, and by Regulation No 36/2012, as implemented by Implementing Regulation No 266/2012, apply (OJ 2012 C 88, p. 9).
18 By Council Decision 2012/739/CFSP of 29 November 2012 concerning restrictive measures against Syria and repealing Decision 2011/782 (OJ 2012 L 330, p. 21) the restrictive measures in question were integrated into a single legal instrument. The name of the applicant features in line 50 of the table in Annex I to that decision, with the same information and reasons as set out in the annex to Implementing Decision 2012/172.
19 On 30 November 2012 the Council published a notice for the attention of the persons and entities to which the restrictive measures provided for in Decision 2012/739 and in Regulation No 36/2012, as implemented by Council Implementing Regulation (EU) No 1117/2012 concerning restrictive measures in view of the situation in Syria, apply (OJ 2012 C 370, p. 6).
20 Council Implementing Decision 2013/185/CFSP of 22 April 2013 implementing Decision 2012/739 (OJ 2013 L 111, p. 77), is intended to update the list of individuals and entities subject to restrictive measures as set out in Annex I to that decision. The applicant’s name features in line 48 of Annex I with the same information and reasons as set out in the annex to Implementing Decision 2012/172.
21 Council Implementing Regulation (EU) No 363/2013 of 22 April 2013, implementing Regulation No 36/2012 (OJ 2013 L 111, p. 1), contains the same information and reasons as set out in the annex to Implementing Decision 2012/172 in relation to the applicant.
22 On 23 April 2013 the Council published a notice for the attention of the persons and entities to which restrictive measures provided for in Decision 2012/739, as implemented by Implementing Decision 2013/185, and in Regulation No 36/2012, as implemented by Implementing Regulation No 363/2013, apply (OJ 2013 C 115, p. 5).
23 On 31 May 2013 the Council adopted Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2013 L 147, p. 14). The applicant’s name features in line 48 of Annex I to that decision, with the same information and reasons as set out in the annex to Implementing Decision 2012/172.
24 On 1 June 2013 the Council published a notice for the attention of the persons and entities to which restrictive measures provided for in Decision 2013/255 and Regulation No 36/2012 apply (OJ 2013 C 155, p. 1).
25 On 20 October 2014 the Council adopted Implementing Decision 2014/730/CFSP, implementing Decision 2013/255 (OJ 2014 L 301, p. 36). The applicant’s name now features in line 50 of Annex I to Decision 2013/255. The Council set out the reasons for listing his name in the annex in question as follows:
‘Prominent businessman benefiting from and supporting the regime. Founder of the Akhras Group (commodities, trading, processing and logistics) and former Chairman of the Homs Chamber of Commerce. Close business relations with President Al-Assad’s family. Member of the Board of the Federation of Syrian Chambers of Commerce. Provided logistical support for the regime (buses and tank loaders).’
26 On the same day, the Council adopted Implementing Regulation (EU) No 1105/2014 implementing Regulation No 36/2012 (OJ 2014 L 301, p. 7). The applicant’s name features in line 50 of the annex to that regulation, with the same information and reasons as set out in the annex to Implementing Decision 2014/730.
27 On 21 October 2014 the Council published a notice for the attention of the persons subject to the restrictive measures provided for in Decision 2013/255 and Regulation No 36/2012 (OJ 2014 C 373, p. 7).
Procedure and forms of order sought
28 By application lodged at the Registry of the General Court on 11 November 2011, the applicant brought an action for annulment of Decision 2011/522, Regulation No 878/2011, Decision 2011/628 and Regulation No 1011/2011 in so far as his name is included in the list of persons and entities to which the restrictive measures imposed by those acts apply.
29 By a separate document, lodged at the Court Registry on the same day, the applicant submitted an application for interim relief seeking the immediate suspension of the application of Decision 2011/522, Regulation No 878/2011, Decision 2011/628 and Regulation No 1011/2011, pursuant to Article 105(2) of the Rules of Procedure of the Court, or in the alternative the suspension of those acts after consideration of the Council’s observations. The application also requested that the Council publicise, through a press release and a notice published in the Official Journal, the suspension of the above acts within 24 hours of service of the order of the Court. By order of 12 December 2011, the President of the Court dismissed that application.
30 By a separate document lodged at the Court Registry on the same day, the applicant applied for an expedited procedure pursuant to Article 76a of the Rules of Procedure.
31 By decision of 20 January 2012, the Court rejected that application.
32 In his written pleading lodged at the Court Registry on 3 February 2012, the applicant adapted his claims by seeking annulment of Decision 2011/782 and Regulation No 36/2012 in so far as they concern him. In its observations on that pleading, lodged at the Court Registry on 6 March 2012, the Council took notice of the request made by the applicant.
33 By order of the President of the Sixth Chamber of 29 March 2012, the European Commission’s application to intervene in support of the form of order being sought by the Council, lodged at the Court Registry on 10 February 2012, was granted.
34 In his written pleading lodged at the Court Registry on 1 June 2012, the applicant adapted his claims by seeking also annulment of Implementing Decision 2012/172 and Implementing Regulation No 266/2012 in so far as those acts concern him. He also asks that the effects of the annulment be immediate, irrespective of the expiry of the period for bringing an appeal.
35 In their observations on that pleading, lodged at the Court Registry on 20 June and 3 July 2012 respectively, the Commission and the Council did not object to the applicant’s request to extend the subject-matter of his application for annulment.
36 In his written pleading lodged at the Court Registry on 11 February 2013, the applicant adapted his claims by seeking also annulment of Decision 2012/739 in so far as that act concerns him and the inclusion in the documents before the Court of a letter from the Council of 30 November 2012 informing him that his name would continue to be listed in the annexes to the contested acts. In their observations on that pleading, lodged at the Court Registry respectively on 20 February and 13 March 2013, the Commission and the Council took notice of the request made by the applicant.
