62012TJ0190_EN
Parties
Grounds
Operative part
Parties
In Case T‑190/12,
Johannes Tomana,
residing in Harare (Zimbabwe), and the 120 other applicants named in the annex hereto, represented initially by D. Vaughan QC, M. Lester and R. Lööf, Barristers, and by M. O’Kane, Solicitor, and subsequently by D. Vaughan, M. Lester and M. O’Kane,
applicants,
v
Council of the European Union,
represented by B. Driessen, M. Veiga and A. Vitro, acting as Agents,
and
European Commission,
represented by M. Konstantinidis, T. Scharf and E. Georgieva, acting as Agents,
defendants,
supported by
United Kingdom of Great Britain and Northern Ireland,
represented by E. Jenkinson, C. Murrell and M. Holt, acting as Agents, and by S. Lee, Barrister,
intervener,
APPLICATION for annulment of Council Decision 2012/97/CFSP of 17 February 2012 amending Decision 2011/101/CFSP concerning restrictive measures against Zimbabwe (OJ 2012 L 47, p. 50), Commission Implementing Regulation (EU) No 151/2012 of 21 February 2012 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures against Zimbabwe (OJ 2012 L 49, p. 2), and Council Implementing Decision 2012/124/CFSP of 27 February 2012 implementing Decision 2011/101/CFSP concerning restrictive measures against Zimbabwe (OJ 2012 L 54, p. 20), in so far as those acts concern the applicants,
THE GENERAL COURT (Eighth Chamber),
composed of D. Gratsias (Rapporteur), President, M. Kancheva and C. Wetter, Judges,
Registrar: C. Kristensen, Administrator,
having regard to the written procedure and further to the hearing on 10 June 2014,
gives the following
Judgment
Grounds
Background to the dispute
1. In Common Position 2002/145/CFSP of 18 February 2002 concerning restrictive measures against Zimbabwe (OJ 2002 L 50, p. 1), adopted under Article 15 of the EU Treaty, prior to its amendment by the Treaty of Lisbon, the Council of the European Union expressed its deep concern about the situation in Zimbabwe, in particular with regard to the serious infringements of human rights — notably the right to freedom of speech, association and peaceful assembly — committed by the Government of Zimbabwe. It therefore imposed restrictive measures for a renewable 12-month period, which would be subject to annual review. Those measures included, in particular, the obligation on Member States to prevent the entry into, or transit through, their territories of the natural persons listed in the Annex to that common position, as well as the freezing of funds and economic resources of the persons and entities listed in that annex. Common Position 2002/145 was amended and extended for a period of 12 months, that is to say until 20 February 2004, by Council Common Position 2003/115/CFSP of 18 February 2003 amending and extending Common Position 2002/145 (OJ 2003 L 46, p. 30).
2. The freezing of assets and economic resources provided for in Common Position 2002/145 was implemented by Council Regulation (EC) No 310/2002 of 18 February 2002 concerning certain restrictive measures in respect of Zimbabwe (OJ 2002 L 50, p. 4). The period of application of that regulation was limited to 12 months from the date of its publication in the Official Journal of the European Union . It was extended for a further period of 12 months, that is to say until 20 February 2004, by Council Regulation (EC) No 313/2003 of 18 February 2003 extending Regulation No 310/2002 (OJ 2003 L 46, p. 6).
3. Council Common Position 2004/161/CFSP of 19 February 2004 renewing restrictive measures against Zimbabwe (OJ 2004 L 50, p. 66) made provision for the renewal of the restrictive measures established by Common Position 2002/145. In accordance with the second paragraph of Article 8 thereof, Common Position 2004/161 applied as from 21 February 2004. Article 9 thereof provided that it would apply for a period of 12 months and would be kept under constant review. That article also provided that the common position had to be ‘renewed, or amended as appropriate, if the Council deem[ed] that its objectives ha[d] not been met’.
4. Council Regulation (EC) No 314/2004 of 19 February 2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2004 L 55, p. 1) was adopted, in accordance with recital 5 in the preamble thereof, in order to implement the restrictive measures provided for in Common Position 2004/161. Article 6(1) of Regulation No 314/2004 provides, inter alia, that all funds and economic resources belonging to members of the Government of Zimbabwe and to any natural or legal persons, entities or bodies associated with them, as listed in Annex III to that regulation, are to be frozen. Article 11(b) of that regulation states that the Commission is to be empowered to amend Annex III to that regulation on the basis of decisions taken in respect of the Annex to Common Position 2004/161.
5. The period of validity of Common Position 2004/161 was extended on several occasions, most recently until 20 February 2011 by Council Decision 2010/92/CFSP of 15 February 2010 extending restrictive measures against Zimbabwe (OJ 2010 L 41, p. 6).
6. Council Decision 2011/101/CFSP of 15 February 2011 concerning restrictive measures against Zimbabwe (OJ 2011 L 42, p. 6) repealed Common Position 2004/161. That decision made provision for the imposition, on the persons whose names appeared in the Annex thereto, of restrictive measures similar to those provided for in Common Position 2004/161.
7. In particular, Article 4(1) of Decision 2011/101 provides:
‘Member States shall take the measures necessary to prevent the entry into, or transit through, their territories of members of the Government of Zimbabwe and of natural persons associated with them, as well as of other natural persons whose activities seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe. The individuals referred to in this paragraph are listed in the Annex.’
8. Article 5(1) of Decision 2011/101 provides:
‘All funds and economic resources belonging to individual members of the Government of Zimbabwe or to any natural or legal persons, entities or bodies associated with them, or belonging to any other natural or legal person whose activities seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe, shall be frozen. The persons and entities referred to in this paragraph are listed in the Annex.’
9. Article 6(1) of that decision provides:
‘The Council, acting upon a proposal by a Member State or the High Representative of the Union for Foreign Affairs and Security Policy, shall adopt modifications to the list contained in the Annex as required by political developments in Zimbabwe.’
10. Further, Article 7 of Decision 2011/101 provides:
‘1. The Annex shall include the grounds for listing the natural or legal persons and entities.
2. The Annex shall also contain, where available, the information necessary to identify the natural or legal persons or entities concerned. With regard to natural persons, such information may include names, including aliases, date and place of birth, nationality, passport and ID card numbers, gender, address, and function or profession. With regard to legal persons or entities, such information may include names, place and date of registration, registration number and place of business.’
11. Lastly, as provided for in Article 10(2), Decision 2011/101 was to apply until 20 February 2012. Under that same article, the decision was to be kept under constant review and was to be renewed, or amended as appropriate, if the Council deemed that its objectives had not been met.
12. Article 1(1) of Council Decision 2012/97/CFSP of 17 February 2012 amending Decision 2011/101 (OJ 2012 L 47, p. 50), which is the first act against which this action is directed, replaced Article 10 of Decision 2011/101 with the following provision:
‘1. This Decision shall enter into force on the date of its adoption.
2. This Decision shall apply until 20 February 2013.
3. The measures referred to in Article 4(1), in so far as they apply to persons listed in Annex II, shall be suspended until 20 February 2013.
4. This Decision shall be kept under constant review and shall be renewed, or amended as appropriate, if the Council deems that its objectives have not been met.’
13. In addition, Article 1(2) of Decision 2012/97 provides that the term ‘Annex’ used in Decision 2011/101 is to be replaced by the term ‘Annex I’ and that the text of that annex is to be replaced by the text set out in Annex I to Decision 2012/97. Last, Article 1(3) of Decision 2012/97 provides that Annex II thereto is to be added as Annex II to Decision 2011/101.
14. Recitals 1 to 5 in the preamble of Decision 2012/97 are worded as follows:
‘(1) On 15 February 2011, the Council adopted Decision 2011/101 …
(2) On the basis of a review of Decision 2011/101 … the restrictive measures should be extended until 20 February 2013.
(3) However, there are no longer grounds for keeping certain persons and entities on the list of persons and entities to which the restrictive measures provided for in Decision 2011/101 … apply.
(4) In order to facilitate further the dialogue between the EU and the Government of Zimbabwe, the travel ban imposed on the two members of the re-engagement team of the Zimbabwe Government listed under Decision 2011/101 … should be suspended.
(5) The information relating to certain persons and entities included on the list in the Annex to Decision 2011/101 … should be updated.’
