JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
18 September 2017 (*)
(Common foreign and security policy — Restrictive measures taken against the Democratic Republic of the Congo — Freezing of funds — List of the persons, entities and bodies acting in breach of the embargo with regard to the Democratic Republic of the Congo — Maintenance of the applicant’s name on the list)
In Cases T‑107/15 and T‑347/15,
Uganda Commercial Impex Ltd, established in Kampala (Uganda), represented, in Case T‑107/15, by S. Zaiwalla, P. Reddy, Z. Burbeza, A. Meskarian, K. Mittal, Solicitors, and R. Blakeley, Barrister, and, in Case T‑347/15, by S. Zaiwalla, P. Reddy, A. Meskarian, K. Mittal and R. Blakeley,
applicant,
v
Council of the European Union, represented, in Case T‑107/15, initially by B. Driessen and E. Dumitriu-Segnana, and subsequently by B. Driessen and M. Veiga, acting as Agents, and, in Case T‑347/15, by B. Driessen, E. Dumitriu-Segnana and M. Veiga,
defendant,
APPLICATION, in Case T‑107/15, on the basis of Article 263 TFEU, for annulment of Council Implementing Decision 2014/862/CFSP of 1 December 2014 implementing Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo (OJ 2014 L 346, p. 36) and of Council Implementing Regulation (EU) No 1275/2014 of 1 December 2014 implementing Article 9(1) and (4) of Regulation (EC) No 1183/2005 imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the Democratic Republic of the Congo (OJ 2014 L 346, p. 3), and, in so far as necessary, for a declaration that Article 9(1) of Council Regulation (EC) No 1183/2005 of 18 July 2005 imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the Democratic Republic of the Congo (OJ 2005 L 193, p. 1) is not applicable to the applicant and, in Case T‑347/15, an application on the basis of Article 263 TFEU for annulment of Council Decision (CFSP) 2015/620 of 20 April 2015 amending Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo (OJ 2015 L 102, p. 43) and of Council Implementing Regulation (EU) 2015/614 of 20 April 2015, implementing Article 9(4) of Regulation No 1183/2005 (OJ 2015 L 102, p. 10), and, in so far as necessary, for a declaration that Article 9(1) of Regulation No 1183/2005 is not applicable to the applicant,
THE GENERAL COURT (Sixth Chamber),
composed of G. Berardis, President, D. Spielmann (Rapporteur) and Z. Csehi, Judges,
Registrar: C. Heeren, Administrator,
having regard to the written part of the procedure and further to the hearing on 30 November 2016,
gives the following
Judgment
Background to the dispute
Measures introduced by the United Nations
1        These joined cases have been brought in connection with the restrictive measures imposed by the Council of the European Union with a view to establishing lasting peace in the Democratic Republic of the Congo (‘the DRC’) and applying pressure on persons and entities acting in breach of the arms embargo with regard to the DRC.
2        Through a series of resolutions adopted between 2003 and 2007, the United Nations Security Council addressed the question of the hostilities in the DRC and the measures to be taken to rectify that situation. The Security Council was particularly concerned by the presence of armed groups and militias in some areas of the DRC, which perpetuated a climate of insecurity in that whole region of Africa. Competition between militias to control gold mines and trading routes fuelled the conflict which has been raging in the region since 1998.
3        On 28 July 2003, the United Nations Security Council adopted Resolution 1493 (2003), in which it stated that it was deeply concerned by ‘the continuation of hostilities in the eastern part of the [DRC], particularly in North and South Kivu and in Ituri, and by the grave violations of human rights and of international humanitarian law that accompany them’. It also ‘condemn[ed] categorically the illegal exploitation of the natural resources and other sources of wealth of the [DRC] and expresse[d] its intention to consider means that could be used to end it’.
4        By Resolution 1533 (2004), the United Nations Security Council condemned, in particular, the continued illegal exploitation of national resources in the DRC, especially in the eastern part of the country, which ‘contribute[d] to the perpetuation of the conflict, and reaffirm[ed] the importance of bringing an end to these illegal activities, including by applying the necessary pressure on the armed groups, traffickers and all other actors involved’. It also decided to establish a Committee of the United Nations Security Council to monitor the application of the arms embargo covering all armed grounds and foreign and Congolese militia operating in North and South Kivu and in Ituri, and groups not party to the Global and All-Inclusive agreement on the Transition in the DRC (‘the Sanctions Committee’).
5        By Resolution 1596 (2005), the United Nations Security Council decided that ‘all States [were to], during the period of enforcement of the measures referred to in paragraph 1 …, immediately freeze the funds, other financial assets and economic resources which [we]re on their territories from the date of adoption of [this] resolution, which [we]re owned or controlled, directly or indirectly, by persons designated by the [Sanctions] Committee pursuant to paragraph 13 …, or that [we]re held by entities owned or controlled, directly or indirectly, by any persons acting on their behalf or at their direction, as designated by th[at] [c]ommittee …’.
6        By Resolution 1698 (2006), the United Nations Security Council ‘expresse[d] its intention to consider … possible measures to stem the sources of financing of armed groups and militias, including the illegal exploitation of categories of natural resources, in the Eastern part of the [DRC]’.
7        On 29 March 2007, the Sanctions Committee designated the applicant, Uganda Commercial Impex Ltd, on the following grounds:
‘Name: UGANDA COMMERCIAL IMPEX (UCI) LTD; Address: Kajoka Street, Kisemente, Kampala, Uganda; Tel.: +256 41 533 578/9; Alternative address: PO Box 22709, Kampala, Uganda; Identifying Information: Gold export company in Kampala; Designation Justification: [the applicant] bought gold through a regular commercial relationship with traders in the DRC tightly linked to militias. This constitutes “provision of assistance” to illegal armed groups in breach of the arms embargo of resolutions 1493 (2003) and 1596 (2005).’
8        On 25 June 2007, the applicant sent a request to be removed from the list drawn up by the Sanctions Committee to the United Nations focal point, the body which receives those requests. The request was refused in January 2008.
Measures imposed by the European Union
9        On 11 March 2002, the Council adopted Common Position 2002/203/CFSP concerning European Union support for the implementation of the Lusaka ceasefire agreement and the peace process in the DRC and repealing Common Position 2001/83/CFSP (OJ 2002 L 68, p. 1). Article 2 provided:
‘The European Union will support action taken by the United Nations and the Organisation for African Unity in support of the implementation of the Lusaka ceasefire agreement and the relevant [United Nations] Security Council Resolutions within the framework of the peace process, and will cooperate closely with these organisations and other relevant actors of the international community in the implementation of this Common Position.’
10      On 21 October 2002, the Council adopted Common Position 2002/829/CFSP on the supply of certain equipment into the DRC (OJ 2002 L 285, p. 1), which prohibited the supply and sale of arms and related material of all types into the DRC by nationals of Member States or from the territories of Member States. On 13 June 2005, the Council adopted Common Position 2005/440/CFSP concerning restrictive measures against the DRC and repealing Common Position 2002/829 (OJ 2005 L 152, p. 22), in order to bring the measures previously imposed by Common Position 2002/829 into line with those provided for in United Nations Security Council Resolution 1596 (2005).
11      On the same day, the Council adopted, on the basis of Article 60 EC and Article 301 EC, Regulation (EC) No 889/2005 imposing certain restrictive measures in respect of the DRC and repealing Regulation (EC) No 1727/2003 (OJ 2005 L 152, p. 1), which introduced a set of measures on the prohibition on providing technical and financial assistance related to military activities in the DRC.
12      On 18 July 2005, the Council adopted, on the basis of Article 60 EC, 301 EC and 308 EC, Regulation (EC) No 1183/2005 imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the DRC (OJ 2005 L 193, p. 1). In order to implement Common Position 2005/440, Article 2 of Regulation No 1183/2005 made the following provision:
‘1.      All funds and economic resources belonging to, or owned or held by the natural or legal persons, entities or bodies listed in Annex I shall be frozen.
2.      No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of the natural or legal persons, entities or bodies listed in Annex I.