37 In his written pleading lodged at the Court Registry on 19 June 2013, the applicant adapted his claims by seeking also annulment of Implementing Decision 2013/185, Implementing Regulation No 363/2013 and Decision 2013/255, and a declaration of inapplicability of Article 27(1) and Article 28(1) of Decision 2013/255. By letter received at the Court Registry on 12 August 2013, the Commission made no observation on that pleading. In its observations on that pleading, lodged at the Court Registry on 3 September 2013, the Council stated that it did not object to the application to adapt, but that the application for a declaration of inapplicability of Article 27(1) and Article 28(1) of Decision 2013/255 should be dismissed for the reasons set out in its observations of 3 July 2012.
38 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Seventh Chamber, to which the present case was accordingly allocated.
39 By letter received on 16 October 2013, the applicant applied for the case to be referred to the Grand Chamber.
40 By decision of 21 November 2013, the Seventh Chamber refused to refer the case to the Grand Chamber.
41 On hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure and, by way of measures of organisation of procedure provided for under Article 64 of the Rules of Procedure, invited the Council to reply to certain written questions and, as appropriate, to produce certain documents. The Council complied with those requests.
42 The parties presented oral argument and replied to questions put by the Court at the hearing on 21 May 2014.
43 By order of the President of the Seventh Chamber of 11 November 2014, the Court reopened the oral procedure.
44 In his written pleading lodged at the Court Registry on 27 October 2014, the applicant adapted his claims by seeking annulment of Implementing Decision 2014/730 and Implementing Regulation No 1105/2014 in so far as they concern him. In their observations on that pleading, lodged at the Court Registry respectively on 27 November and 4 December 2014, the Commission and the Council took notice of the request made by the applicant.
45 The applicant claims that the Court should:
– annul Decision 2011/522, Regulation No 878/2011, Decision 2011/628, Regulation No 1011/2011, Decision 2011/782, Regulation No 36/2012, Implementing Decision 2012/172, Implementing Regulation No 266/2012, Decision 2012/739, Implementing Decision 2013/185, Implementing Regulation No 363/2013, Decision 2013/255, Implementing Decision 2014/730 and Implementing Regulation No 1105/2014, in so far as those acts concern him;
– declare that Article 4(1) of Decision 2011/273, as amended, does not apply to him;
– declare that Article 5(1) of Regulation No 442/2011, as amended, does not apply to him;
– declare that Article 27(1) and Article 28(1) of Decision 2013/255 do not apply to him;
– order the Council to pay the costs.
46 The Council, supported by the Commission, contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
47 In support of his action, the applicant puts forward three pleas in law. The first plea alleges a manifest error of assessment, the second, infringement of the applicant’s fundamental rights, in particular, his right to life, his right to respect for private and family life and his right to property, and the third, infringement of essential procedural requirements and of the rights of the defence.
48 It is necessary, first of all, to examine the admissibility of the applicant’s second, third and fourth heads of claim.
Admissibility of the applicant’s second, third and fourth heads of claim
49 By the second, third and fourth heads of claim the applicant asks the Court to declare that Article 4(1) of Decision 2011/273 (as amended), Article 5(1) of Regulation No 442/2011 (as amended) and Articles 27(1) and 28(1) of Decision 2013/255 do not apply to him.
50 First of all, it must be stated that such applications on the part of the applicant involve a finding or a declaration on the part of the Court (see by analogy, Case T‑33/01 Infront WM v Commission [2005] ECR II‑5897, paragraph 171).
51 An application seeking a declaratory judgment must be rejected for clear lack of jurisdiction. It is clear from settled case-law that the Court, in the context of a review of legality based on Article 263 TFEU, does not have jurisdiction to give declaratory judgments (see, to that effect, the order of 25 November 2008 in Case C‑500/07 P TEA v Commission, not published in the ECR, paragraph 33, and Case T‑145/06 Omya v Commission [2009] ECR II‑145, paragraph 23).
52 The applicant’s second, third and fourth heads of claim must therefore be dismissed as inadmissible.
Third plea in law: infringement of essential procedural requirements and of the rights of the defence
53 There are three parts to the applicant’s third plea in law. The first part is that the applicant was not individually notified, even though it was possible for the Council to obtain his personal address. The second part is based on a failure to state adequate, precise and sufficient reasons for listing his name in the annexes to the acts at issue, because of the vague and imprecise nature of the information provided. The applicant claims, in particular, that the initial reasons for that listing were insufficient and inadequate. Furthermore, according to the applicant, the fact that the Council amended the reasons for entering his name in the lists at issue is a strong indication that the reasons stated for the initial listing were insufficient. The last part is that insufficient information and evidence was provided to enable him to make useful and relevant observations in order to safeguard his right to a fair hearing. In that regard, the applicant claims that the Council was late in complying with the obligation to disclose the contents of the file to him.
54 The Council, supported by the Commission, disputes the applicant’s arguments.
55 In order to justify listing the applicant’s name in the contested acts, the Council relied on two different statements of reasons. The reasons stated were substantially amended with effect from 23 March 2012 (see paragraph 15 above). It is therefore necessary to examine the first plea in law separately in relation to acts adopted before that date (see paragraphs 5 to 14 above) (‘the contested acts preceding 23 March 2012’) and acts adopted after that date (see paragraphs 15 to 23 above) (‘the other contested acts’).
The contested acts preceding 23 March 2012
56 With regard to the acts preceding 23 March 2012, the Court will first of all examine the second part of the third plea in law, alleging infringement of the duty to state reasons.
