Judgment — ECLI:EU:T:2014:622
Date: 2014-07-09
Language of the case: English
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - decision unnecessary;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 (Kadi II, paragraph 119). 79 In that connection, it is for the Courts of the European Union, in order to carry out that examination, to request the competent European Union 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 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, there is no requirement that that authority produce before the Courts of the European Union all the information and evidence underlying the reasons alleged in the summary provided by the Member State which proposed the inclusion of that person’s name on the list. It is however necessary that the information or evidence produced should support the reasons relied on against the person concerned (see, to that effect, Kadi II, paragraphs 120 to 122). 80 If the competent European Union authority finds itself unable to comply with the request by the Courts of the European Union, it is then the duty of those Courts to base their decision solely on the material which has been disclosed to them, namely, in this case, the indications contained in the narrative summary of reasons provided by the Member State which proposed the inclusion of that person’s name on the list, the observations and exculpatory evidence that may have been produced by the person concerned and the response of the competent European Union authority to those observations. If that material is insufficient to allow a finding that a reason is well founded, the Courts of the European Union are to disregard that reason as a possible basis for the decision to include the person’s name on the list or maintain a listing (see, to that effect, Kadi II, paragraph 123). 81 If, conversely, the competent European Union authority provides relevant information or evidence, the Courts of the European Union must then determine whether the facts alleged are made out in the light of that information or evidence 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 (Kadi II, paragraph 124). 82 It is true that overriding considerations pertaining to the security of the European Union or of its Member States or to the conduct of their international relations may preclude the disclosure of some information or some evidence to the person concerned. In such circumstances, it is none the less the task of the Courts of the European Union, before whom the secrecy or confidentiality of that information or evidence is no valid objection, to apply, in the course of the judicial review to be carried out, techniques which accommodate, on the one hand, legitimate security considerations about the nature and sources of information taken into account in the adoption of the act concerned and, on the other, the need sufficiently to guarantee to an individual respect for his procedural rights, such as the right to be heard and the requirement for an adversarial process (Kadi II, paragraph 125). 83 To that end, it is for the Courts of the European Union, when carrying out an examination of all the matters of fact or law produced by the competent European Union authority, to determine whether the reasons relied on by that authority as grounds to preclude that disclosure are well founded (Kadi II, paragraph 126). 84 If the Courts of the European Union conclude that those reasons do not preclude disclosure, at the very least partial disclosure, of the information or evidence concerned, they are to give the competent European Union authority the opportunity to make such disclosure to the person concerned. If that authority does not permit the disclosure of that information or evidence, in whole or in part, the Courts of the European Union are then to undertake an examination of the lawfulness of the contested act solely on the basis of the material which has been disclosed (Kadi II, paragraph 127). 85 Conversely, if it turns out that the reasons relied on by the competent European Union authority do indeed preclude the disclosure to the person concerned of information or evidence produced before the Courts of the European Union, it is necessary to strike an appropriate balance between the requirements attached to the right to effective judicial protection, in particular respect for the principle of an adversarial process, and those flowing from the security of the European Union or its Member States or the conduct of their international relations (Kadi II, paragraph 128). 86 In order to strike such a balance, it is legitimate to consider possibilities such as the disclosure of a summary outlining the information’s content or that of the evidence in question. Irrespective of whether such possibilities are taken, it is for the Courts of the European Union to assess whether and to what extent the failure to disclose confidential information or evidence to the person concerned and his consequential inability to submit his observations on them are such as to affect the probative value of the confidential evidence (Kadi II, paragraph 129). 