JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
4 April 2019 (*) (1)
(Common foreign and security policy — Restrictive measures against Syria — Freezing of funds — Rights of the defence — Right to effective judicial protection — Manifest error of assessment — Right to property — Proportionality — Damage to reputation)
In Case T‑5/17,
Ammar Sharif, residing in Damascus (Syria), represented by B. Kennelly QC, and J. Pobjoy, Barrister,
applicant,
v
Council of the European Union, represented by S. Kyriakopoulou, P. Mahnič and V. Piessevaux, acting as Agents,
defendant,
supported by
European Commission, represented by L. Havas and J. Norris, acting as Agents,
intervener,
APPLICATION, principally, pursuant to Article 263 TFEU for annulment of Council Implementing Decision (CFSP) 2016/1897 of 27 October 2016 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2016 L 293, p. 36), of Council Implementing Regulation (EU) 2016/1893 of 27 October 2016 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2016 L 293, p. 25), of Council Decision (CFSP) 2017/917 of 29 May 2017 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2017 L 139, p. 62), of Council Implementing Regulation (EU) 2017/907 of 29 May 2017 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2017 L 139, p. 15), of Council Decision (CFSP) 2018/778 of 28 May 2018 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2018 L 131, p. 16), and of Council Implementing Regulation (EU) 2018/774 of 28 May 2018 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2018 L 131, p. 1), in so far as those acts concern the applicant; and, in the alternative, pursuant to Article 277 TFEU for a declaration that the following provisions are inapplicable, in so far as they apply to the applicant: Article 28(2)(a) of Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (OJ 2013 L 147, p. 14), as amended by Council Decision (CFSP) 2015/1836 of 12 October 2015 (OJ 2015 L 266, p. 75), and Article 15(1a)(a) of 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), as amended by Council Regulation (EU) 2015/1828 of 12 October 2015 (OJ 2015 L 266, p. 1),
THE GENERAL COURT (Fifth Chamber),
composed of D. Gratsias (President), I. Labucka and I. Ulloa Rubio (Rapporteur), Judges,
Registrar: F. Oller, Administrator,
having regard to the written part of the procedure and further to the hearing on 7 September 2018,
gives the following
Judgment
Background to the dispute
1 The applicant, Mr Ammar Sharif, is a businessman of Syrian nationality.
2 Strongly condemning the violent repression of peaceful protest in various locations across Syria and calling on the Syrian security forces to exercise restraint instead of force, on 9 May 2011 the Council of the European Union adopted 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 imposed an arms embargo, a ban on exports of matériel which might be used for internal repression, restrictions on admission to the European Union, and the freezing of funds and economic resources 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 those of the natural or legal persons and entities associated with them are mentioned in the Annex to Decision 2011/273. Under Article 5(1) of that decision, the Council, acting upon a proposal by a Member State or the High Representative of the Union for Foreign Affairs and Security Policy, may amend that annex.
4 Since 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 largely identical to Decision 2011/273, but provides for the possibility of frozen funds being released. The list of persons, entities and bodies identified as being either responsible for the repression in question or associated with those responsible, in Annex II to that regulation, is identical to the list in the Annex to Decision 2011/273. Under Article 14(1) and (4) of Regulation No 442/2011, where the Council decides to subject a natural or legal person, entity or body to the restrictive measures referred to, it is to amend Annex II accordingly and, furthermore, to review the list in that annex at regular intervals and at least every 12 months.
5 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 considered it necessary, in view of the gravity of the situation in Syria, to impose additional restrictive measures. For the sake of clarity, the measures imposed by Decision 2011/273 and the additional measures were integrated into a single legal instrument. Decision 2011/782 provides, in Article 18, for restrictions on admission to the territory of the European Union and, in Article 19, for the funds and economic resources of the persons and entities whose names are listed in Annex I to the decision to be frozen.
6 Regulation No 442/2011 was replaced by 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).
7 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.
8 Decision 2012/739 was replaced by Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (OJ 2013 L 147, p. 14). Decision 2013/255 was renewed until 1 June 2015 by Council Decision 2014/309/CFSP of 28 May 2014 amending Decision 2013/255 (OJ 2014 L 160, p. 37).
9 On 12 October 2015, the Council adopted Decision (CFSP) 2015/1836 amending Decision 2013/255 (OJ 2015 L 266, p. 75). On the same day, it adopted Regulation (EU) 2015/1828 amending Regulation No 36/2012 (OJ 2015 L 266, p. 1).
10 According to recital 6 of Decision 2015/1836, ‘the Council has assessed that because of the close control exercised over the economy by the Syrian regime, an inner cadre of leading businesspersons operating in Syria is only able to maintain its status by enjoying a close association with, and the support of, the regime, and by having influence within it’ and ‘the Council considers that it should provide for restrictive measures to impose restrictions on admission and to freeze all funds and economic resources belonging to, owned, held or controlled by those leading businesspersons operating in Syria, as identified by the Council and listed in Annex I, in order to prevent them from providing material or financial support to the regime and, through their influence, to increase pressure on the regime itself to change its policies of repression’.
11 The wording of Articles 27 and 28 of Decision 2013/255 was amended by Decision 2015/1836. Those articles now provide for restrictions on the entry into, or transit through, the territories of the Member States and for the funds of ‘leading businesspersons operating in Syria’ to be frozen, unless there is ‘sufficient information that [those persons] are not, or are no longer, associated with the regime or do not exercise influence over it or do not pose a real risk of circumvention’.
12 By Implementing Decision (CFSP) 2016/1897 of 27 October 2016 implementing Decision 2013/255 (OJ 2016 L 293, p. 36), the Council amended Decision 2013/255 in order in particular to apply the restrictive measures concerned to other persons and entities, whose names were added to the list in the annex to the latter decision. The applicant’s name was inserted in that list at line 212 of Table A of the annex, together with the date of his listing, 28 October 2016, and the following reasons:
‘Leading Syrian businessman operating in Syria, active in the banking, insurance, and hospitality sectors. Founding partner of Byblos Bank Syria, major shareholder in Unlimited Hospitality Ltd, and board member of the Solidarity Alliance Insurance Company and the Al-Aqueelah Takaful Insurance Company’.
