Judgment;Information — ECLI:EU:T:2022:590
Date: 2022-09-28
Language of the case: English
Court formation: Fifth Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - successful

summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119). 63 It is for the EU judicature, in order to carry out that examination, to request the competent EU authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination (see judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 120 and the case-law cited). By contrast, it is for that competent EU authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded. For that purpose, it is necessary that the information or evidence produced should support the reasons relied on against the person concerned (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 121 and 122). 64 It is in the light of those case-law principles that the Court must establish, first, whether the reason relied on for maintaining the applicant’s name on the lists at issue complied with the general criterion laid down by Decision 2015/1333 and Regulation 2016/44, and, secondly, whether that retention had a sufficiently solid basis. 65 As regards the first plea in law, it should be noted that the applicant’s complaints relate, in essence, to the consistency between the reasons for maintaining the applicant’s name on the lists at issue and the listing criterion, as laid down in Article 9(2)(b) of Decision 2015/1333. In that regard, it should be noted that, as is expressly acknowledged by the Council, that name was maintained on those lists by virtue of that provision and not of Article 9(2)(a) or (d) of that decision. Therefore, the applicant’s arguments, as formulated in the application and concerning the lack of involvement in human rights abuses or attacks against civilian populations or facilities, and the fact that the frozen funds belonging to it or belonging to its subsidiaries have not been misappropriated, must be rejected as ineffective. 66 In addition, it should be borne in mind that Article 9(2)(b) of Decision 2015/1333 provides as follows: ‘All funds, other financial assets and economic resources, owned or controlled, directly or indirectly, by persons and entities: … (b) identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi in Libya, or otherwise formerly associated with that regime, and who pose a continued risk to the peace, stability or security of Libya, or the successful completion of its political transition’. 67 Furthermore, the applicant’s name was included on the list set out in Annex IV to Decision 2015/1333, with the following statement of reasons: ‘Closely associated with the former regime of Muammar Qadhafi.’ 68 The same reason is contained in the corrigendum to Regulation 2016/44 by which the statement of reasons concerning the applicant was brought into line with that set out in Annex IV to Decision 2015/1333 and was also not amended by the contested acts. 69 It is apparent from the reason for maintaining the applicant’s name on the lists at issue that the Council relied solely on the applicant’s close association with the former regime of Muammar Qadhafi. However, Article 9(2)(b) of Decision 2015/1333, unlike that reason, does not refer solely to the applicant’s association with that regime. That provision refers to persons or entities ‘otherwise formerly associated with that regime’, followed by the phrase ‘and who pose a continued risk to the peace, stability or security of Libya, or the successful completion of its political transition’. It is therefore clear from a simple reading of that provision that the listing criterion consists of two cumulative conditions: the person or entity whose name is included on the lists at issue must not only have been associated with the regime in question, but also continue to threaten the peace, stability or security of Libya or the successful completion of its political transition. 70 Accordingly, the reason for maintaining the applicant’s name on the lists at issue is at odds with the general listing criterion, since it does not satisfy the second condition expressly laid down by that criterion, namely that the applicant ‘pose[d] a continued risk to the peace, stability or security of Libya, or the successful completion of its political transition’. 71 Admittedly, the Council, referring to the judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520), argues that the part of the sentence which reads ‘who pose a continued risk to the peace, stability or security of Libya, or the successful completion of its political transition’ reflects merely its political assessment that all persons and entities identified as having been involved in the repressive policies of the former political regime of Muammar Qadhafi in Libya, or having otherwise been formerly associated with that regime, continue to pose such a risk. 72 However, that argument cannot be accepted. It is true that, in paragraph 105 of the judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520), the Court states that it is not for it ‘to call into question the Council’s continuous assessment of the situation in Libya, according to which a threat continues to be posed to the peace, stability or security of Libya and the successful completion of its political transition, inter alia through the exacerbation of current divisions by persons and entities identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi in Libya, or otherwise formerly associated with that regime, and given that most of those persons or entities have not been held accountable for their actions’. 