CELEX: 62018TJ0510
Common foreign and security policy
Restrictive measures adopted against Syria
Freezing of funds
Error of assessment
Right to property
Proportionality
Damage to reputation
Determination of listing criteria

)
I.

Background to the dispute
The applicant, Mr Khaled Kaddour, is a Syrian businessperson who carries on commercial operations in the telecommunications and oil sectors, inter alia.
…
B.

The re-inclusion and retention of the applicant’s name on the lists of persons subject to the restrictive measures
…
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
).
Under 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. 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’.
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’.
Regulation 2015/1828 amended, inter alia, the wording of Article 15 of Regulation No 36/2012 in order to incorporate therein the new listing criteria defined by Decision 2015/1836 and inserted into Decision 2013/255.
…
2.

The grounds for inclusion and the determination of listing criteria
Bearing in mind that, at the hearing, the applicant and the Council had an exchange of arguments on whether the applicant’s name had been retained on the lists in question on two or three grounds for inclusion, the Court deems it appropriate to provide the following clarifications.
In the present case, as is clear from paragraph 27 above, the grounds for including the applicant’s name on the lists in question were not amended as compared with Decision 2016/850 and Implementing Regulation 2016/840, and are as follows:
‘Leading businessperson operating in Syria, with interests and/or activities in the telecommunications, oil and plastic industry sectors and close business relations with Maher Al-Assad.
He benefits from and provides support to the Syrian regime, through his business activities.
Associate of Maher Al-Assad, including through his business activities.’
Under Article 28(1), (2)(a) and (3) of Decision 2013/255, as amended by Decision 2015/1836:
‘1.   All 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 Annexes I and II, shall be frozen.
2.   In accordance with the assessments and determinations made by the Council in the context of the situation in Syria as set out in recitals 5 to 11, all funds and economic resources belonging to, or owned, held or controlled by:
(a)
leading businesspersons operating in Syria; …
3.   Persons, entities or bodies within one of the categories referred to in paragraph 2 shall not be included or retained on the list of persons and entities in Annex I 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.’
Article 15(1)(a), (1a)(a) and (1b) of Regulation No 36/2012, as amended by Regulation 2015/1828, is worded in almost identical terms.
In the light of the wording of the grounds for including the applicant’s name on the lists, together with the wording of the listing criteria, it is appropriate to find that, in the present case, three grounds for inclusion were relied on with regard to the applicant. The first subparagraph, which corresponds to the first ground, relates to the status of leading businessperson operating in Syria; the second subparagraph, which corresponds to the second ground, concerns benefit received from and support provided to the Syrian regime; and the third subparagraph, which corresponds to the third ground, relates to association with the Syrian regime.
It follows that the first ground for including the applicant’s name on the lists in question is based on the legal criterion laid down in 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 (criterion of leading businessperson operating in Syria), and the second and third grounds for including the applicant’s name on the lists are based on the legal criterion laid down in Article 28(1) of Decision 2013/255, as amended by Decision 2015/1836, and Article 15(1)(a) of Regulation No 36/2012, as amended by Regulation 2015/1828 (criterion of association with the regime), on account of either the benefit received from and support provided to the Syrian regime, or his association with Mr Maher Al-Assad, a key figure of the Syrian regime.
In so far as, at the hearing, the Council put forward the argument that the reference to the benefit received from and support provided to the Syrian regime was not to be interpreted as a third ground for including the applicant’s name on the lists in question – an argument which the applicant did not challenge – the Court considers it useful to provide the following clarifications.
The benefit received from or support provided to the Syrian regime is an autonomous legal criterion, laid down in Article 28(1) of Decision 2013/255, as amended by Decision 2015/1836, which, as such, is to be distinguished from that of ‘leading businesspersons operating in Syria’ provided for in Article 28(2)(a) of that decision, or even that of association with figures belonging to that regime, in Article 28(1) of the decision.
That is apparent from the very wording of Article 28 of Decision 2013/255, as amended by Decision 2015/1836. That article provides, in paragraph 1 thereof, for the freezing of funds and economic resources of three categories of person, namely (i) those responsible for the violent repression against the civilian population in Syria, (ii) those benefiting from or supporting the regime, and (iii) those associated with them. Article 28(2) envisages the freezing of funds and economic resources of a number of categories of person, including leading businesspersons operating in Syria. Article 28(1) and (2) of Decision 2013/255, as amended by Decision 2015/1836, therefore refers, in principle, to different categories of person, which is confirmed by the possibility, afforded solely to persons who fall within the scope of Article 28(2) of Decision 2013/255, as amended by Decision 2015/1836, of relying on Article 28(3), which allows them, under certain circumstances, not to have their names included or retained on the lists in question.