3.      The participation, knowingly and intentionally, in activities the object or effect of which is, directly or indirectly, to circumvent the measures referred to in paragraphs 1 and 2 shall be prohibited.’
13      In addition, Article 9 of Regulation (EC) No 1183/2005 provided:
‘1.      The Commission shall be empowered to:
(a)      amend Annex I on the basis of determinations made by the Sanctions Committee; and;
(b)      amend Annex II on the basis of information supplied by Member States.
…’
14      On 12 April 2007, following the decision of 29 March 2007 of the United Nations Security Council, the European Commission adopted Regulation (EC) No 400/2007 amending Regulation No 1183/2005 (OJ 2007 L 98, p. 20). The applicant’s name was added to the list forming part of the Annex to Regulation No 400/2007 and was accompanied by the following description:
‘Uganda Commercial Impex (UCI) LTD. Address: (a) Kajoka Street, Kisemente, Kampala, Uganda. Telephone No: +256 41 533 578/9; (b) PO Box 22709, Kampala, Uganda. Other information: gold export company in Kampala.
…’
15      On 20 December 2010, the Council adopted, on the basis of Article 29 TEU, Decision 2010/788/CFSP concerning restrictive measures against the DRC and repealing Common Position 2008/369/CFSP (OJ 2010 L 336, p. 30). That decision implemented United Nations Resolution 1533 (2004) and Article 3 thereof made the following provision:
‘Restrictive measures as provided for in Articles 4(1) and 5(1) and (2) shall be imposed against the following persons and, as appropriate, entities, designated by the Sanctions Committee:
…
— individuals or entities supporting the illegal armed groups in the eastern part of the DRC through illicit trade of natural resources.’
16      Article 5(1) to (3) of Decision 2010/788 ordered that the funds of the persons or entities referred to in Article 3 be frozen. It also prohibited the making available of funds, financial assets or economic resources, directly or indirectly, to the persons or entities referred to. Lastly, it made it possible for Member States to allow for exemptions from the measures referred to in the preceding provisions, including exemptions in respect of expenses necessary to meet ordinary outgoings, particularly payments for foodstuffs, rent or mortgage, medicines or medical treatment, taxes, insurance premiums, public utility charges, reasonable professional fees as well as fees or service charges, in accordance with national laws, for routine holding or maintenance of frozen funds or other financial assets and economic resources.
17      In the Annex to Decision 2010/788, the applicant was designated on the following grounds:
‘[The applicant] bought gold through a regular commercial relationship with traders in the DRC tightly linked to militias. This constitutes “provision of assistance” to illegal armed groups in breach of the arms embargo of Resolutions 1493 (2003) and 1596 (2005).’
18      The same grounds for the applicant’s listing were retained in Council Implementing Decision 2011/699/CFSP implementing Decision 2010/788 (OJ 2011 L 276, p. 50).
19      On 6 June 2013, the Council adopted Regulation (EU) No 521/2013 amending Regulation No 1183/2005 (OJ 2013 L 156, p. 1). Article 9 of Regulation No 1183/2005 was replaced by the following:
‘Article 9
1.      Where the UN Security Council or the Sanctions Committee designates a natural or legal person, entity or body, the Council shall include such natural or legal person, entity or body in Annex I.
2.      The Council shall communicate its decision, including the grounds for listing, to the natural or legal person, entity or body referred to in paragraph 1, either directly, if the address is known, or through the publication of a notice, providing such natural or legal person, entity or body with an opportunity to present observations.
3.      Where observations are submitted, or where substantial new evidence is presented, the Council shall review its decision and inform the natural or legal person, entity or body accordingly.
...’
20      On 17 March 2014, the Council adopted Decision 2014/147/CFSP amending Decision 2010/788 (OJ 2014 L 79, p. 42). The relevant part of Article 3 of Decision 2010/788 was replaced by the following:
‘Restrictive measures as provided for in Articles 4(1) and 5(1) and (2) shall be imposed against the following persons and, as appropriate, entities, designated by the Sanctions Committee:
…
–– individuals or entities supporting armed groups in the DRC through illicit trade of natural resources, including gold or wildlife as well as wildlife products.’
21      On 1 December 2014, the Council adopted Implementing Decision 2014/862/CFSP implementing Decision 2010/788 (OJ 2014 L 346, p. 36). Implementing Decision 2014/862 followed the decisions of 30 June and 31 October 2014 of the Sanctions Committee amending the list of individuals and entities subject to restrictive measures. The applicant’s name was maintained in the Annex to Implementing Decision 2014/862 on the following grounds:
‘UGANDA COMMERCIAL IMPEX (UCI) LTD
Address: (a) Kajoka Street, Kisemente, Kampala, Uganda (Tel. +256 41 533 578/9), (b) PO BOX 22709, Kampala, Uganda. Date of UN designation: 29 March 2007. Other information: Gold export company. (Former directors Mr J.V. LODHIA — known as “Chuni”— and his son Mr Kunal LODHIA). In January 2011, Ugandan authorities notified the [Sanctions] Committee that following an exemption on its financial holdings, Emirates Gold repaid [the applicant’s] debt to Crane Bank in Kampala, leading to final closure of its accounts. The [applicant’s previous owner], J.V. Lodhia and his son Kumal Lodhia have remained involved in purchasing gold from eastern DRC.
Additional information from the narrative summary of reasons for listing provided by the Sanctions Committee:
[The applicant] bought gold through a regular commercial relationship with traders in the DRC tightly linked to militias. This constitutes “provision of assistance” to illegal armed groups in breach of the arms embargo of resolutions 1493 (2003) and 1596 (2005). Gold export company. (Former directors Mr J.V. LODHIA — known as “Chuni”— and his son Mr Kunal LODHIA). In January 2011, Ugandan authorities notified the [Sanctions] Committee that following an exemption on its financial holdings, Emirates Gold repaid [the applicant’s] debt to Crane Bank in Kampala, leading to final closure of its accounts. The [applicant’s previous owner], J.V. Lodhia and his son Kumal Lodhia have remained involved in purchasing gold from eastern DRC.’
22      On 1 December 2014, the Council adopted Implementing Regulation (EU) No 1275/2014 implementing Article 9(1) and (4) of Regulation No 1183/2005 (OJ 2014 L 346, p. 3). Implementing Regulation No 1275/2014 followed two decisions of 30 June and 31 October 2014 of the Sanctions Committee amending the list of individuals and entities subject to restrictive measures. Under Article 1 of that implementing regulation, Annex I to Regulation (EC) No 1183/2005 was replaced and the applicant’s name was maintained on the same grounds as those set out in Implementing Decision 2014/862.
23      On 2 December 2014, by Notice 2014/C 432/01, the Council brought to the attention of the persons and entities subject to the restrictive measures provided for in Decision 2010/788, as implemented by Implementing Decision 2014/862, and Regulation No 1183/2005, as implemented by Implementing Regulation No 1275/2014, information on the implementation of those decisions and on the possibility of making a request to the Council for their reconsideration. On the same day, the Council drafted a letter notifying the applicant of the measures at issue. It was brought to the applicant’s attention that it could make an application to the competent authorities of the Member States for an exemption from the freezing of funds, in particular in order to dispose of the funds necessary for ordinary outgoings. Furthermore, the applicant was informed that it could submit a request to the Council seeking reconsideration of its inclusion on the list at issue and could also challenge that listing by bringing an action before the General Court.
24      On 20 April 2015, the Council adopted Decision (CFSP) 2015/620 amending Decision 2010/788 (OJ 2015 L 102, p. 43). Decision 2015/620 was adopted following the Sanction Committee’s decision of 5 February 2015 to amend the list of the individuals and entities subject to the restrictive measures. That decision amended the criteria for designation with regard to restrictions on travel and the freezing of funds provided for in Decision 2010/788. The new Article 3 of Decision 2010/788, as amended by Article 1 of Decision 2015/620, provided that restrictive measures were to be imposed against persons and entities designated by the Sanctions Committee for engaging in or providing support for acts that undermine the peace, stability or security of the DRC. Under Article 3(g) of Decision 2010/788, as amended, such acts included ‘supporting individuals or entities, including armed groups, involved in destabilising activities in the DRC through illicit trade of natural resources, including gold or wildlife as well as wildlife products’.
