Judgment — ECLI:EU:T:2014:926
Date: 2014-11-05
Language of the case: French
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - unfounded;Action for annulment - decision unnecessary

Summary — Judgment of the General Court (Ninth Chamber, Extended Composition), 5 November 2014 1. Judicial proceedings — Decision or regulation replacing the contested measure in the course of proceedings — New factor — Admissibility of new pleas (Art. 263, sixth para., TFEU; Rules of Procedure of the General Court, Art. 48(2); Council Decisions 2012/739/CFSP and 2013/255/CFSP) 2. Judicial proceedings — Measures repealing and replacing the contested measure in the course of proceedings — Application to amend pleas for annulment formulated in the course of the proceedings — Time-limit for the submission of such an application — Point from which time starts to run — Date of communication of the new measure to the persons concerned — Obligation to communicate even where there are no new grounds (Art. 263, sixth para., TFEU; Council Regulations No 36/2012, Art. 32(1) and (2), and No 363/2013) 3. Actions for annulment — Time-limits — Point from which time starts to run — Measure entailing restrictive measures against a person or body — Measure published and notified to the addressees — Date of notification of the measure — Notification to the person concerned by means of a publication in the Official Journal of the European Union — Lawfulness — Conditions — Council unable to effect notification (Arts 263, sixth para., TFEU and 275, second para., TFEU; Rules of Procedure of the General Court, Art. 102(1); Council Regulations No 36/2012, Art. 32(1) and (2), and No 363/2013) 4. Actions for annulment — Time-limits — Point from which time starts to run — Notification — Concept — Notification to an applicant’s representative — Condition (Art. 263, sixth para., TFEU) 5. Acts of the institutions — Statement of reasons — Obligation — Scope — Restrictive measures against Syria — Prohibition of entry and transit and freezing of funds of certain persons and entities responsible for violent repression against the civilian population — Obligation to communicate the reasoning to the person concerned at the same time as the measure adversely affecting him or immediately thereafter — Correction of an error of reasoning during the proceedings before the Court — Not permissible (Art. 296, second para., TFEU; Council Decisions 2011/782/CFSP, 2012/256/CFSP, 2012/739/CFSP and 2013/255/CSFP; Council Regulations No 36/2012, No 410/2012, and No 363/2013) 6. Acts of the institutions — Statement of reasons — Obligation — Scope — Restrictive measures against Syria — Prohibition of entry and transit and freezing of funds of certain persons and entities responsible for violent repression against the civilian population — Obligation to communicate the reasoning to the person concerned at the same time as the measure adversely affecting him or immediately thereafter — Limits — Safety of the Union and the Member States or conduct of their international relations — Decision falling within a context known to the person concerned, enabling him to understand the scope of the measure taken against him — Whether a summary statement of reasons is sufficient (Art. 296, second para., TFEU; Council Decisions 2011/782/CFSP, 2012/256/CFSP, 2012/739/CFSP and 2013/255/CFSP; Council Regulations No 36/2012, No 410/2012, and No 363/2013) 7. Actions for annulment — Grounds — Lack of or inadequate statement of reasons — Separate ground from that concerning substantive legality (Arts 263 TFEU and 296 TFEU) 8. EU law — Principles — Rights of defence — Right to be heard — Right to a fair trial and effective judicial protection — Prohibition of entry and transit and freezing of funds of certain persons and entities responsible for violent repression against the civilian population in Syria — Such persons and entities not notified of the evidence against them or given a hearing — Lawfulness (Art. 6(1) TEU; Charter of Fundamental Rights of the European Union, Arts 41(2)(a), and 47; Council Decisions 2011/782/CFSP, 2012/256/CFSP, 2012/739/CFSP, 2013/255/CFSP; Council Regulations No 36/2012 and No 410/2012) 9. Common foreign and security policy — Restrictive measures against Syria — Prohibition of entry and transit and freezing of funds of certain persons and entities responsible for violent repression against the civilian population — Rights of defence — Disclosure of inculpatory evidence — Subsequent decision maintaining the name of the applicant on the list of persons covered by those measures — No new grounds — No infringement of the right to be heard (Council Decisions 2012/739/CFSP and 2013/255/CFSP; Council Regulation No 363/2013) 10. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Restrictive measures taken against Syria in response to violent repression of the civilian population — Act adopting or maintaining such measures — No communication to the applicant — Irrelevant unless established that the applicant’s rights thereby infringed (Art. 263, fourth para., TFEU) 11. European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures against Syria — Prohibition of entry and transit and freezing of funds of certain persons and entities responsible for violent repression against the civilian population — Judicial review — Scope — Restricted review for general rules — Review extending to the assessment of facts and verification of evidence for measures applying to specific entities (Art. 29 TEU; Art. 215(2) TFEU; Council Decisions 2012/256/CFSP, 2012/739/CFSP and 2013/255/CFSP; Council Regulations No 410/2012 and No 363/2013) 12. Common foreign and security policy — Restrictive measures against Syria — Prohibition of entry and transit and freezing of funds of certain persons and entities responsible for violent repression against the civilian population — Support for the regime — Concept — Any form of support — Functions conferring