The literal interpretation of that provision is consistent with the context of its adoption and the objective referred to therein (see, to that effect, judgments of 17 November 1983, Merck,
292/82
,
EU:C:1983:335
, paragraph
, and of 10 March 2005, easyCar,
C‑336/03
,
EU:C:2005:150
, paragraph
). It should be recalled, first, that it is clear from recital 5 of Decision 2015/1836 that the Council established a number of categories of person, inserted into Article 28(2) of Decision 2013/255, in order to expand the existing restrictive measures that it intended to maintain whilst retaining a targeted, differentiated approach. It therefore clearly expressed its intention to add listing criteria to the existing ones laid down in Article 28(1) of Decision 2013/255. Secondly, Decision 2015/1836, which inserted Article 28(3) of Decision 2013/255, was intended to apply solely to those new categories of person, as is clear from recital 14 of that decision, Lastly, it should be noted that the possibility afforded by Article 28(3) of Decision 2013/255 had no equivalent within Article 28 of that decision prior to its amendment by Decision 2015/1836.
The fact that Article 28 of Decision 2013/255, as amended by Decision 2015/1836, makes provision for different categories of person does not mean that a given person cannot fall into several categories. It does, however, mean that where the Council decides to include or retain a person’s name on the lists in question, it must determine, in the light of the evidence at its disposal, the category or categories into which that person may fall. In that connection, it must consider, first, which criterion or criteria it intends to use in order to include or retain a person’s name on the lists in question, and, secondly, whether it has a body of sufficiently specific, precise and consistent evidence to establish that each of the grounds for inclusion, which are based on the criterion or criteria that the Council has chosen, is well founded.
In that regard, it cannot be excluded that, for a specific person, the grounds for inclusion might overlap to a certain extent, in that a person may be considered to be a leading businessperson operating in Syria and also regarded as benefiting, in the course of his or her activities, from the Syrian regime or supporting it through those same activities. That is apparent, specifically, from the fact that, as is established in recital 6 of Decision 2015/1836, close association with the Syrian regime and support to it by that category of persons are one of the reasons for which the Council decided to establish that category. The fact remains that, even in such a situation, these are separate criteria.
It has in fact been acknowledged by the case-law that Decision 2015/1836 introduced as an objective, autonomous and sufficient listing criterion, that of ‘leading businessperson operating in Syria’, with the result that the Council is no longer required to demonstrate that there is a link between that category of persons and the Syrian regime, or between that category of persons and the support provided to, or the benefit derived from, the regime, since being a leading businessperson operating in Syria is sufficient for the restrictive measures in question to be applied to a person (see, to that effect, judgments of 11 September 2019, HX v Council,
C‑540/18 P
, not published,
EU:C:2019:707
, paragraph
, and of 4 April 2019, Sharif v Council,
T‑5/17
,
EU:T:2019:216
, paragraphs
and
, and order of 11 September 2019, Haswani v Council,
T‑231/15 RENV
, not published,
EU:T:2019:589
, paragraph
).
It follows that, where the Council decides to include a person’s name on the lists in question on account of his or her status as a leading businessperson operating in Syria, it is not required to specify, in the grounds for including that person on the lists in question, that that person benefits from or provides support to the Syrian regime. If the Council does so, it is because it also intends to apply the criterion laid down in Article 28(1) of Decision 2013/255 to that person. That interpretation is the most appropriate for guaranteeing the effectiveness of each of the paragraphs of Article 28 of Decision 2013/255, as amended by Decision 2015/1836, and allowing listed persons to determine precisely the criteria on the basis of which their name has been included or retained on the lists in question.
Consequently, if the Council refers, explicitly, in the grounds for including a person’s name on the lists in question, to the benefit derived from or the support provided to the Syrian regime by that person, this means that the Council must establish, by means of a body of sufficiently specific, precise and consistent evidence, the way in which that person provides support to or derives benefit from the Syrian regime, In that sense, although the Council takes the view that benefit received from or support provided to the Syrian regime is the result of activities pursued, moreover, by a leading businessperson operating in Syria, the evidence that the Council should have in its possession and may be called upon to produce in order to demonstrate that benefit or support is not necessarily the same as that serving to demonstrate the status of ‘leading businesspersons operating in Syria’.
It follows that, in the present case, contrary to the Council’s argument, the reference to the benefit derived from and support provided to the Syrian regime by the applicant must be interpreted as a ground for including the applicant’s name on the lists in question that is distinct from that relating to the status of leading businessperson operating in Syria and that relating to his association with a key figure of the Syrian regime. Consequently, the Council must be able to demonstrate, by means of a body of sufficiently specific, precise and consistent evidence, that that ground is well founded.
Those details and clarifications having been set out, it is necessary to ascertain whether, in the present case, the Council, as the applicant claims, committed an error of assessment by deciding to retain his name on the lists in question.
3.