73 However, such a finding relates to the Council’s general assessment of the political situation in Libya and not to a specific reason for including the name of the person concerned on the lists at issue. The Council, in the present case, was therefore under an obligation to ensure that the reason for maintaining the applicant’s name on the lists at issue complied with the general listing criterion laid down in Article 9(2)(b) of Decision 2015/1333. 74 Furthermore, it should be noted that, in paragraph 103 of the judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520), the Court states that ‘the EU judicature must determine whether the facts alleged are made out in the light of [the] information or evidence [in its possession] and assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person concerned’. Next, in paragraph 109 of that judgment, it examines the role of the applicant who, at the time of the adoption of the measures at issue, was the former Chief of Staff of Muammar Qadhafi’s cabinet in Libyan political life. In that regard, the Court notes, in particular, that ‘the applicant acknowledged that, despite his withdrawal from Libyan political life, he was still being consulted by forces present in Libya, precisely because of the very senior positions he had previously occupied and his expertise on Libya’, and concludes, in paragraph 113 of that judgment, that ‘the Council’s assertions that a threat continues to be posed to the peace, stability or security of Libya and the successful completion of its political transition, inter alia through the exacerbation of current divisions by persons and entities identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi in Libya, or otherwise formerly associated with that regime, must be regarded as established’. 75 Ultimately, in the light of the Court’s considerations set out in the judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520), although, in the present case, the Council’s assessment in recital 3 of Decision 2015/1333 that a threat continues to be posed to the peace, stability or security of Libya and the successful completion of its political transition, inter alia through the exacerbation of current divisions by persons and entities identified as having otherwise been associated with the former regime of Muammar Qadhafi, constitutes a political assessment which cannot be called into question by the Court, that did not relieve the Council of its obligation to provide a reason for maintaining the applicant’s name on the lists at issue which satisfies the two conditions laid down cumulatively in Article 9(2)(b) of that decision. In addition, the Council was also under an obligation to establish in the present case, in accordance with the criterion laid down in the latter provision, that the applicant, at the time of the adoption of the contested acts, posed a continued risk to the peace, stability or security of Libya or to the successful completion of its political transition. 76 In the light of the foregoing, and having regard to the finding made in paragraph 70 above, the reason for maintaining the applicant’s name on the lists at issue cannot be regarded as being in compliance with the listing criterion laid down in Article 9(2)(b) of Decision 2015/1333. 77 Secondly, as regards the errors of assessment alleged against the Council, it must be stated that, in the light of the case-law cited in paragraph 59 above, the choice of criteria for inclusion on the lists at issue comes within the Council’s political assessment. Moreover, their lawfulness and the designation of the applicant as meeting those criteria, in so far as it was considered to be closely associated with the former regime of Muammar Qadhafi, can no longer be called into question, since the applicant did not challenge in sufficient time before the EU judicature the 2011 listing measures and the subsequent listing measures, namely Decision 2015/1333 and Regulation 2016/44. 78 However, like the 2011 listing measures, the subsequent listing measures on the basis of which the contested acts were adopted provide, in Article 17(2) and Article 21(6) respectively, for the restrictive measures to be periodically reviewed to enable the Council to take account of any changes in circumstances concerning the individual situation of the persons targeted by those measures. The contested acts represent the outcome of that periodic review. 79 Therefore, and as is apparent from the case-law cited in paragraphs 62 and 74 above, it is necessary to examine whether the decision to maintain the restrictive measures against the applicant pursuant to the contested acts, in so far as it was closely associated with the former regime of Muammar Qadhafi, was taken on a sufficiently solid factual basis. 80 In that regard, it should be noted that the original 2011 measures had been adopted ‘in view of the seriousness of the situation in Libya’, seeking ‘an immediate end to the use of force and for steps to address the legitimate demands of the population’, and because the European Union considered it ‘necessary to impose additional restrictive measures’ to those introduced by the UNSC, as set out in recitals 1 to 5 of Decision 2011/137. 81 Decision 2015/1333 and Regulation 2016/44 were adopted with the aim of consolidating into new legal instruments the restrictive measures imposed by the original 2011 measures, as amended and implemented by several subsequent measures, ‘in view of the specific threat to international peace and security in the region posed by the situation in Libya’. 