ORDER OF THE PRESIDENT OF THE THIRD CHAMBER OF THE GENERAL COURT
24 November 2011(*)
(Intervention)
In Case T‑200/11,
Fahed Mohamed Sakher Al Matri, residing in Doha (Qatar), represented by M. Lester, Barrister, and G.F.N. Martin, Solicitor,
applicant,
v
Council of the European Union, represented by M. Bishop and I. Gurov, acting as Agents,
defendant,
ACTION for annulment of Council Implementing Decision 2011/79/CFSP of 4 February 2011 implementing Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2011 L 31, p. 40), and of Council Regulation (EU) No 101/2011 of 4 February 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia (OJ 2011 L 31, p. 1), in so far as they apply to the applicant,
THE PRESIDENT OF THE THIRD CHAMBER OF THE GENERAL COURT
makes the following
Order
Background
1 On 31 January 2011, the Council of the European Union adopted 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), in which it, in particular, reaffirmed its full solidarity and support with the Republic of Tunisia and its people in their efforts to establish a stable democracy, the rule of law, democratic pluralism and full respect for human rights and fundamental freedoms.
2 In addition, the Council adopted ‘restrictive measures against persons responsible for misappropriation of Tunisian State funds and who are thus depriving the Tunisian people of the benefits of the sustainable development of their economy and society and undermining the development of democracy in the country’.
3 Article 1(1) of Decision 2011/72 states:
‘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.’
4 Under Article 2(1) of Decision 2011/72:
‘The Council, acting upon a proposal by a Member State or the High Representative of the Union for Foreign Affairs and Security Policy, shall establish and amend the list in the Annex.’
5 In its original version, the list set out in the Annex to Decision 2011/72 only contained the names of two individuals, namely Mr Zine el-Abidine Ben Hamda Ben Ali, the former president of the Republic of Tunisia, and Mrs Leïla Bent Mohammed Trabelsi, his wife.
6 On 4 February 2011, the Council adopted Implementing Decision 2011/79/CFSP implementing Decision 2011/72/CFSP (OJ 2011 L 31, p. 40), which came into force, under Article 2 thereof, on the date of its adoption.
7 Decision 2011/79 (‘the contested decision’) amended the list of those persons subject to the restrictive measures mentioned in the Annex to Decision 2011/72 by replacing it with its own Annex. In essence, the contested decision extended the application of restrictive measures to 48 individuals, including the applicant, Mr Fahed Mohamed Sakher Al Matri.
8 The Annex to the contested decision contains the data necessary to identify each person included therein and indicates the grounds for that inclusion. Concerning the applicant, the Annex to the contested decision contains the following data:
‘Name: Fahd Mohamed Sakher Ben Moncef Ben Mohamed Hfaiez MATERI;
Identifying information: Tunisian, born in Tunis 2 December 1981, son of Naïma BOUTIBA, married to Nesrine BEN ALI, holder of NIC No 04682068;
Grounds: 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.’
9 Council Regulation (EU) No 101/2011 of 4 February 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia (OJ 2011 L 31, p. 1) was adopted on the basis of Article 215(2) TFEU and on the basis of Decision 2011/72. Article 2(1) of the regulation provides for the freezing of ‘[a]ll funds and economic resources belonging to, owned, held or controlled by the natural or legal persons, entities and bodies who, in accordance with Article 1(1) of Decision 2011/72, have been identified by the Council as being responsible for the misappropriation of Tunisian State funds, and natural or legal persons, entities and bodies associated with them, as listed in Annex I’ and sets out the procedure for doing so. Annex I to that regulation includes, inter alia, the name of the applicant. The grounds indicated for his inclusion in that Annex are identical to those indicated in the Annex to Implementing Decision 2011/79 (see the previous paragraph).
Procedure
10 By application lodged at the Registry of the General Court on 1 April 2011, the applicant brought an action seeking the annulment of Decision 2011/79/CFSP and of Regulation No 101/2011, in so far as they apply to him.
11 By document lodged at the Court Registry on 24 June 2011, the Republic of Tunisia applied for leave to intervene in the present case in support of the form of order sought by the defendant.