57 To begin with, it must be borne in mind that, in accordance with settled case-law, the purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, secondly, to enable those Courts to review the legality of that act (see Case T‑383/11 Makhlouf v Council [2013] ECR, paragraph 60 and the case-law cited).
58 According to further settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review (see Makhlouf v Council, paragraph 61 and the case-law cited).
59 If the person or entity concerned is not afforded the opportunity to be heard before the adoption of an initial decision to freeze funds and economic resources, compliance with the obligation to state reasons is all the more important because it constitutes the sole safeguard enabling the party concerned, especially after the adoption of that decision, to make effective use of the legal remedies available to it to challenge the lawfulness of that decision (see Makhlouf v Council, paragraph 62 and the case-law cited).
60 Therefore, the statement of reasons for an act of the Council which imposes a measure freezing funds and economic resources must identify the actual and specific reasons why the Council considers, in the exercise of its discretion, that that measure must be adopted in respect of the person concerned (see Makhlouf v Council, paragraph 63 and the case-law cited).
61 However, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure may have in obtaining explanations (see Makhlouf v Council, paragraph 64 and the case-law cited).
62 It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for a measure meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Case T‑29/05 Deltafina v Commission [2010] ECR II‑4077, paragraph 319, and Makhlouf v Council, paragraph 65 and the case-law cited).
63 In particular, the reasons given for a measure adversely affecting a person are sufficient if it was adopted in circumstances known to that person which enable him to understand the scope of the measure concerning him (see Makhlouf v Council, paragraph 66 and the case-law cited).
64 In the present case, first, with regard to the applicant’s knowledge of the general context in which the restrictive measures at issue were imposed, it must be stated that the first three recitals in the preamble to Decision 2011/273, as amended by Decision 2011/522, clearly set out the general grounds for the adoption by the European Union of restrictive measures against Syria by stating the following:
‘1 On 29 April 2011, the European Union expressed its grave concern about the situation unfolding in Syria and the deployment of military and security forces in a number of Syrian cities.
2 The Union strongly condemned the violent repression, including through the use of live ammunition, of peaceful protest in various locations across Syria resulting in the death of several demonstrators, wounded persons and arbitrary detentions, and called on the Syrian security forces to exercise restraint instead of repression.
3 In view of the seriousness of the situation, restrictive measures should be imposed against Syria and against persons responsible for the violent repression against the civilian population in Syria.’
65 Furthermore, under Article 4 of Decision 2011/273, as amended by Decision 2011/522 ‘[a]ll funds and economic resources belonging to, or owned, held or controlled by persons responsible for the violent repression against the civilian population in Syria, persons and entities benefiting from or supporting the regime, and persons and entities associated with them, as listed in the annex, shall be frozen.’
66 It is clear from the case-law that it may be presumed that the general context to which reference is made in the contested acts preceding 23 March 2012 was known to prominent figures in Syrian society (see, to that effect, Makhlouf v Council). In the present case, the applicant, as is clear from the documents in the case-file and his own statements, is a prominent businessman in Syria.
67 Furthermore, contrary to what the applicant maintains, the general criteria at issue are neither vague and nor imprecise. Even if those criteria leave the Council an element of discretion as regards their application, they are not arbitrary, in that they are confined to targeting the persons responsible for the repression against the civilian population in Syria, persons and entities benefiting from the Syrian regime, persons and entities which financially or logistically support that regime, and persons and entities associated with those responsible.
68 Secondly, with regard to the specific context of the inclusion of the applicant’s name in the lists annexed to the contested acts preceding 23 March 2012, the Council relied on the following two reasons: ‘Founder of the Akhras Group (commodities, trading, processing and logistics), Homs’ and ‘Provides economic support for the Syrian regime’.
69 With regard to the first reason, it must be stated that it merely describes the applicant’s status. The fact that he is the founder of an industrial group does not necessarily or automatically mean that the applicant satisfies the general criteria set out in paragraph 67 above. Therefore, the statement that the applicant is the founder of a Syrian industrial group cannot constitute a fact capable of being stated as an adequate and specific reason for the contested acts preceding 23 March 2012.
70 With regard to the second reason, it must be held that, in the present case, the Council merely reproduced one of the criteria that would justify including the applicant’s name in the lists at issue, that is to say, the criterion relating to support for the incumbent regime, as introduced by Decision 2011/522 (see paragraph 5 above). The mere reproduction of the criterion, without any other information to support it, cannot serve as a sufficient statement of reasons on the part of the Council.
71 It is clear from the foregoing that the Council failed to comply with its obligation to state reasons in accordance with the second paragraph of Article 296 TFEU.
72 It is therefore necessary to uphold the third plea in law and to annul the contested acts preceding 23 March 2012 for a failure to state reasons in so far as those acts concern the applicant. It is therefore no longer necessary to examine the other pleas advanced in support of the action against those acts.
73 Since the contested acts preceding 23 March 2012 have been amended or repealed by Implementing Decision 2012/172 (see paragraph 15 above) and Implementing Regulation No 266/2012 (see paragraph 16 above), there is no need to rule on the temporal effects of the annulment.
The other contested acts
– First part: lack of individual notice
74 The applicant claims that the Council infringed essential procedural requirements by failing to notify him of the other contested acts, an obligation imposed by the legislation and by the case-law of the Court.
75 The applicant also challenges the Council’s argument that the notification could not be sent to his business address so as to ensure that it was not opened by a subordinate. According to the applicant, that approach would, however, be less harmful than discovering that his name is included in the lists at issue from Syrian television.
76 As a preliminary point, it must be observed that, in accordance with settled case-law, respect for the rights of the defence, guaranteed by Article 41(2) of the Charter of Fundamental Rights of the European Union, includes the right to be heard and the right to have access to the file, while respecting legitimate interests of confidentiality (Joined Cases C‑584/10 P, C‑593/10 P and C‑595/10 P Commission and Others v Kadi [2013] ECR (‘Kadi II’), paragraph 99 and the case-law cited).
