Abstract;Judgment — ECLI:EU:T:2024:588
Date: 2024-09-04
Language of the case: French
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - unfounded

summary statement of the pleas in law relied on. Furthermore, regardless of any question of terminology, that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without having to seek further information. For an action to be admissible, the essential elements of fact and law on which it is based must be apparent, at least summarily but in a coherent and comprehensible manner, from the text of the application itself, in order to guarantee legal certainty and the proper administration of justice (see judgment of 14 April 2021, Al-Tarazi v Council, T‑260/19, not published, EU:T:2021:187, paragraph 166 and the case-law cited). 32 In the present case, the applicant, with admittedly summary arguments, submits that the family membership criterion lacks clarity and precision, making it impossible to identify the persons likely to be caught by that criterion. In addition, according to the applicant, the application of that criterion gives rise to discrimination vitiating the contested acts with illegality. 33 In that regard, it is apparent from the documents before the Court that the Council was able to prepare its defence, as evidenced by the fact that it responded on the substance of the applicant’s arguments both in the defence and in the rejoinder. 34 Furthermore, the Court takes the view that the plea of illegality is sufficiently detailed to enable it to exercise its power of review and thus to rule on the plea, without having to seek further information. 35 Consequently, the plea of inadmissibility raised by the Council must be rejected and the plea of illegality in respect of the family membership criterion must be declared admissible. The merits of the plea of illegality 36 In support of the plea of illegality, the applicant puts forward, in essence, two complaints, alleging: – first, breach of the principle of legality, according to which any limitation on the exercise of rights must be provided for by law, and, in consequence, infringement of the rights to property and to respect for private and family life guaranteed, respectively, by Article 17(1) and Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and by Article 8(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), and Article 1 of the First Additional Protocol to the ECHR; – secondly, breach of the principle of non-discrimination enshrined in Article 21(1) of the Charter and Article 14 of the ECHR. 37 As a preliminary point, it should be borne in mind that whilst, as Article 6(3) TEU confirms, fundamental rights enshrined in the ECHR constitute general principles of EU law and whilst Article 52(3) of the Charter provides that the rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law (see judgment of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 45 and the case-law cited). 38 Therefore, the present plea of illegality must be examined solely in the light of the provisions of the Charter relied on by the applicant. 39 In that regard, it should be recalled that, under Article 277 TFEU, any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the European Union is at issue, plead the grounds specified in the second paragraph of Article 263 TFEU in order to invoke before the Court of Justice of the European Union the inapplicability of that act. 40 Article 277 TFEU gives expression to the general principle conferring upon any party to proceedings the right to challenge indirectly, in seeking annulment of a decision addressed to that party, the validity of acts of general application which form the basis of such a decision, if that party was not entitled under Article 263 TFEU to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that they be annulled. The general measure claimed to be illegal must be applicable, directly or indirectly, to the issue with which the action is concerned and there must be a direct legal connection between the contested individual decision and the general measure in question (see judgments of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraphs 67 and 68 and the case-law cited, and of 15 November 2023, OT v Council, T‑193/22, EU:T:2023:716, paragraph 33 and the case-law cited). 41 The Council enjoys a broad discretion as regards the general and abstract definition of the legal criteria and procedures for adopting restrictive measures (see judgment of 28 April 2021, Sharif v Council, T‑540/19, not published, EU:T:2021:220, paragraph 167 and the case-law cited). 42 Thus, the rules of general application defining those criteria and procedures are subject to a limited judicial review, restricted to checking that the rules governing procedure and the statement of reasons have been complied with, that the facts are materially accurate, that there has been no error of law, and that there has been no manifest error of assessment of the facts or misuse of power (see judgment of 28 September 2022, LAICO v Council, T‑627/20, not published, EU:T:2022:590, paragraph 59 and the case-law cited). 