Judgment — ECLI:EU:T:2016:459
Date: 2016-09-09
Language of the case: English
Court formation: Seventh Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - successful

summary of reasons underlying that decision, with the consequence that judicial review is not to be restricted to assessment of the cogency in the abstract of the reasons relied upon, but must deal with the question whether those reasons, or, at the very least, one of them, deemed sufficient in itself to support that decision, have or has been 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). 41 To that end, it is for the Courts of the European Union to carry out that examination, requesting the competent EU authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination. That is because it is the task of the competent European Union authority to establish, in the event of challenge, that the reasons relied upon against the person concerned are well founded, and not the task of that person to adduce evidence to the contrary, showing that those reasons are not well founded. There is no requirement that that authority should produce before the Courts of the European Union all the information and evidence inherent in the reasons alleged in the measures whose annulment is sought. It is, however, necessary that the information or evidence produced should support the reasons relied upon against the person concerned (see judgment of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraphs 65 to 67). 42 Furthermore, the validity of the inclusion of the applicant’s name in the lists set out in the annexes to the contested measures must be determined by assessing whether the situation of the applicant constitutes sufficient proof that the latter provides economic support for the Syrian regime or that it benefits from the policies pursued by the regime. Such an appraisal must be carried out by examining the evidence, not in isolation, but in the context to which it belongs. The Council discharges the burden of proof it bears if it produces before the Courts of the European Union a set of indicia sufficiently specific, precise and consistent to establish that there is a sufficient link between the person subject to a measure freezing his funds and the regime being combated (see judgment of 21 April 2015, Anbouba v Council, C‑630/13P, EU:C:2015:247, paragraphs 51 and 53 and the case-law cited). 43 First of all, it must be borne in mind that the legality of the contested measures may be assessed only on the basis of the elements of fact and of law on which they were adopted and not on the basis of information brought to the Council’s knowledge after the adoption of those measures (judgment of 26 October 2012, Oil Turbo Compressor v Council, T‑63/12, EU:T:2012:579, paragraph 29). 44 It is in light of those considerations that it is to be ascertained whether the Council was entitled to hold, when adopting the contested measures, that restrictive measures might be imposed on the applicant. 45 It should be noted at the outset that Council documents 13191/14, 13191/14 COR 1, 13192/14 and 13192/14 COR 1, of 25 September 2014, relating to the measures adopted on 26 September 2014, and document Coreu/CFSP/141/14 of 24 October 2014 as well, were drawn up after the contested measures had been adopted. On that basis, in accordance with the case-law referred to in paragraph 43 above, the Council may not legitimately rely upon those documents in order to justify the inclusion of the applicant’s name in the lists set out in the annexes to the contested measures. 46 In the present case, it must be held that the documents submitted by the Council are not sufficient to support the allegations against the applicant. 47 Documents 11875/14, 11975/14 and 11877/14 are internal Council documents whose purpose is to serve as preparatory documents for the contested measures and that repeat strictly the statement of reasons adopted therein. They do not, therefore, contain any additional information relating to the statement of reasons for the contested measures. 48 It should also be stated that the reports submitted by the Council do not make it possible to substantiate the grounds for listing raised against the applicant. In that regard, it should be noted that the report prepared by the consultancy Wood MacKenzie, to which the Council refers, consists of a one-page extract relating to the refinery in Banias (Syria), and refers neither to any shipment of oil nor to the applicant. In addition, that single page is a brief extract of the report, making it possible to determine neither the author nor the general contents thereof. The same is true of the MEICA report in which the state of the oil and gas sector in Syria in 2013 is presented, but without any reference to covert shipments of oil being made, or to the applicant’s name. 49 Moreover, it must be held that no factual element in the Reuters articles is borne out by other evidence. First, it should be noted that the Reuters articles do not mention the applicant’s name, but that of its parent company. 50 Secondly, with respect to the oil shipments made in 2012, it should be noted that the 2012 article referred to three LPG shipments made by the applicant’s parent company. However, the grounds for including the applicant’s name in the lists set out in the annexes to the contested measures relate to the transport of oil and not of gas. Therefore, the elements set out in the 2012 article do not constitute evidence capable of substantiating the allegations made against the applicant. 