77 With regard to the right to effective judicial protection, laid down in Article 47 of the Charter of Fundamental Rights, it requires that the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based, either by reading the decision itself or by requesting and obtaining disclosure of those reasons so as to make it possible for him to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his applying to the court having jurisdiction, and in order to put the latter fully in a position to review the lawfulness of the decision in question (see, to that effect, Kadi II, paragraph 100 and the case-law cited).
78 Article 52(1) of the Charter of Fundamental Rights nevertheless allows limitations on the exercise of the rights enshrined in the Charter, subject to the conditions that the limitation concerned respects the essence of the fundamental right in question and, subject to the principle of proportionality, that it is necessary and genuinely meets objectives of general interest recognised by the European Union (see Kadi II, paragraph 101 and the case-law cited).
79 Further, the existence of an infringement of the rights of the defence and of the right to effective judicial protection must be examined in relation to the specific circumstances of each particular case, including the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question (Kadi II, paragraph 102).
80 With regard to the rights of defence of a person who has been subject to restrictive measures, the Courts of the European Union distinguish between the initial inclusion of the name of a person or an entity in a list imposing restrictive measures and the maintenance of the name of that person or that entity on that list by subsequent decisions.
81 Thus, regarding acts maintaining the name of the person concerned on the list in question, as is the situation in the present case, the competent EU authority is required to disclose to that person, before adopting that decision, the evidence against that person available to that authority and relied on as the basis of its decision, so that that person may defend his rights (see, to that effect, Kadi II, paragraphs 111 and 112).
82 In the present case, Article 21 of Decision 2011/782, Article 15(3) of Regulation No 36/2012 and Article 30(2) of Decision 2013/255 provide, in essence, that the Council must communicate its decision, including the grounds for including or maintaining the name in the lists at issue, to the person or entity concerned, either directly, if the address is known, or through the publication of a notice, providing such person or entity with an opportunity to present observations.
83 In that respect, it must be observed that the Council is not free to choose arbitrarily the means of communication of its decisions to the persons concerned. It is clear from paragraph 61 of Joined Cases C‑478/11 P to C‑482/11 P Gbagbo and Others v Council [2013] ECR that the Court of Justice intended that indirect communication of measures in respect of which annulment is sought by means of the publication of a notice in the Official Journal should be permissible solely in cases where it is impossible for the Council to effect service.
84 In the present case, with regard to Implementing Decision 2012/172 and Implementing Regulation No 266/2012, it does not appear from documents in the case-file that the Council had the applicant’s personal address and the Council could therefore not give him individual notification that his name was maintained on the lists at issue by those measures.
85 Furthermore, the applicant is wrong to claim that the Council should have given him notice at his business address of the fact that it had maintained his name in the lists at issue. In view of the fact that restrictive measures are to be implemented in areas frequently involving a high degree of sensitivity, it is clear that the consequences of those measures would, if notification of the fact that the applicant’s name was included or maintained in those lists was effected at his business address and might therefore be received by third parties, be more harmful than if it had been effected at his personal address or that of his lawyer.
86 It is clear from the provisions of the other contested acts and the case-law referred to above that valid notification was possible by means of a notice published in the Official Journal. As was observed in paragraph 17 above, the Council published a notice in the Official Journal in connection with Implementing Decision 2012/172 and Implementing Regulation No 266/2012 on 24 March 2012.
87 Therefore, since the Council did not have the applicant’s personal address on the date when Implementing Decision 2012/172 and Implementing Regulation No 266/2012 were adopted, it cannot be criticised for having failed in its duty to give notice in connection with those acts.
88 With regard to Decision 2012/739, Implementing Decision 2013/185, Implementing Regulation No 363/2013, Decision 2013/255, Implementing Decision 2014/730 and Implementing Regulation No 1105/2014, it is clear from the documents in the case-file that on 30 November 2012, 13 May 2013, 13 June 2013 and 22 July 2014 the Council caused notifications of those acts to be sent, informing the applicant that his name was being maintained in the lists annexed to the acts at issue, to the address of the applicant’s lawyer and not to the applicant’s personal address in Syria. Sending notification to the lawyer’s address is contrary to the provisions set out in paragraph 82 above.
89 However, it must be noted that the lack of individual notification of the contested acts, although it has an effect on when the time for bringing proceedings started to run, does not, on its own, justify annulment of the acts in question. In that regard, the applicant does not put forward any arguments to demonstrate that, in the present case, that lack of individual notification resulted in an interference with his rights which would justify annulment of those acts in so far as they concern him (see, to that effect, judgment of 6 September 2013 in Bank Melli Iran v Council, T‑35/10 and T‑7/11, ECR, EU:T:2013:397, paragraphs 112 and 113). Furthermore, the existence of such interference is not apparent from the case-file. Finally, it must be stated that the applicant was in a position to adapt his claims by applying also for annulment of the abovementioned acts. Consequently, the fact that notice was not given of the acts maintaining the listing of the applicant’s name does not amount to an infringement of his rights of defence.
90 It follows that the first part of the third plea is unfounded.
– Third part: infringement of the rights of the defence
91 The applicant claims, in essence, that the Council infringed his right to effective judicial protection by not disclosing the administrative file concerning him. In that respect, the applicant takes the view that he was not in a position to be informed of the matters which might be relied against him and to defend himself. In particular, he criticises the Council for not fulfilling that obligation on its own initiative.
92 As was stated in paragraph 77 above, the right to effective judicial protection is a right guaranteed under the Charter of Fundamental Rights and includes, inter alia, the right of the applicant to ascertain the reasons why the decision against him was taken.