13 On 27 October 2016, the Council adopted Implementing Regulation (EU) 2016/1893 implementing Regulation No 36/2012 (OJ 2016 L 293, p. 25). The applicant’s name was listed in Table A of the annex to that implementing regulation with the same information and reasons as those set out in Implementing Decision 2016/1897.
14 On 28 October 2016, the Council published in the Official Journal of the European Union a Notice for the attention of the persons subject to the restrictive measures provided for in Decision 2013/255 and in Regulation No 36/2012 (OJ 2016 C 398, p. 4).
15 On 29 May 2017, the Council adopted Decision (CFSP) 2017/917 amending Decision 2013/255 (OJ 2017 L 139, p. 62). By Article 1 of Decision 2017/917, Article 34 of Decision 2013/255 was amended to provide for the restrictive measures imposed by the annex to the latter decision to be extended until 1 June 2018. In addition, in accordance with Article 2 of Decision 2017/917, 55 of the references in Annex I to Decision 2013/255, concerning persons other than the applicant, were amended. Last, under Article 3, Decision 2017/917 entered into force on the date of its publication.
16 On the same day, the Council adopted Implementing Regulation (EU) 2017/907 implementing Regulation No 36/2012 (OJ 2017 L 139, p. 15). Under Article 1 of that implementing regulation, Annex II to Regulation No 36/2012 was amended to take account of the amendments made to Annex I to Decision 2013/255 by Decision 2017/917. In accordance with Article 2, Implementing Regulation 2017/907 entered into force on the date of its publication.
17 On 28 May 2018, the Council adopted Decision (CFSP) 2018/778 amending Decision 2013/255 (OJ 2018 L 131, p. 16). By Article 1 of Decision 2018/778, Article 34 of Decision 2013/255 was amended to provide for the restrictive measures imposed by the annex to the latter decision to be extended until 1 June 2019. In addition, in accordance with Article 2 of Decision 2018/778, 34 of the references in Annex I to Decision 2013/255, concerning persons other than the applicant, were amended. Last, under Article 3, Decision 2018/778 entered into force on the day following that of its publication.
18 On the same day, the Council adopted Implementing Regulation (EU) 2018/774 implementing Regulation No 36/2012 (OJ 2018 L 131, p. 1). Under Article 1 of that implementing regulation, Annex II to Regulation No 36/2012 was amended to take account of the amendments made to Annex I to Decision 2013/255 by Decision 2018/778. In accordance with Article 2, Implementing Regulation 2018/774 entered into force on the day following that of its publication.
Procedure and forms of order sought
19 By application lodged at the General Court Registry on 4 January 2017, the applicant brought the present action against Implementing Decision 2016/1897 and Implementing Regulation 2016/1893.
20 On 3 April 2017, the Council lodged its defence at the Court Registry.
21 By document lodged at the Court Registry on 31 March 2017, the European Commission applied for leave to intervene in the present proceedings in support of the form of order sought by the Council. By decision of 28 April 2017, the President of the Fifth Chamber of the General Court granted the Commission leave to intervene. The Commission lodged its statement in intervention on 22 June 2017. The applicant lodged his observations on that statement within the prescribed period.
22 The reply and the rejoinder were lodged, respectively, by the applicant on 19 May 2017, and by the Council on 27 June 2017.
23 By document lodged at the Court Registry on 3 August 2017, the applicant modified the application in order to seek annulment also of Decision 2017/917 and of Implementing Regulation 2017/907.
24 In the context of measures of organisation of procedure as provided for in Article 89(3)(d) of the Rules of Procedure of the General Court, on 27 February 2018 the Court requested the Council to produce a legible version of certain documents. The Council complied with that request on 9 March 2018.
25 By document lodged at the Court Registry on 11 June 2018, the applicant modified the application in order to seek annulment also of Decision 2018/778 and of Implementing Regulation 2018/774.
26 In the context of measures of organisation of procedure as provided for in Article 89(3)(d) of the Rules of Procedure, on 15 June and 28 September 2018 the Court requested the Council to produce certain documents. The Council complied with the Court’s request on 20 June and 3 October 2018, respectively.
27 The applicant claims that the Court should:
– annul, in so far as they concern him, Implementing Decision 2016/1897, Implementing Regulation 2016/1893, Decision 2017/917, Implementing Regulation 2017/907, Decision 2018/778 and Implementing Regulation 2018/774 (‘the contested measures’);
– in the alternative, pursuant to Articles 277 and 263 TFEU, declare Article 28(2)(a) of Decision 2013/255, as amended by Decision 2015/1836, and Article 15(1a)(a) of Regulation No 36/2012, as amended by Regulation 2015/1828, inapplicable in so far as they apply to him;
– order the Council to pay the costs.
28 In the application, the applicant made a claim for damages, on the basis of the second paragraph of Article 340 TFEU, for the harm allegedly suffered as a result of the listing of his name in the contested measures. In the reply, the applicant withdrew that claim on the ground that he was not in a position to provide detailed evidence on the extent of the damage sustained.
29 The Council contends that the Court should:
– dismiss the action;
– in the alternative, in the event that the contested measures are annulled with regard to the applicant, order that the effects of the contested decisions be maintained as regards the applicant until the expiry of the period for bringing an appeal;
– order the applicant to pay the costs.
30 The Commission, supporting the Council, contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
31 At the hearing, the Commission withdrew the second part of the form of order sought.
Law
Admissibility of the statements of modification of the form of order sought in so far as they relate to Implementing Regulation 2017/907 and Implementing Regulation 2018/774
32 The Council challenges the admissibility of the first and second statements of modification of the form of order sought in so far as they relate, respectively, to Implementing Regulation 2017/907 and to Implementing Regulation 2018/774. In that regard, the Council contends that those measures do not mention the applicant’s name and do not replace an earlier measure of direct and individual concern to the applicant, who does not, therefore, have locus standi.
