Case T‑5/17
(publication in extract form)
Ammar Sharif
v
Council of the European Union
Judgment of the General Court (Fifth Chamber) of 4 April 2019
(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)
Common foreign and security policy — Specific restrictive measures against certain persons and entities in view of the situation in Syria — Decision 2013/255/CFSP and Regulation No 36/2012 — Presumption of support for the Syrian regime in the case of leading businesspersons operating in Syria — Lawfulness — Conditions — Proportionality — Rebuttable presumption — Observance of the rights of the defence
(Art. 29 TEU; Council Decision 2013/255/CFSP, as amended by Decision (CFSP) 2015/1836, Art. 27(2)(a), and (3), and Art. 28(2)(a) and (3); Council Regulation No 36/2012, as amended by Regulation 2015/1828, Art. 15(1a) and (1b))
(see paragraphs 91-95, 97, 105, 106, 109, 110)
Résumé
In the judgment in Sharif v Council (T‑5/17), delivered on 4 April 2019, the General Court dismissed the action for annulment brought by a businessman of Syrian nationality against acts by which his name had been entered on the list of persons and entities subject to restrictive measures taken against the Syrian Arab Republic (Implementing Decision (CFSP) 2016/1897, (1) Implementing Regulation (EU) 2016/1893, (2) Decision (CFSP) 2017/917, (3) Implementing Regulation (EU) 2017/907, (4) Decision (CFSP) 2018/778 (5) and Implementing Regulation (EU) 2018/774 (6)). In that action the applicant had also sought, in the alternative, a declaration that the provisions establishing the listing criterion of ‘leading businesspersons operating in Syria’ (Article 28(2)(a) of Decision 2013/255, as amended by Decision 2015/1836, (7) and Article 15(1a)(a) of Regulation No 36/2012, as amended by Regulation 2015/1828 (8)) were inapplicable to him. The applicant maintained that that criterion is disproportionate in relation to the legitimate objectives of the contested measures in that it covers any ‘leading businessperson operating in Syria’, irrespective of whether there is any connection between that person and the Syrian regime.
The Court considered that 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. It also found 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. Such a presumption must be confined within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.
In that regard, the Court noted, first of all, that 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 addition, 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. The Court therefore considered it 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.
The Court went on to find that the Council had 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 entered on the list of persons subject to the restrictive measures 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.
Consequently, the Court held that the contested listing criterion is compatible with the principle of proportionality and is not arbitrary in so far as the Council 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. Accordingly, the Court rejected the plea of illegality.