Judgment — ECLI:EU:T:2014:948
Date: 2014-11-13
Language of the case: French
Court formation: Seventh Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible

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 (see Joined Cases C‑584/10 P, C‑593/10 P and C‑595/10 P Commission and Others v Kadi [2013] ECR, ‘Kadi II’, paragraph 119). 81 It is the task of the competent European Union 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. It is necessary that the information or evidence produced by the authority in question should support the reasons relied on against the person concerned. If that material is insufficient to allow a finding that a reason is well founded, the Courts of the European Union shall disregard that reason as a possible basis for the contested decision to list or maintain a listing (Kadi II, paragraphs 121 to 123). 82 In the present case, it must be stated, first of all, that the only evidence adduced by the Council to justify the inclusion of the applicant’s name on the list in question comprises extracts from a document dated 25 July 2011 bearing the reference ‘Coreu CFSP/0317/11’ (Council document 5044/12). That document contains the same brief statement of reasons as the contested acts, namely, inter alia, that the applicant was associated with Maher Al-Assad in the context of the Shabiha militia and directly participated in the repression by supporting the Shabiha militia. The Council does not, therefore, adduce any other evidence capable of supporting, or even suggesting, the existence of a link between the applicant and Maher Al-Assad. 83 Secondly, the Council produced — as annexes to its pleadings — articles published on various websites relating to the Shabiha militia in order to demonstrate the links between the applicant and that militia, in particular, the Wikipedia website, the official website of the Muslim Brotherhood and the Saada Syria Forums website. Irrespective of whether this information is reliable and was actually taken into account by the Council when the contested acts were adopted, the fact remains that only two of these items briefly refer to the applicant’s name and none of them provide sufficiently substantiated information about the applicant and his involvement in the Shabiha militia. 84 In answer to a question put by the Court during the hearing, the Council was unable to adduce any additional evidence capable of substantiating the links between the applicant and, of the one part, Maher-Al-Assad and, of the other part, the Shabiha militia. 85 Consequently, the evidence provided by the Council does not contain any indicia capable of supporting its claims that the applicant has links with Maher Al-Assad in the context of the Shabiha militia and is directly involved in the repression and violence against the civilian population and in the coordination of the groups forming part of that militia. 86 It follows that the Council has not discharged its burden of proof under Article 47 of the Charter of Fundamental Rights, as interpreted by the Court of Justice in Kadi II. 87 Therefore, it is appropriate to uphold the third complaint relied on by the applicant in support of his first plea in law and annul the contested acts in so far as they concern the applicant, without there being any need to examine the other pleas put forward in support of this action. The temporal effects of the annulment of the contested acts 88 Under the second paragraph of Article 264 TFEU, the Court may, if it considers this necessary, state which of the effects of the act which it has declared void shall be considered as definitive. The case-law shows that this provision enables the European Union Courts to decide the date when its annulling judgments are to take effect (see Case T‑58/12 Nabipour and Others v Council [2013] ECR, paragraphs 250 and 251 and the case-law cited). 89 In the present case, the Court considers, for the reasons set out below, that it is necessary to maintain the temporal effects of the contested acts until the date of expiry of the period for bringing an appeal laid down in the first paragraph of Article 56 of the Statute of the Court or, if an appeal has been brought within that period, until the dismissal of the appeal. 90 It should be remembered that the European Union adopted restrictive measures against Syria because of the repression of the civilian population in that country and that those measures thus pursue humanitarian and pacific objectives. 91 Therefore, the applicant’s interest in ensuring that the present annulling judgment should take effect immediately must be weighed against the public interest objective pursued by the European Union’s policy in relation to restrictive measures against Syria. The adjustment of the temporal effects of the annulment of a restrictive measure may thus be justified by the need to ensure the effectiveness of the restrictive measures and, in short, by overriding considerations to do with the conduct of the international relations of the European Union and its Member States. 92 The annulment with immediate effect of the contested acts in so far as they concern the applicant would enable the applicant to transfer all or part of his assets outside the European Union, without the Council being able, where appropriate, to apply in good time Article 266 TFEU with a view to correcting the irregularities identified in this judgment, and consequently the effectiveness of any freezing of assets in relation to the applicant which might, in the future, be decided on by the Council might be seriously and irreversibly prejudiced. 93 As regards the application of Article 266 TFEU in this case, it must be observed that the annulment by this judgment of the inclusion of the applicant’s name on the lists in question stems from the fact that the reasons stated for that listing are not supported by sufficient evidence (see paragraphs 82 to 86 above). Although it is for the Council to decide on what measures to adopt to comply with this judgment, a further listing of the applicant cannot automatically be ruled out. In the course of a further review, the Council has the possibility of again listing the applicant on the basis of reasons which are supported to the requisite legal standard. 