managerial power over an entity covered by the restrictive measures — Governor of the Central Bank of Syria whose role includes serving as banker to the Government of that country — Included — No breach of principle of proportionality (Council Decisions 2011/782/CFSP, Arts 18(1), and 19(1), 2012/256/CFSP, 2012/739/CFSP, Arts 24(1), and 25(1), and 2013/255/CFSP, Arts 27(1), and 28(1)) 13. EU law — Principles — Proportionality — Whether measure proportionate to its aim — Criteria for assessment 14. Common foreign and security policy — Restrictive measures against Syria — Prohibition of entry and transit and freezing of funds of certain persons and entities responsible for violent repression against the civilian population — Restriction of the right to property — No breach of principle of proportionality (Charter of Fundamental Rights of the European Union, Art. 17; Council Decisions 2011/782/CFSP, Art. 19(3) to (7); and 2012/739/CFSP, Art. 25(3) to (11), and 2013/255/CFSP, Art. 28(3) to (11); Council Regulation No 36/2012, Arts 16 to 18) 15. Common foreign and security policy — Restrictive measures against Syria — Prohibition of entry and transit and freezing of funds of certain persons and entities responsible for violent repression against the civilian population — Restriction of the right to respect for private life and free movement within the Union — No breach of principle of proportionality (Art. 21(1) TFEU; Charter of Fundamental Rights of the European Union, Art. 7; European Parliament and Council Directive 2004/38, Art. 27; Council Decisions 2011/782/CFSP, Art. 18(2), 2012/739/CFSP, Art. 24(2), and 2013/255/CFSP, Art. 27(2)) 1. See the text of the decision. (see paras 47-49) 2. See the text of the decision. (see paras 56-58) 3. See the text of the decision. (see paras 59-66) 4. Where an act must be notified in order for the period for bringing proceedings to begin to run, it must in principle be sent to the addressee of the act, and not to the lawyers representing him. Notification to an applicant’s representative amounts to notification to the addressee only where such a form of notification is expressly provided for in the legislation or by agreement between the parties. (see para. 74) 5. See the text of the decision. (see para. 85) 6. See the text of the decision. (see paras 86-88, 93, 94) 7. See the text of the decision. (see para. 96) 8. See the text of the decision. (see paras 102, 103, 110-113, 120) 9. In the context of the adoption of Decision 2012/739, Implementing Regulation No 363/2013 and Decision 2013/255, concerning restrictive measures against Syria, which are subsequent acts that maintained the applicant’s name on the lists of names of persons subject to restrictive measures, the argument that the measures must have a surprise effect cannot in principle be legitimately relied on. None the less, the right to be heard prior to the adoption of acts maintaining restrictive measures in respect of persons already covered by them presupposes that the Council has admitted new evidence against those persons. Inasmuch as the Council, when maintaining the applicant’s name on the lists of persons covered by the restrictive measures against Syria, did not admit new evidence that had not already been communicated to the applicant following the adoption of the acts first placing him on the lists at issue, and the applicant has not used the opportunity to submit his observations to the Council on his own initiative, without a fresh invitation being expressly formulated prior to the adoption of each subsequent act, in the absence of new evidence admitted with respect to him, the applicant has had the opportunity over several months to submit his observations to the Council and to challenge the merits of the reasons, as indicated with sufficient clarity in the contested acts, that resulted in his being included and maintained on the lists of persons covered by the restrictive measures. There has therefore been no breach of the applicant’s right to be heard. (see paras 114-119, 123) 10. See the text of the decision. (see para. 122) 11. See the text of the decision. (see paras 127-129) 12. With regard to restrictive measures taken against persons supporting the Syrian regime, whilst the concept of ‘support for the regime’ is not defined in the relevant provisions, namely Article 18(1) and Article 19(1) of Decision 2011/782, Article 24(1) and Article 25(1) of Decision 2012/739 and Article 27(1) and 28(1) of Decision 2013/255, there is no ground on which to conclude that only persons supporting the Syrian regime for the precise purpose of enabling it to pursue its repressive activities against the civilian population might be covered by restrictive measures. Since it is impossible for the Council to ascertain the purposes for which resources provided to that regime are used, it was necessary to adopt measures applicable to any form of support. In that regard, a person exercising functions which confer on him the power to manage an entity covered by restrictive measures may, as a general rule, himself be considered to be involved in the activities that justified the adoption of the restrictive measures covering the entity in question. The Council may therefore, without committing a breach of the principle of proportionality, rely on a person’s functions, in this case Governor of the Central Bank of Syria whose role includes serving as banker to the Government of that country, in order to take the view that he is in a position of power and influence with respect to the financial support of the Syrian regime supplied by the Central Bank of Syria, and thus also legitimately take the view that the adoption of restrictive measures against that person is likely to contribute to putting pressure on that regime that might put an end to, or attenuate, the repression against the civilian population. The Council initiated restrictive measures against Syria in