15. Annex I to Decision 2011/101, as replaced by Decision 2012/97, includes the names of Mr Johannes Tomana and the 120 other applicants, as listed in Annex A.4 to the application. The names of the same persons and entities also appeared in the Annex to Decision 2011/101 before the amendments made by Decision 2012/97.
16. Article 1 of Commission Implementing Regulation (EU) No 151/2012 of 21 February 2012 amending Regulation No 314/2004 (OJ 2012 L 49, p. 2), which is the second act against which this action is directed, replaced Annex III to Regulation No 314/2004 with a new annex containing the names of all the applicants. Further, recital 2 in the preamble of that regulation is worded as follows:
‘… Decision 2011/101 … identifies the natural and legal persons to whom restrictions are to apply as provided for in Article 5 of that Decision, and Regulation … No 314/2004 gives effect to that Decision to the extent that action at Union level is required. Annex III to Regulation … No 314/2004 should, therefore, be amended to ensure consistency with this Council Decision.’
17. It should also be noted that the names of all the applicants also appeared in Annex III to Regulation No 314/2004, as in force before being replaced pursuant to Article 1 of Implementing Regulation No 151/2012.
18. Council Implementing Decision 2012/124/CFSP of 27 February 2012 implementing Decision 2011/101 (OJ 2012 L 54, p. 20), which is the third act against which this action is directed, amended the entry relating to applicant No 60, Mr Cephas George Msipa, whose name is listed in the Annex to Decision 2011/101. In particular, the following wording was added regarding that individual in the previously empty column relating to the grounds for his inclusion in the list of persons subject to the restrictive measures imposed by that decision:
‘Former Provincial Governor associated with the ZANU-PF faction of the Government.’
19. On 20 April 2012 the applicants asked the Council to provide them with ‘all of the evidence and information’ on which it had relied in making its decision to apply restrictive measures to them.
Procedure and forms of order sought by the parties
20. By application lodged at the General Court Registry on 25 April 2012, the applicants brought the present action.
21. By document entitled ‘Plea of inadmissibility’ lodged at the Court Registry on 4 July 2012, the Council asked the Court:
– to verify that the applicants No 2 to No 109, all natural persons, indeed support the action;
– to the extent that it turns out that they do not, to dismiss the action as manifestly inadmissible as far as these applicants are concerned, and to order the remaining applicants to pay the costs.
22. In so far as the Council essentially requested, by means of that document, the adoption of a measure of organisation of procedure, within the meaning of Article 64 of the Rules of Procedure of the General Court, the applicants and the Commission were invited to submit written observations on that request, which they did on 29 and 25 October 2012 respectively.
23. By document lodged at the Court Registry on 16 August 2012, the United Kingdom of Great Britain and Northern Ireland sought leave to intervene in support of the form of order sought by the defendants. By order of 25 October 2012, the President of the Third Chamber of the General Court granted leave to intervene. The United Kingdom lodged its statement in intervention on 14 December 2012. The applicants, the Council and the Commission submitted written observations on that statement in intervention on 16 January, 24 January and 20 February 2013 respectively.
24. By letter of 7 November 2012, a copy of which was lodged at the Court Registry on the same date, the applicants informed the Council that applicant No 66, Mr Isack Stanislaus Gorerazvo Mudenge, had died.
25. By letter lodged at the Court Registry on 19 November 2012, the applicants asked the Court to invite the Council to confirm that the material in Annex B.19 to the defence did not constitute the evidence on which the Council had relied in deciding to designate the persons affected by the restrictive measures at issue. Since this was, in essence, a request to adopt a measure of organisation of procedure, within the meaning of Article 64 of the Rules of Procedure, the Court invited the Council, the Commission and the United Kingdom to submit their observations on that request, which they all did, on 10, 11 and 7 December 2012 respectively. In its observations, the Council also informed the Court that it had replied, by letter of 27 November 2012, to the applicants’ request mentioned in paragraph 19 above and the Council produced a copy of that letter and its annexes.
26. Furthermore, since the applicants had asked the Court in the above-mentioned letter of 19 November 2012 (paragraph 26 above) to indicate that any additional material relied on by the Council at that stage of the procedure would be disregarded and would not form part of the case file, the applicants were reminded, by letter of 26 November 2012, that Article 48(1) of the Rules of Procedure applied as regards offers of further evidence.
27. In their reply, which was lodged at the Court Registry on 31 January 2013, the applicants informed the Court that applicant No 83, Mr John Landa Nkomo, had died.
28. By letter lodged at the Court Registry on 25 February 2013, the Council notified the Court of the adoption of Council Decision 2013/89/CFSP of 18 February 2013 amending Decision 2011/101 (OJ 2013 L 46, p. 37). That decision amended Annex I to Decision 2011/101 so as to remove from the list of persons and entities subject to the restrictive measures at issue the names of applicant No 6, Mr David Chapfika; applicant No 9, Mr Tinaye Chigudu; applicant No 16, Mr Tongesai Shadreck Chipanga; applicant No 32, Mr R. Kwenda; applicant No 38, Mr Shuvai Ben Mahofa; applicant No 42, Mr G. Mashava; applicant No 54, Mr Gilbert Moyo; applicant No 58, Mr S. Mpabanga; applicant No 60, Mr Cephas George Msipa; applicant No 64, Mr C. Muchono; applicant No 66, Mr Isack Stanislaus Gorerazvo Mudenge; applicant No 67, Mr Columbus Mudonhi; applicant No 68, Mr Bothwell Mugariri; applicant No 70, Mr Isaac Mumba; applicant No 78, Mr S. Mutsvunguma; applicant No 83, Mr John Landa Nkomo; applicant No 84, Mr Michael Reuben Nyambuya; applicant No 88, Mr David Pagwese Parirenyatwa; applicant No 89, Mr Dani Rangwani; applicant No 92, Mr Richard Ruwodo; applicant No 109, Mr Patrick Zhuwao, and applicant No 113, Divine Homes (Private) Ltd.
29. Commission Implementing Regulation (EU) No 145/2013 of 19 February 2013 amending Regulation No 314/2004 (OJ 2013 L 47, p. 63) amended Annex III to the latter regulation so as to remove the references in that annex to the persons and entities mentioned in paragraph 28 above.
30. The applicants were invited to submit observations on the Council’s letter mentioned in paragraph 28 above, but they did not comply with that request.
31. Article 1(1) of Decision 2013/160/CFSP of 27 March 2013 amending Decision 2011/101 (OJ 2013 L 90, p. 95), replaced the text of Article 10(3) of Decision 2011/101, the new text reading as follows: ‘[t]he measures referred to in Article 4(1) and Article 5(1) and (2), in so far as they apply to persons and entities listed in Annex II, shall be suspended until 20 February 2014. The suspension shall be reviewed every three months’. Article 1(2) of Decision 2013/160 further provided that Annex II to Decision 2011/101 was to be replaced by the text set out in the Annex to Decision 2013/160.
32. The names of the majority of the applicants, both natural persons and entities, appear in Annex II to Decision 2011/101, as replaced by Decision 2013/160. The names of the following applicants are not listed there: applicant No 3, Mr Happyton Mabhuya Bonyongwe; applicant No 12, Ms Augustine Chihuri; applicant No 18, Mr Constantine Chiwenga; applicant No 75, Mr Didymus Noel Edwin Mutasa; applicant No 86, Mr Douglas Nyikayaramba; applicant No 99, Mr Perence Samson Chikerema Shiri; applicant No 102, Mr Jabulani Sibanda; applicant No 104, Mr Philip Valerio Sibanda; applicant No 120, Zimbabwe Defence Industries (Private) Ltd, and applicant No 121, Zimbabwe Mining Development Corp.
33. Article 1 of Council Regulation (EU) No 298/2013 of 27 March 2013 amending Regulation No 314/2004 (OJ 2013 L 90, p. 48) provides that ‘the application of Article 6 of Regulation … No 314/2004 is suspended until 20 February 2014 in so far as it applies to the persons and entities listed in the Annex to this Regulation’ and that ‘[t]he suspension shall be reviewed every three months’. The Annex to Regulation No 298/2013 contains the names of the same natural persons and entities as those listed in Annex II to Decision 2011/101, as replaced by Decision 2013/160 (see paragraph 32 above).