12 The applicant and the Council submitted their written observations relating to that application for leave to intervene by documents lodged at the Court Registry on 21 and 12 September 2011, respectively.
Law
Arguments of the parties
13 In support of its application, the Republic of Tunisia points out that it has created, under Legislative Decree No 2011-15 of 26 March 2011, the ‘national committee for the recovery of misappropriated assets located abroad’ (‘the national committee’), which ‘coordinates and, where appropriate, conducts procedures for the recovery of assets transferred, acquired, held or controlled, directly or indirectly, abroad under unlawful conditions or which have posed or may pose a threat to the property or financial interests of the State, of local authorities or of public establishments and undertakings, by Zine El Abidine Ben Haj Hamda Ben Haj Hassen Ben Ali, former president of the Republic, his wife, his children, any person connected with them by blood or by marriage and any person who has supported them financially or who has unlawfully benefited from their actions’.
14 The Republic of Tunisia states that, first, there is a deep convergence between the intended aims of the national committee and the aims of the acts of the European Union challenged in the present case, since the recovery of ‘misappropriated assets’, the product of the ‘misappropriation of Tunisian State funds’, must necessarily involve the freezing of those assets. Second, the Republic of Tunisia considers that it has a clear interest in preventing the close relatives of former president Mr Ben Ali and his wife from profiting from assets, allegedly acquired to the detriment of the Tunisian people, which should be restored to the Tunisian State.
15 The applicant has raised objections regarding the Republic of Tunisia’s application for leave to intervene. He observes that his action seeks the annulment of measures imposed by the European Union, the effect of which is to freeze, within the European Union, the funds and resources available to him. Those measures do not result in any transfer of funds to the Republic of Tunisia or to the national committee and have no legal impact on them. Accordingly, it cannot be said that the Republic of Tunisia is directly affected by the operative part of the decision which will be taken by the General Court in the present case, or that its interests would be protected by such a decision granting the form of order sought by the Council.
16 In its observations on the Republic of Tunisia’s application for leave to intervene, the Council has raised no objections to such an intervention.
Findings of the President
17 It has consistently been held that the concept of an interest in the result of the case, within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice, must be defined in the light of the precise subject-matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law put forward. The expression ‘result’ is to be understood as meaning the operative part of the final judgment which the Court is asked to deliver. It is necessary, in particular, to ascertain whether the intervener is directly affected by the contested measure and whether his interest in the result of the case is established (Case T‑15/02 BASF v Commission [2003] ECR II‑213, paragraph 26, and order of 13 April 2010 in Case T‑54/07 Vtesse Networks v Commission, not published in the ECR, paragraph 30).
18 In the present case, it is clear from a combined reading of the provisions cited in paragraphs 1 to 9 above that the applicant has been the subject of the restrictive measures at issue on the ground that he is under judicial investigation by the Tunisian authorities for having taken part in activities connected with the misappropriation of Tunisian State funds.
19 Under those circumstances, it must be held that the Republic of Tunisia has a direct, existing interest, within the meaning of the case-law cited in paragraph 17 above, in maintaining the measures at issue which, as it rightly points out, constitute a necessary precondition for the recovery of the State assets and funds allegedly misappropriated by the applicant, notwithstanding the fact, invoked by the applicant, that those measures do not directly lead to a transfer of funds.
20 It follows that the Republic of Tunisia’s application must be accepted and the Republic must be granted leave to intervene in the case.
21 As the notice in the Official Journal of the European Union referred to in Article 24(6) of the Rules of Procedure of the General Court was published on 28 May 2011, the application for leave to intervene has been submitted within the period prescribed in Article 115(1) of those rules, with the extension on account of distance provided for in Article 102(2) of the Rules of Procedure, and the intervener will have the rights provided for in Article 116(2), (3) and (4) of those rules.
On those grounds,
THE PRESIDENT OF THE THIRD CHAMBER OF THE GENERAL COURT
hereby orders:
1. The Republic of Tunisia is granted leave to intervene in Case T‑200/11 in support of the form of order sought by the defendant.
2. The Registrar shall send the intervener copies of all the procedural documents served on the parties.
3. A period shall be prescribed within which the intervener is to submit a statement in intervention.
4. The costs are reserved.
Luxembourg, 24 November 2011.