82 In that regard, it should be noted that, by its letter of 10 December 2018 (see paragraph 26 above), the Council rejected the applicant’s request for the restrictive measures imposed on it to be lifted. It took the view, inter alia, that the applicant’s name had been included on the list set out in Annex IV to Decision 2015/1333 because it was closely associated with the former regime of Muammar Qadhafi, adding that persons and entities identified as having been involved in the repressive policies of that regime, or otherwise formerly associated with it, continued to pose a threat to the peace, stability or security of Libya and the successful completion of its political transition, which justified maintaining that listing. 83 Furthermore, in its letter of 31 July 2019, by which the Council rejected the applicant’s new request, dated 15 May 2019, that its name be removed from the lists at issue, the Council reiterated the same reasoning as that used in its letter of 10 December 2018. It thus replied to the applicant, stating that, in its view, the applicant continued to pose a threat to the peace, stability or security of Libya and to the successful completion of the political transition on account of it being formerly associated with the regime of Muammar Qadhafi. As regards the applicant’s arguments based on the absence of ties with that regime and the fact that it was wholly controlled by the Libyan Government of National Accord, the Council replied by stating that such arguments could not invalidate that assessment, since the applicant was identified as an entity which had been formerly associated with that regime and therefore met the criterion laid down in Article 9(2)(b) of Decision 2015/1333. 84 However, the Council cannot presume merely from the fact that the applicant was ‘closely associated with the former regime of Muammar Qadhafi’ at the time when the acts giving rise to the sanctions against that regime were committed, that it still had ties to that regime after the latter’s fall, or even around 10 years after the adoption of the 2011 listing measures. 85 First of all, the applicant expressly stated in its letter to the Council of 29 October 2018, in which it submitted supporting documents, that, in 2013, the composition of its board of directors had been almost entirely reconstituted in comparison with the period before 2011. In particular, it stated that, following the changes to its board of directors in 2013, only one of the board’s seven members was performing the same functions before 2011. It also cited Article 27 of its articles of association, according to which decisions of the board of directors were taken on the basis of the majority of members present, in order to claim that the vote of the member sitting before 2011 could not influence its decision-making policy. 86 Furthermore, as the applicant submits in the application without being contradicted by the Council, its board of directors was recently appointed, in 2019, by the general assembly of its shareholders, in other words, LAIP. Given that the latter is wholly controlled by LIA, which, in turn, is controlled by the current Libyan Government, it must be stated that the applicant’s board of directors, appointed by that government after the fall of the ‘Qadhafi regime’, does not, by definition, have ties with the ‘former regime of Muammar Qadhafi’. 87 It should be noted that, at the hearing, the Council argued that the current Libyan Government no longer controls the applicant. As the applicant replied at the hearing, without being contradicted by the Council, that is a new argument raised by the Council which is not apparent either from the reasoning of the contested acts or from its written submissions. Under Article 84(1) of the Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. Since the argument put forward by the Council at the hearing is not based on matters of law or of fact which came to light in the course of the procedure, it must be rejected. 88 Consequently, the Council was incorrect to assume, in essence, that the applicant was associated with the former political regime of Muammar Qadhafi solely on the basis that its name was included on the lists at issue in 2011. In the light of the arguments and evidence put forward by the applicant before the Council, the latter should have relied on specific information making it possible to establish that the applicant’s management bodies still maintained such ties with the ‘former regime of Muammar Qadhafi’, despite their appointment, in essence, by the current Libyan Government. 89 Next, it should be noted that Article 9(2)(b) of Decision 2015/1333 which, as the Council has acknowledged, lays down the listing criterion applicable in the present case, provides for the inclusion on the lists at issue of the names of natural or legal persons ‘identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi in Libya, or otherwise formerly associated with that regime, and who pose a continued risk to the peace, stability or security of Libya, or the successful completion of its political transition’. It is clear that, in the light of that criterion, and as noted in paragraph 75 above, the Council should not have merely relied on the applicant’s past association with that regime, but, on the contrary, was required to establish that, at the time of the adoption of the contested acts, the applicant continued to pose a threat to the peace, stability or security of Libya or the successful completion of its political transition. 