34. After a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Eighth Chamber, to which the present case was, consequently, allocated.
35. By letter lodged at the Court Registry on 26 September 2013, the Council notified the Court of the adoption of Council Implementing Decision 2013/469/CFSP of 23 September 2013 implementing Decision 2011/101 (OJ 2013 L 252, p. 31). The former decision amended Annex I to Decision 2011/101 so as to de-list applicant No 121, Zimbabwe Mining Development.
36. Furthermore, Commission Implementing Regulation (EU) No 915/2013 of 23 September 2013 amending Regulation No 314/2004 (OJ 2013 L 252, p. 23) amended Annex III to the latter regulation so as to remove the entry in that annex relating to applicant No 121.
37. By letter lodged at the Court Registry on 20 February 2014, the Council notified the Court of the adoption of Council Decision 2014/98/CFSP of 17 February 2014 amending Decision 2011/101 (OJ 2014 L 50, p. 20), and of Council Regulation (EU) No 153/2014 of 17 February 2014 amending Regulation No 314/2004 and repealing Regulation No 298/2013 (OJ 2014 L 50, p. 1)
38. Article 1(2) of Decision 2014/98 replaced Article 10 of Decision 2011/101 with the following text:
‘1. This Decision shall enter into force on the date of its adoption.
2. This Decision shall apply until 20 February 2015.
3. The measures referred to in Article 4(1) and Article 5(1) and (2), in so far as they apply to persons and entities listed in Annex II, shall be suspended until 20 February 2015.
The suspension shall be reviewed every three months.
4. This Decision shall be kept under constant review and shall be renewed, or amended as appropriate, if the Council deems that its objectives have not been met.’
39. Further, Article 2 of Decision 2014/98 provides that ‘[t]he persons set out in Annex I to Decision 2011/101/CFSP listed in the Annex to this Decision shall be added to Annex II to Decision 2011/101/CFSP’. The Annex to Decision 2014/98 contains the names of the applicants No 3, No 12, No 18, No 75, No 86, No 99, No 102 and No 104.
40. For its part, Regulation No 153/2014 provides as follows:
‘Article 1
Regulation … No 314/2004 is amended as follows:
(1) in Article 6, the following paragraph is added:
“4. The measures in paragraphs 1 and 2 shall be suspended in so far as they concern persons and entities listed in Annex IV.”
(2) the Annex to this Regulation is added as Annex IV.
Article 2
Regulation … No 298/2013 is repealed.
Article 3
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union .
This Regulation shall be binding in its entirety and directly applicable in all Member States.’
41. Annex IV to Regulation No 314/2004, as added by Regulation No 153/2014, includes the names of all the applicants — natural persons and entities — who were still listed in Annex III to that regulation, with the sole exception of applicant No 120, Zimbabwe Defence Industries, being the only applicant in respect of whom the freezing of funds and economic resources provided for in that regulation still applies and has not been suspended.
42. The Court invited the other parties to submit observations on the Council’s letter referred to in paragraph 37 above. The applicants and the Commission complied with that request on 21 and 4 March 2014 respectively.
43. On hearing the report of the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure provided for under Article 64 of its Rules of Procedure, invited the parties to reply in writing to certain questions and to lodge certain documents. The parties complied with that request within the prescribed period.
44. With the exception of the United Kingdom, which was absent, the parties presented oral arguments and their answers to the questions put by the Court at the hearing of 10 June 2014.
45. At the hearing, the Council added to the court file a number of press articles, which indicate that applicant No 68, Mr Bothwell Mugariri, applicant No 96, Mr Lovemore Sekeremayi and applicant No 98, Mr Nathan Marwirakuwa Shamuyarira, had died. The applicants’ representatives confirmed that the latter two individuals had died, but stated that, as far as they knew, the report of the death of Mr Mugariri was inaccurate. Further, in reply to a question from the Court, the applicants’ representatives confirmed that they regarded themselves as instructed by all the applicants and offered to produce written authorities to act (‘powers of attorney’) signed by each applicant in respect of whom no such authority to act had been annexed to the application. The Court took note of the lodging of the abovementioned documents and statements in the written record of the hearing.
46. At the hearing, the Court invited the applicants and the Council to reply in writing to certain questions and to produce certain documents, including the authorities to act required. The parties complied with the Court’s request within the time allowed, following which the written procedure was closed by decision of the President of the Eighth Chamber.
47. The applicants claim that the Court should:
– annul Decision 2012/97, Implementing Regulation No 151/2012 and Implementing Decision 2012/124, in so far as they concern the applicants;
– order the Council and the Commission to pay the costs.
48. The Council and the Commission contend that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
49. The United Kingdom supports the form of order sought by the Council and the Commission seeking dismissal of the action.
Law
1. The applicants who have died
50. It is recognised in the case-law that an action for annulment brought by the addressee of a measure can be pursued by the addressee’s successor, particularly in the case of the death of a natural person (Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others
v Commission [2004] ECR II‑2501, paragraph 46; see also, to that effect, Case 92/82 Gutmann
v Commission [1983] ECR 3127, paragraph 2).
51. In this case, as stated in paragraphs 24 and 27 above, applicant No 66, Mr I. S. G. Mudenge, and applicant No 93, Mr J. L. Nkomo, have died in the course of proceedings. Further, in reply to one of the questions put to them at the hearing for response in writing, the applicants’ representatives have confirmed that applicant No 96, Mr Lovemore Sekeremayi, and applicant No 98, Mr Nathan Marwirakuwa Shamuyarira, have died in the course of proceedings. Last, the applicants’ representatives took the opportunity to state that applicant No 32, Mr R. Kwenda, has also died in the course of proceedings.
52. With regard to all the abovementioned deceased applicants, the applicants’ representatives have stated that their successors, who are in all cases their widows, wished to continue proceedings and they lodged written statements from the widows to that effect, certified by a notary. In the remainder of this judgment, the term ‘the applicants’, in so far as it refers to the abovementioned deceased applicants, refers to their successors who have lodged a written statement expressing their wish to continue these proceedings.
2. Whether the lawyers who signed the application were instructed by all the applicants who are natural persons
53. As stated in paragraph 21 above, the Council, by a separate document, requested that the Court verify that all the applicants who are natural persons ‘indeed support the current court proceeding’. In that context, the Council argued that the applicants’ representatives had not annexed to their application any mandate (‘power of attorney’) or any other evidence capable of showing that they were duly authorised to act by the applicants No 2 to No 110 inclusive, who are natural persons.
54. The Council therefore submitted that the action had to be declared to be inadmissible in so far as it concerned those applicants, unless their representatives produced, from each of them, evidence that they wished to bring the action. The Council relied, in that context, on the judgment in Case 14/64 Barge
v High Authority
[1965] English Special Edition p. 51, 57. The Council’s claim was also supported by the Commission.
55. It must be recalled that, under, first, the third and fourth paragraphs of Article 19 and the first paragraph of Article 21 of the Protocol on the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 of that Statute, and, second, the first subparagraph of Article 43(1) of the [General Court’s] Rules of Procedure, the parties, other than the Member States and institutions of the European Union, the EFTA Surveillance Authority or the States which are parties to the Agreement on the European Economic Area (EEA), must be represented by a lawyer who is authorised to practise before a court of a Member State or of another State which is party to the EEA Agreement. Further, the application must contain the applicant’s name and permanent address and a statement of the signatory’s capacity. Last, the original of every pleading must be signed by the party’s agent or lawyer.
56. However, it is only with respect to legal persons that Article 44(5)(b) of the Rules of Procedure provides for the obligation to attach to the application ‘proof that the authority granted to the applicant’s lawyer has been properly conferred on him by someone authorised for the purpose’. The Rules of Procedure therefore allow natural persons to be represented by a lawyer without the lawyer being required to produce evidence of instructions to act, as is necessary in the case of legal persons (Case T‑34/02 Le Levant 001 and Others
v Commission [2006] ECR II‑267, paragraph 64).
57. The reason why lawyers representing a natural person are not obliged to lodge evidence of instructions to act signed by their client is doubtless to be found in the fact that, if a member of the bar of one of the Member States, subject as such to a code of professional ethics, declares that he has been duly instructed by his client, that declaration is, as a general rule, deemed to be sufficiently reliable (see, to that effect, the judgment in Case C‑229/05 P PKK and KNK
v Council [2007] ECR I‑439, paragraph 119).
