# C_2012194EN.01002501.xml

| 30.6.2012 | EN | Official Journal of the European Union | C 194/25 |
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30.6.2012

EN

Official Journal of the European Union

C 194/25

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Action brought on 25 April 2012 — Tomana and Others v Council and Commission

(Case T-190/12)

2012/C 194/42

Language of the case: English

Parties

Parties

Applicants: Johannes Tomana (Harare, Zimbabwe); Titus Mehliswa Johna Abu Basutu (Harare); Happyton Mabhuya Bonyongwe (Harare); Flora Buka (Harare); Wayne Bvudzijena (Harare); David Chapfika (Harare); George Charamba (Harare); Faber Edmund Chidarikire (Harare); Tinaye Chigudu (Harare); Aeneas Soko Chigwedere (Harare); Phineas Chihota (Harare); Augustine Chihuri (Harare); Patrick Anthony Chinamasa (Harare); Edward Takaruza Chindori-Chininga (Harare); Joseph Chinotimba (Harare); Tongesai Shadreck Chipanga (Harare); Augustine Chipwere (Harare); Constantine Chiwenga (Harare); Ignatius Morgan Chiminya Chombo (Harare); Martin Dinha (Harare); Nicholas Tasunungurwa Goche (Harare); Gideon Gono (Harare); Cephas T. Gurira (Harare); Stephen Gwekwerere (Harare); Newton Kachepa (Harare); Mike Tichafa Karakadzai (Harare); Saviour Kasukuwere (Harare); Jawet Kazangarare (Harare); Sibangumuzi Khumalo (Harare); Nolbert Kunonga (Harare); Martin Kwainona (Harare); R. Kwenda (Harare); Andrew Langa (Harare); Musarashana Mabunda (Harare); Jason Max Kokerai Machaya (Harare); Joseph Mtakwese Made (Harare); Edna Madzongwe (Harare); Shuvai Ben Mahofa (Harare); Titus Maluleke (Harare); Paul Munyaradzi Mangwana (Harare); Reuben Marumahoko (Harare); G. Mashava (Harare); Angeline Masuku (Harare); Cain Ginyilitshe Ndabazekhaya Mathema (Harare); Thokozile Mathuthu (Harare); Innocent Tonderai Matibiri (Harare); Joel Biggie Matiza (Harare); Brighton Matonga (Harare); Cairo Mhandu (Harare); Fidellis Mhonda (Harare); Amos Bernard Midzi (Harare); Emmerson Dambudzo Mnangagwa (Harare); Kembo Campbell Dugishi Mohadi (Harare); Gilbert Moyo (Harare); Jonathan Nathaniel Moyo (Harare); Sibusio Bussie Moyo (Harare); Simon Khaya Moyo (Harare); S. Mpabanga (Harare); Obert Moses Mpofu (Harare); Cephas George Msipa (Harare); Henry Muchena (Harare); Olivia Nyembesi Muchena (Harare); Oppah Chamu Zvipange Muchinguri (Harare); C. Muchono (Harare); Tobaiwa Mudede (Harare); Isack Stanislaus Gorerazvo Mudenge (Harare); Columbus Mudonhi (Harare); Bothwell Mugariri (Harare); Joyce Teurai Ropa Mujuru (Harare); Isaac Mumba (Harare); Simbarashe Simbanenduku Mumbengegwi (Harare); Herbert Muchemwa Murerwa (Harare); Munyaradzi Musariri (Harare); Christopher Chindoti Mushohwe (Harare); Didymus Noel Edwin Mutasa (Harare); Munacho Thomas Alvar Mutezo (Harare); Ambros Mutinhiri (Harare); S. Mutsvunguma (Harare); Walter Mzembi (Harare); Morgan S. Mzilikazi (Harare); Sylvester Nguni (Harare); Francis Chenayimoyo Dunstan Nhema (Harare); John Landa Nkomo (Harare); Michael Reuben Nyambuya (Harare); Magadzire Hubert Nyanhongo (Harare); Douglas Nyikayaramba (Harare); Sithembiso Gile Glad Nyoni (Harare); David Pagwese Parirenyatwa (Harare); Dani Rangwani (Harare); Engelbert Abel Rugeje (Harare); Victor Tapiwe Chashe Rungani (Harare); Richard Ruwodo (Harare); Stanley Urayayi Sakupwanya (Harare); Tendai Savanhu (Harare); Sydney Tigere Sekeramayi (Harare); Lovemore Sekeremayi (Harare); Webster Kotiwani Shamu (Harare); Nathan Marwirakuwa Shamuyarira (Harare); Perence Samson Chikerema Shiri (Harare); Etherton Shungu (Harare); Chris Sibanda (Harare); Jabulani Sibanda (Harare); Misheck Julius Mpande Sibanda (Harare); Phillip Valerio Sibanda (Harare); David Sigauke (Harare); Absolom Sikosana (Harare); Nathaniel Charles Tarumbwa (Harare); Edmore Veterai (Harare); Patrick Zhuwao (Harare); Paradzai Willings Zimondi (Harare); Cold Comfort Farm Cooperative Trust (Harare); Comoil (Private) Ltd (Harare); Divine Homes (Private) Ltd (Harare); Famba Safaris (Private) Ltd (Harare); Jongwe Printing and Publishing Company (Private) Ltd (Harare); M & S Syndicate (Private) Ltd (Harare); Osleg (Private) Ltd (Harare); Swift Investments (Private) Ltd (Harare); Zidco Holdings (Private) Ltd (Harare); Zimbabwe Defence Industries (Private) Ltd (Harare); Zimbabwe Mining Development Corp. (Harare) (represented by: D. Vaughan, QC (Queen’s Counsel), M. Lester and R. Lööf, Barristers, and M. O’Kane, Solicitor)

