Judgment — ECLI:EU:T:2014:93
Date: 2014-02-27
Language of the case: English
Court formation: Third Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - unfounded
Origin: United Kingdom

summary of the allegations against the first applicant in ‘[Case No] 38 for the year 2011’, a case referred to in the request for judicial assistance referred to in paragraph 128 above. That document was undated, and was not on headed notepaper or signed. However, as with the note of 24 February 2011 and all the other documents annexed thereto, it bore the stamp of the Embassy of the Arab Republic of Egypt in Brussels. 131 In short, none of the above-mentioned documents suggests that the second, third and fourth applicants have been prosecuted in Egypt for the misappropriation of State funds. 132 On the other hand, the request for judicial assistance referred to in paragraph 128 above shows, unequivocally, that, on 24 February 2011, less than one month before Decision 2011/172 and Regulation No 270/2011 were adopted, all the applicants were the subject of an order of the Egyptian Prosecutor General seeking to seize their assets, which had been endorsed by a criminal court and was linked to investigations concerning misappropriation of State funds. 133 The applicants have not moreover produced any evidence to cast doubt on the accuracy of the information entered on that request for judicial assistance. On the contrary, a decision of the Egyptian courts, a translation of which was lodged at the Court Registry on 5 March 2013, confirms that the second applicant still had her assets frozen on 30 January 2013. In addition, the applicants did not dispute, at the hearing, that the above-mentioned order for seizure existed. 134 As they were the subject of the above-mentioned order of the Egyptian Prosecutor General, the second, third and fourth applicants were persons subject to judicial proceedings in Egypt linked to investigations concerning misappropriation of State funds. In describing them in that manner in the Annex to Decision 2011/172, the Council did not therefore err in fact or in its legal characterisation of the facts. 135 The first part of the plea must accordingly be rejected. As regards the second part of the plea 136 In support of the second part of the plea, the applicants submit that the first applicant is only alleged to have been complicit in conduct which may be categorised as the improper grant of licences. 137 However, it is clear from the document referred to in paragraph 130 above that, in ‘[Case No] 38 for the year 2011’, the first applicant was ‘accused’ first of ‘usurping the assets’ of a ‘public sector company with State-owned shares’ and, secondly, of ‘committing crimes of profiteering and [intentionally] harming public assets, as well as usurping and … facilitating the usurpation of [such] assets’. 138 More specifically, in that document, the first applicant was accused of: – using his influence, as Chief Executive Officer of a ‘public-sector company with State-owned shares’, in order, first, to exchange shares for the benefit of a ‘private company’ which he controlled, secondly, to enable that private company to achieve commercial success at the expense of the ‘public-sector company’ in question and, thirdly, to increase unlawfully the shares of the ‘private company’ in question in the capital of the above-mentioned ‘publicsector company’; – and failing to pay his debts to that company and the banks. 139 Consequently, the first applicant was prosecuted in Egypt for what the Egyptian public prosecutor categorised as the ‘usurping of public assets’. 140 The Court finds that that categorisation corresponds, in essence, to the ‘misappropriation of … State funds’ found in Decision 2011/172 and Regulation No 270/2011. 141 In those circumstances, the Council did not err in fact or in the categorisation of the facts by listing the first applicant in the annexes to the contested acts. 142 In seeking to challenge that conclusion, the applicants submitted, in the reply, that neither the request for judicial assistance described in paragraph 128 above nor the documents annexed thereto enabled them to be identified as people ‘responsible for misappropriation of Egyptian State funds’, who were thus depriving the Egyptian people of the benefits of the sustainable development of their economy and society and undermining the development of democracy in the country, or as people associated with them. 143 However, in any event, such a fact cannot render the contested acts unlawful. In that regard, it must be noted that Article 1(1) of Decision 2011/172, which sets out the criteria for listing in the Annex to that decision, is directed only at the categories of person referred to in paragraph 67 above. Admittedly, the second recital in the preamble to Decision 2011/172 states that those persons are ‘thus depriving the Egyptian people of the benefits of the sustainable development of their economy and society and undermining the development of democracy in the country’. However, that statement does not constitute an additional condition which must be met when a new person is listed in the Annex to Decision 2011/172. It is only a clarification of the ultimate objective of that decision. That recital simply explains that the persons referred to in Article 1(1) of Decision 2011/172 are in a position to deprive ‘the Egyptian people of the benefits of the sustainable development of their economy and society and [of hindering] the development of democracy in the country’. 