94 It follows that the effects of the annulled decisions and regulations must be maintained as regards the applicant, until the date of expiry of the period for bringing an appeal or, if an appeal is brought within that period, until the dismissal of the appeal. Costs 95 Under the first subparagraph of Article 87(2) 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. However, pursuant to Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the Court may order that the costs be shared or that each party is to bear its own costs. 96 In this case, since the parties have succeeded on some and failed on other heads, a decision that the Council will bear its own costs and one third of the applicant’s costs will constitute a fair application of that provision. On those grounds, THE GENERAL COURT (Seventh Chamber) hereby: 1. Dismisses the action as being inadmissible, because out of time, in so far as it seeks the annulment of Council Implementing Decision 2011/488/CFSP of 1 August 2011 implementing Decision 2011/273/CFSP concerning restrictive measures against Syria, and Council Implementing Regulation (EU) No 755/2011 of 1 August 2011 implementing Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria; 2. Dismisses the action as being inadmissible in so far as it seeks the annulment of Council Decision 2011/273/CFSP of 9 May 2011 concerning restrictive measures against Syria, Council Regulation (EU) No 442/2011 of 9 May 2011 concerning restrictive measures in view of the situation in Syria, Council Implementing Decision 2011/302/CFSP of 23 May 2011 implementing Decision 2011/273, Council Implementing Decision 2011/367/CFSP of 23 June 2011 implementing Decision 2011/273, Council Implementing Regulation (EU) No 504/2011 of 23 May 2011 implementing Regulation No 442/2011, Council Implementing Regulation (EU) No 611/2011 of 23 June 2011 implementing Regulation No 442/2011, Council Implementing Decision 2011/515/CFSP of 23 August 2011 implementing Decision 2011/273, Council Implementing Regulation (EU) No 843/2011 of 23 August 2011 implementing Regulation No 442/2011, Council Decision 2011/522/CFSP of 2 September 2011 amending Decision 2011/273, Council Regulation (EU) No 878/2011 of 2 September 2011 amending Regulation No 442/2011, Council Decision 2011/628/CFSP of 23 September 2011 amending Decision 2011/273, Council Regulation (EU) No 950/2011 of 23 September 2011 amending Regulation No 442/2011, Council Decision 2011/684/CFSP of 13 October 2011 amending Decision 2011/273, Council Regulation (EU) No 1011/2011 of 13 October 2011 amending Regulation No 442/2011, Council Decision 2011/735/CFSP of 14 November 2011 amending Decision 2011/273, Council Implementing Decision 2011/736/CFSP of 14 November 2011 implementing Decision 2011/273, Council Regulation (EU) No 1150/2011 of 14 November 2011 amending Regulation No 442/2011, Council Implementing Regulation (EU) No 1151/2011 of 14 November 2011 implementing Regulation No 442/2011, Council Implementing Regulation (EU) No 1244/2011 of 1 December 2011 implementing Regulation No 442/2011, Council Decision 2012/206/CFSP of 23 April 2012 amending Decision 2011/782/CFSP concerning restrictive measures against Syria, Council Implementing Decision 2012/256/CFSP of 14 May 2012 implementing Decision 2011/782/CFSP concerning restrictive measures against Syria, Council Implementing Regulation (EU) No 410/2012 of 14 May 2012 implementing Article 32(1) of Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, Council Regulation (EU) No 509/2012 of 15 June 2012 amending Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, Council Decision 2012/322/CFSP of 20 June 2012 amending Decision 2011/782/CFSP concerning restrictive measures against Syria, Council Implementing Decision 2012/335/CFSP of 25 June 2012 implementing Decision 2011/782/CFSP concerning restrictive measures against Syria, Council Implementing Regulation (EU) No 544/2012 of 25 June 2012 implementing Article 32(1) of Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, Council Regulation (EU) No 545/2012 of 25 June 2012 amending Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, Council Implementing Regulation (EU) No 673/2012 of 23 July 2012 implementing Article 32(1) of Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, Council Decision 2012/420/CFSP of 23 July 2012 amending Decision 2011/782/CFSP concerning restrictive measures against Syria, and Council Implementing Decision 2012/424/CFSP of 23 July 2012 implementing Decision 2011/782/CFSP concerning restrictive measures against Syria, since those acts do not concern Aiman Jaber; 3. Declares that there is no need to adjudicate on the action in so far as it seeks the annulment of Council Decision 2011/782/CFSP of 1 December 2011 concerning restrictive measures against Syria and repealing Decision 2011/273, Council Decision 2012/739/CFSP of 29 November 2012 concerning restrictive measures against Syria and repealing Decision 2011/782, and Council Implementing Decision 2013/185/CFSP of 22 April 2013 implementing Decision 2012/739, since those acts have been repealed and replaced; 4. Annuls, in so far as the following acts concern Mr Jaber: – Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation No 442/2011; – Council Implementing Regulation (EU) No 363/2013 of 22 April 2013 implementing Regulation No 36/2012; – Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria; 5. Orders the effects of the annulled decisions and regulations to be maintained with respect to Mr Jaber, until the date of expiry of the period for bringing an appeal or, if an appeal is brought within that period, until any dismissal of that appeal; 6. Orders the Council of the European Union to bear its own costs and to pay one third of the costs incurred by Mr Jaber; 7. Orders Mr Jaber to bear two thirds of his own costs. Van der Woude Wiszniewska-Białecka Ulloa Rubio Delivered in open court in Luxembourg on 13 November 2014. [Signatures] * Language of the case: French.