58. However, if account is also taken of the provisions mentioned in paragraph 55 above, it must be concluded that, before commencing the examination of an action brought before it, the Court must satisfy itself that the lawyer who has signed the application has indeed been appointed by the person in whose name the action has been brought as that person’s representative. In the light of what is stated in paragraph 57 above, it must be concluded that, normally, the Court regards the fact that a lawyer has signed and lodged an application in the name of a natural person as an implicit declaration on the part of that lawyer that he has been duly instructed by the natural person concerned, and the Court regards that form of declaration as being sufficient. However, if there are specific factors which are capable of casting doubt on the reality of that implicit declaration, the Court may justifiably request the lawyer concerned to prove that he is in fact instructed.
59. It is in that light that the statement in Barge
v High Authority, paragraph 54 above (p. 57), that the lawyer is not ‘required to produce a duly executed authority to act in the lodging of an application, subject to proof if challenged that he is so authorised’, should be understood. That statement must be placed in the context of that case, as is apparent from the Opinion of Advocate General Roemer with respect to the judgment in Barge
v High Authority, paragraph 54 above (pp. 61 to 63).
60. That Opinion reveals that, at the time, it was standard practice at the Court of Justice to require a written authority to act even for applicants who were natural persons, even though the relevant provision of the Rules of Procedure of the Court of Justice did not require it, no more than do today the General Court’s Rules of Procedure. The lawyer acting for the applicant in the case which gave rise to the judgment in Barge
v High Authority, paragraph 54 above, had produced such an authority to act when lodging the application, but the authority to act which was produced referred to a different case. Subsequent to the lodging of the application, the lawyer had produced a further authority to act, covering the case concerned, and consequently the issue which had to be decided by the Court of Justice was whether that subsequent production was sufficient or whether the failure to produce a duly executed authority to act at the same time as the bringing of the action meant that the action was inadmissible. The Court of Justice decided that the former proposition should be upheld.
61. Contrary therefore to the view apparently held by the Council, it does not follow from that judgment that the other party to proceedings is entitled to request, without putting forward particular factors in support of such a request, that the lawyer of an applicant who is a natural person should produce an authority to act signed by his client, failing which the action should be dismissed as being inadmissible. If it were admitted that the other party to proceedings had such a right, that would to a great extent nullify the rule that natural persons may be represented by a lawyer without that lawyer having to produce authority to act, and would be likely to complicate and prolong proceedings unduly, particularly in cases, such as the present, where the action is brought by a large number of natural persons who, moreover, reside outside the European Union. The requirements stemming from the right to effective judicial protection, set out in Article 47 of the Charter of Fundamental Rights of the European Union, and the considerations stated in paragraph 57 above are also conducive to the finding that the production of such an authority to act should not be required except where there are specific factors which cast doubt on the reality of its existence (see paragraph 58 above).
62. In this case, at the hearing, the applicants’ representatives formally confirmed, in response to a question from the Court, that they considered themselves to be duly instructed by all the applicants. Further, they offered to produce, from all the applicants for whom they had not done so, a written authority to act. Within the period granted to them for that purpose by the Court, they did in fact produce such authorities to act, certified by a notary, for the applicants No 2 to No 110, with the exception of the deceased applicants mentioned in paragraph 51 above. It should be noted, in that regard, that they also produced such an authority to act in the name of applicant No 68, Mr Bothwell Mugariri. It thus emerged that the reporting of his death, mentioned in press articles lodged in the court file at the hearing by the Council, was inaccurate. Further, it must be observed that, in the light of what is stated in paragraph 60 above, the fact that the signing of the authorities to act produced post-dated the lodging of the action is of no importance.
63. It must therefore be concluded that the reality of the authority to act given by each of the applicants to their representatives before the Court cannot reasonably be doubted.
3. Whether the applicants continue to have an interest in bringing proceedings
64. In accordance with settled case-law, the purpose of the action must, like the interest in bringing proceedings, continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (see Case C‑362/05 P Wunenburger
v Commission
[2007] ECR I‑4333, paragraph 42 and case-law cited, and Joined Cases C‑373/06 P, C‑379/06 P and C‑382/06 P Flaherty and Others
v Commission
[2008] ECR I‑2649, paragraph 25).
65. It must be observed that, with regard to some of the applicants, the restrictive measures at issue have been repealed (see paragraphs 28, 29, 35 and 36 above). Further, with regard to all the applicants whose names continue to be listed as persons and entities subject to those measures, with one exception, the application of the measures has been suspended (see paragraphs 32, 33 and 37 to 41 above).
66. However, in the judgment in Case C‑239/12 P Abdulrahim
v Council and Commission [2013] ECR, relating to the situation of a person affected by restrictive measures which were adopted because of his alleged links with terrorist organisations and were repealed in the course of proceedings, the Court of Justice stated that such measures have substantial negative consequences and a considerable impact on the rights and freedoms of the persons affected. The Court of Justice held that, apart from the freezing of funds as such which, through its broad scope, seriously disrupts both the working and the family life of the persons affected and impedes the conclusion of numerous legal acts, account must be taken of the opprobrium and suspicion that accompany the public designation of the persons affected as being associated with a terrorist organisation. The Court of Justice also held that the interest of such an applicant in bringing proceedings is retained, despite the removal of his name from the list at issue, for the purpose of having the Courts of the European Union recognise that he should never have been included on the list or that he should not have been included under the procedure which was adopted by the EU institutions. The Court of Justice further stated that whilst recognition of the illegality of a contested act cannot, as such, compensate for material harm or for interference with one’s private life, it is nevertheless capable of restoring the reputation of the person concerned or constituting a form of reparation for the non-material harm which he has suffered by reason of that illegality, and of thereby establishing that he retains his interest in bringing proceedings. Last, the Court of Justice held that the fact that the repeal of the restrictive measures concerned was definitive does not prevent an interest in bringing proceedings from continuing to exist so far as concerns the effects of the acts which imposed those measures between the date of their entry into force and that of their repeal (the judgment in Abdulrahim
v Council and Commission, paragraphs 70 to 72 and 82).
67. Although restrictive measures were imposed on the applicants in this case not because of their links with terrorist organisations, but because they were either members of a government which, according to the authors of the contested acts, committed serious infringements of human rights, were associated with those government members, or were persons whose activities seriously undermined democracy, respect for human rights and the rule of law in Zimbabwe, the reasoning of the Court of Justice in Abdulrahim
v Council and Commission, paragraph 66 above (paragraphs 70 to 72 and 82), is also applicable, mutatis mutandis, to their situation, and accordingly it must be concluded that their interest in bringing proceedings continues to exist notwithstanding the repeal, with respect to some of them, and the suspension, with respect to others, of the restrictive measures at issue.
4. Arguments put forward by the Commission challenging the admissibility of the action
68. First, the Commission disputes the admissibility of the claim for annulment of the Council’s measures in so far as the claim concerns the Commission, as it lacks the capacity to be sued with respect to the Council’s acts.
69. However, in so far as the action seeks the annulment both of two acts adopted by the Council and an act adopted by the Commission, the applicants have properly referred, in the application, to those two institutions as being the defendants in this case.
70. Secondly, the Commission states that, in its opinion, the claim for the annulment of Implementing Decision 2012/124 should be regarded as having been brought solely in the name of applicant No 60, Mr Cephas George Msipa, who is the only person concerned by that decision. The Commission has doubts about the admissibility of such a claim, as the decision in question amends Decision 2011/101 only in so far as concerns the grounds for inclusion of that applicant in the list of persons subject to the restrictive measures at issue and, therefore, does not alter his legal situation. The Commission adds that, should the Court consider the claim for the annulment of that decision to have been brought by all applicants, it should dismiss that claim as inadmissible ‘since none of the Applicants has legal interest in challenging this Council act’.