144 In addition, it must be noted that none of the five arguments put forward by the applicants in support of the complaint referred to in paragraph 142 above is well founded. 145 First, the applicants submitted that the documents annexed to the request for judicial assistance described in paragraph 128 above did not ‘refer to any conviction for any offence’ or to an indictment. Those documents simply ‘summarise[d] certain complaints made against the first applicant’ and ultimately give ‘no indication of whether any or all of the complaints [referred to in them] gave rise to judicial proceedings … for misappropriating State funds’. 146 It is true that the documents annexed to the request for judicial assistance referred to in paragraph 128 above do not refer to any criminal conviction. However, that is irrelevant. The persons targeted in Article 1(1) of Decision 2011/172 are not only those convicted for the misappropriation of State funds but also, in particular, those concerned by judicial proceedings linked to investigations concerning such misappropriation (see paragraph 67 above). 147 In addition, it is incorrect to claim that none of the documents annexed to the request for judicial assistance concerned an indictment for misappropriation of State funds. As noted in paragraphs 139 and 140 above, the document described in paragraph 130 above referred to a criminal prosecution, in Egypt, of the first applicant for conduct which may be characterised as misappropriation of State funds. 148 Secondly, the applicants stated that the application for judicial assistance described in paragraph 128 above ‘g[ave] no indication of the quantum of funds frozen or what kind of judicial assistance it requests, from which court, or why such assistance [was] necessary’. 149 However, that fact that the evidence relied on by the Council contains no such information has no effect on the outcome of the dispute. It cannot, in any event, show that it made an error of fact in taking the view that the applicants were subject to judicial proceedings linked to investigations concerning the misappropriation of State funds. 150 Thirdly, the applicants stated that the application for judicial assistance described in paragraph 128 above ‘d[id] not even suggest legislative action by the European Union’. 151 However, that argument is based on the incorrect premiss that the Council could freeze the assets of an applicant only if it had received a request to that effect from the Egyptian authorities. On the contrary, the Council had the authority to freeze the assets of all those persons meeting the criteria laid down in Article 1(1) of Decision 2011/172, regardless of whether the situation of those persons was made known by the Egyptian authorities or by other sources. 152 Fourthly, the applicants submitted that the application for judicial assistance described in paragraph 128 above was inaccurate. First of all, there was a reference in the documents annexed to that request to debts of 7 billion Egyptian pounds, when this related to a complaint which the authorities investigated and did not proceed with. Next, the ‘other complaints’ do not relate to misappropriation of public funds, but instead to acts concerning a company in which the Egyptian State held only a minority stake. Those other complaints have also been brought without any supporting evidence. Lastly, those complaints relate to acts committed not by the first applicant but by companies in which he held a majority shareholding. 153 It is true that in the document referred to in paragraph 130 above, it was stated, in the description of the only case concerning the first applicant, namely ‘[Case No] 38 for the year 2011’, that he had refrained from paying his debts amounting to 7 billion Egyptian pounds. However, the applicants fail to produce any evidence to show that that statement is inaccurate. In any event, any inaccuracy in that statement could not in any way affect the outcome of the proceedings. In the light of the considerations set out in paragraphs 137 to 140 above, such an inaccuracy would not be sufficient of its own to prove that, on the basis of the document referred to in paragraph 130 above, the Council was not entitled to characterise the first applicant as being subject to judicial proceedings linked to investigations for misappropriation of State funds. 154 As to the other contentions in paragraph 152 above, these relate, in the applicants’ view, to ‘complaints’ other than that relating to the debt of 7 billion Egyptian pounds mentioned in paragraph 153 above. They thus relate to cases other than ‘[Case No] 38 for the year 2011’ referred to in the document mentioned in paragraph 130 above, cases which the Council did not rely on in order to draw up the contested acts. 155 Fifthly, the applicants submitted that the documents in support of the request for judicial assistance described in paragraph 128 above were incomplete. They argued that the United Kingdom authorities had refused to grant a request seeking to freeze the applicants’ assets, because the Egyptian authorities had given the United Kingdom authorities insufficient information to justify such a measure. 