33 It should be pointed out that, as is apparent from paragraphs 15 to 18 above, Implementing Regulation 2017/907 and Implementing Regulation 2018/774 merely introduced amendments to Annex II to Regulation No 36/2012 in relation to persons other than the applicant, without replacing Annex II to the latter regulation with a new annex.
34 Nevertheless, it is appropriate in the present case to examine the substance of the action as regards Implementing Regulation 2017/907 and Implementing Regulation 2018/774, without there being any need to adjudicate on whether the applicant had an interest in bringing proceedings for their annulment (see, to that effect, judgment of 5 October 2017, Ben Ali v Council, T‑149/15, not published, EU:T:2017:693, paragraph 65 and the case-law cited).
Substance
35 In support of the action, the applicant relied in his application on two pleas in law, alleging, first, an error of law and error of assessment and, second, breach of the right to property, of the principle of proportionality, of the freedom to conduct a business and of the right to reputation. In the statements of modification of the form of order sought, he also put forward a third plea, alleging, formally, infringement of the rights of the defence, of the right to good administration and of the right to effective judicial protection.
36 The Court considers that, in so far as the arguments advanced in support of the third plea put forward in the statements of modification in fact relate to an error of assessment and not to an infringement of procedural rights, that plea must be regarded as alleging such an error and will be examined together with the first plea in law.
37 In addition, in the alternative, the applicant raised a fourth plea in law, a plea of illegality, according to which the designation criterion laid down in Article 28(2)(a) of Decision 2013/255, as amended by Decision 2015/1836, and in Article 15(1a)(a) of Regulation No 36/2012, as amended by Regulation 2015/1828, is disproportionate to the objectives of the contested measures and must be declared inapplicable with respect to the applicant.
38 Consequently, the Court considers it appropriate to examine, first of all, the first and third pleas together, then the second plea and, last, the fourth plea, a plea of illegality put forward by the applicant in the alternative.
First and third pleas in law, alleging, in essence, an error of law and an error of assessment
39 In the first place, the applicant puts forward preliminary observations concerning the scope of the judicial review of the lawfulness of the contested measures, claiming that the Council was wrong to find that the General Court’s review was based on a review of the ‘plausibility’ of the Council’s determination. He submits in that regard that the Court must ensure a full review of the lawfulness of the listing of his name in the annexes to the contested measures. He observes that, according to the case-law of the Court, the listing decision must be taken on a sufficiently solid factual basis, with the burden of proof in that regard to be discharged by the Council, and that the Court must, therefore, conduct an in-depth examination of the evidence and information on which that listing decision is based. The applicant maintains, last, that, according to the case-law, the review to be undertaken in the present case is not restricted to verification of the cogency in the abstract of the reasons relied on, but must include the question whether those reasons are substantiated, to the requisite legal standard, by concrete evidence and information.
40 In the second place, the applicant claims that recital 6 of Decision 2015/1836 makes clear that the category of ‘leading businesspersons operating in Syria’ is only intended to cover the ‘inner cadre of leading businesspersons operating in Syria’ who have an association with, and the support of, the regime. He submits that the Council failed to satisfy the designation criterion set out in Article 28 of Decision 2013/255, as amended by Decision 2015/1836, and in Article 15 of Regulation No 36/2012, as amended by Regulation 2015/1828, in his case, because it did not make clear, in the statement of reasons for the contested measures, that he was a person benefiting from his association with the Syrian regime or supporting it, or that he was associated with any such person. He also claims that the Council did not allege that he was part of an inner cadre of ‘leading businesspersons operating in Syria’ and that he was only able to maintain his status by enjoying a close association with, and the support of, that regime and by having influence within it.
41 The applicant further submits that the Council failed to adduce any evidence to demonstrate that the reasons for including his name on the lists at issue were well founded. On that basis, he claims that the Council merely presented general information about his business activities in order to show that there was a link with the Syrian regime, and that, therefore, it had failed to produce indicia sufficiently specific, precise and consistent to establish a link with the Syrian regime.
42 In that regard, the applicant states, first, that his shareholding in Byblos Bank Syria SA appears to be the only evidence on which the Council relies in order to justify the inclusion of his name on the lists at issue. According to the applicant, Byblos Bank Syria SA is not a major concern in the banking context. He denies that his shareholding in that bank increased to 7% in 2016, referring to a Syrian law of January 2001 which prohibits any natural person from holding more than 5% of the capital of a bank operating in Syria. In addition, the applicant claims that the fact that two other individuals included on the disputed lists also have shareholdings in that bank is not sufficient to prove that he has a link with the Syrian regime. Last, he submits that Byblos Bank Syria SA is not included on the lists at issue and, moreover, that the Council had not alleged that that bank was associated with the Syrian regime.
43 The applicant claims, second, that the information provided by the Council regarding the three companies named in the reasons stated in his case, namely Unlimited Hospitality Ltd, Solidarity Alliance Insurance Company and Al-Aqeelah Takaful Insurance Company, is misleading and incomplete. According to the applicant, the Council presented misleading financial information and, therefore, exaggerated the significance of those companies. In addition, he claims that Unlimited Hospitality ceased trading in 2013. Last, the applicant argues that it is not apparent from the open source evidence produced by the Council that he supports or benefits from the Syrian regime through his shareholdings in those companies or in Byblos Bank Syria SA.
44 Third, the applicant maintains that the Council did not furnish sufficiently substantiated evidence to demonstrate a partnership with Mr Nader Kalai and Mr Kaswarah Othman, or, moreover, that he is also a partner of Mr Rami Makhlouf in an oil-smuggling ring linked to ISIS. In that regard, he argues that the sources of the evidence produced by the Council are not reliable, and criticises the Council for having failed to verify their reliability.
45 In the third place, the applicant claims, in the statements of modification, that the Council failed to provide him with serious and credible evidence or concrete evidence and information that would justify the imposition of restrictive measures on him and, moreover, that it did not carry out a careful and impartial examination as to whether the alleged reasons said to justify the applicant’s re-designation on the lists at issue were well founded. In relying on these matters, the Council had infringed his rights of defence, his right to good administration and his right to effective judicial protection.