The error of assessment
…
The Council observes, in essence, that the applicant’s name was retained on the lists in question by the contested measures based on the same grounds as those set out in Decision 2016/850 and Implementing Regulation 2016/840. As regards the 2016 measures, it should be noted not only that the General Court found, in the judgment of 31 May 2018, Kaddour III (
T‑461/16
,
EU:T:2018:316
, paragraph
), that the evidence relied on by the Council in support of the retention of the applicant’s name on the lists in question constituted a body of evidence capable of justifying the re-inclusion of his name on those lists. It is argued furthermore that the applicant has not presented any evidence which is capable of calling into question the Court’s assessment in the judgment of 31 May 2018, Kaddour III (
T‑461/16
,
EU:T:2018:316
).
Consideration must therefore be given to whether the judgments of 31 May 2018, Kaddour III (
T‑461/16
,
EU:T:2018:316
), and of 26 October 2016, Kaddour II (
T‑155/15
, not published,
EU:T:2016:628
), have any effect on the examination of the present ground, in so far as those judgments both analysed the evidence submitted in the present proceedings.
In that connection, it should be observed that Article 30(3) of Decision 2013/255 and Article 32(3) of Regulation No 36/2012 provide that where observations are submitted, or where substantial new evidence is presented, the Council is to review its decision and inform the natural or legal person, entity or body concerned accordingly. Moreover, in accordance with Article 32(4) of that regulation, that list is to be reviewed at regular intervals and at least every 12 months.
It follows from the combination of those provisions that the Council may, in any review prior to the adoption of measures retaining a person’s name on the lists in question, or at any time, determine, on the basis of substantial evidence or observations submitted to it, whether the factual situation has changed since the initial inclusion, the re-inclusion of the applicant’s name, or since a previous review, so that their designation is no longer justified (see, to that effect and by analogy, judgments of 26 July 2017, Council v LTTE,
C‑599/14 P
,
EU:C:2017:583
, paragraph
, and of 27 September 2018, Ezz and Others v Council,
T‑288/15
,
EU:T:2018:619
, paragraph
).
Furthermore, without being bound in the strict sense from the perspective of
res judicata
, as the subject matter of the actions dismissed by the judgments of 26 October 2016, Kaddour II (
T‑155/15
, not published,
EU:T:2016:628
), and of 31 May 2018, Kaddour III (
T‑461/16
,
EU:T:2018:316
), is not identical to that of the present proceedings, the Court cannot completely disregard the reasoning that he put forward in those two cases, which involved the same parties and essentially raised the same legal issues.
However, there is no reason to presume, without an examination of the elements of fact and law submitted in support of the present plea, that the Court will make the same findings as those reached in the judgments of 26 October 2016, Kaddour II (
T‑155/15
, not published,
EU:T:2016:628
), and of 31 May 2018, Kaddour III (
T‑461/16
,
EU:T:2018:316
) (see, to that effect, judgment of 27 September 2018, Ezz and Others v Council,
T‑288/15
,
EU:T:2018:619
, paragraph
).
In the present case, it cannot be excluded, without examining them, that the elements submitted by the applicant in the context of his plea are capable of establishing that the Council wrongly decided, in 2018, to retain his name on the lists in question.
…
(a)