156 However, as has been noted, it must be found that the information provided in the request for judicial assistance and the annexes thereto supports the conclusion that the applicants were subject to judicial proceedings linked to investigations concerning the misappropriation of State funds. In addition, it is important to note that the claim concerning the conduct of the United Kingdom authorities concerns facts extraneous to the present dispute. Such facts are therefore irrelevant to its outcome, all the more so since the applicants do not specify which documents had been sent by the Egyptian authorities to the United Kingdom authorities. 157 The second part of the plea must therefore be rejected in its entirety, with the result that the plea cannot be upheld. 5. The fifth plea, alleging that the rights of the defence and the right to effective judicial protection have been infringed 158 The applicants submit that the rights of the defence and the right to effective judicial protection have been infringed. This plea is in three parts. As regards the first part 159 The applicants state that the evidence on the basis of which their assets were frozen was not communicated to them. 160 Such an argument has no basis in fact. 161 According to the case-law, it is only on the request of the party concerned that the Council is required to provide access to the evidence on the basis of which it froze assets. It would be excessive to require spontaneous communication of such evidence (see, to that effect Case T‑390/08 Bank Melli Iran v Council [2009] ECR II‑3967, paragraph 97). 162 In the present case, the applicants requested the Council to provide them with the evidence on the basis of which Decision 2011/172 and Regulation No 270/2011 had been formulated. As was noted in paragraph 122 above, the applicants’ lawyers stated, by letter of 1 April 2011, that they assumed that Decision 2011/172 and Regulation No 270/2011 had been adopted because of a ‘request [to that effect] from a person or body within Egypt’ and asked the Council to ‘provide a copy of [that] request and supporting documentation’. In addition, it is apparent from paragraph 124 above that, by letter of 13 May 2011, those same lawyers noted that the applicants ‘need[ed] evidence and information [in order to be in a position] to refute the case against them which is said to justify their listing [in the Annex to Decision 2011/172]’. 163 However, it must be stated that the Council complied fully with the applicants’ requests. 164 First, the documents in the file before the Court show that, by a letter of 7 June 2011 referred to in paragraph 123 above, the Council replied to the request of 1 April 2011, stating that it was referring the applicants to a document ‘dated 13 February 2011 from the Egyptian Ministry of Foreign Affairs with a request by the Egyptian Prosecutor General to freeze the assets of certain former Ministers and officials, based on the United Nations Convention against Corruption, and which includes [the first applicant] on the list of persons concerned’. That document dated 13 February 2011 was enclosed with the Council’s letter. 165 Secondly, by a letter of 29 July 2011 referred to in paragraph 125 above, the Council replied, inter alia, to the letter of 13 May 2011. In the letter of 29 July 2011 it referred the applicants’ lawyers not only to the ‘information … already communicated … in the Council’s previous letter of 7 June 2011’, but also to a ‘communication … from the Egyptian Mission to the E[uropean] U[nion] dated 24 February 2011, enclosing a request for judicial assistance from the Egyptian Prosecutor General’. That communication together with the request for judicial assistance, described in paragraphs 126 and 128 above respectively, were enclosed with the Council’s letter of 29 July 2011. 166 Accordingly, the first part of the plea must be rejected. As regards the second part 167 The applicants submit, in their application, that the ground on which their assets were frozen is too vague. In addition, they submit, in their reply, that it was only in the defence that the Council gave the true ground for freezing their assets. Therefore, they were not given an opportunity to challenge that ground properly at the time when Decision 2011/172 and Regulation No 270/2011 were adopted. 168 However, those arguments are based, in any event, on an incorrect premiss. 169 Contrary to the applicants’ arguments, Decision 2011/172 and Regulation No 270/2011 are sufficiently reasoned (see paragraph 116 above). Their reasoning was indeed reproduced by the applicants in their letter of 13 May 2011 to the Council. 170 The second part of the plea must therefore be rejected. As regards the third part 171 First, the applicants state that although they sent the Council various comments by letter of 13 May 2011, the Council failed to respond, in its letter of 29 July 2011, to all of the arguments put forward in their letter. The applicants submit that the Council failed to respond, in particular, either to the comments concerning the political motivation of the prosecution, in Egypt, of the first applicant or to those concerning the breach of the rights of the defence during that prosecution. 172 Secondly, the applicants submit that neither Decision 2011/172 nor Regulation No 270/2011 specify the grounds for the individual freezing measures concerning them and the evidence on which those measures are based must be communicated to them. They add that those acts fail to state that the persons whose assets are frozen must be heard and their views taken into account. Lastly, they submit that Decision 2011/172 and Regulation No 270/2011 ‘provide no procedure for communicating the evidence on which the decision to include the Applicants was based, nor for hearing their response and properly testing the allegations and evidence justifying the decision to list and continue to list the Applicants’. 