93 However, contrary to what the applicant claims, it must be stated that it is only on the request of the party concerned that the Council is required to provide him with access to all non-confidential official documents concerning the measure at issue (Case C‑548/09 P Bank Melli Iran v Council [2011] ECR I‑11381, paragraph 92).
94 In the present case, such a possibility is expressly laid down to that effect by the legislation. Thus, it must be stated that Article 21(2) and (3) of Decision 2011/782, Article 32(2) and (3) of Regulation No 36/2012 and Article 30(2) and (3) of Decision 2013/255 provide, first, that the Council is to inform the individuals of the inclusion of their names in the lists at issue and of the grounds for doing so, and secondly that, where observations are submitted or where substantial new evidence is presented, the Council is to review its decision and inform the person or entity concerned accordingly. However, the time-limit within which the Council must reply to those observations is not specifically laid down.
95 It is clear from the documents in the case-file that the Council, in its letter of 21 December 2011, disclosed to the applicant the documents from its file which, in its opinion, justified maintaining his name on the lists of persons and entities subject to the restrictive measures in question. That disclosure enabled the applicant to react to the position adopted by the Council and to put forward his point of view. The applicant made use of that procedure on several occasions, in particular by sending letters of 16 January and 6 March 2012, in which he challenged the maintenance of his name on the lists annexed to the other contested acts, made certain observations and asked the Council to send him the evidence justifying his listing being maintained. The Council acknowledged receipt of those observations in its letter of 16 March 2012 and informed the applicant that they did not require it to do more than refer to its defence in the present proceedings. The Council also stated on 27 March 2012 that the applicant had been given access to the documents from the file.
96 Consequently, whilst it is true that the Council’s responses to the applicant’s observations and requests are particularly succinct, the fact remains that the applicant had access to summary material which the Council had in its possession and that he was able to make known his point of view. Therefore, it cannot be held that the Council infringed the applicant’s right to effective judicial protection. Accordingly, the third part of the third plea must therefore be rejected.
– The second part: failure to state reasons
97 The applicant claims that the Council should have provided him with specific and detailed reasons and not merely made reference to vague and general information. Similarly, the applicant criticises the Council for not having established in what respects his behaviour justified including his name in the lists at issue.
98 As has been observed in paragraphs 57 to 63 above, the obligation to state reasons is a substantive obligation imposed on the Council, non-compliance with which may result in annulment of the other contested acts.
99 In the present case, first, the general grounds for the European Union’s adoption of restrictive measures against Syria are the same as those referred to in paragraph 64 above.
100 As has been demonstrated in paragraphs 66 and 67 above, the applicant could not have been unaware of the general context referred to by the other contested acts.
101 Secondly, in respect of the specific reasons for his listing, it must be observed that the Council twice amended the reasons for including the applicant’s name in the lists at issue.
102 In Implementing Decision 2012/172, Implementing Regulation No 266/2012, Decision 2012/739, Implementing Decision 2013/185, Implementing Regulation No 363/2013 and Decision 2013/255, those reasons were based on the following five grounds: ‘Prominent businessman benefiting from and supporting the regime’, ‘Founder of the Akhras Group (commodities, trading, processing and logistics) and former Chairman of the Homs Chamber of Commerce’, ‘Close business relations with President Al-Assad’s family’, ‘Member of the Board of the Federation of Syrian Chambers of Commerce’ and ‘Provided industrial and residential premises for improvised detention camps, as well as logistical support for the regime (buses and tank loaders)’.
103 In Implementing Decision 2014/730 and Implementing Regulation No 1105/2014, those reasons are henceforth based on the following five grounds: ‘Prominent businessman benefiting from and supporting the regime’, ‘Founder of the Akhras Group (commodities, trading, processing and logistics) and former Chairman of the Homs Chamber of Commerce’, ‘Close business relations with President Al-Assad’s family’, ‘Member of the Board of the Federation of Syrian Chambers of Commerce’ and ‘Provided logistical support for the regime (buses and tank loaders)’.
104 It is clear that, in respect of both statements of reasons mentioned in paragraphs 102 and 103 above, which are virtually identical, the five grounds relied on are sufficiently clear and detailed for the purposes of the case-law in that the applicant has the opportunity to challenge each one of them. They set out the significant roles played by the applicant in the Syrian business world, his links with the person principally responsible for the repression in Syria and the type of support which the applicant is alleged to have provided to the regime. The applicant therefore has had the opportunity to understand the reasons why his name had been included in the lists at issue and to dispute either the truth or the relevance of those reasons, as is clear from his arguments in the context of the first plea in law.
105 Consequently, the reasons given by the Council are sufficient to satisfy its obligation to state reasons under the second paragraph of Article 296 TFEU.
106 Therefore, the second part of the third plea in law must be rejected, and, accordingly, that plea must be rejected in its entirety in so far as it concerns the other contested acts.
First plea in law: manifest error of assessment
107 The applicant essentially relies on two arguments in support of his claim that the Council committed a manifest error of assessment. First, he claims that the Council did not adduce any evidence that he provides the regime with economic support. Secondly, he claims that the Council has not demonstrated that he satisfied the substantive criteria justifying the inclusion of his name in the lists annexed to the other contested acts.
108 Before examining those arguments, it is necessary to explain the burden of proof which lay on the Council with respect to justifying the inclusion of the applicant’s name in the lists at issue.