51 Thirdly, with respect to the oil shipments made in 2013, the 2013 article refers to a transaction made on 24 May 2013 between the applicant’s parent company and OPT, in respect of the transport of a shipment of oil to Syria. It should be noted, first of all, that the applicant acknowledges that the transaction in question was conducted by its parent company. In the annex to the reply, it adduced evidence that the transaction had been concluded between its parent company and Matra and that the destination of the oil shipment stated in the contract was the port of Constanta (Romania). In addition, it should be noted that it is apparent from that contract and KPMG’s letter of 6 February 2014 that the transaction was a sale made ‘free on board’ in which the costs and liabilities for the shipment of the cargo were to be met by the buyer. The applicant cannot therefore be held liable in law for events occurring after the delivery of the shipment. Next, it should be noted that, in its statement of reasons, the Council refers to the shipment of oil, without specifying the number of shipments or the quantities of oil shipped. Regardless of the volume and amount of the transaction, that single shipment is insufficient to establish the validity of the inclusion of the applicant’s name in the lists set out in the annexes to the contested measures. Finally, the concept of ‘covert shipments’ involves, at the very least, the willing participation of the applicant. It must be stated, however, that the Council has adduced no evidence making it possible to conclude that the applicant had willingly participated. Accordingly, the matters set out in the 2013 article do not make it possible to substantiate, to the requisite legal standard, the allegations made against the applicant. 52 Fourthly, the Court cannot accept the argument expounded by the Council in the rejoinder that the applicant ought to have known that OPT and Matra were a single company. It should be noted that the Council was not in a position to rely upon such evidence on the date of the listing of the applicant’s name in the annexes to the contested measures, given that that evidence emerged after the listing during the investigation. Accepting that argument would thus be contrary to the case-law set out in paragraph 43 above. In addition, the Council’s argument that the applicant ought to have been more diligent in respect of OPT following the publication of the 2012 article must be dismissed. As is apparent from the file, OPT’s name was not included in the lists at issue at the time of the transaction in 2013, and was included only from the time of the adoption of the contested measures. Accordingly, the Council may not criticise the applicant for having potentially maintained business relations with a company whose name was not included in the lists in question at the date of the facts at issue. 53 Similarly, the Council’s argument that the applicant’s conduct constitutes reluctance to cooperate must also be dismissed. As was noted in paragraph 41 above, the burden of proving conduct capable of justifying the inclusion of the applicant’s name in the lists set out in the annexes to the contested measures is borne by the Council, with the result that it is not for the applicant to adduce evidence to the contrary, showing that those reasons are not well founded. Accordingly, the Council may not merely assert certain facts without supporting them with evidence. 54 Therefore, as is apparent from paragraphs 47 to 53 above, it must be stated that, viewed as a whole, the evidence presented in the present case by the Council does not constitute a set of indicia sufficiently specific, precise and consistent, within the meaning of the case-law cited in paragraph 42 above, to establish to the requisite legal standard the merits of the allegations made against the applicant. 55 Accordingly, the inclusion of the applicant’s name in the lists set out in the annexes to the contested measures must be regarded as vitiated by an error of assessment. 56 In the light of all the foregoing, the contested acts must be annulled, in so far as they concern the applicant, without it being necessary to examine the other pleas in law raised by the applicant in support of the action. Costs 57 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 applicant has applied for costs and the Council has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the applicant. On those grounds, THE GENERAL COURT (Seventh Chamber) hereby: 1. Annuls Council Implementing Decision 2014/488/CFSP of 22 July 2014 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria, and Council Implementing Regulation (EU) No 793/2014 of 22 July 2014 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, in so far as they concern Tri-Ocean Trading; 2. Orders the Council of the European Union to bear its own costs and to pay the costs incurred by Tri-Ocean Trading. Van der Woude Wiszniewska-Białecka Ulloa Rubio Delivered in open court in Luxembourg on 9 September 2016. [Signatures] * Language of the case: English.