46 The Council, supported by the Commission, disputes the applicant’s arguments.
– Preliminary considerations
47 It must be borne in mind that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to include a person or entity on the lists annexed to restrictive measures such as the contested measures, the Courts of the European Union are to ensure that the measure in question is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that measure, 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 the question whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that measure, are substantiated (see judgment of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 64 and the case-law cited).
48 That is because it is the task of the competent EU authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, namely that those reasons are not well founded. There is no requirement that that authority produce before the Courts of the European Union all the information and evidence underlying the reasons alleged in the measures whose annulment is sought. It is, however, necessary that the information or evidence produced should support the reasons relied on against the person concerned (see judgment of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraphs 66 and 67 and the case-law cited).
49 Furthermore, in carrying out the assessment of the importance of what was at stake, which forms part of the review of the proportionality of the contested measures, account may be taken of the context of those restrictive measures, which are intended to put pressure on the Syrian regime in order for it to stop the violent repression against the population, and of the difficulty in obtaining more specific evidence in a State at civil war and having an authoritarian regime (see, to that effect, judgment of 21 April 2015, Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 47).
50 It should be noted that the general listing criteria set out in Article 27(2)(a) and (3) and in Article 28(2)(a) and (3) of Decision 2013/255, as amended by Decision 2015/1836, and reproduced, as regards the freezing of funds, in Article 15(1a)(a) and (1b) of Regulation No 36/2012, as amended by Regulation 2015/1828, provide for the category of ‘leading businesspersons operating in Syria’ to be subject to restrictive measures, unless there is sufficient information that they are not, or are no longer, associated with the regime or do not exercise influence over it or do not pose a real risk of circumvention.
51 It should, moreover, be recalled that the Council placed and maintained the applicant’s name on the lists annexed to the contested measures (see paragraphs 12 and 13 above) on the following grounds:
‘Leading Syrian businessman operating in Syria, active in the banking, insurance, and hospitality sectors. Founding partner of Byblos Bank Syria, major shareholder in Unlimited Hospitality Ltd, and board member of the Solidarity Alliance Insurance Company and the Al-Aqueelah Takaful Insurance Company’.
52 The first and third pleas must be examined together in the light of those considerations. It should be noted that the Council has a broad discretion in determining the criteria defining the category of persons subject to the contested measures, but not where that determination involves, inter alia, a process of legal characterisation over which the Courts of the European Union exercise full review. In that regard, it is evident from the content of the application and the reply as well as the applicant’s observations at the hearing that, in the context of his first and third pleas, the applicant claims that the Council neither established nor sought to establish the legal relevance of the facts on the basis of which his name was included on the lists at issue or that the grounds for that listing were well founded. Examination of those pleas taken together thus requires the Court to review whether the Council’s assessment of the sufficiency of the information available to it for the purpose of including and maintaining the applicant’s name on the lists at issue is incorrect from the aspect both of an error of law and of an error of assessment.
– Error of law
53 The applicant submits, in essence, that, in order to include a person’s name on the lists at issue, the Council is required to prove the existence of support provided by the designated person to the Syrian regime, of a benefit which that person derives from that regime’s policies and of a sufficient link between that person and that regime.
54 It is necessary, therefore, to ascertain whether the Council made an error of law in confining itself to establishing that the applicant had the status of ‘leading businessman operating in Syria’.
55 It should be noted that the status of ‘leading businessman operating in Syria’ constitutes, in accordance with Article 27(2) and Article 28(2)(a) of Decision 2013/255, as last amended by Decision 2015/1836, an autonomous legal criterion for the application of restrictive measures and, therefore, for the inclusion of the applicant’s name on the lists concerned. Decision 2015/1836 introduces an objective, autonomous and sufficient criterion which also enables restrictive measures to be applied to ‘leading businesspersons operating in Syria’ without there being any need to demonstrate the support given by them to the existing regime, the benefit they derive from that regime’s policies and their association with that regime.
56 Furthermore, it must be noted that, in view of the listing criterion introduced by Decision 2015/1836, the Council is no longer required to demonstrate the existence of a link between the status of ‘leading businessman’ and the Syrian regime, or between the status of ‘leading businessman’ and the support and benefit provided to that regime, since being a ‘leading businessman operating in Syria’ is sufficient for the restrictive measures in question to be applied to that person. Since the Syrian economy is closely controlled by the Syrian regime, and the business community and that regime have established a relationship of interdependence since President Bashar Al-Assad’s initiation of the process of liberalisation of the economy, it must be concluded, as set out in recital 6 of Decision 2015/1836, that a leading businessman is a man who cannot but be associated with the Syrian regime in benefiting from that regime’s policies, providing support to the existing regime or exerting an influence over that regime. Consequently, with the introduction of the listing criterion by Decision 2015/1836, the link to the Syrian regime in the case of ‘leading businesspersons operating in Syria’ is thus presumed.
57 It follows from all of the above that the Council did not err in law in confining itself to producing evidence to demonstrate that the applicant was a ‘leading businessman [who was] operating in Syria’ and in finding, therefore, that the status of ‘leading businessman’ alone was sufficient for the applicant’s name to be included on the lists at issue.
– Error of assessment
58 The applicant submits that the Council failed to adduce evidence to show that the grounds for including his name on the lists at issue were well founded, or any kind of link with the Syrian regime.
59 The Council, supported by the Commission, contests the applicant’s factual case and maintains that it made no error of assessment in that regard.
60 In the present case, it must be observed that the Council produced documents bearing the references 786/16 to 813/16 RELEX to justify the inclusion of the applicant’s name on the lists at issue. There are several documents, containing information that is publicly accessible, and which, according to the Council, are intended to set out the general context as regards the applicant and the supporting information provided for the statement of reasons for his listing in the annexes to the contested measures. That information comprises, in particular, links to the websites ‘The Syria Report’, ‘Text archive’, ‘Global factiva’, ‘The Rise Project’, ‘All4syria’, ‘Al Arabiya’, ‘Decypha’ and ‘Buna Syria’ and online information on the websites of Byblos Bank Syria SAL (www.byblosbank.com) and Solidarity Alliance Insurance (www.solidarity-sy.com) which include details concerning the applicant.
