Judgment — ECLI:EU:C:2016:219
Date: 2016-04-07
Language of the case: English
Court formation: Third Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible

summary of reasons underpinning the contested acts, in order to review whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support those acts, is substantiated (see, to that effect, the judgments in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119; Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 46; and Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 45). 57 In this instance, in carrying out an assessment of the importance of what was at stake, which forms part of the review of the proportionality of the restrictive measures at issue, account may be taken of the context of those measures, of the fact that there was an urgent need to adopt such measures in order to put pressure on the Syrian regime to stop the violent repression against the population, and of the difficulty in obtaining more specific evidence in a State beset by civil war and an authoritarian regime (see, by analogy, the judgments in Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 47, and Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 46). 58 As regards, second, the reasons stated, by Decision 2012/172 and Implementing Regulation No 266/2012, for the inclusion of Mr Akhras on the lists of persons and entities subject to restrictive measures, those reasons were that: he is a prominent businessman benefiting from and supporting the Syrian regime; he is the founder of the Akhras group; he is a former Chairman of the Chamber of Commerce of the city of Homs, he has close business relations with President Assad’s family; he is a member of the Board of the Federation of Syrian Chambers of Commerce, he provided industrial and residential premises for improvised detention camps and logistical support for the regime. By Decision 2014/730 and Implementing Regulation No 1105/2014, the Council amended those reasons to remove the claim that he had provided industrial and residential premises for improvised detention camps. 59 In that regard, the General Court stated, in paragraph 127 of the judgment under appeal, that ‘as the Council rightly observes, [the appellant] is a prominent businessman who is part of the economic ruling class in Syria. His status as a businessman and his leading positions in the networks of Syrian businessmen such as the Chambers of Commerce, and his role as a representative of Syrian businessmen, is an undeniable fact which, moreover, [the appellant] does not dispute’. 60 As regards, third, the review as to whether the inclusion of Mr Akhras on the lists of persons and entities subject to restrictive measures was well founded, that must be carried out by assessing whether his situation constitutes sufficient proof that he provided economic support for the Syrian regime or benefited from it. Such an appraisal must be carried out by examining the evidence not in isolation but in the context in which it fits (see, to that effect, the judgments in Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 51, and Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 50). 61 Taking into consideration how difficult it is for the Council to produce evidence because of the state of war that prevails in Syria, the Council discharges the burden of proof that lies on it if it presents to the Courts of the European Union a set of indicia sufficiently specific, precise and consistent to establish that there is a sufficient link between the person subject to a measure freezing his funds and the Syrian regime (see, to that effect, the judgments in Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 53, and Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 52). 62 In the light of the context surrounding the evidence on which the Council relies, the General Court was correct to hold that the position of Mr Akhras in Syrian economic life and the important offices held by him, currently or in the past, within the Homs Chamber of Commerce and the Board of the Federation of Syrian Chambers, constituted a set of indicia sufficiently specific, precise and consistent to establish that Mr Akhras was providing economic support to the Syrian regime or benefiting from it (see, by analogy, the judgments in Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 52, and Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 51). 63 That conclusion cannot be invalidated by the fact that a number of the other claims made by the Council in Implementing Decision 2012/172, Implementing Regulation No 266/2012 and subsequent measures are disputed and have not in any way been proved. 64 It is apparent from, first, the Court’s case-law that the inclusion of a person on a list such as those established by the contested acts can be justified if one of the reasons relied upon, deemed sufficient in itself to support that listing, is substantiated (see, to that effect, the judgment in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119), and, second, from Decision 2011/782, Regulation No 36/2012 and the contested acts that the fact that a person provides economic support to the Syrian regime or benefits from it is sufficient in itself to justify the inclusion of that person on the lists of persons and entities subject to restrictive measures. 65 On the other hand, it is conceivable that there are indicia that are sufficiently specific and precise, other than those referred to in paragraph 62 of this judgment, which are such as to call into question the truth of the allegation that Mr Akhras provided economic support to that regime or benefited from it. 66 It is therefore necessary, in order to determine whether the General Court reviewed to the requisite legal standard whether there was a sufficiently solid factual basis to support the inclusion of Mr Akhras on the lists of persons and entities subject to restrictive measures, to give a ruling on the appellant’s arguments that the General Court disregarded the rules relating to the burden of proof and distorted the sense of some of the evidence in its examination of various claims made by Mr Akhras whereby he sought to establish that his business had, in fact, been hindered by the Syrian regime and that he had opposed that regime (see, by analogy, the judgments in Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraphs 54 and 55, and Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraphs 53 and 54). 67 In that regard, it should be recalled that, according to the Court’s settled case-law, the General Court has exclusive jurisdiction to find and appraise the relevant facts and, in principle, to examine the evidence it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that assessment does not therefore constitute a point of law which is subject as such to review by the Court of Justice (judgment in InnoLux v Commission, C‑231/14 P, EU:C:2015:451, paragraph 59 and the case-law cited). 68 There is such distortion where, without recourse to new evidence, the assessment of the existing evidence is clearly incorrect. However, such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (judgment in Italy v Commission, C‑280/14 P, EU:C:2015:792, paragraph 52 and the case-law cited). 69 In that context, it must be observed, first, that the finding made by the General Court in paragraph 129 of the judgment under appeal, that the appellant had failed to demonstrate that the newspaper he owned could be regarded as an opposition newspaper, cannot be considered to be founded on a distortion of the sense of the evidence. 