The burden of proof
109 It is clear from recitals 3 and 4 in the preamble to Decision 2011/782, to which Regulation No 36/2012 refers, that, since the restrictive measures adopted by Decision 2011/273 did not bring an end to the Syrian regime’s repression of the civilian population in Syria, the Council considered that it was appropriate to impose those measures on other persons and entities which were benefiting from or supporting that regime, especially those financing the regime or providing it with logistical support, in particular for its security apparatus, or which were undermining efforts to achieve a peaceful transition to democracy (see paragraph 12 above). Thus, Decision 2011/782 confirmed the extension of the restrictive measures under Decision 2011/522 to Syria’s leading business figures, the Council considering that the heads of Syria’s leading businesses could be classified as persons associated with the Syrian regime since the commercial activities of those businesses could not prosper without benefitting from favours from that regime and providing it with some support in return. In doing so, the Council sought to apply a presumption that the heads of Syria’s leading businesses were supporting the Syrian regime.
110 In the present case, it is apparent from the documents in the case-file that the Council applied, in respect of the applicant, a presumption of support for the Syrian regime in particular because of his positions as former Chairman of the Homs Chamber of Commerce and Member of the Board of the Federation of Syrian Chambers of Commerce.
111 It is necessary to ascertain whether, in taking that approach, the Council erred in law having regard to the burden of proof which lay on it.
112 First, it must be observed that, according to the case-law, the institutions may make use of presumptions which reflect the fact that it is open to an authority on which the burden of proof lies to draw conclusions on the basis of common experience derived from the normal course of events (see, to that effect, judgment of 13 September 2013 in Case T‑563/11 Anbouba v Council, not published in the ECR, paragraph 35).
113 Secondly, in respect of decisions relating to the freezing of funds, according to the case-law, the use of presumptions is not precluded, if provision was made for them in the other contested acts and they are consistent with the objective of the legislation at issue (see, to that effect, Case C‑376/10 P Tay Za v Council [2012] ECR, paragraph 69).
114 In the light of those principles, it is necessary to examine whether the presumption in the present case introduced by the Council is consistent with the objective of the legislation at issue, whether it is proportionate to the aim pursued by the Council, whether it is rebuttable and whether it preserves the applicant’s rights of defence.
115 First of all, it is clear from recitals 2 and 3 in the preamble to Decision 2011/782 that the Council’s aim is to bring an end to the repression inflicted by the Syrian President, Bashar Al-Assad, and his regime on their own population. In order to achieve that aim, the Council decided to impose precautionary restrictive measures on all persons and entities benefiting from or supporting the regime, in particular those which finance the regime or provide it with logistical support, on the presumption that the heads of Syria’s leading businesses could be classified as persons associated with the Syrian regime. Furthermore, it must be observed that overriding considerations to do with security or the conduct of the international relations of the European Union and of its Member States may militate against the disclosure of certain evidence to the persons concerned (see, to that effect, Joined Cases C‑402/05 P and C‑415/05 Kadi and Al Baraka at International Foundation v Council and Commission [2008] ECR I‑6351, paragraph 342). Given the importance and nature of the aims pursued, the presumption used by the Council, which in principle makes it possible to meet those aims, seems proportionate.
116 Next, given the authoritarian nature of the Syrian regime and the State’s tight control over the Syrian economy, the Council could rightly take into account, as a matter of common experience, the fact that the activities of Syria’s leading businessmen, active in a number of sectors, could not have prospered without having the benefit of favours from that regime and that regime providing them with some sort of support in return.
117 Finally, it must be noted that that presumption is rebuttable. As has been observed in paragraph 82 above, Article 21 of Decision 2011/782 and Article 15(3) of Regulation No 36/2012 provide that the Council is to communicate its decision to the persons or entities concerned, including the reasons for including their names in the lists at issue, either directly if their addresses are known, or by publishing a notice giving them the opportunity to present observations. The persons subject to the restrictive measures therefore remain free to rebut that presumption. In that respect, they may, inter alia, demonstrate either that they do not belong to the category of Syria’s leading businessmen, or that they have publicly distanced themselves from the regime, or that they have publicly condemned it.
118 Moreover, as has been established in paragraphs 74 to 106, the other contested acts were adopted with due regard to the applicant’s rights of defence.
119 Therefore, it follows from the foregoing that the Council did not err in law in considering that it could discharge its burden of proof by relying on the presumption that the leading businessmen provided the Syrian regime with economic support.
The merits of including the applicant’s name in the lists at issue
120 The applicant claims that the substantive criteria justifying his inclusion in the lists annexed to the other contested acts, in particular his alleged economic support for the Syrian regime, have not been satisfied. First of all, according to the applicant, he is not responsible for the repression, he does not benefit from the regime nor does he support it, and he is not associated with any person responsible for the repression or benefitting from the regime. The applicant claims that, on the contrary, the regime has hindered the development of his business. In that regard, he submits, inter alia, that his removal from the Homs Chamber of Commerce is proof that he does not support the regime.
121 Furthermore, the applicant claims that he is not in any way linked to any person responsible for the repression, benefitting from the regime or supporting it. In that respect, the fact that the daughter of his cousin is the wife of the current Syrian President is a link with the Syrian leaders that is too remote to justify his being regarded as associated with them. In addition, he has not had close contact with his cousin for approximately 25 years.
122 Finally, the applicant disputes the Council’s claim that he provided the regime with premises for improvised detention camps or rented buses and tank loaders.
123 The applicant concludes that the Council committed a manifest error of assessment in its legal analysis of the criteria justifying the inclusion of his name in the lists at issue.
124 The Council, supported by the Commission, disputes the applicant’s arguments.
125 As a preliminary point, it must be observed that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights requires inter alia that, as part of the review of the lawfulness of the grounds which are the basis of the decision to list or to maintain the listing of a given person, the Courts of the European Union are to ensure that that decision is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons supporting 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 (Kadi II, paragraph 119).