173 Thirdly, the applicants submit that the grounds for the freezing measures against them were not communicated to them in advance of publication of Decision 2011/172 and Regulation No 270/2011. They also state that they had no prior notice of being the subject of freezing measures. 174 Those arguments cannot succeed. 175 First, neither Decision 2011/172, Regulation No 270/2011 nor any other text or principle requires the Council to respond to each of the submissions made to it by the applicants after Decision 2011/172 and Regulation No 270/2011 were adopted, failing which the individual asset-freezing measures adopted on the basis of the provisions of general scope of those acts are rendered unlawful. Consequently, the mere fact that the Council did not respond specifically to the applicants’ claims that the prosecution, in Egypt, of the first applicant was politically motivated and breached the rights of the defence cannot affect the lawfulness of the proceedings after Decision 2011/172 and Regulation No 270/2011 were adopted, regardless of whether those claims are well founded. 176 Secondly, an initial decision to freeze funds, such as that taken against the applicants by means of the Annex to Decision 2011/172 and Annex I to Regulation No 270/2011, must be able to take advantage of a surprise effect. Accordingly, the Council cannot be required to communicate the grounds for that measure to the person concerned before such a measure is adopted (Kadi and Al Barakaat International Foundation v Council and Commission, cited at paragraph 52 above, paragraph 338). Similarly, the Council is not under an obligation to inform the persons concerned by a measure of that kind of its imminent adoption. 177 Thirdly, as is apparent from the two preceding paragraphs, no provision or principle requires that the EU measures defining the set of rules to be followed by individual asset-freezing measures must include provisions or establish procedures such as those described in paragraph 172 above. 178 Moreover, even if by the arguments in paragraphs 171 to 173 above the applicants also intended to argue, first, that neither the evidence on the basis of which their assets were frozen nor the grounds for that freezing were communicated to them after Decision 2011/172 and Regulation No 270/2011 were adopted, and, secondly, that the Council has not heard the applicants, such a line of argument must be rejected. 179 Firstly, the argument to the effect that the Council failed to communicate the evidence on which it relied must be rejected on the grounds set out in paragraphs 161 to 165 above. 180 Secondly, the principle of the observance of the rights of the defence and the right to an effective remedy guaranteed by the first paragraph of Article 47(1) of the Charter of Fundamental Rights require, as a rule, that the European Union authority which adopts an act imposing restrictive measures in respect of a person or entity communicate the grounds for that act, at least as swiftly as possible after it was adopted, in order to enable those persons or entities to defend their interests or exercise their right to bring an action (see, to that effect, Kadi and Al Barakaat International Foundation v Council and Commission, cited at paragraph 52 above, paragraphs 335 and 336, and Bank Melli Iran v Council, cited at paragraph 161 above, paragraph 92). The Council is, as a rule, required to communicate a decision individually to satisfy that obligation (Case C‑548/09 P Bank Melli Iran v Council [2011] ECR I‑11381, paragraphs 52 and 55). 181 None the less, the fact that the Council has not itself communicated the grounds for an act imposing restrictive measures is not capable of affecting the validity of that act when such a failure did not have the effect of depriving the person or entity concerned of an opportunity of knowing, in good time, the reasons for that act or of assessing its validity (see, to that effect, the judgment in Case C‑548/09 P, Bank Melli Iran v Council, cited at paragraph 180 above, paragraph 55). 182 In the present case, in any event, it is apparent from the wording of the above-mentioned letter from the applicants’ lawyers to the Council on 13 May 2011, and from the application, that the applicants were able to have access to the grounds of Decision 2011/172 and Regulation No 270/2011 in sufficient time in order to be in a position to challenge those acts. In particular they reproduced, on the third page of that letter, part of the grounds of those acts. 183 Thirdly, the natural or legal persons to which an initial decision to freeze their funds applies have the right to be heard by the Council after that decision has been adopted. However, the Council is not required automatically to conduct a hearing (Kadi and Al Barakaat International Foundation v Council and Commission, cited at paragraph 52 above, paragraph 341, and judgment in Case T‑390/08, Bank Melli Iran v Council, cited at paragraph 161 above, paragraph 98). 