87 Having regard to the preventive nature of the restrictive measures at issue, if, in the course of their review of the lawfulness of the contested decision the Courts of the European Union consider that, at the very least, one of the reasons mentioned by the Member State which proposed the inclusion of the applicant’s name is sufficiently detailed and specific, that it is substantiated and that it constitutes in itself a sufficient basis to support that decision, the fact that the same cannot be said of other such reasons cannot justify the annulment of the contested decision. In the absence of one such reason, the Courts of the European Union will annul the contested decision (see, to that effect Kadi II, paragraph 130). 88 The applicant’s first plea in law must be examined in the light of those considerations. 89 It must be stated, first of all, that the applicant took advantage of the opportunities offered to him by Article 21(2) and (3) of Decision 2011/782 and Article 32(2) and (3) of Regulation No 36/2012 to submit observations to the Council requesting it to review its decision and to inform him thereof. 90 By letter of 24 May 2012, the applicant first addressed the Council in order to object to his inclusion in the list of the persons subject to restrictive measures and asked to be provided with the documents on which the Council had based its decision concerning him and to be heard on the matter. In that letter, he challenges the reasons for his inclusion on the lists in a detailed manner, that is, that he is a business partner of Mr Ihab Makhlouf and Mr Nizar Al-Assad and that he is co‑owner, with Mr Rami Makhlouf, of Diar Electronic Services. He also denies that that company supports the policy of the Syrian Central Bank. Annexed to that letter is a statement from six members of the Syrian National Council which expresses their support for the applicant and their surprise at his inclusion on the list. 91 In its letter of 26 July 2012 replying to the applicant, the Council did no more than produce a proposal to include the applicant’s name on the list of persons affected by restrictive measures from a Member State, containing the same reasons as those which already appeared beside the applicant’s name in the contested acts without any other information. 92 Likewise, as a result of the applicant’s arguments in the present action and, in response to the evidence he submitted, the Council has done no more than challenge the value of the statement of several members of the Syrian National Council, without adducing any evidence in support of the reasons mentioned for the inclusion of the applicant’s name on the list of persons subject to the restrictive measures. 93 It must be recalled that the Syrian National Council, one of the main opposition groups in Syria, has been recognised by the European Union as being the legitimate representative of the Syrian people. The fact that the statement by several of its members in support of the applicant does not come from its governing bodies is not sufficient to dismiss such a statement or to deny it any evidential value. 94 The Council refers, as if the point were obvious, to the fact that the applicant is a business partner of Mr Ihab Makhlouf and Mr Nizar Al-Assad, without adducing any evidence in that regard, even though the applicant denies those allegations. The Council also states that the names of Mr Ihab Makhlouf and Mr Nizar Al‑Assad have themselves been included on the lists of persons subject to the restrictive measures, without producing any evidence to explain how the applicant is connected to or associated in business with those persons. 95 Likewise, the Council repeats in its pleadings that the applicant is the co-owner of Diar Electronic Services, which supports the policy of the Syrian Central Bank. Even assuming that, as a minority shareholder, the applicant may be regarded as co-owner of that company, the Council has not produced any evidence showing how that company supports the policy of the Syrian Central Bank, nor even on what grounds that would justify one of its shareholders being subject to the restrictive measures concerned. 96 In those circumstances, since the Court is not in a position to verify whether the Council’s allegations are well founded, on 21 January 2014 by measure of organisation of procedure, the Court requested the Council to provide it with any evidence or information in the Council’s possession, confidential or otherwise, which could justify the applicant’s inclusion on the list of persons subject to the restrictive measures, that it considers relevant to enable the Court to carry out a review in accordance with the case-law of the Court of Justice set out above. 97 However, the Council’s only response was to send the extract of the proposal to include the applicant’s name on the lists concerned from a Member State which contains the same reasons as those which are set out in paragraph 16 above, without any other information. 