126 However, as has been observed in paragraphs 109 to 119 above, in relation to decisions concerning the freezing of funds, according to the case-law, the use of presumptions is not precluded if provision was made for them in the other contested acts and they are consistent with the objective of the legislation at issue (Tay Za v Council, paragraph 69).
127 In the present case, the other contested acts mention, inter alia, that the applicant is the former Chairman of the Homs Chamber of Commerce and that he has close business relations with President Al-Assad’s family. He is also a member of the Board of the Federation of Syrian Chambers of Commerce. As the Council rightly observes, the applicant is a prominent businessman who is part of the economic ruling class in Syria. His status as a businessman and his leading positions in the networks of Syrian businessmen such as the Chambers of Commerce, and his role as a representative of Syrian businessmen is an undeniable fact which, moreover, the applicant does not dispute.
128 Those factors thus enabled the Council to presume, in accordance with the principles referred to above (see paragraphs 109 to 119), that the applicant provided the regime with support or benefitted from the regime. It is therefore necessary to examine whether the applicant put forward any arguments capable of rebutting that presumption.
129 First, the applicant claims that the newspaper which he founded in 2008 was permanently closed in July 2011 on the initiative of the Syrian Minister of Information. However, the applicant does not demonstrate in what respects that closure influenced his business prosperity or in what respects the newspaper which he owned could be regarded as a newspaper opposed to the regime. Furthermore, even if that newspaper was hardly favourable to the regime, its closure does not appear to have had any impact on the applicant’s businesses, suggesting that he could allow himself a degree of frankness with regard to the regime.
130 Secondly, the applicant claims that the lease which he had signed with the port of Tartus (Syria) was terminated abruptly in 2003 on the order of the Ministry of Defence. However, the applicant cannot rely on a single event, dating from more than 10 years ago, to show that he did not benefit from the regime. In that respect, the applicant does not demonstrate that he was refused subsequent contracts, that other contracts to which he was a party were terminated or the long term consequences of that termination.
131 Thirdly, the applicant claims that he was not re-elected as Chairman of the Homs Chamber of Commerce because the incumbent government backed another candidate. However, the applicant has not specified whether his removal came about against his will or whether he objected to it. Furthermore, the applicant does not produce any document to support his assertions.
132 In addition, it is clear from the documents in the case-file that the applicant is still a member of the Board of the Federation of Syrian Chambers of Commerce. His role within such a body, the aim of which is to promote the Syrian economy and the development of its businesses, can be explained only by a certain proximity to the incumbent regime, as evidenced by the fact, relied on by the applicant himself, that the leading positions within the Chambers of Commerce depend on the endorsement of the incumbent government.
133 Therefore, the applicant has not produced any evidence capable of rebutting the presumption applied by the Council.
134 Since, in accordance with the case-law referred to in paragraph 125 above, if only one of the grounds on which the other contested acts are based is valid, that is sufficient to justify the legality of those acts, and since, in the present case, at least two of the five grounds relied on by the Council (see paragraphs 129 to 132 above) are valid, there is no longer any need to rule on the merits of the three other grounds relied on by the Council.
135 Consequently, the first plea, as submitted with respect to the other contested acts, must be rejected.
Second plea in law: infringement of fundamental rights, in particular the right to life, the right to a family life and the right to property, and infringement of the principle of proportionality
136 First, the applicant claims that, where a fund freezing measure is adopted without any real safeguard enabling the applicant to put his case to the competent authorities, such a measure is to be regarded as a disproportionate interference with the fundamental rights to respect for property and for private life.
137 Secondly, the applicant claims that the inclusion of his name in the lists annexed to the other contested acts has had ‘devastating’ consequences for him and his close family, who have been subjected to death threats, acts of violence and assassination attempts. Such conduct is caused by his designation in the other contested acts, and his life and the lives of his family are threatened. That risk to life should require the Council to show a high degree of vigilance and transparency and to place before the Court particularly compelling evidence to justify his designation in the other contested acts. A designation made only on the basis of a proposal by a Member State cannot be valid. Furthermore, the Council has taken no administrative measures to safeguard the applicant’s right to life, in spite of his letters to the Council concerning the threats and acts of violence suffered. According to the applicant, the adoption of such measures is the consequence of the obligation to review decisions where observations have been submitted or where substantial new evidence has been presented. In that respect, the applicant claims that the Council must be held responsible for the consequences of the inclusion of his name in the lists at issue.
138 Thirdly, the designation of the applicant has destroyed his personal reputation and the reputation of his group of undertakings.
139 Fourthly, the applicant claims that the fund freezing measures interfered with his right to property in that he no longer has access to a substantial part of his assets. In his opinion, the same applies to his freedom to travel.
140 Fifthly, the applicant claims that the infringement of the principle of proportionality stems from the fact that he was not given a reasonable opportunity to put his case to the competent authorities, given that the Council did not provide him with the information or evidence on which it relied or which it took into account when including him in the lists, and that it did not place him in a position to make ‘effective’ representations.
141 The Council, supported by the Commission, disputes the applicant’s arguments.
142 First, with regard to the alleged interference with the right to life, it must be noted that the applicant does not provide any specific evidence to support that claim or any evidence as to the link between the risk of an interference with the right to life and his inclusion in the lists at issue. In that respect, the interference with the right to life which the applicant relies on is mainly the consequence of the situation in Syria and not of the acts of the European Union relating to the restrictive measures taken against him.
143 Secondly, it should be borne in mind, first, that the principle of proportionality is one of the general principles of EU law and requires that measures implemented through EU law provisions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve them (Makhlouf v Council, paragraph 98). Furthermore, the right to property is one of the general principles of EU law and is enshrined in Article 17 of the Charter of Fundamental Rights. Finally, with regard to respect for private life, Article 7 of the Charter recognises the right to respect for private and family life (see, to that effect, Joined Cases C‑356/11 and C‑357/11 O and S [2012] ECR, paragraph 76).