184 In the present case, it is not apparent from any of the documents in the file before the Court that the applicants, who submitted – in particular by letters of 1 April and 13 May 2011 – their written observations regarding Decision 2011/172 and Regulation No 270/2011, asked to be heard by the Council after those acts were adopted. In those circumstances, the applicants, who did not in any event have any right to be heard before Decision 2011/172 and Regulation No 270/2011 were adopted (Kadi and Al Barakaat International Foundation v Council and Commission, cited at paragraph 52 above, paragraph 341), have no ground for their complaint that they were not heard by the Council. 185 The third part of the fifth plea must be rejected, so that the plea cannot be upheld. 6. The sixth plea in law, alleging infringement of the right to property 186 The applicants allege that the right to property has been infringed. They put forward four sets of arguments in support of that plea. 187 Firstly, they submit that the Council has not demonstrated that a total asset freeze was the least onerous means of ensuring the objective pursued by Decision 2011/172 and Regulation No 270/2011. In the applicants’ view, the freezing of their assets by the Council is therefore disproportionate. In support of their assertion, they add, first of all, that no indication was given of the quantum of assets they were said to have misappropriated. Next, they assert that the freezing of their assets in Egypt is sufficient, since it relates to assets far greater in value than those which they are alleged to have misappropriated. 188 Secondly, the applicants state, in their reply, that the prevention of third parties making economic resources available to them, under Article 1(2) of Decision 2011/172, is illogical, disproportionate and counterproductive to the objective pursued by the Council, namely the recovery, at the end of judicial proceedings in Egypt, of the public funds which may have been misappropriated. 189 Thirdly, the applicants submit that Decision 2011/172 and Regulation No 270/2011 have a marked and long-lasting impact on their reputation, since their effect is not only to freeze all of their assets within the European Union but also to ‘brand’ them as people who have stolen Egyptian assets and are thus enemies of the Egyptian people. 190 Fourthly, the applicants submit that the Council has not demonstrated that a ‘travel ban’ was justified and proportionate. 191 In that regard, the Court finds at the outset that the third set of arguments, stated in paragraph 189 above must, in any event, be rejected. The importance of the aims pursued by Decision 2011/172 and Regulation No 270/2011 is such as to justify their possible – even substantial – negative consequences for the applicants without that affecting their lawfulness (see, to that effect, Case C‑84/95 Bosphorus [1996] ECR I‑3953, paragraph 26, and Case T‑390/08 Bank Melli Iran v Council, cited at paragraph 161 above, paragraph 70). 192 In addition, the fourth set of arguments, stated in paragraph 190 above, is unfounded. Neither Decision 2011/172 nor Regulation No 270/2011 imposes a travel ban on the applicants. 193 In short, only the first two sets of arguments, stated in paragraphs 187 and 188 above, are capable of supporting the plea alleging breach of the right to property. They will therefore be examined below in turn. As regards the first set of arguments 194 Article 17(1) of the Charter of Fundamental Rights provides: ‘Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.’ 195 In the present case, the Council froze, by Decision 2011/172 and Regulation No 270/2011, during a definite period, the assets held, inter alia, by the applicants. Consequently, the Council must be regarded as having limited the exercise, by the applicants, of the right referred to in Article 17(1) of the Charter of Fundamental Rights (see, to that effect, Kadi and Al Barakaat International Foundation v Council and Commission, cited at paragraph 52 above, paragraph 358). However, the right to property, as protected by that article, does not constitute an unfettered prerogative (see, to that effect, Case 4/73 Nold v Commission [1974] ECR 491, paragraph 14, and Kadi and Al Barakaat International Foundation v Council and Commission, cited at paragraph 52 above, paragraph 355) and may therefore be limited, under the conditions laid down in Article 52(1) of the Charter of Fundamental Rights. 196 Article 52(1) of the Charter of Fundamental Rights provides, first, that ‘[an]y limitation on the exercise of the rights and freedoms recognised by [the Charter of Fundamental Rights] must be provided for by law and respect the essence of those rights and freedoms’, and, secondly, that ‘[s]ubject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the [European] Union or the need to protect the rights and freedoms of others’. 197 Consequently, in order to comply with EU law, a limitation on the exercise of the right to property must, in any event, satisfy three conditions. 198 First, the limitation must be ‘provided for by law’ (see, to that effect, Case C‑407/08 P Knauf Gips v Commission [2010] ECR I‑6375, paragraph 91). In other words, the measure in question must have a legal basis. 199 Secondly, the limitation must refer to an objective of general interest, recognised as such by the European Union. Those objectives include those pursued under the CFSP, and referred to in Article 21(2)(b) and (d) TEU, namely supporting democracy, the rule of law and human rights as well as sustainable development of developing countries with the essential objective of eradicating poverty. 