25      Furthermore, the applicant’s name was maintained in the Annex to Decision 2010/788 on the same grounds as those set out in Implementing Decision 2014/862 with some exceptions. In particular, the applicant’s address appeared as follows: ‘Plot 22, Kanjokya Street, Kamwokya, Kampala, Uganda’. Furthermore, in the first part of the statement of reasons, Jamnadas V. LODHIA — known as ‘Chuni’ — and his sons Kunal J. LODHIA and Jitendra J. LODHIA were mentioned as the applicant’s current directors.
26      On 20 April 2015, the Council adopted Regulation (EU) 2015/613 amending Regulation No 1183/2005 and repealing Regulation No 889/2005 (OJ 2015 L 102, p. 3). Regulation No 2015/613 updated some provisions of Regulation No 1183/2005, in the light of Decision 2015/620. In particular, paragraph 1 of Article 2a of Regulation No 1183/2005, as amended by Regulation 2015/613, provides:
‘1. Annex I shall include the natural or legal persons, entities or bodies designated by the Sanctions Committee for engaging in or providing support for acts that undermine the peace, stability or security of the DRC. Such acts shall include:
…
(g)      supporting individuals or entities, including armed groups, involved in destabilising activities in the DRC through illicit trade of natural resources, including gold or wildlife as well as wildlife products;
…’
27      On 20 April 2015, the Council adopted Implementing Regulation (EU) 2015/614 implementing Article 9(4) of Regulation No 1183/2005 (OJ 2015 L 102, p. 10). That implementing regulation was adopted following the decision of 5 February 2015 of the Sanctions Committee to amend the list of individuals and entities subject to restrictive measures. Under Article 1 of Implementing Regulation 2015/614, Annex I to Regulation (EC) No 1183/2005 was replaced and the applicant’s name was maintained on the same grounds as those set out in Decision 2015/620.
28      On 21 April 2015, by Notice 2015/C 128/02, the Council brought to the attention of the persons and entities subject to the restrictive measures provided for in Decision 2010/788, as amended by Decision 2015/620, and Regulation No 1183/2005, as implemented by Implementing Regulation 2015/614, information on the implementation of those decisions and on the possibility of making a request to the Council for their reconsideration. On the same day, the Council drafted a letter notifying the applicant of the measures at issue. As in the letter of 2 December 2014, it was brought to the applicant’s attention that it could make an application to the competent authorities of the Member States for an exemption from the freezing of funds, in particular for the funds necessary to meet ordinary outgoings. Furthermore, the applicant was informed that it could submit a request to the Council seeking reconsideration of its inclusion on the list at issue and could also challenge that listing by bringing an action before the General Court.
29      In the meantime, the applicant had contacted the Council by letter of 23 March 2015. It had criticised the Council for having adopted Implementing Decision 2014/862 and Implementing Regulation No 1275/2014 by which it had maintained the applicant’s name on the list at issue. The applicant complained that its rights of defence had been infringed and asked the Council to forward it the information and evidence on which that listing was based. It attached a copy of the application in Case T‑107/15.
30      On 26 March 2015, the Council acknowledged receipt of the applicant’s letter of 23 March 2015, and on 15 June 2015 it replied to the substance of that letter. In its letter, the Council referred to the decisions and regulations on which the applicant’s listing was based and noted that the grounds for the listing were taken from the grounds for the applicant’s designation relied on by the Sanctions Committee. The Council also stated that all of the evidence relied on by that committee was based on the findings of the United Nations group of experts on the DRC. Lastly, the Council provided the applicant’s representatives with a copy of the documents included in its file so that the applicant could defend its interests. Those documents included, in particular, the 2015 report of that group of experts as well as the draft Council measures providing for the applicant’s inclusion on the lists of persons or entities whose funds were frozen. The lists of persons or entities concerned, including the applicant, together with the grounds for listing, were also included in the documents sent to the applicant.
Procedure and forms of order sought
31      By application lodged on 25 February 2015, the applicant brought an action for annulment of Implementing Decision 2014/862 and Implementing Regulation 1275/2014 (‘the 2014 measures’), in so far as they relate to it, and in so far as necessary, for a declaration that Article 9(1) of Regulation No 1183/2005 does not apply to it. That action was registered as Case T‑107/15.
32      By application lodged on 18 June 2015, the applicant brought an action for annulment of Decision 2015/620 and Implementing Regulation 2015/614 (‘the 2015 measures’), in so far as they relate to it, and in so far as necessary, for a declaration that Article 9(1) of Regulation No 1183/2005 does not apply to it. That action was registered as Case T‑347/15.
33      By decision of the President of the Ninth Chamber of the Court of 6 November 2015, Cases T‑107/15 and T‑347/15 were joined for the purpose of the written and oral parts of the procedure, pursuant to Article 68 of the Rules of Procedure of the General Court.
34      When the composition of the chambers of the Court was altered, the Judge-Rapporteur was assigned to the Sixth Chamber, to which the present case was, consequently, assigned.
35      On a proposal from the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 89(3) of the Rules of Procedure, put questions to the parties to be answered in writing and questions to be answered at the hearing.
36      The parties’ written replies were lodged at the Court Registry within the prescribed period.
37      The parties presented oral argument and answered the questions put to them by the Court at the hearing on 30 November 2016. As regards Case T‑107/15, the Council had, in its defence, raised doubts concerning the admissibility of that action ratione temporis. At the hearing, it accepted that the action was admissible in the light of the information received in the meantime.
38      The applicant claims that the Court should:
–        in Case T‑107/15, annul the 2014 measures in so far as they apply to it (including its listing in the Annex to those measures);
–        in Case T‑347/15, annul the 2015 measures in so far as they apply to it (including its listing in the Annex to those measures);
–        in Cases T‑107/15 and T‑347/15, in so far as necessary, declare that Article 9(1) of Regulation No 1183/2005 is not applicable to it;
–        order the Council to pay the costs.
39      The Council contends that the Court should:
–        dismiss the applications;
–        order the applicant to pay the costs.
Law
40      First of all, the Court has decided to join Cases T-107/15 and T-347/15 for the purposes of the judgment, pursuant to Article 68(1) of the Rules of Procedure.
41      In addition, in support of both of its two actions, the applicant relies on four pleas in law alleging, first, the lack of an independent or appropriate assessment by the Council of the evidence which formed the basis of the Sanction Committee’s decisions to designate the applicant, secondly, an error of assessment as regards the application of the designation criterion in its case, thirdly, infringement of the applicant’s procedural rights, especially its rights of defence and its right to effective judicial protection, and failure to state sufficient reasons for the 2014 and 2015 measures, and, fourthly, the infringement of its fundamental rights and of the principle of proportionality.
The first plea in law, alleging the lack of an independent or appropriate assessment by the Council of the evidence which formed the basis of the Sanction Committee’s decisions to designate the applicant
42      The applicant refers extensively to the judgments of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461), and of 30 September 2010, Kadi v Commission (T‑85/09, EU:T:2010:418), upheld on appeal by 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), while stating that it is not in a materially different position to that of the applicants in the cases giving rise to those judgments. It submits that the Council was required to take an ‘independent decision’ when including it on the list at issue. The applicant argues that the Council was not strictly bound by the decisions of the Sanctions Committee, in that it was not without discretion of its own.
43      The applicant submits that the Council was not required to follow the United Nations Security Council whenever the latter designated an entity. The Council should conduct an independent examination of all decisions for placing the name of individuals or entities subject to restrictive measures on the list at issue. The applicant submits that the European Union is based on the rule of law and that its institutions cannot avoid the review of the conformity of their acts with the ‘basic constitutional charter’ and general principles of law. Furthermore, it submits that this ‘full’ review applies in the same way to independent decisions of the institutions imposing restrictive measures that are similar to that in issue in the present case as to derivative sanctions.