144 As such, respect for fundamental rights is a condition of the lawfulness of European Union acts. In accordance with settled case-law, those fundamental rights do not, however, enjoy, under EU law, absolute protection, but must be viewed in the light of their function in society. Consequently, the exercise of those rights may be restricted, provided that those restrictions in fact correspond to objectives of general interest pursued by the European Union and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed (Makhlouf v Council, paragraph 97).
145 It has previously been held that, where an act imposing restrictive measures has been adopted without furnishing any real safeguard enabling the person concerned to put his case to the competent authorities, the imposition of such measures constitutes an unjustified restriction of his right (see, to that effect and by analogy, Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351, paragraphs 369 and 370).
146 Thirdly, it must be observed that, although in accordance with settled case-law the right to property is guaranteed by Article 17 of the Charter of Fundamental Rights, it does not enjoy, under EU law, absolute protection, but must be viewed in the light of its function in society. Consequently, the exercise of that right may be restricted, provided that those restrictions in fact correspond to objectives of public interest pursued by the European Union and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the right so guaranteed (see Makhlouf v Council, paragraph 97 and the case-law cited).
147 In the present case, first, it is clear that the imposition of restrictive measures on the applicant is appropriate in that the background to it is an objective of general interest as fundamental to the international community as the protection of civilian populations. The freezing of funds, financial assets and other economic resources, and the prohibition of entry into the territory of the European Union, of persons identified as being involved in supporting the Syrian regime cannot, in themselves, be regarded as inappropriate (see Makhlouf v Council, paragraph 100 and the case-law cited).
148 Secondly, the measures at issue are also necessary since alternative and less restrictive measures, such as a system of prior authorisation or an obligation to justify, a posteriori, how the funds transferred were used, are not as effective in achieving the goal pursued, namely countering the financing of the Syrian regime, particularly given the possibility of circumventing the restrictions imposed (see Makhlouf v Council, paragraph 101 and the case-law cited).
149 Furthermore, the other contested acts containing the restrictive measures at issue were adopted in compliance with all the safeguards enabling the applicant to exercise his rights of defence, as has already been stated above in the analysis of the third plea.
150 Thirdly, the other contested acts provide for the possibility of the use of frozen funds being authorised to meet essential needs or to satisfy certain commitments, of specific authorisation being granted to unfreeze funds, other financial assets or other economic resources, and of the inclusion in the lists at issue being reviewed periodically in order to ensure that the persons who, and entities which, no longer meet the necessary criteria for inclusion are removed from the lists (Makhlouf v Council, paragraph 105).
151 Fourthly, with regard to the interference with the right to private life, the other contested acts also provide that the competent authority of a Member State may authorise entry into its territory, in particular for urgent humanitarian reasons, which has the effect of limiting the interference with the applicant’s right to life (Case T‑202/12 Al-Assad v Council [2014] ECR, paragraph 119).
152 Fifthly, with regard to the harm to his reputation, suffice it to note that the applicant has not provided any specific evidence to support that claim or any evidence as to the causal link between that harm and his inclusion in the lists at issue. Furthermore, with regard to the harm to the reputation of his industrial group, it must be observed that, although the European Court of Human Rights has recognised that a person’s right to protection of his reputation is covered by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, as a component of the right to respect for private life, it also made it clear that there is a difference between harm to a person’s reputation and harm to a business reputation, as the latter lacks any moral dimension (see judgment of the European Court of Human Rights, Uj v. Hungary, no. 23954/10, § 22, 19 July 2011). Therefore, the applicant is wrong to rely on harm to the reputation of his business.
153 Accordingly, given the overriding importance of the protection of civilian populations in Syria and the derogations provided for by the other contested acts, the restrictions on the applicant’s right to property and his right to respect for private life caused by those acts are not disproportionate in the light of the aim pursued.
154 Consequently, this plea, as submitted with respect to the other contested acts, must be rejected, and accordingly the action, in so far as it seeks the annulment of those acts, must be dismissed.
Costs
155 Article 87(3) of the Rules of Procedure provides that the Court may rule that costs are to be shared or that each party is to bear its own costs where each party succeeds on some and fails on other heads.
156 In the present case, since the Council has failed on the head of claim for annulment in relation to the contested acts preceding 23 March 2012, in so far as those acts concern the applicant, and the applicant has failed on the head of claim for annulment in relation to the other contested acts, the Court considers it to be a fair application of the abovementioned provision to decide that the parties should bear their own costs.
157 In respect of the costs relating to the application for interim relief, the applicant shall bear his own costs and shall pay those of the Council.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Annuls Council Decision 2011/522/CFSP of 2 September 2011 amending Decision 2011/273/CFSP concerning restrictive measures against Syria, Council Regulation (EU) No 878/2011 of 2 September 2011 amending Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria, Council Decision 2011/628/CFSP of 23 September 2011 amending Decision 2011/273/CFSP concerning restrictive measures against Syria, Council Regulation (EU) No 1011/2011 of 13 October 2011 amending Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria, Council Decision 2011/782/CFSP of 1 December 2011 concerning restrictive measures against Syria and repealing Decision 2011/273/CFSP, and Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation (EU) No 442/2011, in so far as those acts concern Mr Tarif Akhras;
2. Dismisses the action as to the remainder;
3. Orders the parties to bear their own costs in relation to these proceedings;
4. Orders Mr Akhras to bear his own costs and to pay those of the Council of the European Union in relation to the interim relief proceedings.
Van der Woude | Wiszniewska-Białecka | Ulloa Rubio |
Delivered in open court in Luxembourg on 12 February 2015.
[Signatures]