The relevance of the evidence submitted by the Council
The applicant disputes the relevance of the evidence submitted by the Council to demonstrate that retaining his name on the lists in question, in 2018, was still well founded.
It should be noted that, as regards restrictive measures taken in the context of the fight against terrorism, the essential question when reviewing whether to continue to include a person on the list at issue is whether, since the inclusion of that person on that list or since the last review, the factual situation has changed in such a way that it is no longer possible to draw the same conclusion in relation to the involvement of that person in terrorist activities (judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa,
C‑539/10 P and C‑550/10 P
,
EU:C:2012:711
, paragraph
). Furthermore, it has been stated, in the context of restrictive measures adopted against Iran, that the Council is not required to adduce new facts for as long as the facts underpinning the initial inclusion are relevant and sufficient for keeping the party concerned on the list (Opinion of Advocate General Sharpston in Islamic Republic of Iran Shipping Lines and Others v Council,
C‑225/17 P
,
EU:C:2018:720
, paragraph
).
Lastly, the Court has ruled that the Council is required to submit new evidence in order to establish that the inclusion of a person’s name is well founded where the criterion and grounds for that inclusion have changed (see, to that effect, order of 11 September 2019, Haswani v Council,
T‑231/15 RENV
, not published,
EU:T:2019:589
, paragraph
).
It follows that, in order to justify retaining a person’s name on the lists in question, the Council is not prohibited from basing its decision on the same evidence justifying the initial inclusion, re-inclusion or previous retention of the applicant’s name on the lists in question, provided that (i) the grounds for inclusion remain unchanged and (ii) the context has not changed in such a way that that evidence is now out of date.
In that connection, it should again be observed that it is inherent in the nature of the measures adopted in the context of the common foreign and security policy (CFSP) that they are subject to periodical review and may be applied repeatedly in subsequent periods. That is notably the case where, despite the restrictive measures previously applied, the geopolitical situation does not evolve. In that situation, the Council must be allowed to continue to apply the necessary measures, even if the situation has not changed, provided that the facts which form the basis for maintaining the restrictive measures continue to justify their application at the time of their adoption, in particular that the facts are still sufficiently recent (see, to that effect, Opinion of Advocate General Sharpston in Islamic Republic of Iran Shipping Lines and Others v Council,
C‑225/17 P
,
EU:C:2018:720
, paragraphs
and
).
Thus, in the present case, since, as has been stated in paragraph 67 above, the grounds for including the applicant’s name have not been amended, it is necessary only to ascertain whether there are elements amongst the information before the Court suggesting that the applicant’s factual situation or that in Syria have evolved in such a way that the evidence submitted by the Council to argue that retaining the applicant’s name on the lists in question was well founded in 2016 is no longer relevant in justifying the retention of his name on those lists in 2018.
In that regard, first, it is clear that the situation in Syria saw no improvement between 2016 and 2018. The evidence adduced by the applicant in his application, which seeks to establish that the economic situation in Syria is such that it would be fanciful to believe that he is able to support the regime with what little remains of his wealth, does not permit the inference that the Syrian context has changed in such a way that retaining the applicant’s name on the lists in question is no longer justified. On the contrary, the 2017 World Bank Group Report on the economic and social consequences of the conflict in Syria, the article from the newspaper
International Business Times
of 14 March 2016 about the costs of the war in Syria for Russia and the United States and, lastly, the article from
Time
magazine of 9 April 2018, which attempts to provide an answer to the question whether the Syrian civil war is becoming even more complex, all attest to the fact that the war in Syria is still ongoing. In that context, the Council and the European Union are entitled to maintain the restrictive measures that they consider necessary to put pressure on the Syrian regime.
Secondly, while the applicant argues that his business operations have ceased and that he has never had any association or ties with Mr Maher Al-Assad, it should be observed that he previously relied on those arguments in the case giving rise to the judgment of 31 May 2018, Kaddour III (
T‑461/16
,
EU:T:2018:316
, paragraph
), and that he has failed, in his written submissions, to put forward any indication that his personal situation changed between 2016 and 2018. As to the documents submitted by the applicant in order to demonstrate that General Bilal was Mr Maher Al-Assad’s office manager, it should be noted that, without prejudice to the examination of their probative value and capacity to call the evidence submitted by the Council into question – which examination is carried out in paragraph 120 below – that evidence makes reference, however, solely to General Bilal and does not serve in itself to point out a material change in the applicant’s situation of which the Council could and should have been aware at the time when the decision to retain the applicant’s name on the lists in question was adopted. In addition, those documents seek to challenge that aspect of the relations between the applicant and Mr Maher Al-Assad, but they do not relate to the business relations between the two.
Consequently, without prejudice, at this stage in the Court’s reasoning, to the question of whether the evidence produced by the Council does indeed demonstrate that the grounds for including the applicant’s name on the lists in question was well founded in 2018, the Council was not required to adduce supplementary evidence in relation to that produced in 2016 on account of changes in the applicant’s situation or that in Syria of such a nature as to justify removing the applicant’s name from the lists in question.
The applicant’s arguments seeking to dispute the relevance of the evidence produced in the light of its age or the lack of new evidence corroborating it must therefore be rejected. Moreover, and in any event, the Court must reject the applicant’s argument that the Council could not base its decision on articles that the Court had regarded, in its judgment of 13 November 2014, Kaddour I (
T‑654/11
, not published,
EU:T:2014:947
), as not demonstrating that the grounds for including him on the lists in question were well founded. The judgment of 26 October 2016, Kaddour II (
T‑155/15
, not published,
EU:T:2016:628
, paragraph
), previously rejected that argument in relation to the same evidence, recalling that each case brought before the Court has its own file and that each of those case files is entirely separate. Thus the fact that the Council has, in the present proceedings, adduced some of the documents that the Court had, in a different case, regarded as not satisfying the burden of proof, does not deprive the Council of the possibility of relying on those documents, amongst other items of evidence, for the purposes of constituting a body of sufficiently specific, precise and consistent evidence to establish that the decision to retain the applicant’s name on the lists in question was well founded.
…
B.