90 In that regard, recital 3 of Decision 2015/1333 states, along the same lines, that the Council took into consideration the threat that continued to be posed to the peace, stability or security of Libya and the successful completion of its political transition, inter alia through the exacerbation of current divisions by persons and entities identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi in Libya, or otherwise formerly associated with that regime, and given that most of those persons or entities have not been held accountable for their actions. The reference in that recital to ‘the exacerbation of current divisions’ confirms the Council’s obligation to demonstrate that the applicant, which was formerly associated with that regime, still played an active role in exacerbating current social and political divisions in Libya. The current threat to the peace, stability or security of Libya or the successful completion of its political transition was not in any way examined in the present case by the Council, which, on the contrary, relied solely on the applicant’s initial association with the regime in question in order to maintain the applicant’s name on the lists at issue. 91 Lastly, the Council’s reasoning for maintaining the applicant’s name on the lists at issue by the contested acts lacks consistency. The Council contends, in essence, that the mere participation of a natural or legal person in the policies of the former political regime of Muammar Qadhafi or its association with that regime means that it automatically and irrevocably poses a threat to the peace, stability or security of Libya or to the country’s political transition. To accept that position, namely that, once associated with that regime, the applicant still poses a threat to the peace, stability or security of Libya, would lead to its situation being frozen (see, to that effect, judgment of 3 July 2014, Alchaar v Council, T‑203/12, not published, EU:T:2014:602, paragraph 155) and the periodic review provided for by the subsequent listing measures, namely Decision 2015/1333 and Regulation 2016/44, being deprived of any practical effect. 92 It is true that, in its letter of 31 July 2019 (see paragraph 29 above), the Council reiterated its position that the applicant continued to pose a threat on account of its association with the former political regime, stating that that assessment had been confirmed by the Court in its judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520). 93 In the light of the considerations set out in paragraph 75 above, the Council’s argument based on the judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520), must be rejected. Unlike in the present case, the evidence produced by the applicant in the case which gave rise to that judgment was not capable of calling into question the material accuracy of the facts as they had been presented by the Council (paragraph 108 of that judgment). The applicant in that case had even acknowledged that, despite his withdrawal from Libyan political life, he was still being consulted by forces present in Libya, precisely because of the very senior positions he had previously occupied and his expertise on Libya (paragraph 109 of that judgment). 94 In the present case, although the applicant’s association with the former regime of Muammar Qadhafi could justify its designation in the initial and subsequent listing measures, namely Decision 2015/1333 and Regulation 2016/44, the lawfulness of which can no longer be called into question, the Council should, when reviewing the retention of the applicant’s name on the lists at issue, have taken account of the fact that its situation differed from that of the former Chief of Staff of Muammar Qadhafi’s cabinet. 95 In that regard, as has been noted in paragraphs 85 and 86 above, the applicant’s situation changed after the fall of the former regime of Muammar Qadhafi, and indeed since the adoption of the 2011 listing measures and the subsequent listing measures. In particular, while Mr Alsharghawi was, at the time of the subsequent listing measures, still being consulted by forces present in Libya, precisely because of the very senior positions he had previously occupied and his expertise on Libya, the applicant’s current board of directors was appointed by its parent companies which are 100% controlled by the current Government of National Accord. Given that that is the new political regime in Libya, it cannot be ruled out, in the absence of evidence to the contrary put forward by the Council, that the applicant’s current board of directors does not, by definition, have ties to the ‘former regime of Muammar Qadhafi’. 96 In the absence of evidence put forward by the Council to establish that the applicant’s management bodies still maintained such ties with the former regime of Muammar Qadhafi and in view of the evidence put forward by the applicant, in particular the fact that they were appointed indirectly by the current Libyan Government, which makes it possible to distinguish its situation from that of Mr Alsharghawi, it was incorrectly concluded in the contested acts that, at the time of their adoption, the applicant still had ties to that regime. 97 While the Council has a broad discretion in the field of the common foreign and security policy to examine the ongoing situation in Libya and to make the choices it deems appropriate, it must be held that the decision to maintain the restrictive measures against the applicant pursuant to the contested acts, solely on account of its association in 2011 with the former regime of Muammar Qadhafi, was not taken on a sufficiently solid factual basis. The Council merely reiterated the justification for including the applicant’s name on the lists at issue, without refuting, in its review of that listing before the adoption of the contested acts, the information in its possession and the changes relied on by the applicant concerning its factual and individual situation. 