98 Therefore, given that there is no sufficiently precise and concrete evidence to support even one of the reasons mentioned in the contested acts to support the inclusion of the applicant’s name on the list of persons subject to the restrictive measures which are annexed thereto, those acts must be annulled, in so far as they concern the applicant. 99 Since the applicant’s first plea is well founded, the action must be upheld, without there being any need to adjudicate on the applicant’s other pleas. Temporal effects of the partial annulment of the contested measures 100 As regards the temporal effects of the annulment of Annex II to Regulation No 36/2012 as amended by Implementing Regulation No 363/2013, in so as far as it concerns the applicant, it must be recalled that, pursuant to Article 60, second paragraph, of the Statute of the Court of Justice of the European Union, by way of derogation from Article 280 TFEU, decisions of the General Court declaring a regulation to be void take effect only as from the date of expiry of the period for bringing an appeal referred to in the first paragraph of Article 56 thereof or, if an appeal has been brought within that period, as from the date of its dismissal. 101 Implementing Regulation No 353/2013, amending Annex II to Regulation No 36/2012, has the nature of a regulation, since the second paragraph of Article 2 thereof 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 in Article 288 TFEU (see, to that effect, Case C-548/09 P Bank Melli Iran v Council [2011] ECR I-0000, paragraph 45, and Sina Bank v Council, paragraph 84). 102 As far as concerns Decision 2013/255, it must be noted that the annulment of that decision, in so far as it concerns the applicant, would result in the immediate disappearance of the applicant’s listing from Annex I thereto. 103 Under Article 264, second paragraph, TFEU, the General Court may, if it considers it necessary, state which of the effects of the act it has declared void are to be considered as definitive. 104 In the present case, the existence of a difference between the date of effect of the partial annulment of Annex II to Regulation No 36/2012, as amended by Implementing Regulation No 363/2013, and that of Annex I to Decision 2013/255, would be likely to entail a serious threat to legal certainty, since both acts impose identical measures on the applicant. 105 The effects of Annex I to Decision 2013/255 must therefore be maintained as regards the applicant until the partial annulment of Annex II to Regulation No 36/2012, as amended by Implementing Regulation No 363/2013, takes effect (see, to that effect, Sina Bank v Council, paragraph 89). Costs 106 Under the first subparagraph of 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. 107 Since the Council has been unsuccessful in Case T‑329/12, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant. 108 Under Article 87(6) of those rules, where a case does not proceed to judgment, the costs are in the discretion of the Court. 109 In the present case, account must be taken of the fact that the action in Case T‑74/13 was brought by the applicant on a precautionary basis, since the Council challenged the admissibility of the action in Case T‑329/12 in its entirety, which turned out to be completely unfounded. The costs incurred by the applicant in Case T‑74/13 could therefore have been avoided for the most part if the Council had not challenged the admissibility of the action in Case T‑329/12. 110 Therefore, the Council is ordered to pay three-quarters of the costs of the applicant in Case T‑74/13, in addition to its own costs. On those grounds, THE GENERAL COURT (Ninth Chamber) hereby: 1. Annuls Council Implementing Decision 2012/256/CFSP of 14 May 2012 implementing Decision 2011/782/CFSP concerning restrictive measures against Syria and 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, in so far as they concern Mr Mazen Al‑Tabbaa. 2. Annuls Council Decision 2012/739/CFSP of 29 November 2012 concerning restrictive measures against Syria and repealing Decision 2011/782 and Council Implementing Regulation (EU) No 1117/2012 of 29 November 2012 implementing Article 32(1) of Regulation No 36/2012, in so far as they concern Mr Al‑Tabbaa. 3. Annuls Council Implementing Regulation (EU) No 363/2013 of 22 April 2013 implementing Regulation No 36/2012 and Council Implementing Decision 2013/185/CFSP of 22 April 2013 implementing Decision 2012/739, in so far as they concern Mr Al‑Tabbaa. 4. Annuls Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria, in so far as it concerns Mr Al‑Tabbaa. 5. Orders the effects of Decision 2013/255 to be maintained as regards Mr Al-Tabbaa until the annulment in part of Implementing Regulation No 363/2013 implementing Regulation No 36/2012 takes effect. 6. Declares that there is no need to adjudicate on the action in Case T‑74/13. 7. Orders the Council of the European Union to pay, in addition to its own costs, those incurred by the applicant in Case T‑329/12 and three‑quarters of the costs incurred by him in Case T‑74/13. 8. Orders the applicant to pay one quarter of his costs in Case T‑74/13. Berardis Czúcz Popescu Delivered in open court in Luxembourg on 9 July 2014. [Signatures] * Language of the case: English.