Applicants:

Defendants: European Commission, Council of the European Union

Defendants:

Form of order sought

Form of order sought

| — | Annul Council Decision 2012/97/CFSP of 17 February 2012 amending Decision 2011/101/CFSP concerning restrictive measures against Zimbabwe (OJ 2012 L 47, p. 50), in so far as it concerns the applicants; |
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Annul Council Decision 2012/97/CFSP of 17 February 2012 amending Decision 2011/101/CFSP concerning restrictive measures against Zimbabwe (OJ 2012 L 47, p. 50), in so far as it concerns the applicants;

| — | Annul Commission Implementing Regulation (EU) No 151/2012 of 21 February 2012 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2012 L 49, p. 2), in so far as it concerns the applicants; |
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Annul Commission Implementing Regulation (EU) No 151/2012 of 21 February 2012 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2012 L 49, p. 2), in so far as it concerns the applicants;

| — | Annul Council Implementing Decision 2012/124/CFSP of 27 February 2012 implementing Decision 2011/101/CFSP concerning restrictive measures against Zimbabwe (OJ 2012 L 54, p. 20), in so far as it concerns the applicants; and |
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Annul Council Implementing Decision 2012/124/CFSP of 27 February 2012 implementing Decision 2011/101/CFSP concerning restrictive measures against Zimbabwe (OJ 2012 L 54, p. 20), in so far as it concerns the applicants; and

| — | Order the defendants to pay the costs of the applicants. |
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Order the defendants to pay the costs of the applicants.

Pleas in law and main arguments

Pleas in law and main arguments

In support of the action, the applicants rely on five pleas in law.

| 1. | First plea in law, alleging that the defendants have included individuals and entities without a proper legal basis for doing so. Neither the Council nor the Commission has the power to impose restrictive measures on non-state actors in Zimbabwe on the sole grounds of unsubstantiated allegations of criminal misconduct in Zimbabwe. The unsubstantiated allegations are in many cases alleged to have taken place even before the Government of National Unity was formed. The institutions have acted beyond their limited competence in penal matters, and the measures in question are inappropriate and disproportionate to any legitimate Common Foreign and Security Policy objective. |
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1.

First plea in law, alleging that the defendants have included individuals and entities without a proper legal basis for doing so. Neither the Council nor the Commission has the power to impose restrictive measures on non-state actors in Zimbabwe on the sole grounds of unsubstantiated allegations of criminal misconduct in Zimbabwe. The unsubstantiated allegations are in many cases alleged to have taken place even before the Government of National Unity was formed. The institutions have acted beyond their limited competence in penal matters, and the measures in question are inappropriate and disproportionate to any legitimate Common Foreign and Security Policy objective.

| 2. | Second plea in law, alleging that the defendants erred manifestly in considering that the criteria for listing set out in the contested measures were fulfilled, because:






  — | The defendants were not lawfully entitled to include applicants on the sole basis of assertions that they are a ZANU-PF member of the Government of Zimbabwe or an associate of such a person; and |
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2.

Second plea in law, alleging that the defendants erred manifestly in considering that the criteria for listing set out in the contested measures were fulfilled, because:

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The defendants were not lawfully entitled to include applicants on the sole basis of assertions that they are a ZANU-PF member of the Government of Zimbabwe or an associate of such a person; and

| — | The defendants were not lawfully entitled to include applicants on the basis of vague unsupported allegations of misconduct stated to have taken place in the past, in many cases before the Government of National Unity was formed. |
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The defendants were not lawfully entitled to include applicants on the basis of vague unsupported allegations of misconduct stated to have taken place in the past, in many cases before the Government of National Unity was formed.

| 3. | Third plea in law, alleging that the defendants failed to give adequate or sufficient reasons for including individuals and entities in the contested measures. |
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3.

Third plea in law, alleging that the defendants failed to give adequate or sufficient reasons for including individuals and entities in the contested measures.

| 4. | Fourth plea in law, alleging that the defendants failed to safeguard the applicants’ rights of defence and to effective judicial review, in that:






  — | The defendants provided no particulars or evidence in support of their vague assertions of serious misconduct, and |
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4.

Fourth plea in law, alleging that the defendants failed to safeguard the applicants’ rights of defence and to effective judicial review, in that:

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The defendants provided no particulars or evidence in support of their vague assertions of serious misconduct, and

| — | The defendants provided no opportunity for the applicants to comment on the case and evidence against them. |
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The defendants provided no opportunity for the applicants to comment on the case and evidence against them.

| 5. | Fifth plea in law, alleging that the defendants infringed, without justification or proportion, the applicants’ fundamental rights, including their right to protection of their property, business, reputation and private and family life. |
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5.

Fifth plea in law, alleging that the defendants infringed, without justification or proportion, the applicants’ fundamental rights, including their right to protection of their property, business, reputation and private and family life.

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