71. That argument cannot be accepted. It must be observed that, after the amendment of Decision 2011/101 by means of Decision 2012/97, which, inter alia, replaced Annex I to the former decision with a new annex, Implementing Decision 2012/124 again amended Annex I to Decision 2011/101 with regard to applicant No 60, in order to add in the column relating to grounds for designation, previously empty, the text mentioned in paragraph 18 above. It follows that, like Decision 2012/97, Implementing Decision 2012/124 is of direct and individual concern to applicant No 60 and alters his legal situation, in that it adds to Annex I to Decision 2011/101, as replaced by Decision 2012/97, grounds to justify the imposition on him of the restrictive measures at issue.
72. Consequently, applicant No 60 may competently seek the annulment of Implementing Decision 2012/124. Where one and the same action is involved, and it is found that the bringing of the action by one applicant is admissible, there is no need to consider whether the other applicants are entitled to bring proceedings (Case C‑313/90 CIRFS and Others
v Commission [1993] ECR I‑1125, paragraph 31, and Joined Cases T‑374/94, T‑375/94, T‑384/94 and T‑388/94 European Night Services and Others
v Commission [1998] ECR II‑3141, paragraph 61). The action seeks the annulment of the contested acts, in so far as they concern the applicants. Since Implementing Decision 2012/124 refers by name only to applicant No 60, it is obvious that if the action is upheld, that decision will be annulled only with regard to him.
5. Substance
73. In support of their action, the applicants rely on five pleas in law, claiming, first, that there was no proper legal basis for including persons or entities who are neither leaders of Zimbabwe nor their associates in the list of persons subject to the restrictive measures at issue, second, a manifest error of assessment, third, infringement of the obligation to state reasons, fourth, infringement of the applicants’ rights of defence and, fifth, infringement of the principle of proportionality.
74. The Court will examine, initially, the first plea in law, on the legal basis for the contested acts, then the third and fourth pleas in law, which raise questions of procedure and, last, the second and fifth pleas in law, which relate to the substance of the case.
The first plea in law: there was no adequate legal basis for including persons or entities who are neither leaders of Zimbabwe nor their associates in the list of persons subject to the restrictive measures at issue
75. By the first plea in law, the applicants claim, in essence, that there is no adequate legal basis to justify the inclusion, in the list of persons subject to the restrictive measures at issue, of numerous persons who are not even alleged to be leaders of Zimbabwe or individuals or entities associated with those leaders. According to the applicants, the mere allegation of past criminal conduct or other misconduct against the persons concerned is not sufficient to warrant their inclusion in the list of persons subject to the restrictive measures in question.
76. It must be observed, in that regard, that the first of the acts against which this action is brought, namely Decision 2012/97, was adopted on the basis of Article 29 TEU, which states the following:
‘The Council shall adopt decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the Union positions.’
77. Article 29 TEU is also the basis of Decision 2011/101, as amended by Decision 2012/97.
78. Article 29 TEU is part of Title V of the EU Treaty, headed ‘General provisions on the Union’s external action and specific provisions on the common foreign and security policy’. Article 21 TEU, which is also part of Title V, provides:
‘1 The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.
…
2. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to:
(a) safeguard its values, fundamental interests, security, independence and integrity;
(b) consolidate and support democracy, the rule of law, human rights and the principles of international law;
(c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders;
(d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty; …
3. The Union shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the development and implementation of the different areas of the Union’s external action covered by this Title and by Part Five of [the FEU] Treaty, and of the external aspects of its other policies. …’
79. The third act the annulment of which is sought by the action, namely Implementing Decision 2012/124, constitutes a ‘decision implementing a decision defining a Union action or position’, in this case Decision 2012/97. Implementing Decision 2012/124 was adopted on the basis of Article 6(1) of Decision 2011/101 (see paragraph 9 above), in accordance with the procedure laid down in Article 31(2) TEU.
80. Last, the second act against which this action is directed, namely Implementing Regulation No 151/2012, was adopted on the basis of Article 11(b) of Regulation No 314/2004 (see paragraph 4 above). As regards Regulation No 314/2004, it was itself adopted on the basis of Articles 60 EC and 301 EC. Those articles were amended by the Treaty of Lisbon and are now Article 75 TFEU and Article 215 TFEU respectively.
81. According to the applicants, the contested acts broaden the scope of the restrictive measures adopted against Zimbabwe, so that they include not only natural and legal persons who are alleged to be members of the government or their associates, but also individuals who are not alleged to be associated with the government but who are alleged to have been engaged in activities that undermine democracy, respect for human rights and the rule of law in Zimbabwe. With regard to that latter category of individuals, it is not alleged that they have any link with the leaders of Zimbabwe. A large number of persons have, according to the applicants, been included among those subject to the contested acts on the basis of unsupported accusations of serious criminal acts and other offences. No evidence or material justifying the assertions relating to those persons to be found in the contested acts, and not even any particular information in that regard, has been adduced. In many cases, the crimes or offences referred to in the contested acts were committed before the formation of the Government of National Unity which was in power in Zimbabwe at the time when the contested acts were adopted.
82. First, the Court must reject as being of no relevance to this plea in law, which concerns the absence of an adequate legal basis for the adoption of the contested acts, the applicants’ arguments that, in essence, the matters of fact referred to with regard to a number of the persons affected by the restrictive measures established by those acts are not proved or are lacking in detail. That is because such arguments are solely of relevance to show either that an error of fact was committed by the authors of the contested acts, or that reasons for those acts were not adequately stated. Such errors do not affect the existence of an adequate legal basis justifying the adoption of the acts concerned, which issue is the only subject matter of this plea in law. Plainly, if it happens to be the case, contrary to what is asserted by the applicants, that such a legal basis exists, it would still be necessary to examine, first, whether the authors of those acts did not commit a manifest error of assessment in considering that the facts of this case justified recourse to that legal basis for the adoption of those acts and, secondly, whether the authors of those acts provided in that regard a sufficient statement of reasons. Those questions might perhaps be of relevance only in the context of examination of the second and third pleas in law.
83. Second, it must be recalled that (i) the first of the contested acts (Decision 2012/97) essentially extended the duration of the validity of Decision 2011/101 and replaced the Annex to the latter decision containing the names of persons and entities subject to the restrictive measures which that decision established, (ii) the second of the contested acts (Implementing Regulation No 151/2012) replaced Annex III to Regulation No 314/2004 containing the names of persons and entities subject to the freezing of funds and economic resources established by that regulation and (iii) the third of the contested acts (Implementing Decision 2012/124) amended the entry relating to applicant No 60, Mr Cephas George Msipa, as it appeared in the Annex to Decision 2011/101 as replaced by Decision 2012/97. In other words, each of the three acts at issue is an act which amends an earlier act.
84. In that regard, it must be noted that the wording of ‘natural or legal persons whose activities seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe’, as referred to by the applicants in their arguments as summarised in paragraph 81 above, is to be found only in the text of Decision 2011/101 (see paragraphs 7 and 8 above). In contrast, as stated in paragraph 4 above, the freezing of funds and economic resources established by Regulation No 314/2004 concerns, as stated in Article 6(1) of that regulation, only the ‘funds and economic resources belonging to members of the Government of Zimbabwe and to any natural or legal persons, entities or bodies associated with them’.
85. It follows that the issues raised by this plea differ according to whether it relates to, on the one hand, the first and third contested acts, which amend Decision 2011/101 and, on the other, the second contested act, which amends Regulation No 314/2004.
86. In the first case, the question which arises is, essentially, whether Article 29 EU, which is stated to be the legal basis of Decision 2012/97 (and of Decision 2011/101 which it amended), constitutes an adequate legal basis to justify the adoption of the restrictive measures mentioned in Decision 2012/97 against ‘natural or legal persons whose activities seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe’. In that regard, it must be observed that, if the answer to that question is in the negative, it would logically follow that Decision 2011/101 would also lack a legal basis, with regard to persons falling in the abovementioned category. It must therefore be concluded that, by this plea, the applicants are also raising, implicitly but clearly, a plea of illegality against Decision 2011/101. It follows from Article 277 TFEU that the applicants are entitled to raise such a plea, even where they could have competently sought the annulment of Decision 2011/101 and failed to do so (see, to that effect and by analogy, Case C‑11/00 Commission
v ECB [2003] ECR I‑7147, paragraphs 74 to 78; Case C‑442/04 Spain
v Council [2008] ECR I‑3517, paragraph 22, and Case C‑91/05 Commission
v Council [2008] ECR I‑3651, paragraphs 29 to 34).