response to the violent repression by the authorities of that country against the civilian population. If the restrictive measures at issue were aimed only at those in charge of the Syrian regime, and not also the persons supporting that regime, the attainment of the objectives pursued by the Council could have been frustrated, as those in charge of the regime could easily obtain the support, in particular the financial support, which they needed in order to continue that repression, through other persons holding senior managerial posts within the principal institutions of the Syrian State. Moreover, it is necessary to take into account the importance for the European Union of the objective of maintaining peace and international security and also of protecting the civilian population. (see paras 135-137, 143, 147, 148) 13. See the text of the decision. (see para. 146) 14. Measures relating to the freezing of the funds, financial assets and other economic resources of the persons identified as supporting the Syrian regime imposed by the contested acts are temporary precautionary measures and are not supposed to deprive the persons concerned of their property. However, the measures in question undeniably entail a restriction of the exercise of the right to property. Those measures are provided for by law, since they are set out in acts of general application and have a clear legal basis in European Law and since they are also formulated in sufficiently precise terms as regards their scope and the reasons showing why they apply to the applicant. As regards the appropriateness of the measures at issue, with reference to an objective of general interest as fundamental to the international community as the protection of civilian populations and the maintenance of peace and international security, those measures cannot be regarded as inappropriate. As regards the necessity of the measures, the alternative and less restrictive measures, such as a system of prior authorisation or an obligation to justify, a posteriori, how the funds transferred were used, are not as effective in achieving the goal pursued, namely the application of pressure on those supporting the Syrian regime, having regard in particular to the possibility of circumventing the restrictions imposed. In addition, Article 19(3) to (7) of Decision 2011/782, Article 25(3) to (11) of Decision 2012/739, Article 28(3) to (11) of Decision 2013/255 and Articles 16 to 18 of Regulation No 36/2012 provide for the possibility, first, to authorise the use of frozen funds to satisfy basic needs or meet certain commitments and, second, to grant specific authorisations for the release of certain funds, financial assets or other economic resources. Lastly, maintenance of the applicant’s name on the lists annexed to the measures in question is periodically examined with a view to ensuring that persons and entities who no longer meet the criteria for inclusion on that list are removed from it. (see paras 172, 175-181) 15. As regards alleged infringement of the right to respect for private and family life and the restriction on access to the territory of the Member State of which the applicant is a national, and on free movement within the Union, the special provisions concerning nationals, namely Article 18(2) of Decision 2011/782, Article 24(2) of Decision 2012/739 and Article 27(2) of Decision 2013/255, concerning restrictive measures against Syria, recognise the exclusive competence of the Member States as regards application of the restrictions in question to their own nationals. It follows that, as regards a person who, in addition to Syrian nationality, has the nationality of a Member State, EU law does not require the authorities of the said State to refuse him access to its territory. However, a citizen of a Member State, and therefore also of the Union, whose name is on the lists of persons covered by the provisions on restrictions on entry comes within the scope of those provisions in so far as Member States other than that of which he is a national are concerned. With respect to those citizens, those Member States are required to apply the restrictions in question in relation to their respective territories. The provisions relating to nationals apply only to the territory of the Member State of which such a person is a national. Moreover, the right of EU citizens to free movement is not unconditional. In accordance with the reservation expressed in the second part of Article 21(1) TFEU, by adopting acts coming within the common foreign and security policy, the Council is in principle entitled to limit an applicant’s right to freedom of movement within the European Union in compliance with the principle of proportionality, considerations regarding the appropriate, necessary and temporary nature of the measures relating to the freezing of funds being applicable by analogy to the provisions on restrictions on entry. Moreover, the provisions on restrictions on entry, in that they apply to citizens of the Union, must be regarded as constituting a lex specialis in relation to Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation No 1612/68 and repealing Directives 64/221, 68/360, 72/194, 73/148, 75/34, 75/35, 90/364, 90/365 and 93/96, so that those provisions take precedence over the latter in the situations that they specifically seek to regulate. That lex specialis, moreover, merely reflects, at a common level and in a particular context, restrictions on freedom of movement which the Member States individually may apply to certain persons, in accordance with Article 27 of Decision 2004/38. That directive does not confer on citizens of the Union an unconditional right to freedom of movement in the Union, but allows Member States to restrict that freedom on grounds, in particular, of public policy or public security, in accordance with the principle of proportionality. (see paras 172, 185, 186, 190, 191, 194-199)