44      With reference to the case-law of the Court, the applicant notes that the Council cannot simply rely on the grounds claimed without evidence or adopt at face value the grounds and evidence invoked by a Member State. In addition, it states that, in the present case, erroneous evidence was copied and pasted from ‘the statement of reasons’ of the United Nations and that those errors were corrected in the 2014 and 2015 measures only after rectification by the United Nations.
45      In the applicant’s view, the Council is still required to take a decision which is independent of that taken by the United Nations; the need for an independent decision was particularly clear in the present case because there were no procedural safeguards to which the applicant could have recourse before the United Nations and the information it sent to the United Nations focal point was simply ignored.
46      In this instance, the applicant submits that the statement of reasons in the 2014 and 2015 measures contains less information, as regards the applicant, than ‘the narrative summary’ relating to it published on the website of the United Nations. Furthermore, it submits that at no time did the Council provide more details or information over and above those provided in that narrative summary. Lastly, the applicant further states that the Council never provided it with any evidence justifying its designation, despite being obliged to do so in advance of any decision to maintain the initial listing.
47      Lastly, the applicant submits that if, ‘contrary to its position’, Article 9(1) of Regulation No 1183/2005 had to be interpreted as not requiring an independent decision of the Council, that would be unlawful and contrary to the principle of proportionality. Consequently, it essentially raises a plea of illegality against Article 9(1) of that regulation under Article 277 TFEU.
48      The Council disputes the applicant’s arguments. It contends that following the applicant’s designation by the competent body of the United Nations, it was required to take the decision to list the applicant’s name or to maintain its listing. Moreover, the Council argues that, in the applicant’s case, there were procedural safeguards to which it could have had recourse but which it invoked only after it lodged its application in Case T‑107/15.
49      The Council also puts forward other reasons for distinguishing the applicant’s case from that of the applicants in the cases giving rise to the judgments of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461), and of 30 September 2010, Kadi v Commission (T‑85/09, EU:T:2010:418), upheld on appeal by 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). Thus, in the present case, the applicant had had contact with the United Nations group of experts whose reports were public and known to it. Furthermore, the Council provided the applicant within a reasonable time with the evidence supporting its inclusion on the list at issue and, therefore, the applicant was in a position to defend its rights.
Preliminary observations
50      It is apparent from the content of the applications and from its clarifications at the hearing that, by the present plea in law, the applicant essentially complains that the Council has neither established nor sought to establish the legal relevance of the facts on the basis of which it could be described as having supported the armed groups in the DRC through illicit trade of natural resources or the material accuracy of those facts.
51      It must also be pointed out that, in the context of the second plea in law, the applicant complains separately of an error of assessment as regards the application of the designation criterion in its case. In the context of the first plea in law, it will, therefore, be examined whether the Council was under an obligation to carry out its own examination of the evidence — evidence which the applicant considered irrelevant —which had served as the basis for the Sanctions Committee’s decisions to designate the applicant before including the applicant’s name on the list and maintaining that listing. Subsequently, when the second plea in law is considered, it will be examined whether the Council made an error of assessment in finding that the designation criterion had been met as regards the applicant.
The Council’s obligation to examine and verify the evidence independently
52      The applicant’s principal complaint in that regard consists in emphasising that, instead of adopting without more the grounds for listing selected by the relevant United Nations body, the Council ought itself to have carried out an examination and assessment of the evidence which served as a basis for designating the applicant, before including its name on the list at issue and maintaining that listing. The Court must, therefore, examine whether, in the specific circumstances of the present case, the Council ought to have carried out its own verification of the evidence relied upon by the United Nations in order to designate the applicant.
53      It must be noted from the outset that, in the context of the adoption of restrictive measures, the Council is under an obligation to comply with the principle of good administration, enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, which according to the settled case-law entails the obligation for the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see, to that effect and by analogy, judgments 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 99, and of 5 November 2014, Mukarubega, C‑166/13, EU:C:2014:2336, paragraph 48). It may, therefore, be inferred from the case-law on restrictive measures adopted in the context of the fight against terrorism that it was for the Council in the present case to examine, carefully and impartially, the evidence on which the Sanctions Committee had relied in order to designate the applicant (see, to that effect and by analogy, 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 114).
54      It is also apparent from the case-law that, in order to assess the nature, form and degree of the proof that the Council may be asked to provide, the nature, specific scope and the objective of the restrictive measures must be taken into account. In particular, contrary to what the applicant principally argues, the Council is not obliged to carry out, systematically or on its own initiative, its own investigations or checks for the purpose of obtaining additional information, when it already has information provided by the United Nations in taking restrictive measures against persons who have been subject to proceedings before that international organisation (see, by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 57).
55      In that regard, the Court has held that, as regards restrictive measures in the fight against terrorism, the authority must take its decision on the basis of the summary of reasons provided by the Sanctions Committee and that, on the other hand, there is no provision, at that stage, to the effect that that committee is automatically to make available to the authority, for the purposes of the adoption by it of its decision, any material other than that summary of reasons (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 107). At the same time, it is for the competent authority to assess, having regard, inter alia, to the content of any comments of the person concerned, whether it is necessary to seek the assistance of the United Nations Security Council in order to obtain the disclosure of information or evidence, confidential or not, to enable it to discharge its duty of careful and impartial examination (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 115).
56      In the present case, it should be noted that the United Nations resolutions designating the applicant were based on several detailed reports drawn up by groups of experts. It is apparent from the file that the reports had been drawn up on the basis of a methodology predefined by the competent United Nations body. As regards the content of those reports, the applicant was already mentioned in the 2005 and 2006 reports as being involved in the gold transactions between the DRC and Uganda. Next, in the 2007 report, that is after the imposition by the United Nations of sanctions on the applicant on 29 March 2007, the United Nations group of experts mentioned that the applicant had already initiated consultations with the Congolese Government ‘to determine how [it] could become a positive force in the gold exports of the country and possibly obtain a legal export licence’. In 2008, the same group of experts reported that, notwithstanding the statements of the applicant’s directors that the applicant was no longer involved in gold trading, transactions had been identified with the company Emirates Gold, established in Dubai (United Arab Emirates).
57      In addition, the 2009 report refers in detail to the applicant’s case and its involvement in the illicit trade in gold from the Congo setting out precise information on how the Lodhia family, the applicant’s directors, uses a network of trusted intermediaries in order to fix the purchase prices for gold with traders in the DRC. The report also states that the gold is exported from the DRC, imported into Uganda and then transported to Dubai. Moreover, by reference to the evidence from several intermediaries and telephone logs obtained by the United Nations group of experts, it is established that the applicant’s owners traded in gold from several areas of the DRC.
58      Furthermore, in the January 2014 report (S/2014/42), the United Nations group of experts notes that in 2006 the applicant, which was headed by Mr J.V. Lodhia, was the leading Ugandan gold exporter. In March 2007, the United Nations Security Council included that company’s name on its list of individuals and entities subject to sanctions, but Mr Lodhia continued to buy Congolese gold after that listing. The report states that gold traders in Bunia (DRC) and Butembo (DRC), as well as ‘civil society leaders’ in Kampala (Uganda), stated that Mr J.V. Lodhia had continued to illegally buy smuggled gold from the DRC at the office of Aurum Roses, a company owned by him and his two sons, Jitendra and Kunal J. Lodhia.
59      Moreover, in another report, of June 2014 (S/2014/428), the United Nations group of experts refers to the preceding report of January 2014, stating that the applicant remained one of the two main traders in Congolese gold in Kampala. That group states that it had asked the Government of Uganda to respond to its findings, but did not receive a response before the deadline established for its report. In April 2014, Ugandan officials told the group of experts that there had been no official gold exports between 1 January and 31 March 2014.
60      Lastly, in its report of January 2015 (S/2015/19), the United Nations group of experts confirmed that gold continued to be smuggled from the DRC to Uganda and smuggled gold was purchased by Kampala-based businessmen, including directors of the applicant. Twelve gold traders, miners, government agents and other sources had told the group that gold from the DRC was sold in Kampala, in particular, to directors of the applicant. The group had also taken evidence from several persons involved in the trade in gold in the East of the DRC. Those statements supported the fact that the applicant’s directors had purchased gold illegally exported out of the DRC and illegally imported into Uganda. In particular, according to that evidence, the applicant’s directors purchased gold by giving the applicant’s and Arum Roses’ address.