61 In the first place, it must be noted that it is apparent from the documents bearing the references 786/16, 787/16, 788/16, 789/16, 790/16, 794/16, 795/16, 798/16, 800/16, 802/16, 803/16, 804/16 RELEX that the applicant is a businessman who is active in the banking, insurance and hospitality sectors. Specifically, it must be noted, first of all, that the extract from the online journal The Syria Report published on 3 May 2006 (document reference 786/16 RELEX), the extract from the website ‘The Syria Report’ published on 5 May 2008 (document reference 787/16 RELEX), the extract from the website ‘Text Archive’ of 31 January 2010 (document reference 788/16 RELEX), the article published in August 2011 on the website of Byblos Bank SAL (www.byblosbank.com) (document reference 789/16 RELEX) and the extract from the website ‘Factiva’ of 1 September 2011 (document reference 790/16 RELEX) describe the applicant as one of the founding partners of Byblos Bank Syria SA, a Syrian offshoot of Byblos Bank SAL, one of the three largest Lebanese banks, established in Damascus (Syria) since 2006, and identify him as one of several prominent businessmen, alongside, inter alia, Mr Makhlouf and Mr Issam Ambouba, with whom he jointly owns 36% of that bank’s shares. Specifically, it is stated in the documents bearing references 788/16, 789/16 and 790/16 RELEX that the applicant owns 5% of the shares in Byblos Bank Syria SA, and in the article published on 17 May 2012 on the ‘All4Syria’ website (document reference 794/16 RELEX) that that shareholding had increased to 7%.
62 Next, it should be pointed out that it is apparent from the extract from the online journal The Syria Report published on 13 February 2010 (document reference 795/16 RELEX) that the applicant owns 50% of the shares in Unlimited Hospitality Ltd. The extract from that company’s website (www.ultd-sy.com) (document reference 796/16 RELEX) describes the company as one of the leading Syrian companies for the supply of hotel operating supplies and equipment, established in Damascus since 2009.
63 It should further be noted that it is evident from the extract from the online journal The Syria Report published on 30 June 2008 (document reference 798/16 RELEX), from the website of Solidarity Alliance Insurance (www.solidarity-sy.com) (document reference 800/16 RELEX) and from the extract from the online journal The Syria Report published on 31 October 2016 (document reference 802/16 RELEX) that the applicant is a member of the board of directors of Solidarity Alliance Insurance, a company established in Damascus. That company is described in the article published on 31 March 2014 in the online journal The Syria Report (document reference 799/16 RELEX) as one of 13 insurance companies operating in Syria.
64 Last, it should be noted that the article published on 23 June 2014 in the journal The Syria Report (document reference 805/16 RELEX) describes Al-Aqeelah Takaful Insurance Company as a public company, established in Damascus since 2007, which provides Sharia-compliant insurance services and which, in 2011, was regarded as one of two Islamic firms operating in the Syrian market and one of five insurance companies to be listed in the Damascus Securities Exchange. In addition, it is evident from the extracts from the ‘Decypha’ website of 12 August 2016 (documents bearing references 803/16 and 804/16 RELEX) that the applicant has been a member of the board of that company since 2013.
65 In the second place, it must be noted that the documentation produced by the Council in the documents bearing references 786/16 to 805/16 RELEX was supplemented by other press articles, from various sources, which the Council produced in the annexes to its defence. Those articles mention that the Syrian economic elite was largely composed of entrepreneurs chosen by Mr Al-Assad and his extended family, and that this elite prospered by being awarded favours granted by the Syrian regime. Those documents are admissible in so far as they are intended, not to provide ex post reasons for the contested measures, but to show, in the light of the context in which those measures were adopted, that the statement of reasons for those measures is sufficient (see, to that effect, judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 62).
66 In the third place, it must be noted that the applicant has not produced anything that might call into question the Council’s claims and the documents substantiating them.
67 In the fourth place, it should be recalled that, in accordance with Article 27(3) and Article 28(3) of Decision 2013/255, as amended by Decision 2015/1836, and with Article 15(1b) of Regulation No 36/2012, as amended by Regulation 2015/1828, the restrictive measures to which the applicant is subject cannot be maintained if there is sufficient information that he is not, or is no longer, associated with the Syrian regime or does not exercise influence over it or does not pose a real risk of circumvention. However, there is nothing in the documents provided by the Council to indicate that the applicant is in one of the situations mentioned above that would justify his name being removed from the lists at issue, nor has the applicant himself provided any evidence of that nature.
68 In the fifth and last place, as regards the applicant’s argument that the information provided by the Council in the documents bearing the references 806/16 to 813/16 RELEX, from various online sources, namely ‘The Rise Project’, ‘Al Arabiya’, ‘Facebook’ and ‘Twitter’, and referring to a possible connection between the applicant and Mr Kalai and Mr Makhlouf is not reliable, it should be stated that, irrespective of the question whether that information is reliable, it must be noted that those items mention the applicant’s name very briefly and that none of them provides sufficiently substantiated details of the applicant and his relationship with Mr Kalai and Mr Makhlouf.
69 In any event, it must be held that the documents submitted by the Council under the references 786/16 to 805/16 RELEX, analysed in paragraphs 60 to 64 above, are sufficient for a finding that the applicant is a leading businessman operating in Syria. In addition, it must be pointed out that the applicant has not put forward anything that might demonstrate that the information on the websites in question is incorrect. Even if the applicant were to present information that would make the absence of any association with Mr Kalai and Mr Makhlouf credible, that would not call into question his status as a ‘leading businessman operating in Syria’.
70 It follows from all of the foregoing that the Council has produced a set of precise and consistent indicia that are capable of demonstrating that the applicant is a leading businessman operating in Syria. It must, therefore, be concluded that the ground for the inclusion of the applicant’s name on the lists at issue is sufficiently substantiated.