200 Thirdly, the limitation may not be excessive: it must be necessary and proportional to the aim sought (see, to that effect, Bosphorus, cited at paragraph 191 above, paragraph 26, and Kadi and Al Barakaat International Foundation v Council and Commission, cited at paragraph 52 above, paragraphs 355 and 360) and the ‘essential content’, that is, the substance, of the right or freedom at issue must not be impaired (see, to that effect, Nold v Commission, cited at paragraph 195 above, paragraph 14, and Kadi and Al Barakaat International Foundation v Council and Commission, cited at paragraph 52 above, paragraph 355). 201 In the present case, each of these conditions is met. 202 First, the limitation on the exercise of the right to property in question must be regarded as ‘provided for by law’, within the meaning of Article 52(1) of the Charter of Fundamental Rights, given that the criteria laid down in Article 1(1) of Decision 2011/172 and in Article 2(1) of Regulation No 270/2011 have been complied with (see paragraphs 99 and 103 above). 203 Secondly, as noted in paragraph 44 above, Decision 2011/172 and the Annex thereto contribute to the attainment of the general interest objectives referred to in Article 21(2)(b) and (d) TEU. The same is true with regard to Regulation No 270/2011 and Annex I thereto, in so far as they reflect the provisions of Decision 2011/172. 204 Thirdly, contrary to the applicants’ claims (see paragraph 187 above), the restriction on their exercise of the right to property is not disproportionate. 205 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 Case C‑189/01 Jippes and Others [2001] ECR I‑5689, paragraph 81, and the judgment of 6 May 2010 in Case T‑388/07 Comune di Napoli v Commission, not published in the ECR, paragraph 143). 206 The measures which the Council took on the basis of Article 1(1) of Decision 2011/172 and Article 2(1) of Regulation No 270/2011 are appropriate in order to achieve the objectives referred to in paragraph 203 above. Those measures assist effectively with establishing misappropriation of State funds to the detriment of the Egyptian authorities and make it easier for those authorities to obtain the restitution of the proceeds of such misappropriation. As is apparent from paragraphs 139 to 141 above, the documents in the file before the Court show that the first applicant was prosecuted in Egypt for conduct which could be categorised as ‘misappropriation of State funds’. 207 In addition, the applicants have not proved that the Council could envisage adopting measures that are less onerous than but equally appropriate as those provided for in Decision 2011/172 and Regulation No 270/2011. 208 In the absence of a judicial decision concerning the merits of the court proceedings in Egypt, the Council could not, when Decision 2011/172 and Regulation No 270/2011 were adopted, know the nature, or itself state the quantum, of any possible misappropriation of Egyptian State funds by the first applicant. It was not therefore in a position to distinguish between, first, the assets likely to have become part of the applicants’ estates following such misappropriation and, secondly, the remainder of the goods comprising their estates. In those circumstances, nothing enabled the Council to assume that the seizure of the applicants’ assets by the Egyptian authorities (see paragraph 132 above) was sufficient to cover any future conviction of the first applicant. 209 Lastly, the disadvantages caused by the asset-freezing measures at issue are not disproportionate to the objectives pursued. In that regard, it must in particular be noted, first, that those measures are by nature temporary and reversible (see paragraph 79 above) and do not therefore infringe the ‘essential content’ of the right to property, and, secondly, that, in accordance with Article 1(3) of Decision 2011/172, they may be derogated from in order to cover ‘basic needs’, legal costs or even the ‘extraordinary expenses’ of the persons concerned. As regards the second set of arguments 210 By the argument referred to in paragraph 188 above, set out for the first time in the reply, the applicants essentially put forward a plea of illegality for the purpose of Article 277 TFEU, to the effect that the prevention of third parties making additional economic resources available to them, pursuant to Article 1(2) of Decision 2011/172, amounts to a disproportionate interference with the right to property. 211 First, in accordance with Article 52(3) of the Charter of Fundamental Rights, Article 17(1) of that charter, which enshrines the right to property, must be interpreted in the light of the ECHR’s case-law on Article 1 of Protocol No 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, which guarantees the right to the peaceful enjoyment of ‘possessions’. 212 Secondly, according to the ECHR’s case-law, Article 1 of Protocol No 1 does not guarantee the right to acquire ‘property’. An applicant can allege a violation of that article only in so far as the impugned decisions relate to his ‘possessions’ within the meaning of that provision. ‘Possessions’ can be either ‘existing possessions’ or ‘assets’, including claims, in respect of which the applicant can argue that he or she has at least a ‘legitimate expectation’ of obtaining effective enjoyment of a property right. Where the proprietary interest is in the nature of a claim it may be regarded as an ‘asset’ only where it has a sufficient basis in law (see Kopecký v. Slovakia [GC], no. 44912/98, §§ 35 and 52 and the case-law cited therein, ECHR 2004–IX). 