87. In the second case, namely that of Implementing Regulation No 151/2012, the question which arises is whether there is a legal basis justifying the amendment of Regulation No 314/2004 in order to list in Annex III thereto, containing the names of persons and entities whose funds and economic resources are to be frozen, the names of persons or entities who were listed in the Annex to Decision 2011/101, as amended by Decision 2012/97, on the ground that they were engaged in activities seriously undermining democracy, respect for human rights and the rule of law in Zimbabwe, although, as stated in Article 6(1) of Regulation No 314/2004, that regulation provides for solely the freezing of funds and economic resources belonging to members of the Government of Zimbabwe and to any natural or legal persons, entities or bodies associated with them.
88. The Court will therefore examine both those questions in turn.
The legal basis of Decisions 2011/101 and 2012/97 and Implementing Decision 2012/124
89. The applicants put forward three closely linked arguments which cannot be understood other than as calling into question the competence of the Council to adopt, on the basis of Article 29 EU, Decisions 2011/101 and 2012/97 against persons who were engaged in activities seriously undermining democracy, respect for human rights and the rule of law in Zimbabwe.
90. First, the applicants claim that, while supporting democracy, the rule of law and human rights (in addition to combating terrorism) are legitimate objectives of the Common Foreign and Security Policy (CFSP), the Council and Commission do not have competence to legislate generally in the areas of criminal law or civil law. Their competence in that field is strictly limited and set out in Articles 82 TFEU to 86 TFEU, and it is stated in Article 40 TEU that they must not exceed their powers. Thus, according to the applicants, while the European Union may adopt minimum rules concerning the definition of criminal offences in areas of serious cross-border crime, and may approximate national laws in order to ensure effective implementation of a European Union policy, neither the Council nor the Commission has competence to use the Common Foreign and Security Policy in order to impose a freezing of funds or a travel ban on individuals simply on the basis that they are alleged to have been involved in the past in crimes or serious misconduct.
91. Secondly, according to the applicants, it is necessary that there should be a clear and obvious link between individuals subject to restrictive measures and the legitimate CFSP objectives of the European Union as regards a third country. Yet there is no link between individuals accused of criminal or serious misconduct in the past and any legitimate objective of the CFSP Policy. There is no explanation of how the imposition of a freezing of funds or a travel ban on those individuals, who are not said be associated with the current Government of Zimbabwe, can achieve any legitimate objective. The applicants who fall within that category are not terrorists who could use their finds and economic resources to further international terrorist activities, nor are they people who are responsible for or have any control over any policy implemented by the Government of Zimbabwe.
92. Third, the Council is obliged, when adopting restrictive measures, to explain how the measures are appropriate and proportionate to achieving a legitimate objective. Yet in this case, no legitimate foreign policy justification has been provided for imposing restrictive measures on non-State actors in Zimbabwe on the basis of allegations that they have committed crimes or serious offences in the past. Nor is there any explanation of how the application of a fund freezing measure or a travel ban on individuals who have no responsibility for nor influence over the policy of the Government of National Unity in Zimbabwe at the time of adoption of the contested acts is an appropriate and proportionate way of achieving any legitimate CFSP objective.
93. It must be observed that it is clear from a reading of Article 21 TEU in conjunction with Article 29 TEU, the wording of which articles is stated in paragraphs 78 and 76 respectively above, that the adoption of measures intended to advance, in the rest of the world and, consequently, in Zimbabwe, democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, may be the subject of a decision based on Article 29 TEU (see, to that effect, the judgment of 28 May 2013 in Case T‑200/11 Al Matri
v Council, paragraph 46). In their arguments, as summarised above, the applicants do not in a general sense dispute that conclusion, but claim solely that restrictive measures, such as those at issue in this case, imposed on persons or entities solely on the basis of their conduct, alleged to constitute either a crime or serious misconduct, cannot qualify as measures which may be adopted on the basis of Article 29 TEU. The applicants further maintain that such conduct may, at most, be covered by measures adopted on the basis of provisions relating to judicial cooperation in criminal matters, which is the subject of Articles 82 TFEU to 86 TFEU.
94. Those arguments of the applicants disregard however the background of the activities seriously undermining democracy, respect for human rights and the rule of law in Zimbabwe in which the persons whose names are listed in Annex I to Decision 2011/101 are said to have engaged. It is necessary therefore to recall that background, as it emerges from the recitals in the preambles of Decision 2011/101 and the preceding acts.
95. Thus, recital 1 in the preamble of Common Position 2002/145, namely the first Common Position adopted with regard to Zimbabwe (see paragraph 1 above), reads as follows:
‘On 28 January 2002, the Council expressed its serious concern about the situation in Zimbabwe, in particular the recent escalation of violence and intimidation of political opponents and the harassment of the independent press. It noted that the Government of Zimbabwe has not taken effective measures to improve the situation as called for by the European Council in Laeken last December.’
96. Common Position 2002/145 was amended and extended by Common Position 2003/115. Recital 2 in the preamble of the latter is worded as follows:
‘There has been further degradation in the situation in Zimbabwe, where the serious infringements of human rights and of the freedom of opinion, of association and of peaceful assembly continue to occur.’
97. Common Position 2004/161, which repealed and replaced Common Position 2002/145, also refers, in recital 6, to ‘the continuing deterioration in the human rights situation in Zimbabwe’, which justified the renewal of restrictive measures adopted by the Union with regard to that country for a further period of 12 months. According to recital 7 of the same Common Position, ‘[t]he objective of these restrictive measures is to encourage the persons targeted to reject policies that lead to the suppression of human rights, of the freedom of expression and of good governance’.
98. It is plain to see that the Council considered that the situation in Zimbabwe had not improved since, as stated in paragraph 3 above, the Council successively extended the duration of validity of Common Position 2004/161 until 20 February 2009 ‘in view of the situation in Zimbabwe’, the standard wording used in the various common positions which effected those extensions.
99. In 2008 elections took place in Zimbabwe. As stated by the Council, the EU High Representative for the CFSP referred, in a statement of 22 June 2008, to the ‘unacceptable systematic campaign of violence, obstruction and intimidation led by the Zimbabwean authorities, which has continued for several weeks’ and he considered that ‘[u]nder those conditions, the elections have become a travesty of democracy’.
100. As the Council also states, without contradiction from the applicants, following agreement between the party in power in Zimbabwe, ZANU-PF, and the opposition, a ‘Global Political Agreement’ (‘the GPA’) was entered into by them on 15 September 2008, with provision for, inter alia, the formation of a new government of national unity containing not only members proposed by ZANU-PF, already in power before the formation of that government, but also members proposed by the opposition. Mr Robert Mugabe remained President of Zimbabwe. That government was finally formed on 9 February 2009, but, according to the Council, the years which followed were marked by a power struggle between ZANU-PF and the opposition parties. In that struggle, Mr Robert Mugabe retained the support of the Zimbabwean security apparatus, comprising the country’s army, intelligence services, police and prison system. According to the Council, the body which co-ordinates that apparatus, namely the Joint Operations Command is, to a large extent, responsible for the violence during the 2008 elections, and the individuals who were members of that body in 2008 continue as such.
101. Council Common Position 2009/68/CFSP of 26 January 2009, renewing restrictive measures against Zimbabwe (OJ 2009 L 23, p. 43), extended the period of validity of Common Position 2004/161 for an additional year, until 20 February 2010. Recital 3 in the preamble of Common Position 2009/68 states that the reason for that extension was ‘[i]n view of the situation in Zimbabwe, in particular given the violence organised and committed by the Zimbabwean authorities and the continued blocking of the implementation of the political agreement signed on 15 September 2008’. Likewise, Decision 2010/92, which extended the period of validity of Common Position 2004/161 until 20 February 2011, refers, in its recital 3, to ‘the lack of progress in the implementation of [the GPA]’.
102. It is against that background that the Court must set the reference made, in Articles 4 and 5 of Decision 2011/101 (see paragraphs 7 and 8 above), to persons ‘whose activities seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe’. It is apparent that that reference is not to any conduct which might constitute a crime or an offence under ordinary criminal law or civil law. The reference relates, patently, to the conduct of the persons who perpetrated the acts which led the Council to assert that the leaders of Zimbabwe were responsible for an ‘escalation of violence’, ‘intimidation of political opponents and the harassment of the independent press’ (see paragraph 95 above), ‘serious infringements of human rights and of the freedom of opinion, of association and of peaceful assembly’ in the country (paragraph 96 above) or again a ‘systematic campaign of violence, obstruction and intimidation led by the Zimbabwean authorities’ (paragraph 99 above).