The second plea: infringement of Article 27(3) and Article 28(3) of Decision 2013/255, as amended by Decision 2015/1836, and of Article 15(1b) of Regulation No 36/2012, as amended by Regulation 2015/1828
The applicant takes the view that he is entitled to the benefit of Article 27(3) and Article 28(3) of Decision 2013/255, as amended by Decision 2015/1836, and Article 15(1b) of Regulation No 36/2012, as amended by Regulation 2015/1828.
In that regard, he claims that the criteria laid down in those provisions are not cumulative, so that, contrary to the Council’s contention in the defence, it is possible for him to rely on those provisions if he satisfies any one of the criteria laid down therein.
…
In that connection, it should be borne in mind that, under Article 27(3) and Article 28(3) of Decision 2013/255, as amended by Decision 2015/1836, persons, entities or bodies in one of the categories referred to in paragraphs 2 of those articles are not to be included or retained on the lists of persons and entities appearing in Annex I to Decision 2013/255 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. The same criteria are reproduced, with regard to the freezing of funds, in Article 15(1b) of Regulation No 36/2012, as amended by Regulation 2015/1828.
As regards, first, the applicant’s argument that those criteria are alternative and not cumulative, this requires an interpretation of those provisions. According to the case-law, it is necessary to interpret provisions by taking into account not only their wording, but also their context and objective (see, to that effect, judgments of 17 November 1983, Merck,
292/82
,
EU:C:1983:335
, paragraph
, and of 10 March 2005, easyCar,
C‑336/03
,
EU:C:2005:150
, paragraph
).
In that connection, it should be noted that the criteria set out in Article 27(3) and Article 28(3) of Decision 2013/255, as amended by Decision 2015/1836, as well as in Article 15(1b) of Regulation No 36/2012, as amended by Regulation 2015/1828, are separated by the conjunction ‘or’. That conjunction may, linguistically, have an alternative or a cumulative sense and must consequently be read in the context in which it is used and in light of the objectives of the act in question (see, by analogy, judgment of 14 May 2019, M and Others(Revocation of refugee status),
C‑391/16, C‑77/17 and C‑78/17
,
EU:C:2019:403
, paragraph
).
The objective pursued by the restrictive measures regime introduced by Decision 2013/255 and Regulation No 36/2012 is to prohibit any form of support to the Syrian regime in order to put pressure on the latter to change its policies of repression against the civilian population. In order to attain that objective, the Council adopted Decision 2015/1836 amending Decision 2013/255 as, specifically, it had noted the attempts that were made by the Syrian regime to circumvent EU restrictive measures in order to continue to finance and support the regime’s policy of violent repression against the civilian population (recital 4 of Decision 2015/1836). Therefore, in order to ensure the effectiveness of those measures, the Council defined certain categories of persons and entities of particular relevance to attaining such an objective (recital 5 of Decision 2015/1836), persons and entities in respect of which fund-freezing measures were, in particular, to be adopted. Those categories of persons and entities were defined in the light of the association that they have with the regime, the influence they can exercise on the latter or the support, in whatever form, that they are likely to provide to the regime (recitals 6 to 12 of Decision 2015/1836).
Consequently, the wording adopted in Article 27(3) and Article 28(3) of Decision 2013/255, as amended by Decision 2015/1836, as well as in Article 15(1b) of Regulation No 36/2012, as amended by Regulation 2015/1828, must be understood as reflecting the different ways in which a person might favour the Syrian regime currently in place without those ways being regarded as mutually exclusive. Having regard to that context and the objective pursued by Decision 2013/255 and Regulation No 36/2012, the conditions set out in those various articles are necessarily cumulative.
It cannot be otherwise, since that would risk stripping the restrictive measures regime at issue of all meaning. That would in fact be tantamount to allowing persons or entities to be removed from the lists in question because they are no longer associated with the regime when, for example, they exercise an influence on it or are associated with a real risk of circumvention.
…

On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:

1.
Dismisses the action;

2.
Orders Mr Khaled Kaddour to bear his own costs and to pay those incurred by the Council of the European Union.

Gervasoni
Madise
Martín y Pérez de Nanclares
Delivered in open court in Luxembourg on 23 September 2020.
[Signatures]
(
*1
)	Language of the case: English.
(
)	Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.