71 In the light of the foregoing considerations, this plea must be rejected.
Second plea in law, alleging breach of the right to property, of the principle of proportionality, of the freedom to conduct a business and of the right to reputation
72 The applicant submits, in the first place, that the contested measures represent an unjustified and disproportionate interference with his right to property. The applicant observes that a limitation on the exercise of his right to property is possible only if that limitation is provided for by law, meets an objective of general interest and is necessary and proportionate to that objective for the purposes of Article 52(1) of the Charter of Fundamental Rights. According to the applicant, however, the limitation is not provided for by law, given that his inclusion on the lists at issue is not on the basis of reasons that satisfy the criterion set out in Decision 2013/255 and Regulation No 36/2012, and the Council has not demonstrated, in the contested measures, that the interference was justified and proportionate to the objectives pursued.
73 The applicant claims, in the second place, that the contested measures are also an unjustified and disproportionate interference with his business and his reputation. He maintains that, by placing his name on the lists of persons covered by the contested measures, the Council associated him with conduct which is a serious threat to international peace and security and identified him as willing to be involved in activities regarded as reprehensible by the international community, thereby damaging his reputation and his professional life.
74 The Council, supported by the Commission, disputes the applicant’s arguments.
75 It must be borne in mind that 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 (judgment of 13 September 2013, Makhlouf v Council, T‑383/11, EU:T:2013:431, paragraph 96).
76 According to settled case-law, the right to property does not enjoy absolute protection under EU law, but must be viewed in relation to its function in society. Consequently, the exercise of that right may be restricted, provided that those restrictions 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 right thus guaranteed (see judgment of 13 September 2013, Makhlouf v Council, T‑383/11, EU:T:2013:431, paragraph 97 and the case-law cited).
77 Moreover, according to settled case-law, the principle of proportionality is one of the general principles of EU law and requires that measures implemented through provisions of EU law should be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve them (see judgment of 13 September 2013, Makhlouf v Council, T‑383/11, EU:T:2013:431, paragraph 98 and the case-law cited).
78 In the present case, the freezing of funds and economic resources imposed by the contested measures is a precautionary measure which is not designed to deprive the persons concerned of their property. However, the contested measures undeniably lead to a restriction of the exercise of the right to property (see, to that effect, judgment of 13 September 2013, Makhlouf v Council, T‑383/11, EU:T:2013:431, paragraph 99 and the case-law cited).
79 Concerning the appropriateness of restrictive measures, such as the contested measures, with reference to an objective of general interest as fundamental to the international community as the protection of civilian populations, it appears that the freezing of the 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 judgment of 13 September 2013, Makhlouf v Council, T‑383/11, EU:T:2013:431, paragraph 100 and the case-law cited).
80 So far as the necessity of restrictive measures, such as the contested measures, is concerned, it should be noted that 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 putting pressure on the supporters of the Syrian regime, particularly given the possibility of circumventing the restrictions imposed (see judgment of 13 September 2013, Makhlouf v Council, T‑383/11, EU:T:2013:431, paragraph 101 and the case-law cited).
81 Furthermore, it must be noted that Article 28(3) to (11) of Decision 2013/255, as amended by Decision 2015/1836, and Articles 16 to 18 of Regulation No 36/2012 provide for the possibility, first, of the use of frozen funds being authorised in order to meet essential needs or to satisfy certain commitments and, second, of granting specific authorisation to unfreeze funds, other financial assets or other economic resources.
82 As regards the harm caused to the applicant, it is true that his right to property and his freedom to conduct a business are restricted by the contested measures, in so far as he cannot, inter alia, use the funds belonging to him that are situated in the territory of the European Union or transfer funds belonging to him to the European Union without special authorisation. Those measures also interfere with his right to reputation, given that they may cause him to be regarded with a certain suspicion or mistrust.
83 However, the disadvantages to the applicant are not disproportionate to the importance of the objective of the contested measures, which is to protect the civilian population in Syria. Furthermore, those measures provide for the competent authority of a Member State to be able to authorise entry into its territory notably on the grounds of urgent humanitarian need and, moreover, for the possibility that the use of frozen funds may be authorised in order to meet essential needs or to satisfy certain commitments, and for inclusion on the disputed list to be reviewed periodically in order to ensure that where persons or entities no longer meet the criteria for inclusion on that list, those persons or entities are removed from it. Last, only arbitrary interference with the exercise of his right to reputation could be considered to be contrary to observance of that right (see, to that effect, judgment of 12 July 2006, Hassan v Council and Commission, T‑49/04, not published, EU:T:2006:201, paragraph 127). However, it must be held that the applicant has not been subject to such arbitrary interference with the exercise of that right.
84 It follows from this that, given the fundamental importance of protecting the civilian population in Syria and the derogations provided for by the contested measures, the restrictions on the applicant’s right to property, right to reputation and freedom to conduct a business resulting from those measures are not disproportionate.
85 In the light of the foregoing, the second plea in law must be rejected.
Plea of illegality
86 In the alternative, the applicant raises a plea of illegality, pursuant to Article 277 TFEU, concerning the designation criterion laid down in Article 28(2)(a) of Decision 2013/255, as amended by Decision 2015/1836, and in Article 15(1a)(a) of Regulation No 36/2012, as amended by Regulation 2015/1828, with regard to the category of ‘leading businesspersons operating in Syria’. The applicant maintains in that regard that that criterion is disproportionate in relation to the legitimate objectives of the contested measures and must, therefore, be declared inapplicable to him if it is to be interpreted as relating to any ‘leading businessperson operating in Syria’, irrespective of whether there is any connection between that person and the Syrian regime.
87 On that basis, the applicant disputes, in the first place, that the contested listing criterion is compatible with the principle of proportionality. He argues that the arbitrary width and scope of the criterion that would result from the interpretation with which he takes issue would exceed the limits of what is appropriate and necessary in order to achieve the objectives of the contested measures. In addition, he maintains, first, that the criterion which he challenges must be interpreted consistently with the object and purpose of the restrictive measures and, second, that, in view of the draconian nature of the restrictive measures and their devastating effect on a designated person’s reputation and business, designation of individuals on such an arbitrary basis cannot be justified, still less be proportionate.