43 In addition, according to settled case-law, the Courts of the European Union must, in accordance with the powers conferred on them by the FEU Treaty, ensure the review, in principle the full review, of the lawfulness of all EU acts in the light of the fundamental rights forming an integral part of the EU legal order (see judgment of 9 September 2016, Farahat v Council, T‑830/14, not published, EU:T:2016:462, paragraph 27 and the case-law cited). 44 It is in the light of those principles that the merits of the plea of illegality must be examined. – First complaint, alleging that the family membership criterion breaches the principle of legality and, consequently, infringes the rights to property and to respect for private and family life 45 The applicant submits that, although fundamental rights may, in accordance with Article 52(1) of the Charter, be the subject of interference by public authorities, any limitation in that regard must be provided for by law and meet the requirements of clarity, precision and foreseeability. 46 According to the applicant, the family membership criterion infringes Article 52(1) of the Charter in that it is ‘singularly lacking in precision’. Thus, that lack of precision makes it impossible to identify the persons likely to be caught, in essence, by the basic legislation. 47 It follows that the family membership criterion infringes the right to property guaranteed by Article 17(1) of the Charter and the right to respect for reputation, which is a component of the right to respect for private and family life, within the meaning of Article 7 of the Charter. 48 The Council disputes those arguments. 49 In that regard, it must be recalled that the right to property and the right to respect for private life, of which the right to respect for reputation forms part, are not absolute rights and their exercise may be subject to restrictions, under the conditions laid down in Article 52(1) of the Charter, according to which ‘any limitation on the exercise of the rights and freedoms recognised by [the Charter] must be provided for by law and respect the essence of those rights and freedoms’ and ‘subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’. 50 It follows that, in order to comply with EU law, an interference with a right or freedom enshrined in the Charter must satisfy four conditions. First, the limitation in question must be ‘provided for by law’, in the sense that the EU institution adopting measures liable to restrict a natural or legal person’s right or freedom must have a legal basis for its actions. Secondly, the limitation in question must respect the essence of the right or freedom at issue. Thirdly, it must effectively meet an objective of general interest, recognised as such by the European Union. Fourthly, the limitation in question must be proportionate (see judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 145 and the case-law cited). 51 As is clear from paragraph 46 above, the applicant merely claims that the family membership criterion is not sufficiently precise to satisfy the first condition laid down in Article 52(1) of the Charter, under which any limitation on fundamental rights must be provided for by law. However, the applicant does not put forward any arguments as regards the other three conditions referred to in paragraph 50 above. 52 In that regard, the Court has held that the principle of legality, established by the words ‘provided for by law’ in Article 52(1) of the Charter, means that any limitation on the rights and freedoms enshrined in the Charter must have a legal basis which itself defines, clearly and precisely, the scope of the limitation on their exercise (Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraph 139; judgments of 16 July 2020, Facebook Ireland and Schrems, C‑311/18, EU:C:2020:559, paragraph 175, and of 8 September 2020, Recorded Artists Actors Performers, C‑265/19, EU:C:2020:677, paragraph 86). 53 It should be added that, although it is a requirement of the principle of legality that the act permitting the interference with fundamental rights must itself define the scope of the limitation on the exercise of the right concerned, that requirement does not preclude, on the one hand, the limitation in question from being formulated in terms which are sufficiently open to be able to adapt to different scenarios and keep pace with changing circumstances and, on the other hand, the Court from, where appropriate, specifying, by means of interpretation, the actual scope of the limitation in the light of the very wording of the EU legislation in question as well as its general scheme and the objectives it pursues, as interpreted in view of the fundamental rights guaranteed by the Charter (see judgment of 21 June 2022, Ligue des droits humains, C‑817/19, EU:C:2022:491, paragraph 114 and the case-law cited). 