61      In the same report, the United Nations group of experts stated that in September 2014 it had observed a vehicle with a Congolese licence plate, registered to a gold trader, arrive at the applicant’s address. Two men had exited the vehicle and entered the building.
62      It is apparent from the foregoing that, having regard to the clear, precise and consistent evidence on which the United Nations authorities relied, the Council was fully entitled to consider that evidence sufficient and not to request additional information or carry out additional investigations itself (see, to that effect and by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 68). In addition, it must be noted that, before the 2014 and 2015 measures were in turn adopted, the applicant had not contacted the Council with a view to submitting observations which could have led it to carry out its own investigations.
63      The applicant submits, as regards verifying the truth of the facts, that the Council was required to state the name of the traders from whom the gold had been purchased, when the trades had taken place, the militia concerned and the basis, in the expert groups’ reports, for the ‘tight links’ between the unspecified traders and the unspecified militia. However, that argument is unfounded. It must be borne in mind that the legal nature of restrictive measures is an important aspect which defines the scope of the reassessment which the Council may carry out of the evidence accepted in the present case by the Sanctions Committee. In addition, according to the case-law, an asset freeze, imposed by the Council on the basis of the powers conferred on it by Articles 21 TEU and 29 TEU, has no criminal-law aspect (see, to that effect, judgments of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 77, and of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 64). Consequently, the Council’s obligations in the context of the 2014 and 2015 measures cannot be treated like those of a national judicial authority of a Member State in the context of criminal proceedings.
64      In the light of the foregoing, and in the particular circumstances of the present case, the Council was not, therefore, required to carry out additional verification of the correctness of the facts mentioned in the reports drawn up by the United Nations groups of experts. The present plea in law must, therefore, be rejected as unfounded.
65      In addition, as regards the applicant’s complaint that the Council at no stage provided it with any evidence prior to its name being included on the list at issue, that complaint relates instead to the applicant’s rights of defence and must, therefore, be regarded as raised in support of the first part of the third plea in law and will be examined in that context.
66      Lastly, the applicant essentially raises a plea of illegality, in so far as it argues that, if, contrary to its view, Article 9(1) of Regulation No 1183/2005 had to be interpreted as not requiring an independent decision of the Council, it would be unlawful and contrary to the principle of proportionality.
67      That plea of illegality is based on an incorrect premiss. It follows from the preceding analysis that Regulation No 1183/2005 does not preclude, as a rule, the Council from taking an independent decision from that adopted by the United Nations. By contrast, given the sufficient amount and quality of the evidence on which the United Nations decisions were based, the Council was not under an obligation to carry out further verification with a view to obtaining additional clarification from the Sanctions Committee. That aspect does not alter the independent nature of the Council’s decisions. In any event, the present complaint is raised very briefly. The applicant simply raises the principle of proportionality in an abstract manner, without expanding on the complaint in that regard.
68      In the light of the foregoing, the present complaint, raised by the applicant in the context of the first plea in law, must be rejected as unfounded, there being no need to rule on whether it is admissible, and consequently, the first plea in law must be rejected in its entirety.
The second plea in law, alleging an error of assessment as regards the application of the designation criterion in the applicant’s case
69      The applicant submits that the 2014 and 2015 measures are vitiated by an error of assessment. Furthermore, even if the view were taken that the Council was not required to issue an independent decision, the applicant claims that the Council was required to take account of its arguments set out in its applications and in a letter that it was to send to the Council in the future and was required not to maintain its listing. The applicant argues that the Court is under an obligation to conduct a full judicial review of the alleged grounds for the applicant’s listing and of their factual basis, which entails checking the claims made in the decision to designate the applicant.
70      In addition, the applicant attaches to its reply a statement by Mr Kunal Lodhia, one of its directors, which it asks the Court to take into account in accordance with Article 85 of the Rules of Procedure. It states, in particular, that when the application in Case T‑107/15 was lodged, it did not have access to any of the evidence on which the Council had relied and it received the Council’s reply only a few days before expiry of the deadline for lodging the application in Case T‑347/15. In his lengthy 48-page statement, Mr Lodhia disputes the findings of the different United Nations groups of experts in order to argue that the conclusions which the Council drew from them are unfounded.
71      First, the Council contends that Mr Lodhia’s statement is inadmissible under Article 85(2) of the Rules of Procedure. It also states that by producing this item of evidence at the stage of the reply rather than the application, the applicant reduced the time available to examine that statement in depth. Next, it states that Mr Lodhia is one of the applicant’s directors. Thus, contrary to the different groups of experts of the United Nations Security Council whose independence has never been questioned by the applicant, the statement in question has been prepared by a person with a direct personal interest in the outcome of the present procedure, which reduces its probative value. Lastly, the Council disputes the applicant’s arguments and it objects in particular to the applicant’s attempts to divide the statement of reasons for its listing into small parts, each of which is subsequently contested.
The admissibility of Mr Lodhia’s statement
72      Under Article 85(2) of the Rules of Procedure, the parties may offer evidence in support of their arguments in reply or rejoinder, but must give reasons for the delay in offering it. However, according to the case-law, evidence in rebuttal and the amplification of the offers of evidence submitted in response to evidence in rebuttal from the opposite party in his defence are not covered by the time-bar laid down in Article 85(2) of the Rules of Procedure. That provision concerns offers of fresh evidence and must be read in the light of Article 92(7) of those rules, which expressly provides that evidence may be submitted in rebuttal and previous evidence may be amplified (judgments of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraphs 71 and 72, and of 5 December 2006, Westfalen Gassen Nederland v Commission, T‑303/02, EU:T:2006:374, paragraph 189).
73      In the present case, Mr Lodhia’s statement, together with the annexes thereto, was submitted for the first time at the reply stage. By that evidence, the applicant disputes the merits of its designation by the United Nations and then those of its inclusion on the list at issue by the Council. It seeks, therefore, to disprove the conclusions of the United Nations group of experts in its reports published between 2005 and 2015, which served as the basis for the measures imposed on it by the Sanctions Committee. However, those reports were available to the applicant at the stage at which the applications in the present proceedings were lodged. It is apparent from the file that the evidence which led the United Nations to designate the applicant is in the public domain. It was, therefore, available to the applicant a long time before the present applications were brought, that is from 2007, when the Sanctions Committee designated the applicant for the first time (see paragraph 7 above). In addition, in 2008 the applicant started a delisting procedure at the United Nations. It was, therefore, deemed to be fully aware of the reports drawn up by the group of experts. Lastly, those documents were served on the applicant by the Council in its letter dated 15 June 2015, that is before the period for lodging the application in Case T‑347/15 expired. Consequently, Mr Lodhia’s statement cannot be considered evidence in rebuttal or the amplification of the offers of evidence.
74      Consequently, Mr Lodhia’s statement must be rejected as inadmissible, on the basis of Article 85(2) of the Rules of Procedure.
75      In any event, as the Council has noted, it must be pointed out that the probative nature of the statement in question was reduced by the fact that Mr Lodhia is one of the applicant’s directors, therefore having a direct personal interest in the outcome of the present proceedings.
The merits of the applicant’s arguments
76      It must be recalled that the Council has a broad discretion to define the general criteria adopted for the purpose of applying restrictive measures (see, to that effect, judgments of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 120 and the case-law cited; of 21 April 2015, Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 42; and of 21 April 2015, Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 41).
77      At the same time, it must be borne in mind that 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 Union acts in the light of the fundamental rights forming an integral part of the European Union legal order. That obligation is expressly laid down by the second paragraph of Article 275 TFEU (see judgment of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 58 and the case-law cited).
78      Consequently, the Council’s discretion in the area does not preclude the Courts of the European Union from determining, as part of the review of lawfulness, the accuracy of the evidence relied upon by the Council. The effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights requires in particular that the Courts of the European Union are to ensure that a decision affecting the person or entity concerned individually is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the 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 by the competent authority, 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 judgments 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 and the case-law cited, and of 21 April 2015, Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 45 and the case-law cited).