103. Those findings are confirmed by the wording of Articles 4 and 5 of Decision 2011/101. While, clearly, conduct which constitutes a crime or an offence may seriously harm the rights of the individuals who are its victims, it is difficult to imagine that such conduct might harm democracy itself or the rule of law, where there is no collusion between the persons directly implicated in that conduct and some, at least, of the leaders of the country concerned.
104. It must also be observed that the effect of the GPA and the formation of the so-called Government of National Unity was not wholly to remove from power the leaders of Zimbabwe against whom the accusations summarised above were made (see also, in that regard, paragraph 109 below). At most, the result was a sharing of power between those same leaders and the former opposition parties.
105. In those circumstances, the Court holds that Article 29 TEU constitutes an adequate legal basis for the adoption of decisions such as Decisions 2011/101 and 2012/97, with regard to the persons referred to in paragraph 102 above. Contrary to what is claimed by the applicants, the restrictive measures concerned by those two decisions were not imposed on those persons on the ground of their alleged implication in any conduct whatsoever which might constitute a crime or an offence, but because of the alleged conduct on their part which, while also falling in all probability within the scope of criminal or, at the least, civil law, was part of a strategy of intimidation and systematic violation of the fundamental rights of the Zimbabwean people, responsibility for which the Council assigned to the leaders of that country. It is precisely on that last ground that the persons who were accused of such conduct could legitimately be the subject of a measure such as the two abovementioned decisions, adopted on the basis of Article 29 TEU.
106. It is also because of that last ground that there is a link, of the kind referred to by the applicants in their arguments summarised in paragraph 91 above, between the conduct of those persons and the legitimate objectives of the CFSP, as set out in Article 21 TEU. When account is taken of the objective of the restrictive measures concerned, renewed by Decision 2011/101 (see paragraph 97 above), it was absolutely reasonable to include, among the persons subject to such measures, the alleged perpetrators of the violence and intimidation for which the leaders of Zimbabwe had, in the view of the Council, to assume political responsibility, and not those leaders alone. Regardless of whether any action could be taken under criminal, or civil, law against the persons allegedly involved in the alleged violence, it was legitimate and compatible with the objectives of the CFSP to adopt measures intended to encourage those individuals, and others, to ‘reject policies that lead to the suppression of human rights, of the freedom of expression and of good governance’, which, in their case, would mean that they should not engage in any similar conduct in the future.
107. As regards the applicants’ argument summarised in paragraph 92 above, it must be observed that that argument does not, in fact, relate to the legal basis for the contested acts, but involves a claim that the statement of reasons for those acts is insufficient. Even if that finding is set aside, suffice it to state that, as is apparent from the recital of the considerations for the various acts which established and extended the restrictive measures at issue, as set out in paragraphs 95 to 101 above, and as will be argued as part of the analysis of the third plea in law below, the Council provided a sufficient statement of the reasons which led it to include, among the persons subject to those measures, the persons who are concerned by this plea in law.
108. The applicants also claim that, in any event, the restrictive measures at issue are not an appropriate means to achieving any legitimate objective in a proportionate manner. They put forward five arguments in this regard. First, although those measures purport to be aimed at members of the current government, they focus entirely on issues relating to the former Government of Zimbabwe, and not the government which is in power following the implementation of the GPA. Further, the current government (‘the Government of National Unity’) is supported by the European Union, with which it is engaged in dialogue. Second, the activities and misconduct alleged against the applicants relate, in a certain number of cases, to a period before the formation of the Government of National Unity. Third, the imposition of a fund freezing measure and a travel ban on individuals who have no association with the government or who are not involved with or in control of the policies that government is implementing cannot in any event achieve any legitimate CFSP objective. Fourth, the United Kingdom, which proposed that individuals be added to the list of persons affected by the restrictive measures at issue, applies a strategy which seeks to maintain pressure on ‘hardliners’. That is not a stated objective of the CFSP and cannot justify the extension of restrictive measures to non-State actors in Zimbabwe who are alleged to have engaged in criminal conduct in the past. Fifth, even if the contested measures were appropriate, they remain disproportionate for the reasons set out with regard to the fifth plea in law.
109. The last of those five arguments consists of no more than a reference to arguments put forward by the applicants in support of their fifth plea in law, examined in paragraphs 285 to 302 below. As regard the other four, they start, very obviously, from the premise that the formation of the so-called Government of National Unity, as provided for by the GPA, resulted in the complete replacement of all the leaders of Zimbabwe. However, as has been pointed out in paragraph 100 above, that was not the case. While, admittedly, the Government of National Unity contained representatives of the opposition, it also contained representatives of ZANU-PF, namely the party which was in power when the violence, intimidation and infringements of fundamental rights, alleged by the Council in the various common positions and decisions relating to Zimbabwe, as mentioned above, took place. As is apparent from the Council’s answer to one of the questions put to it by the Court as a measure of organisation of procedure, essentially the members of the Government of National Unity proposed by ZANU-PF were previously members of the former government. Further, the President of Zimbabwe, Mr Robert Mugabe, continued to hold that office.
110. In those circumstances, contrary to what the applicants appear to believe, there is no question of a radical and comprehensive change in the Zimbabwean leadership, following the formation of the Government of National Unity, pursuant to the GPA. It was therefore open to the Council, even after the formation of that government, to adopt, on the basis of Article 29 TEU, a decision providing for restrictive measures against both those of the Zimbabwean leadership who had previously been part of the leadership of that country in the past or their associates and also persons who had, in the past, engaged in activities which seriously undermined democracy, respect for human rights and the rule of law in Zimbabwe. That applies a fortiori
when, as is clear from the recitals of Common Position 2009/68 and Decision 2010/92, referred to in paragraph 101 above, the Council considered that the implementation of the GPA was subject to ‘continued blocking’ and was characterised by a ‘lack of progress’.
111. Moreover, as regards, more specifically, the fourth argument, which refers to an alleged distinct strategy of the United Kingdom, that argument is based on a report of a House of Commons committee, produced by the applicants as an annex to their application. Suffice it to state in that regard that, as pointed out, in essence, by the Council, the legality of the contested acts must be assessed on the basis of the grounds set out in those acts themselves and not on matters allegedly taken into consideration by the United Kingdom Government which led it to support those acts. That is even more the case, as again stated by the Council, where those acts were plainly not adopted by the United Kingdom alone, but by all the representatives of the Member States, meeting within the Council.
112. Taking into account all the foregoing, it must be concluded that Article 29 TEU constituted an adequate legal basis for the adoption of Decision 2012/97 and, moreover, for Decision 2011/101 which was amended by it. Further, Implementing Decision 2012/124 was also adopted on an adequate legal basis, namely Article 6(1) of Decision 2011/101.
The legal basis of Implementing Regulation No 151/2012
113. As stated above (see paragraph 80 above), the Commission adopted Implementing Regulation No 151/2012 on the basis of Article 11(b) of Regulation No 314/2004.
114. First, it is clear that, on its own wording (see paragraph 4 above), the provision in question concerns ‘decisions taken in respect of the Annex to Common Position 2004/161’. Yet, as observed in paragraph 6 above, Common Position 2004/161 was repealed by Decision 2011/101.
115. Admittedly, it would have been preferable if the wording of Article 11(b) of Regulation No 314/2004 had been updated, to substitute for the reference to the repealed Common Position 2004/161 a reference to Decision 2011/101 which replaced it. However, even in the absence of such updating, it is obvious that the provision concerned must be interpreted as also covering any decision relating to a measure, such as in this case Decision 2011/101, which, repealing Common Position 2004/161, took the place of that common position and essentially contains identical provisions.