70 Admittedly, as stated by Mr Akhras, it is apparent both from the report of the United States Department of State and documents of the Arab Network for Human Rights produced at first instance that a number of issues of the newspaper concerned were seized by the Syrian authorities. 71 Nonetheless, it is plain that those documents do not explain whether the cause of that action was the fact that that newspaper expressed opposition to the regime. In particular, the quoted report does no more than refer to occasional criticism of the government’s economic policies and performance, while describing that newspaper as one of a number of quasi-independent periodicals generally owned by persons linked to the Syrian Government. 72 That being the case, the interpretation proposed by the appellant is not the only possible interpretation of those documents, while the appellant’s assertions in his sworn statement, annexed to the application at first instance, are not, by their nature, capable of calling into question that finding. The General Court cannot therefore be regarded as having clearly exceeded the limits of reasonable assessment of those documents or having construed them in a manner manifestly at odds with their wording. 73 In that context, the General Court’s statement that, even if the newspaper concerned was hardly favourable to the regime, its closure does not appear to have had any impact on the businesses of Mr Akhras, suggesting that he could allow himself a degree of frankness with regard to the regime, must be deemed to be have been made only for the sake of completeness. 74 Consequently, there is no need to determine whether that statement is vitiated by a disregard of the rules on the taking of evidence, and the Court must therefore find that the arguments directed against that statement are, in any event, ineffective. 75 As regards, secondly, the finding made by the General Court in paragraph 130 of the judgment under appeal, concerning the termination of the lease that the appellant had signed with the port of Tartus, no valid criticism can be made of the General Court that it failed to examine the appellant’s claims of a link with the closure of the newspaper that he owned, given that, on the one hand, it is apparent from paragraphs 69 to 74 of this judgment that the General Court had correctly held that it had not been demonstrated that that newspaper expressed opposition to the Syrian regime and, on the other, that that termination occurred eight years before the closure of that newspaper. 76 As regards, thirdly, the positions of responsibility held by the appellant in Syrian business organisations, it must admittedly be accepted that it is plain from the application at first instance and from the sworn statement annexed to it that, contrary to what was stated by the General Court in paragraph 131 of the judgment under appeal, Mr Akhras claimed that his removal from the position of Chairman of the Homs Chamber of Commerce was against his will and that he had objected to it. 77 That said, that error cannot invalidate the conclusion reached by the General Court. In order to assess the strength of the argument made by Mr Akhras that it was against his will that he was not re-elected Chairman of the Homs Chamber of Commerce, the General Court also referred to his position as a member of the Board of the Federation of Syrian Chambers of Commerce, that was still held by Mr Akhras, a position that the General Court held could only be explained by a certain proximity to the Syrian regime. 78 As regards the criticism made by Mr Akhras of the latter finding, it must be observed that that criticism calls into question findings of fact which fall exclusively within the jurisdiction of the General Court and which cannot therefore be examined by the Court in an appeal. 79 With respect to, fourth, the method adopted, in general, by the General Court, in order to assess the various claims made by the appellant and the evidence adduced in support of those claims, the fact that the General Court examined the various claims and various items of evidence in turn cannot, in itself, lead to the conclusion that the General Court disregarded the requirement that evidence should not be examined in isolation, but in its context. 80 That requirement does not prevent the General Court from examining individually whether the various claims made an applicant are factually accurate, provided that account is taken, in the examination of each of those claims and in their overall assessment as a set of indicia, of the context represented by the specific situation in Syria. 81 Last, the method adopted by the General Court cannot be regarded as imposing on the appellant a burden of proof that was unlawful and unreasonable, since that method did not make it impossible for the appellant to demonstrate that the inclusion of his name in the lists of persons and entities subject to restrictive measures was not founded on a sufficiently solid factual basis, for example, by rebutting the Council’s claims relating to his position in Syrian economic life or by producing sufficiently specific and precise evidence capable of indicating that he did not support the Syrian regime and that he did not benefit from it. 82 It is apparent from all the foregoing that the General Court undertook a review of whether the inclusion of the name of Mr Akhras in the lists of persons and entities subject to restrictive measures was well founded on the basis of a set of indicia relating to his situation and the positions occupied by him in the context of the Syrian regime that was not rebutted by him. Consequently, the reference, in the judgment under appeal, to a presumption of support for that regime cannot affect the legality of the judgment under appeal, since it is apparent from the findings made by the General Court that it undertook a review to the requisite legal standard of whether there existed a sufficiently solid factual basis for the inclusion of the name of Mr Akhras in the lists under consideration (see, by analogy, the judgments in Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 55, and Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 54). 83 In so doing, the General Court had due regard to the principles, stemming from the case-law referred to in paragraph 56 of this judgment, relating to the review of the legality of the reasons stated to be the basis for acts such as the contested acts. 84 Consequently, since the first ground of appeal, that the General Court erred in law, is not such as to require the judgment under appeal to be set aside, and since the second ground of appeal is in part inadmissible, in part unfounded and in part ineffective, the two grounds of appeal raised by Mr Akhras must be rejected. 85 It follows that the appeal must be dismissed in its entirety. Costs 86 Under Article 184(2) of the Rules of Procedure of the Court, where the appeal is unfounded, the Court is make a decision as to the costs. 87 Under Article 138(1) of those rules, applicable to the procedure on appeal under Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 88 Since the Council applied for costs against Mr Akhras and since he has been unsuccessful, he must be ordered to bear his own costs and to pay the costs incurred by the Council. 89 In accordance with Article 140(1) of the Rules of Procedure of the Court, applicable to the procedure on appeal under Article 184(1) of those rules, the Commission shall bear its own costs. On those grounds, the Court (Third Chamber) hereby: 1. Dismisses the appeal; 2. Orders Mr Tarif Akhras 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. [Signatures] * Language of the case: English.