79      In that regard, there is no requirement that the competent authority produce before the Courts of the European Union all the information and evidence underlying the reasons alleged in the act sought to be annulled. It is, however, necessary that the information or evidence produced should support the reasons relied on 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).
80      In the present case, the merits of including the applicant’s name on the list annexed to the 2014 and 2015 measures must be reviewed by assessing whether the facts at issue constitute sufficient evidence that the interested party meets the general criteria laid down by the Council in Article 3 of Decision 2010/788, as amended by Decisions 2014/147 and 2015/620, in order to define the category of persons that may be subject to such measures.
81      It must, therefore, be examined whether the applicant’s role and activity, as apparent from the reports of the United Nations groups of experts, constitute sufficient evidence that it supports armed groups in the DRC through the illicit trade of gold. It is to be noted that the purpose of the United Nations sanctions regime is to block the entire illicit gold trade in the DRC since mining and trade of gold fuels the violence in that country. Such an appraisal must be carried out by examining the evidence not in isolation but in context. The Council discharges the burden of proof borne by it if it presents to 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 entity subject to a measure freezing its funds and the regime or, in general the situations, being combated (see judgment of 21 April 2015, Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraphs 51 and 53 and the case-law cited).
82      In that regard, it should be borne in mind that, as is apparent from the case-law noted in paragraph 76 above, the Council has a broad discretion in determining the criteria defining the category of persons subject to the restrictive measures at issue, but not in determining whether a person satisfies those criteria, the latter determination involving inter alia a process of legal characterisation over which the Courts of the European Union exercise full review (judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 51).
83      In the present case, in this second plea in law, the applicant complains that the grounds accepted by the Commission in the 2014 and 2015 measures, enabling the applicant’s name to be maintained on the lists at issue, are insufficient or erroneous. The question is, therefore, whether the Council relied on legally relevant facts to find that there was, in the present case, the ‘provision of assistance’ by the applicant to illegal armed groups in breach of the arms embargo.
84      First, the applicant submits that the Council erred in finding that it had provided assistance to illegal armed groups in the DRC, since no evidence has been seen to support such an allegation and the Council has not proven it by reference to evidence. That argument is unfounded. As was demonstrated when the first plea in law was examined, the measures imposed by the Council were based on a series of reports drawn up by the United Nations group of experts. The amount of that evidence and its soundness, which are apparent from the reports covering an approximately ten-year period, have led to the conclusion, in the context of the first plea for annulment, that the Council was not required in the present case to carry out itself a fresh assessment of the correctness of the evidence (see paragraphs 56 to 61 above).
85      Moreover, the ground that ‘[the applicant] bought gold through a regular commercial relationship with traders in the DRC tightly linked to militias’ is sufficiently substantiated and is explicit from the group of exports’ report of January 2014 (see paragraph 58 above). In general, since the reports of the United Nations group of experts in 2014 and 2015 identify the person committing the contested acts and when they were committed, naming one of the intermediaries with whom the applicant had business links in the gold trade, the ground accepted by the Council may be established as valid.
86      It must also be noted that although that reasoning does not explicitly state the criterion on which the Council relied in order to maintain the applicant’s name on the list at issue, it is sufficiently clear from reading the grounds of the measures at issue that it used the criterion laid down in Article 3(g) of Decision 2010/788, as amended, in that it targets persons or entities providing support for ‘individuals or entities, including armed groups, involved in destabilising activities in the DRC through illicit trade of natural resources, including gold’.
87      Secondly, as the applicant argues, some of the grounds accepted by the Council in order to include its name on the list at issue appear irrelevant or are even inaccurate. Indeed, it is not clearly explained to what extent the reference to the repayment by Emirates Gold of ‘[the applicant’s] debt to Crane Bank in Kampala, leading to final closure of its accounts’, may constitute the ‘provision of assistance’ to illegal armed groups.
88      In addition, the applicant states — which is not disputed by the Council — that J.V. Lodhia and K. Lodhia are still its directors. It should be mentioned in that regard that by the 2015 measures Jitendra J. Lodhia was also referred to as a current director of the applicant. It follows that the reference to J.V. Lodhia and K. Lodhia as ‘former directors’ in the 2014 measures appears inaccurate. The fact remains, however, that that inaccuracy in the wording of the grounds is not determinative as regards the issue of the legal characterisation of the facts in the present case. In any event, the applicant’s argument concerning the inaccuracy of certain grounds accepted by the Council in order to include the applicant’s name on the list at issue is not only ineffective, but also strengthens the grounds set out by the Council in the 2014 and 2015 measures. While J.V. Lodhia and K. Lodhia are still directors of the applicant, they therefore act on its behalf. Consequently, all the information in the reports drawn up by the United Nations group of experts, according to which the applicant’s directors had tight links with the intermediaries involved in the illicit trade of gold, can only reinforce the legal characterisation of the applicant as having provided assistance to the militias in the DRC.
89      Thirdly, the applicant’s argument that it is no longer operational is ineffective. While the restrictive measures at issue affected its operational capacity, this proves that they are effective and does not prove that the Council made an error of assessment in including its name on the list at issue. Moreover, the applicant does not argue that the Council failed to take account of evidence which could have led it to consider that the applicant had ceased to provide assistance to militias in the DRC, irrespective of the fact that the freezing of its funds made the continuation of such activity more difficult (see, to that effect and by analogy, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 112).
90      In the light of the factors set out in paragraphs 84 to 89 above, it must be found that the Council did not err in including the applicant’s name on the list of persons referred to in Article 3 of Decision 2010/788, as amended by Decision 2014/147, and subsequently by Decision 2015/620, on the grounds, respectively, that ‘through illicit trade of natural resources, including gold … [it supports armed groups in the DRC’ and ‘[that it provides support for] individuals or entities, including armed groups, involved in destabilising activities in the DRC through illicit trade of natural resources, including gold’, and the second plea in law must be rejected.
The third plea in law, alleging infringement by the Council of the applicant’s procedural rights and failure to state sufficient reasons for the 2014 and 2015 measures
91      The applicant submits that the contested measures were taken by the Council in disregard of its procedural rights, in particular the rights of defence and the rights to effective judicial protection, and on the basis of a failure to state sufficient reasons for the 2014 and 2015 measures. In the first part of the present plea in law, the applicant argues that the failure to provide it with the documents on which its listing was based prevents it from making observations on the supposed basis for the Council’s decision in that regard. In particular, it submits that the Council did not provide a means for it to make its views known effectively in that no evidence against it was provided and the statement of reasons is insufficient and overly vague. In any event, the applicant submits that the Council failed to comply with its obligation to provide evidence before its decision to maintain the applicant’s listing. It also states that the reasons for maintaining its listing changed between the 2014 measures and the earlier measures, which placed the Council under an obligation to send it prior notification of the grounds for listing.
92      By the second part of the present plea in law, the applicant argues, in its application in Case T‑107/15, that a second infringement will be committed if no documents are provided in response to that application, to the submission of observations to the Council or to the request for documents. In its application in Case T‑347/15, the applicant submits that the Council’s failure to provide it with any documents or evidence before the 2015 measures constitutes a further infringement of its rights of defence.
93      By the third part of the present plea in law, the applicant submits that the Council failed to state reasons for the 2014 and 2015 measures. In particular, it submits that the grounds relied on by the Council in those measures are either inadequate, in that no explanation is given as to how they could justify the applicant’s designation, or entirely vague. The applicant argues that the Council was required to state the names of the traders from whom gold had been purchased, to detail the trades that had taken place, to identify the militias referred to, and to state the basis for the ‘tight links’ between the unspecified traders and the unspecified militias.
94      The Council contends in particular, in response to the first part of the present plea in law, that the obligation to send the interested party prior notification of the statement of reasons applies only where new evidence is added to the statement of reasons provided by the Sanctions Committee. The content of the statement of reasons on the basis of which the applicant was listed in this case remained essentially the same.