88 The applicant submits, in the second place, that, in the light of Article 28(3) of Decision 2013/255, as amended by Decision 2015/1836, and of Article 15(1a) of Regulation No 36/2012, as amended by Regulation 2015/1828, the listing criterion in question presupposes that there is a sufficient link between the category of ‘leading businesspersons operating in Syria’ and the Syrian regime. In his view, the Council cannot justify the arbitrary nature of that criterion by concluding that the person designated by the restrictive measures is in a position to prove that he or she is not linked to the Syrian regime, given that that person cannot be required to adduce evidence of the negative, that the criterion is not satisfied.
89 The Council challenges the plea of illegality raised by the applicant and contends that the applicant’s listing is the result of an individual evaluation of the evidence adduced and, moreover, that, according to the judgment of 21 April 2015, Anbouba v Council (C‑630/13 P, EU:C:2015:247), it has a broad discretion in defining the general designation criteria. The Council further argues that the presumption established by Decision 2013/255 has a legal basis and is proportionate and rebuttable.
90 It must be noted, first of all, that, according to the case-law, the principle of proportionality, as one of the general principles of EU law, requires that measures adopted by the EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued by the legislation in question. Consequently, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 205 and the case-law cited).
91 Next, it must be pointed out that, in accordance with the case-law, the institutions may make use of presumptions which reflect the fact that it is open to the authority on which the burden of proof lies to draw certain conclusions on the basis of common experience derived from the normal course of events (see, by analogy and to that effect, judgment of 10 September 2009, Akzo Nobel and Others v Commission, C‑97/08 P, EU:C:2009:536, paragraphs 60 to 63, and Opinion of Advocate General Kokott in T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:110, points 87 to 89).
92 In addition, it follows from the case-law that a presumption, even where it is difficult to rebut, remains within acceptable limits so long as it is proportionate to the legitimate aim pursued, it is possible to adduce evidence to the contrary and the rights of the defence are safeguarded (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 62 and the case-law cited). Similarly, the European Court of Human Rights considers that Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, does not regard presumptions of fact or of law with indifference, but that it requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence (ECtHR, 7 October 1988, Salabiaku v. France, CE:ECHR:1988:1007JUD001051983).
93 It should be noted, last, that it is apparent from recitals 1 to 6 of Decision 2015/1836 that, since the restrictive measures adopted in Decision 2011/273 had not enabled the repression against the Syrian civilian population pursued by the Syrian regime to be brought to an end, the Council, in view of the gravity of the situation in Syria, decided, under Article 29 TEU, to maintain and ensure the effectiveness of those restrictive measures by further developing them while maintaining its targeted and differentiated approach and bearing in mind the humanitarian conditions of the Syrian population.
94 In order to achieve those objectives and because of the close control exercised over the economy by the Syrian regime, the Council found, first, that the existing regime could not continue to exist without the support of business leaders and, second, that an inner cadre of ‘leading businesspersons operating in Syria’ was only able to maintain its status by enjoying a close association with, and the support of, the Syrian regime and by having influence within it. On that basis, as has been indicated in paragraph 56 above, the Council sought to apply a presumption that ‘leading businesspersons operating in Syria’ are linked with the Syrian regime.
95 As provided for by Article 27(2)(a) and Article 28(2)(a) of Decision 2013/255, as amended by Decision 2015/1836, individuals belonging to the category of ‘leading businesspersons operating in Syria’ are now subject to the restrictive measures imposed by that decision. In addition, under Article 27(3) and Article 28(3) of that decision, those individuals are not to be subject to those measures or are to cease to be subject to them only if there is sufficient information that they are not, or are no longer, associated with the regime or do not exercise influence over it or do not pose a real risk of circumvention.
96 In the present case, the Court must examine whether the contested listing criterion is compatible with the principle of proportionality.
97 In the first place, it must be observed that the contested listing criterion is necessary and appropriate for attaining the objectives pursued by Decision 2013/255 and by Regulation No 36/2012, to strongly condemn and to end the violent repression pursued by Mr Al-Assad and his regime against the civilian population in Syria. It must be recalled in that regard, first, that the Council enjoys a broad discretion as regards the general and abstract definition of the legal criteria and procedures for adopting restrictive measures (see, to that effect, judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 120). Second, it must be noted that the contested listing criterion was set by the Council in 2015 on the ground that, despite the adoption of restrictive measures to put pressure on the Syrian regime over a period of four years, that is to say, since May 2011, the repression of the Syrian population continued. In addition, because of the close control exercised over the economy by the Syrian regime, the freezing of funds and economic resources belonging to the category of ‘leading businesspersons operating in Syria’ would prevent that category of individuals from continuing to provide material or financial support to the Syrian regime and, given their influence, would increase pressure on the regime to change its policies of repression. In those circumstances, it must be concluded that the freezing of the funds of ‘leading businesspersons operating in Syria’ is essential in order for pressure to be put on the Syrian regime to end the repression of the civilian population or to reduce it and is, therefore, necessary and appropriate for ensuring the effectiveness of the measures adopted against that category of individuals.
98 In the second place, as regards the sufficiency of the listing criterion at issue for the purpose of achieving the objectives thus pursued, it must be held that, if the contested measures did not target the individuals belonging to the category of ‘leading businesspersons operating in Syria’, the attainment of those objectives could be frustrated, since that category of individuals constitutes an essential material and financial support for the Syrian regime. The establishment of the listing criterion at issue is the consequence of the continued repression against the Syrian civilian population, notwithstanding the imposition of restrictive measures since 2011. In addition, the introduction of that criterion in Decision 2015/1836 and in Regulation 2015/1828 is the result of developments in the case-law leading the Council to refine the criteria enabling the objectives of the legislation in question to be achieved effectively. In view of those considerations, the contested listing criterion is sufficient for the attainment of those objectives.