54 Against that background, the principle of legal certainty, which is one of the general principles of EU law, requires inter alia that rules of law be clear, precise and predictable in their effects, in particular where they may have negative consequences on individuals and undertakings (see judgment of 15 September 2021, Ilunga Luyoyo v Council, T‑101/20, not published, EU:T:2021:575, paragraph 201 and the case-law cited). Such a principle applies to restrictive measures such as those at issue in the present case, which have an impact on the rights and freedoms of the persons concerned (see judgment of 15 September 2021, Mutondo v Council, T‑103/20, not published, EU:T:2021:578, paragraph 205 and the case-law cited). 55 In the present case, contrary to what the applicant claims, the family membership criterion does not allow the Council to impose restrictive measures on all persons with the surname Assad, whether or not they are associated with that family, which is currently in power in Syria. 56 First, under Article 27(4) and Article 28(4) of Decision 2013/255, as amended by Decision 2015/1836, all listing decisions are to be made on an individual and case-by-case basis taking into account the proportionality of the measure. 57 Secondly, the family membership criterion forms part of a legal framework that is clearly delineated by the objectives pursued, in particular, by the basic regulation. 58 Thus, in accordance with the case-law cited in paragraph 53 above, the family membership criterion must inter alia be interpreted in the light of the objectives of the restrictive measures adopted in view of the situation in Syria. In this instance, it is apparent from recital 7 of Decision 2015/1836 that the power of the Syrian regime ‘is concentrated in influential members of the Assad and Makhlouf families’ and that the Council therefore imposed restrictive measures on certain members of those families ‘both to directly influence the regime through members of those families to change its policies of repression, as well as to avoid the risk of circumvention of restrictive measures through family members’ (see paragraph 8 above). 59 In the present case, the applicant submits, in the first place, that the family membership criterion is directed at persons with the name Assad – which is very common in Syria – but who are not associated with the Assad family in power in that country. He also states that that criterion excludes from its scope persons who have lost that surname through marriage. 60 In that regard, it should be noted that the scope of the family membership criterion, although worded in open terms, is circumscribed by recital 7 of Decision 2015/1836 (see paragraph 58 above) and therefore is capable of targeting only a clearly identifiable circle of persons, namely those associated with the Assad family currently in power in Syria. 61 It follows that persons with the surname Assad – irrespective of how common that name may be in Syria – fall within the scope of the family membership criterion only if they have family ties to the Assad family currently governing Syria. 62 Furthermore, as the Council points out, persons with family ties to the Assad family in power in Syria may have their names included on the lists at issue on the basis of the family membership criterion, even if they do not have the surname Assad. 63 In the second place, the applicant maintains that the family membership criterion is imprecise, in so far as it is directed at all members of the Assad family without drawing any distinction between those who are leading members of that family and those who are not. 64 In that regard, it must be observed that the family membership criterion does not lay down any condition relating to the nature of Assad family members as leading members. By contrast, that condition expressly appears in the wording of Article 27(2)(a) and Article 28(2)(a) of Decision 2013/255, as amended by Decision 2015/1836, and of Article 15(1a)(a) of Regulation No 36/2012, as amended by Regulation 2015/1828, which is directed at ‘leading businesspersons operating in Syria’. 65 It follows that the family membership criterion is not directed only at ‘leading’ members of the Assad family who are in power in Syria. The Council seeks, by means of the restrictive measures adopted under that criterion, to prompt certain members of that family to put pressure on the Syrian regime in order to have it bring an end to the repression of the civilian population and to avoid the risk of circumvention of restrictive measures by members of that family (see paragraph 58 above). 66 In the third place, the applicant states that the principle of personal responsibility, enshrined in the constitutional traditions of the Member States, precludes any automatic listing which ‘penal[ises]’ a person simply because he or she belongs to the Assad family, since no one can be held responsible for the actions of his or her relatives. 67 In that regard, it does indeed follow from the case-law that, in accordance with the principle that penalties must be specific to the offender, a natural or legal person may be penalised only for acts imputed to that person individually (see judgment of 7 June 2023, Skryba v Council, T‑581/21, not published, EU:T:2023:321, paragraph 27 and the case-law cited). 