98 In the light of all the foregoing considerations, the applicant’s complaints that the contested acts have no factual basis that would justify maintaining its name on the lists at issue are well founded. 99 Therefore, in the light of the conclusions in paragraphs 76 and 98 above, the first and third pleas in law must be upheld and, consequently, the contested acts must be annulled in so far as they concern the applicant. The Council’s alternative claim that the effects of Decision 2021/1251 should be maintained 100 Following the modification of the application, the Council requests, in the alternative, that, in the event that the 2021 measures were to be annulled in part, the effects of Decision 2021/1251 be maintained until the annulment in part of Implementing Regulation 2021/1241 takes effect. In that regard, the Council contends that the annulment of the contested acts would result in the immediate disappearance of the applicant’s name from the list set out in Annex IV to Decision 2015/1333. According to the Council, the existence of a difference between the effective date of the annulment in part of Implementing Regulation 2021/1241 and that of the annulment in part of Decision 2021/1251 would likely jeopardise legal certainty, since those acts provide for measures which are identical in substance. 101 The applicant argues that the Council’s request to defer the effects of the annulment is disproportionate and unreasonable, since the contested acts are incompatible with a number of general principles of EU law, they are devoid of any individual and in concreto statement of reasons and, lastly, the applicant itself is not subject to restrictive measures taken by the UNSC. 102 Under the first paragraph of Article 60 of the Statute of the Court of Justice of the European Union, an appeal is not to have suspensory effect. The second paragraph of that article provides, however, that, by way of derogation from Article 280 TFEU, decisions of the General Court declaring a regulation to be void are to take effect only as from the date of expiry of the period for bringing an appeal or, if an appeal has been brought within that period, as from the date of its dismissal. 103 In the present case, Implementing Regulation 2021/1241 has the nature of a regulation, since it provides that it is to be binding in its entirety and directly applicable in all Member States, which corresponds to the effects of a regulation as provided for in Article 288 TFEU (see, to that effect, judgment of 21 April 2016, Council v Bank Saderat Iran, C‑200/13 P, EU:C:2016:284, paragraph 121). 104 Therefore, the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union is applicable in the present case (see, by analogy, judgment of 21 April 2016, Council v Bank Saderat Iran, C‑200/13 P, EU:C:2016:284, paragraph 122). 105 Finally, as regards the temporal effects of the annulment of Decision 2021/1251, it should be noted that, under the second paragraph of Article 264 TFEU, the General Court may, if it considers it necessary, state which of the effects of the act which it has declared void are to be considered as definitive. 106 In the present case, a difference between the date when the annulment of Implementing Regulation 2021/1241 takes effect and that of Decision 2021/1251 would be liable seriously to jeopardise legal certainty, since both acts impose identical measures on the applicant (see, to that effect, judgment of 21 February 2018, Klyuyev v Council, T‑731/15, EU:T:2018:90, paragraph 263). The effects of Decision 2021/1251 must therefore be maintained in respect of the applicant until the annulment of Implementing Regulation 2021/1241 takes effect. Costs 107 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby: 1. Annuls Council Implementing Decision (CFSP) 2020/1137 of 30 July 2020 implementing Decision (CFSP) 2015/1333 concerning restrictive measures in view of the situation in Libya and Council Decision (CFSP) 2021/1251 of 29 July 2021 amending Decision (CFSP) 2015/1333 concerning restrictive measures in view of the situation in Libya in so far as they maintain the name of Libyan African Investment Company (LAICO) on the list of entities set out in Annex IV to Council Decision (CFSP) 2015/1333 of 31 July 2015 concerning restrictive measures in view of the situation in Libya, and repealing Decision 2011/137/CFSP; 2. Annuls Council Implementing Regulation (EU) 2020/1130 of 30 July 2020 implementing Article 21(2) of Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya and Council Implementing Regulation (EU) 2021/1241 of 29 July 2021 implementing Article 21(2) of Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya and repealing Regulation (EU) No 204/2011 in so far as they maintain the name of LAICO on the list of entities set out in Annex III to Council Regulation (EU) 2016/44 of 18 January 2016 concerning restrictive measures in view of the situation in Libya and repealing Regulation (EU) No 204/2011; 3. Orders the effects of Article 1 of Decision 2021/1251 to be maintained in respect of LAICO until the date of expiry of the period for bringing an appeal, as provided for in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union, or, if an appeal is brought within that period, until the date of any dismissal of that appeal; 4. Orders the Council of the European Union to pay the costs. Spielmann Öberg Mastroianni Delivered in open court in Luxembourg on 28 September 2022. E. Coulon S. Papasavvas Registrar President * Language of the case: English.