95      The Council also disputes the arguments put forward by the applicant in support of the first and second parts of the present plea in law. It contends that the applicant was aware that it was subject to restrictive measures and that the Council communicated to it the evidence at issue in good time. The Council states that it had notified the applicant of those measures by letters dated 2 December 2014 and by a notice published in the Official Journal of the European Union. The Council also states that, in contrast to the 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), the first time the applicant requested the evidence on which its listing was based was by its letter to the Council dated 23 March 2015. Furthermore, the Council states that the applicant offers no explanation for this delay of approximately three months before contacting the Council. As regards the third part of the present plea in law, the Council contends in particular that the reasons given for a measure may be regarded as sufficient where the measure was adopted in a context which was known to the interested party, as in the present case.
The first part of the third plea in law
96      In proceedings relating to the adoption of the decision to include or maintain the name of an individual on a list of individuals or entities whose assets have been frozen, respect for the rights of the defence requires that the competent Union authority disclose to the individual concerned the evidence against that person available to that authority and relied on as the basis of its decision, so that that individual may defend his rights in the best possible conditions and may decide, with full knowledge of the relevant facts, whether there is any point in bringing an action before the Courts of the European Union. In addition, when that disclosure takes place, the competent Union authority must ensure that that individual is placed in a position in which he may effectively make known his views on the grounds advanced against him.
97      As regards a decision whereby the name of the individual concerned is to be maintained on such a list, compliance with that dual procedural obligation must, contrary to the position in respect of an initial listing, precede the adoption of that decision (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 111 to 113 and the case-law cited). However, where that decision simply continues to include the name of the person concerned on such a list without amending the grounds for maintaining the listing, the Council cannot be required to comply with that dual procedural obligation (see, to that effect, judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407 paragraphs 26 and 27).
98      It must also be pointed out that the question of whether there is an infringement of the rights of the defence and of the right to effective judicial protection must be examined in relation to the specific circumstances of each particular case, including the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question (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 101 and 102).
99      In the present case, the applicant proceeds from the premiss that, in order to respect its rights of defence, the Council ought to have communicated to it spontaneously the evidence which led to the inclusion of its name on the list at issue, without being requested to do so by it. That premiss is, however, incorrect.
100    First, it must be found that the 2014 and 2015 measures merely had the effect of continuing to include the applicant’s name on the list annexed to those measures. By contrast, those amendments did not concern the grounds on which the applicant’s name appeared on that list. Consequently, like Decision 2010/788 and Implementing Decision 2011/699, the 2014 and 2015 measures maintained the applicant’s name on that list on the same grounds, namely the purchase of ‘gold through a regular commercial relationship with traders in the DRC tightly linked to militias[, which constituted the] “provision of assistance” to illegal armed groups in breach of the arms embargo’ (see paragraphs 17, 18 and 21 to 27 above).
101    Admittedly, in the 2014 measures, J.V. Lodhia and his son, Kunal Lodhia, are referred to as ‘former directors’ of the applicant, whereas in the 2015 measures the adjective ‘former’ no longer appears. Nonetheless, that change is not substantial enough for it to be considered that the applicant’s inclusion on the list at issue was maintained on the basis of new grounds. In other words, the grounds of the 2015 measures were essentially the same as those of the 2014 measures. Consequently, in accordance with the case-law referred to in paragraph 95 and 96 above, the Council was not required, prior to the adoption of those measures, to comply with the procedural obligations referred to in those paragraphs (see, to that effect, judgments of 21 January 2016, Makhlouf v Council, T‑443/13, not published, EU:T:2016:27, paragraph 46, and of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 136).
102    Secondly, as the Court held in its judgment of 22 April 2015, Tomana and Others v Council and Commission (T‑190/12, EU:T:2015:222, paragraph 192), when sufficiently precise information has been disclosed, enabling the entity concerned effectively to state its point of view on the evidence adduced against it by the Council, the principle of respect for the rights of the defence does not mean that the institution is obliged spontaneously to grant access to the documents in its file. It is only on the request of the party concerned that the Council is required to provide access to all non-confidential official documents concerning the measure at issue.
103    In the present case, the Council notified the applicant of the 2014 and 2015 measures by letters of 2 December 2014 and 21 April 2015. In addition, two notices were published in the Official Journal on the same dates. The notifying letters included the grounds for the listing, so that the applicant was in fact placed in a position in which it could effectively make known its views on the grounds advanced against it (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 112). It must also be noted in that regard that, as was pointed out in paragraph 73 above, the reports of the United Nations groups of experts serving as the basis for the applicant’s first listing were available to it as from 2007 and that the subsequent reports were also public. Consequently, the applicant was aware of the context in which it had been decided by the Council to maintain its listing and was aware of the reasons for that decision.
104    The applicant for its part requested evidence only approximately three months later, that is on 23 March 2015. In addition, it does not explain why it submitted the matter to the Council with such a delay. Moreover, there is nothing in the file to suggest that the applicant could not, had it so wished, have submitted such a request earlier. On the contrary, there is material, cited in paragraph 102 above, which indicates that the applicant was aware of the possibility of contacting the Council on the subject of the restrictive measures imposed on it and, in that context, of requesting disclosure of the evidence concerning it.
105    Lastly, and in any event, it should be noted that before an infringement of the rights of the defence can lead to the annulment of an act, it must be demonstrated that had it not been for that irregularity, the outcome of the procedure might have been different. However, in the present case, the applicant has not sufficiently explained what arguments and evidence it would have relied on if it had received the documents at issue earlier and has failed to demonstrate that such arguments and evidence might have led in its case to a different result, in other words to the restrictive measures at issue not being renewed against it (see, to that effect and by analogy, judgment of 18 September 2014, Georgias and Others v Council and Commission, T‑168/12, EU:T:2014:781, paragraphs 106 to 108 and the case-law cited). Consequently, the applicant’s arguments based on the infringement of its rights of defence, put forward in support of the first part of the present plea in law, cannot in any case lead to the annulment of the 2014 and 2015 measures.
106    In the light of the foregoing, it must be concluded that the arguments put forward by the applicant concerning its rights of defence as regards the Council’s communication of the evidence against it are unfounded. As regards the alleged infringement of the right to effective judicial protection, it must be noted that since the applicant does not put forward any specific arguments in that regard, that contention is inadmissible and the first part of the present plea in law must, therefore, be rejected in its entirety.
The second part of the third plea in law
107    In the application in Case T‑107/15, in so far as the applicant refers to a further breach ‘in the event that no material is forthcoming following the issuing of this application, the presenting of observations to the Council and a request for such material’, it challenges an uncertain and hypothetical decision. However, under settled case-law, the EU courts are prohibited from ruling on hypothetical future decisions (judgments of 6 September 2013, Export Development Bank of Iran v Council, T‑4/11 and T‑5/11, not published, EU:T:2013:400, paragraph 32, and of 6 September 2013, Bank Refah Kargaran v Council, T‑24/11, EU:T:2013:403, paragraph 31).
108    In any event, as regards the two actions brought by the applicant, the Council replied on 15 June 2015 — after receipt of the applicant’s letter dated 23 March 2015 — communicating to it the evidence at issue (see paragraphs 29 and 30 above). Consequently, in the light of the case-law cited in paragraph 101 above, that complaint is unfounded.
The third part of the third plea in law
109    It should be borne in mind that the question of the statement of reasons, which concerns an essential procedural requirement, is separate from that of the evidence of the alleged conduct, which concerns the substantive legality of the act in question and involves assessing the truth of the facts set out in that act and the characterisation of those facts as evidence justifying the use of restrictive measures against the person concerned (judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 60; see also, to that effect, judgment of 16 November 2011, Bank Melli Iran v Council, C‑548/09 P, EU:C:2011:735, paragraph 88).
110    The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect. It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a plea in law alleging an inadequate statement of reasons or a lack of such a statement (see judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 37 and the case-law cited).
111    In addition, it has consistently been held that the statement of reasons required by Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights must be appropriate to the contested act and to the context in which it was adopted. It must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the person concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case (see judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 107 and the case-law cited).