68 However, restrictive measures constitute targeted preventive measures which fall strictly within the framework of the legal conditions established by a decision adopted on the basis of Article 29 TEU and by a regulation founded on Article 215(2) TFEU implementing that decision within the scope of the FEU Treaty. They are intended inter alia to combat threats to international peace and security, in accordance with the provisions relating to the Common Foreign and Security Policy (CFSP). Therefore, by their precautionary nature and their preventive purpose, restrictive measures can be distinguished from criminal or administrative penalties (see, to that effect, judgment of 7 June 2023, Skryba v Council, T‑581/21, not published, EU:T:2023:321, paragraph 28 and the case-law cited). 69 Specifically, as is clear from paragraph 58 above, the objective pursued by the restrictive measures adopted in view of the situation in Syria is not to penalise the persons or entities which they target, but to exert pressure, through those measures, on the Syrian regime in order to have it bring an end to the policy of violent repression against the civilian population in Syria. 70 Moreover, as stated in paragraph 56 above, all listing decisions are to be made on an individual and case-by-case basis taking into account the proportionality of the measure concerned, with the result that there can be no automatic listing on the basis of the family membership criterion. 71 Therefore, the applicant cannot invoke the principle of personal responsibility in order to challenge the lawfulness of the family membership criterion. 72 It follows from the foregoing that the family membership criterion, read in conjunction with the objective of applying pressure on the Syrian regime in order to force it to put an end to its policy of repression, defines, in an objective and sufficiently precise manner, a limited category of persons liable to be subject to restrictive measures. 73 Consequently, the Court finds that the family membership criterion establishes a clear and precise provision which meets the requirements flowing from the principle of legality within the meaning of the case-law cited in paragraph 52 above. 74 In those circumstances, since the family membership criterion complies with the principle of legality, the applicant’s argument alleging infringement of the rights to property and to respect for reputation must also be rejected. 75 The first complaint must therefore be rejected. – Second complaint, alleging breach of the principle of non‑discrimination 76 In the second complaint, the applicant claims that ‘penalising’ an individual solely because he or she belongs to a family, however that concept may be construed, constitutes discrimination within the meaning of Article 21(1) of the Charter. He maintains that the application of the family membership criterion leads to a result which is disproportionate to the aim pursued in that, as second cousin of the Syrian President Bashar Al-Assad (‘the Syrian President’), he will never be able to challenge the merits of the first ground for listing. 77 The Council disputes those arguments. 78 In that regard, it should be recalled that, under Article 21(1) of the Charter, ‘any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation’ is to be prohibited. 79 According to the case-law, the principle of equal treatment, which is a general principle of EU law and of which the principle of non-discrimination is a particular expression, prohibits comparable situations from being treated differently or different situations from being treated in the same way, unless such difference in treatment is objectively justified (judgments of 31 May 2018, Kaddour v Council, T‑461/16, EU:T:2018:316, paragraph 152 and the case-law cited, and of 23 November 2022, Bowden and Young v Europol, T‑72/21, not published, EU:T:2022:720, paragraph 151 and the case-law cited). 80 A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment (see judgment of 16 June 2021, Krajowa Izba Gospodarcza Chłodnictwa i Klimatyzacji v Commission, T‑126/19, EU:T:2021:360, paragraph 86 and the case-law cited). 81 Furthermore, the principle of proportionality, which is reproduced in Article 5(4) TEU, requires that measures implemented through provisions of EU law be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve them (see judgment of 16 December 2020, Haswani v Council, T‑521/19, not published, EU:T:2020:608, paragraph 171 and the case-law cited). 82 In matters concerning restrictive measures, as is clear from paragraph 41 above, the Council has a broad discretion as regards the definition and adoption of the listing criteria. Therefore, the legality of restrictive measures is not dependent on their being found to have immediate effects; all that is required is that they are not manifestly inappropriate in regard to the objective that the competent institution seeks to pursue (see, to that effect, judgment of 17 September 2020, Rosneft and Others v Council, C‑732/18 P, not published, EU:C:2020:727, paragraph 97). 83 In the present case, the applicant argues that the family membership criterion is discriminatory because it permits the imposition of ‘penalties’ on a ‘multitude of individuals who have nothing to do with the Syrian President’, so that it leads to a result which is disproportionate to the aim pursued. 