213 In the present case, it is apparent from Article 1(6) of Decision 2011/172 that Article 1(2) of that decision does not preclude the addition to frozen accounts of interest or other earnings on those accounts or prohibit payments due under contracts, agreements or obligations that were concluded or arose prior to the date on which those accounts were frozen. Consequently, only new payments of funds by third parties which, at the date on which that decision entered into force, were not provided for by a legal act are prohibited by Article 1(2) of Decision 2011/172. 214 If, however, by claiming that that provision was unlawful, the applicants sought to argue that it prevented third parties from making payments due under legal acts predating the entry into force of the freezing of their assets, it must therefore be found that, to that extent, their plea of illegality is based on an incorrect premiss. 215 As to future payments which, when the freezing of assets entered into force, were not provided for by any legal act, the applicants are incorrect to take the view that those payments fall within the scope of Article 17(1) of the Charter of Fundamental Rights. By preventing third parties from making such payments, the Council did not deprive the applicants of any ‘possession’, within the meaning of the ECHR’s case-law referred to in paragraph 212 above. 216 Without having to rule on whether the submission, in the reply, of the argument referred to in paragraph 188 above was out of time (see paragraph 54 above), the Court must therefore reject that argument. 217 Consequently, having also found that the fifth plea in law, alleging infringement of the rights of the defence and of the right to effective judicial protection, had to be rejected, the Court must conclude that the sixth plea in law must also be rejected in its entirety. 7. The seventh plea in law, alleging breach of the freedom to conduct a business 218 Under Article 16 of the Charter of Fundamental Rights, ‘[t]he freedom to conduct a business in accordance with Union law and national laws and practices is recognised’. 219 In the present case, the applicants allege, implicitly, a breach of that provision. In support of that plea, they state that Decision 2011/172 and Regulation No 270/2011 completely prevent them from conducting any business in the European Union. 220 It must be found that the immediate aim of those acts is not to preclude the applicants from conducting such business. 221 In those circumstances, it must be found that, by the arguments referred to in paragraph 218 above, the applicants submit that, in freezing the assets which they had within the territory of the European Union and in preventing third parties from making additional economic resources available to them within the European Union, an indirect consequence of Decision 2011/172 and Regulation No 270/2011 is to prevent them, in practice, from conducting any business in the Union. 222 Even if interpreted in that manner, the seventh plea in law cannot be upheld. 223 As has just been noted, in support of the present plea in law the applicants have not argued that the various prohibitions laid down by Decision 2011/172 and Regulation No 270/2011 prevented them from carrying out business with natural and legal persons situated in the territory of the European Union, while they are resident outside that territory. 224 They have merely alleged that those acts prevented them, in practice, from conducting any business within the European Union. 225 However, the applicants, who are all Egyptian nationals, fail even to establish that they were authorised, before Decision 2011/172 and Regulation No 270/2011 were adopted, to conduct a business in the territory of a Member State as thirdcountry nationals. 226 Consequently, they have no grounds for claiming that Decision 2011/172 and Regulation No 270/2011 had the effect of preventing them from conducting a business in the European Union. 227 Even if the applicants intended to advance the argument referred to in paragraph 223 above, the plea in law would in any event have to have been rejected. 228 It is true that, pursuant to Article 1(2) of Decision 2011/172, third parties are prohibited from making additional economic resources available to the applicants and that that prohibition has indirectly restricted their capacity to enter a business relationship with natural or legal persons resident or having their seat within the European Union. 229 However, first, that restriction, provided for by a provision of general scope of Decision 2011/172, is, as noted in paragraph 202 above, provided for by law. 230 Secondly, that restriction responds to the same general interest objective as that pursued by the freezing of the applicants’ pre-existing assets (see paragraph 203 above). 231 Thirdly, the restriction at issue is not disproportionate. 232 That prohibition is appropriate in the light of the purpose of the contested acts, which is to assist the Egyptian authorities with establishing and recovering the assets from possible misappropriation of State funds. Any change to the asset situation of the applicants stemming from legal acts after Decision 2011/172 is liable to make it more complex, if not impossible, to distinguish between, on the one hand, the assets likely to stem from misappropriation of Egyptian State funds and, on the other, the remainder of the assets making up the applicants’ estates. Consequently, the fact the applicants’ estates cannot be increased by payments arising from matters after Decision 2011/172 is liable to assist with the identification and restitution to the Egyptian authorities of the Egyptian State funds which may have been misappropriated to the benefit of the applicants. 