112    It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. Thus, first, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to the person concerned and which enables him to understand the scope of the measure concerning him. Secondly, the degree of precision of the statement of the reasons for a measure must be weighed against practical realities and the time and technical facilities available for taking the measure (see judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 108 and the case-law cited).
113    In particular, the statement of reasons for a measure freezing assets cannot, as a rule, consist merely of a general, stereotypical formulation. Such a measure must, on the contrary, indicate the actual and specific reasons why the Council considers that the relevant rules are applicable to the party concerned (see judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 109 and the case-law cited).
114    In the present case, it must be examined, in the light of the case-law set out in paragraphs 109 to 113 above, whether the Council stated sufficient reasons for the 2014 and 2015 measures deciding to maintain the applicant’s name on the list at issue.
115    First, as the applicant itself confirms, it is ‘a long-standing family business …, in business for generations and long before any conflict in the [DRC]’. In addition, on several occasions the United Nations group of experts noted the applicant’s role as one of the major purchasers and exporters of gold in Uganda. Furthermore, the applicant was aware of the inclusion of its name on the United Nations list since 2007, the year in which it submitted a request to the focal point for its de-listing. Lastly, as the applicant noted at the hearing, there was contact between itself and the United Nations group of experts. It follows that the applicant could not have been unaware of the general context in which the measures at issue were adopted.
116    Secondly, it must be noted that the reasoning for maintaining the applicant’s name on the list at issue includes the sentence ‘[the applicant] bought gold through a regular commercial relationship with traders in the DRC tightly linked to militias’ and the extract ‘This constitutes “provision of assistance” to illegal armed groups in breach of the arms embargo of resolutions 1493 (2003) and 1596 (2005)’ (see paragraphs 21 to 27 above). The words used therefore readily enabled the applicant to understand that the Council had decided to maintain that listing on the basis of the criterion for listing accepted in Decision 2010/788, as amended, according to which it was prohibited to support individuals or entities, including armed groups, involved in destabilising activities in the DRC through illicit trade of natural resources, including gold.
117    Thirdly, the applicant incorrectly maintains that certain matters in the reasoning of the 2014 and 2015 measures had to be specified, namely, who the traders were from whom the gold was purchased, when the trades took place, the militia being referred to and the nature of the tight links between the traders and militias. The applicant confuses in that regard the level of detail required for the purposes of adopting restrictive measures with that necessary in the context of criminal proceedings.
118    In the light of the foregoing analysis and, in particular, the precise wording of the reasoning and the fact that the 2014 and 2015 measures were adopted in a context known to the applicant, which enables it to understand the scope of the measures taken concerning it, the third part of the present plea in law must be rejected as unfounded. Consequently, the third plea in law must be rejected in its entirety.
The fourth plea in law, alleging the infringement of the applicant’s fundamental rights and of the principle of proportionality
119    The applicant submits that the maintenance of its name on the lists following the Council’s decision of March 2014 infringes its fundamental rights and freedoms as guaranteed by the Charter of Fundamental Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950. In the first part of the present plea in law, the applicant argues that, owing to the irregularities identified in its first and third pleas in law, it was unable to put its case to the United Nations or the Council.
120    In the second part of the present plea in law, the applicant submits that the measures at issue infringed its right to property. In particular, it submits that those measures were manifestly disproportionate because they almost entirely extinguished its right to peaceful enjoyment of property owned in the territory of the European Union as well as property owned outside the European Union but under the control of entities or persons subject to Regulation No 1183/2005.
121    The Council states that the applicant contributed by its own conduct, in a case concerning the imposition of targeted sanctions, to exacerbating the situation in eastern DRC. In addition, aside from the fact that the applicant did not argue that less intrusive measures could have been imposed on it, the Council does not see how the principle of proportionality could have been infringed in this case. The restrictions thus imposed on the pursuit of the applicant’s economic activity could not be regarded as excessive.
The first part of the fourth plea in law
122    In support of the first part of the fourth plea in law, the applicant reiterates the contentions made in the third plea in law. However, those contentions have already been rejected as part of the examination of that plea. Consequently, the first part of the fourth plea in law must also be rejected.
The second part of the fourth plea in law
123    As regards the applicant’s argument that, because of their disproportionate nature, the measures at issue impaired its property right, it must first of all be noted that, according to the case-law, the European Union legislature must be allowed a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. Consequently, the legality of a measure adopted in those fields can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 120 and the case-law cited). In the field of restrictive measures, the Council must be allowed a broad discretion, not only, as indicated by the case-law referred to in paragraph 75 above, in establishing the general criteria defining the category of persons that could be made subject to such measures, but also in determining the nature and scope of those measures (judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 154).
124    Next, it must also be borne in mind that the right to property and the freedom to conduct a business are fundamental rights which are not, however absolute, and that their exercise may be subject to restrictions justified by objectives of public interest pursued by the European Union (see judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 121 and the case-law cited).
125    Lastly, according to the case-law, the principle of proportionality, which is one of the general principles of EU law, requires that measures adopted by EU institutions should not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question, and where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgment of 5 May 2015, Petropars Iran and Others v Council, T‑433/13, EU:T:2015:255, paragraph 93).
126    In the present case, first, it must be noted that the purpose of the restrictive measures at issue is to limit the exercise of certain rights by the applicant, primarily its right to property. However, in the light of the objectives which a system of restrictive measures such as the system in question seeks to attain, namely the maintenance in the present case of peace and security in the region, the limitation on the right to property satisfies the criteria laid down in Article 52(1) of the Charter of Fundamental Rights (judgment of 21 July 2016, Bredenkamp and Others v Council and Commission, T‑66/14, EU:T:2016:430, paragraph 26).
127    Secondly, it must be noted that, in the present case, the applicant contributed by its own conduct, namely the purchase of gold in the context of regular commercial transactions with traders in the DRC tightly linked to militias, to the situation which led to its inclusion on the list at issue (see, to that effect and by analogy, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 128).
128    Thirdly, as regards in particular the observance of the principle of proportionality, it is difficult in the present case to see how less drastic measures could have enabled the aim pursued to be achieved. In addition, it is to be noted that Article 5(3) of Decision 2010/788 provides for the possibility of allowing for exemptions from freezing measures, in particular in respect of funds necessary for basic expenses, those intended exclusively for the payment of reasonable professional fees, the payment of fees or service charges, in accordance with national laws, for routine holding or maintenance of frozen funds, or other financial assets and economic resources.
129    Fourthly, the applicant noted in the application that the sanctions at issue have obliged it to cease trading. First of all, it should be observed that, at the hearing, the applicant stated that it was still operational. In any event, even if it has ceased trading, the applicant does not show that this is the result of the restrictive measures at issue.
130    In the light of all the foregoing, the second part of the fourth plea in law must be rejected as unfounded and the actions dismissed in their entirety.
Costs
131    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 been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the Council.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Joins Cases T-107/15 and T-347/15 for the purposes of the judgment;
2.      Dismisses the actions;
3.      Orders Uganda Commercial Impex Ltd to pay the costs.
Berardis
Spielmann
Csehi
Delivered in open court in Luxembourg on 18 September 2017.
E. Coulon
G. Berardis
Registrar
President
Table of contents
Background to the dispute
Measures introduced by the United Nations
Measures imposed by the European Union
Procedure and forms of order sought
Law
The first plea in law, alleging the lack of an independent or appropriate assessment by the Council of the evidence which formed the basis of the Sanction Committee’s decisions to designate the applicant
Preliminary observations
The Council’s obligation to examine and verify the evidence independently
The second plea in law, alleging an error of assessment as regards the application of the designation criterion in the applicant’s case
The admissibility of Mr Lodhia’s statement
The merits of the applicant’s arguments
The third plea in law, alleging infringement by the Council of the applicant’s procedural rights and failure to state sufficient reasons for the 2014 and 2015 measures
The first part of the third plea in law
The second part of the third plea in law
The third part of the third plea in law
The fourth plea in law, alleging the infringement of the applicant’s fundamental rights and of the principle of proportionality
The first part of the fourth plea in law
The second part of the fourth plea in law
Costs
* Language of the case: English