84 In the first place, it must be observed that, according to settled case-law, the restrictive measures adopted by the European Union do not entail confiscation of the assets of the persons concerned as the proceeds of crime, but rather a freezing of such assets as a precautionary measure, so that those measures do not constitute a criminal penalty. Nor do they imply any accusation of a criminal nature (see judgments of 21 July 2016, Hassan v Council, T‑790/14, EU:T:2016:429, paragraph 77 (not published) and the case-law cited, and of 12 December 2018, Makhlouf v Council, T‑409/16, not published, EU:T:2018:901, paragraph 129 and the case-law cited). 85 As regards the restrictive measures adopted in view of the situation in Syria, the objective pursued is not to penalise the Syrian regime or the persons whose names appear on the lists at issue, but to put pressure on that regime to bring an end to the policy of violent repression against the civilian population (see paragraph 58 above). 86 That objective is therefore one which forms part of a more general framework of endeavours linked to the maintenance of international peace and security, laid down in Article 21 TEU, which refers to provisions of EU external action, and is, therefore, legitimate (see, to that effect, judgment of 23 September 2020, Kaddour v Council, T‑510/18, EU:T:2020:436, paragraph 176 (not published)). 87 As the Council points out, the adoption of restrictive measures against the applicant is appropriate, since it is a step taken in pursuit of an objective of general interest as fundamental to the international community as the protection of civilian populations. Therefore, the freezing of the funds and other economic resources, and the prohibition of entry into the territory of the European Union, of persons identified as being involved in supporting the Syrian regime cannot, in themselves, be regarded as inappropriate (see judgment of 16 January 2019, Haswani v Council, T‑477/17, not published, EU:T:2019:7, paragraph 75 and the case-law cited). 88 Accordingly, the restrictive measures adopted on the basis of the family membership criterion cannot under any circumstances be treated in the same way as penalties and, moreover, they pursue an objective of general interest recognised by the European Union. 89 In the second place, contrary to what the applicant claims, the family membership criterion is directed at a specific category of persons, namely persons who have family ties to the Assad family in power in Syria and who are thus members of that family (see paragraphs 60, 61 and 72 above). 90 In the third place, the applicant does not specify how or in relation to whom the application of the family membership criterion is discriminatory. Nor does he provide specific examples of other persons who are in a situation comparable to his own and who are treated differently within the meaning of the case-law cited in paragraph 79 above (see, to that effect and by analogy, judgment of 30 November 2016, Export Development Bank of Iran v Council, T‑89/14, not published, EU:T:2016:693, paragraph 120). In those circumstances, the Court is not in a position to ascertain whether his claims are well founded in fact. 91 In the fourth place, the Court must also reject the applicant’s argument that the family membership criterion leads to a result which is disproportionate to the objective pursued by the restrictive measures at issue, since, as the Syrian President’s second cousin, it is impossible for him to rebut the presumption that he has ties to the Syrian regime. 92 Suffice it to note in that regard that, under Article 27(3) and Article 28(3) of Decision 2013/255, as amended by Decision 2015/1836, and Article 15(1b) of Regulation No 36/2012, as amended by Regulation 2015/1828, the names of the persons caught by the various listing criteria, including, in particular, members of the Assad family, are not to be included or retained on the lists at issue if there is sufficient information that they are not, or are no longer, associated with the regime or do not exercise influence over it or do not pose a real risk of circumvention of the restrictive measures. 93 Therefore, any person, notwithstanding the capacity or status by virtue of which his or her name was included on the lists at issue, may adduce evidence to challenge the inclusion or retention of his or her name on those lists. That also applies, in the present case, to the applicant in his capacity as second cousin of the Syrian President. 94 In the light of all the foregoing, the Court must reject the second complaint and, therefore, the plea of illegality in its entirety. … On those grounds, THE GENERAL COURT (Ninth Chamber) hereby: 1. Dismisses the action; 2. Orders Mr Samer Kamal Al-Assad to pay the costs. Truchot Kanninen Frendo Delivered in open court in Luxembourg on 4 September 2024. [Signatures] * Language of the case: French. 1 Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.