99 In the third place, as regards the disadvantages to the applicant, it is apparent from the case-law that fundamental rights are not absolute, and that their exercise may be restricted on the basis of objectives of general interest pursued by the European Union. Thus, any economic or financial restrictive measure, regardless of the listing criterion on the basis of which that measure is imposed, necessarily incorporates effects on certain fundamental rights of the person whose name is included in the lists concerned. The importance of the objectives pursued by the disputed legislation is such as to justify the possibility that, for certain operators, the consequences may be negative, even significantly so.
100 To conclude, the Court must examine whether the presumption of a link with the Syrian regime as applied to individuals falling within the category of ‘leading businesspersons operating in Syria’, established by the Council, is not manifestly disproportionate.
101 On that basis, it must be pointed out, first of all, that the Council is entitled to define the general listing criteria on the basis of the common experience referred to in paragraph 2 et seq. above and to draw the appropriate legal conclusions from it.
102 In the present case, when establishing the contested listing criterion, the Council found, as has been indicated in paragraphs 56 and 94 above, that being a ‘leading businessman operating in Syria’ implied the existence of a link with the Syrian regime.
103 Next, it should be noted that it is important to distinguish between legal presumptions that are rebuttable and those which are irrebuttable. A legal presumption is simple or rebuttable if it can be countered by evidence to the contrary, whereas a presumption is absolute or irrebuttable if it cannot be countered by any contrary evidence.
104 In that regard, it is necessary to ascertain whether, in accordance with the case-law cited in paragraph 92 above, the presumption of a link with the Syrian regime in the case of individuals belonging to the category of ‘leading businesspersons operating in Syria’ is confined within reasonable limits, whether it can or cannot be countered by evidence to the contrary and whether the rights of the defence are maintained.
105 In the first place, it must be held that in the light, first of all, of the authoritarian nature of the Syrian regime, next, of the interdependence that has developed between the business community and the Syrian regime as a result of the process of liberalisation of the economy initiated by Mr Al-Assad, and, last, of the close control exercised by the State over the Syrian economy, the Council was fully entitled to regard as common experience the fact that individuals belonging to the category of ‘leading businesspersons operating in Syria’ are only able to maintain their status by enjoying a close association with the Syrian regime. In that regard, it must be considered reasonable to presume that a person falling within that category has a link with the regime of Mr Al-Assad that enables that person to develop his or her business and to benefit from the policies of that regime.
106 It should be observed, in the second place, as has been set out in paragraphs 56 and 94 above, that the Council established a rebuttable presumption that individuals belonging to the category of ‘leading businesspersons operating in Syria’ are linked with the Syrian regime. The names of individuals falling within that category are not listed if it is established that they are not, or are no longer, associated with the existing regime or do not exercise influence over it or do not pose a real risk of circumvention. It must be noted, as stated in paragraph 67 above, that the applicant has not produced any document to show that he was in any of those situations.
107 In order to challenge the presumption at issue, the applicant was thus required to produce information that would contradict the fact that he was a ‘leading businessman operating in Syria’ and, moreover, to prove the contrary, namely that he was not, or was no longer, associated with the regime of Mr Al-Assad or that he did not exercise influence over it or pose a real risk of circumvention.
108 In order to prove that he was not linked with the Syrian regime and thereby to demonstrate that the presumption could not be applied and to secure the removal of his name from the lists at issue, it was open to the applicant to present indicia or evidence to challenge the ground relied on in his case, by relying, inter alia, on facts and information that only he could have and establishing that he was not, or was no longer, a member of the board of the companies referred to in the statement of reasons put forward by the Council, that he did not hold, or no longer held, shares in those companies, or that those companies were not leading companies in the Syrian economy and, therefore, that his shareholding in those companies did not constitute a risk of circumvention.
109 In the third place, it must be borne in mind that, since measures such as the contested measures have a considerable impact on the rights and freedoms of the persons concerned, the Council is required to observe the rights of defence of those persons by notifying them of the reasons for their inclusion on the list in question at the same time as, or immediately after, the decision is adopted, and by allowing them to make representations at the latest before the adoption of the second decision concerning them and thus to rebut, where appropriate, the presumption in question, by producing such information relating to their personal circumstances as will tell in favour of the decision’s being adopted or not, or of its having this content or that (see, to that effect, judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraphs 61 to 67). In that regard, it should be observed that it is clear from the file that, by letter of 19 December 2016, the Council sent to the applicant the evidence and the listing proposal submitted by a Member State on the basis of which his name was included on the lists annexed to the contested measures. The Council had, therefore, afforded the applicant the opportunity to produce evidence that, notwithstanding the existence of serious indicia that he should be included in the category of persons covered by the relevant listing criterion, he was not in fact linked to the Syrian regime. Consequently, it must be held that the applicant’s rights of defence were respected.
110 It is apparent from all of the foregoing that the contested listing criterion is compatible with the principle of proportionality and is not arbitrary in so far as the Council, in the light of the position set out above, introduced that criterion in Decision 2015/1836 and Regulation 2015/1828 in a manner that was justified and proportionate to the objectives pursued by the legislation governing the restrictive measures against Syria, whilst preserving the possibility that the persons concerned could rebut the presumption of a link with the Syrian regime.
111 Accordingly, the plea of illegality put forward by the applicant must be rejected as unfounded, without there being any need to rule on its admissibility, which was contested by the Commission.
112 It follows from all of the foregoing considerations that none of the applicant’s pleas is well founded, and therefore that the action must be dismissed in its entirety.
Costs
113 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs.
114 In the present case, since the applicant has been unsuccessful and the Council has applied for costs, the applicant must be ordered to pay the costs. Furthermore, as an intervening institution, the Commission is to bear its own costs.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Dismisses the action;
2. Orders Mr Ammar Sharif to bear his own costs and to pay those incurred by the Council of the European Union;
3. Orders the European Commission to bear its own costs.
Gratsias | Labucka | Ulloa Rubio |
Delivered in open court in Luxembourg on 4 April 2019.