233 Moreover, there are no less onerous measures than the prohibition laid down in Article 1(2) of Decision 2011/172, coupled with the asset-freeze provided for in Article 1(1) of that decision, for freezing the applicants’ estates within the European Union and thereby assisting with the establishment and restitution to the Egyptian authorities of the proceeds of any misappropriation of State funds to the benefit of the applicants. 8. The eighth plea in law, alleging a ‘manifest error of assessment’ 234 The applicants allege that there has been a ‘manifest error of assessment’. They put forward two arguments in support of that plea. 235 By a first argument, they submit that, by listing them in the Annex to Decision 2011/172, the Council did not comply with the criteria set out in Article 1 of that decision and thus made a ‘manifest error of assessment’. 236 However, the fact remains that, although that argument is put forward in support of the present plea, it is identical to the second plea in law, alleging, in particular, the failure to comply with the criteria laid down in Article 1(1) of Decision 2011/172. It must therefore be rejected on the grounds set out in paragraphs 57 to 99 above. 237 By a second argument, the applicants submit that the Council did not apparently seek to ‘assess’ whether they were ‘actually’ ‘responsible’ for misappropriating Egyptian State funds. In so doing, they presuppose that it was for the Council to ascertain whether they were criminally liable for misappropriation of Egyptian State funds. 238 However, as is apparent from paragraph 67 above, such an argument is based on the incorrect premiss that only persons who have been convicted of such offences could be the subject of the freezing of assets in question. 239 The eighth plea in law can therefore only be rejected. 240 It follows from all the foregoing that the action must be dismissed. Costs 241 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 242 Under Article 87(4) of the Rules of Procedure, Member States and institutions which have intervened in the proceedings are to bear their own costs. 243 In the present case, since the applicants have been unsuccessful, they must be ordered to pay the costs. In addition, as an intervening institution, the Commission must bear its own costs. On those grounds, THE GENERAL COURT (Third Chamber) hereby: 1. Dismisses the action; 2. Orders Mr Ahmed Abdelaziz Ezz, Ms Abla Mohammed Fawzi Ali Ahmed, Ms Khadiga Ahmed Ahmed Kamel Yassin and Ms Shahinaz Abdel Azizabdel Wahab Al Naggar to bear their own costs and, in addition, to pay the costs incurred by the Council of the European Union; 3. Orders the European Commission to bear its own costs. Czúcz Labucka Gratsias Delivered in open court in Luxembourg on 27 February 2014. [Signatures] Table of contents Background to the dispute Procedure and forms of order sought Law 1. The first plea in law, alleging that Decision 2011/172 and Regulation No 270/2011 have no legal basis As regards the scope of the applicants’ arguments As regards the plea of illegality raised against Article 1(1) of Decision 2011/172 Meaning and scope of Article 29 TEU Compliance with the provisions of Article 29 TEU As regards the plea of illegality raised against Article 2(1) of Regulation No 270/2011 2. The second plea in law, alleging the failure to observe the criteria whereby certain persons may be listed in the annexes to Decision 2011/172 and Regulation No 270/2011 As regards the criteria for listing in the Annex to Decision 2011/172 As to the need to interpret Article 1(1) of Decision 2011/172 As to the interpretation of Article 1(1) of Decision 2011/172 Whether the interpretation of Decision 2011/172 is compatible with principles or legal rules of a higher order – As regards the principle that provisions laying down administrative penalties must be interpreted strictly – As regards the principle of the presumption of innocence As regards the ground for listing the applicants in the Annex to Decision 2011/172 As regards the need to interpret the ground for listing the applicants in the Annex to Decision 2011/172 As to the interpretation of the ground for listing the applicants in the Annex to Decision 2011/172 As regards compliance with the criteria laid down in Article 1(1) of Decision 2011/172 As regards compliance with the criteria laid down in Article 2(1) of Regulation No 270/2011 3. The third plea in law, alleging breach of the obligation to state reasons 4. The fourth plea in law, alleging errors of fact and in the legal characterisation of the facts As regards the first part of the plea As regards the second part of the plea 5. The fifth plea, alleging that the rights of the defence and the right to effective judicial protection have been infringed As regards the first part As regards the second part As regards the third part 6. The sixth plea in law, alleging infringement of the right to property As regards the first set of arguments As regards the second set of arguments 7. The seventh plea in law, alleging breach of the freedom to conduct a business 8. The eighth plea in law, alleging a ‘manifest error of assessment’ Costs * Language of the case: English.