116. A comparative examination of the provisions of the two acts concerned reveals that Articles 1 to 5 of Decision 2011/101 are, with the exception of some ad hoc amendments of an ancillary nature, identical to the corresponding articles of Common Position 2004/161, in the version in force at the time of its repeal. Article 6 of Decision 2011/101 reproduces, in paragraph 1, the text of Article 6 of Common Position 2004/161, but also contains two further paragraphs designed to safeguard the rights of defence of persons affected by the restrictive measures that are imposed. A new Article 7, containing information on the Annex to Decision 2011/101, plainly to guarantee compliance with the obligation to state reasons, is placed between Article 6 of that decision and Article 8 thereof, the text of the latter being identical to that of Article 7 of Common Position 2004/161. Article 9 of Decision 2011/101 consists of one sentence repealing Common Position 2004/161 while, essentially, the last article (Article 10) of Decision 2011/101 corresponds to Article 9 of Common Position 2004/161. Decision 2011/101 does not contain any article comparable to Article 10 of Common Position 2004/161, but the latter article provides for no more than the publication of the Common Position concerned in the Official Journal. The absence of a comparable provision in the text of Decision 2011/101 is without doubt due to the fact that its publication in the Official Journal is directly provided for by the second subparagraph of Article 297(2) TFEU.
117. The interpretation of Article 11(b) of Regulation No 314/2004 as also referring to decisions taken in respect of the Annex to Decision 2011/101 is confirmed by recital 5 in the preamble of that decision, adopted, it should be recalled, by the Council, which is also the author of Regulation No 314/2004. That recital states that the ‘Union implementing measures [of Decision 2011/101] are set out in … Regulation … No 314/2004...’.
118. It must therefore be concluded that Article 11(b) of Regulation No 314/2004 constitutes an adequate legal basis for the adoption of an implementing regulation, such as Regulation No 151/2012, on the basis of a decision amending Annex I to Decision 2011/101. The Court must then examine the question mentioned in paragraph 87 above, namely whether such an amendment can have the effect of imposing the restrictive measures laid down by Regulation No 314/2004 on persons who are alleged to have engaged in activities seriously undermining democracy, respect for human rights and the rule of law in Zimbabwe, although, under Article 6(1) of Regulation No 314/2004, that regulation provides solely for the freezing of funds and economic resources of members of the Government of Zimbabwe and of any natural or legal person, entities or bodies associated with them.
119. It must be borne in mind that Regulation No 314/2004 was adopted on the basis of Articles 60 EC and 301 EC. The applicants refer to the case-law of the Court of Justice, according to which, if measures against natural persons are to be adopted on the basis of Articles 60 EC and 301 EC as restrictive measures striking third countries, those measures must be targeted at solely the leaders of those countries and persons who are associated with those leaders (Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation
v Council and Commission [2008] ECR I‑6351, paragraph 166, and Case C‑376/10 P Tay Za
v Council [2012] ECR, paragraph 63).
120. The applicants further claim that, in its Proposal for a Council Regulation COM (2009) 395 final of 29 July 2009, amending Regulation No 314/2004, the Commission expressly recognised that Articles 60 EC and 301 EC were not sufficient to impose restrictive measures on people unconnected with the government and that it would need to amend Regulation No 314/2004 if it wished to impose restrictive measures on individuals and entities not alleged to be members of the Government of Zimbabwe or associated with it. That proposal was however never adopted and the restrictive measures established by Regulation No 314/2004 continued to be based on Articles 60 EC and 301 EC.
121. The Council’s response is that Decision 2011/101 was adopted after the entry into force of the Treaty of Lisbon and that it is now permissible to adopt, on the basis of Article 215(2) TFEU, restrictive measures against natural or legal persons, groups or non-State entities, not linked to the governing regime of a third country. The change effected by the entry into force of the Treaty of Lisbon means that the Commission’s Proposal, relied on by the applicants, was overtaken by events. The Commission for its part also refers to Article 215(2) TFEU in its arguments and contends that that provision constitutes an adequate legal basis for the imposition of restrictive measures on persons or entities other than the leaders of third countries and those associated with those leaders.
122. It is certainly true that, as stated by the Court of Justice in the judgment in Case C‑130/10 Parliament
v Council [2012] ECR, paragraph 51, as a result of the amendments made to primary law after the Treaty of Lisbon entered into force, the content of Article 60 EC, relating to restrictive measures with regard to capital movements and payments, and Article 301 EC, on the interruption or reduction, in part or completely, of economic relations with one or more third countries, is mirrored in Article 215 TFEU. As the Court of Justice has also confirmed, Article 215(2) TFEU allows the Council to adopt restrictive measures against natural or legal persons and groups or non-State entities, namely, measures that, before the Treaty of Lisbon entered into force, required Article 308 EC also to be included in their legal basis if their addressees were not linked to the governing regime of a third country ( Parliament
v Council, paragraph 53).
123. However, those considerations demonstrate only that, after the entry into force of the Treaty of Lisbon, the Council had available to it an adequate legal basis, constituted by Article 215(2) TFEU, to allow it to adopt a regulation imposing restrictive measures on natural or legal persons in Zimbabwe not linked to the leaders of that third country. Yet it is clear that no regulation of that kind was adopted. Regulation No 314/2004 continues to refer, in Article 6(1) thereof, to ‘individual members of the Government of Zimbabwe and to any natural or legal persons, entities or bodies associated with them as listed in Annex III’.
124. Further, Article 11(b) of Regulation No 314/2004 must be interpreted in such a way as to be compatible with the abovementioned provision in Article 6(1) of the same regulation and it must therefore be concluded that the Commission could, by means of an implementing regulation, amend Annex III to Regulation No 314/2004 only if the persons who were to be listed in that annex could be characterised as either individual members of the Government of Zimbabwe or persons associated with them.
125. It is therefore necessary to examine, in particular, the question whether the persons listed in Annex I to Decision 2011/101 on the ground that they had engaged in activities seriously undermining democracy, respect for human rights and the rule of law in Zimbabwe can be considered to fall within the category of persons associated with the members of the Government of Zimbabwe. Obviously, if one or more of those individuals are at the same time members of the Government of Zimbabwe, there is nothing to prevent their names being listed, pursuant to an Implementing Regulation adopted on the basis of Article 11(b) of Regulation No 314/2004, in Annex III to the latter regulation, since their status as members of the government is already sufficient ground for that listing.
126. In order best to appreciate the concept of an ‘associate’ of the leaders of a third country, as it is used in the case-law of the Court of Justice cited in paragraph 119 above, some elucidation of the cases which have given rise to that case-law is necessary. In the cases which gave rise to the judgment in Kadi and Al Barakaat International Foundation
v Council and Commission, paragraph 119 above, the restrictive measures at issue were, as the Court of Justice held in paragraph 167 of that judgment, notable for the absence of any link to the governing regime of a third country. Specifically, the restrictive measures were directed directly against Usama bin Laden, the Al-Qaeda network, and the persons and entities associated with them, following the collapse of the Taliban regime in Afghanistan.
127. In the case which gave rise to the judgment in Tay Za
v Council, paragraph 119 above, the person subject to restrictive measures was a family member of a businessman in Myanmar. The Court of Justice held that the possibility could not be ruled out that those in charge of certain businesses might be subject to restrictive measures adopted on the basis of Articles 60 EC and 301 EC, provided it was established that they were associated with the leaders of the Republic of the Union of Myanmar or that the activities of those businesses were dependent on those leaders ( Tay Za
v Council, paragraph 119 above, paragraph 55). However, the Court of Justice excluded the application of such measures to natural persons on the sole ground of their family connection with persons associated with the leaders of the third country concerned and irrespective of their personal conduct ( Tay Za
v Council, paragraph 119 above, paragraph 66).
128. Neither of those two cases is however directly comparable to the circumstances of this case. Unlike the situation in the cases which gave rise to the judgment in Kadi and Al Barakaat International Foundation
v Council and Commission, paragraph 119 above, in this case, with respect to the grounds set out in paragraph 109 above, there is no question of a ‘collapse’ of the regime which was in power in Zimbabwe at the time when there took place the violence, intimidation and infringements of the fundamental rights of the Zimbabwean people which are relied on by the Council to justify the adoption of the restrictive measures at issue. As regards the judgment in Tay Za
v Council, paragraph 119 above, suffice it to state that, in this case, there is no question of restrictive measures being imposed on persons on the sole ground that they are family members of associates of the leaders of a third country.
129. It follows that there is nothing, in the case-law of the Court of Justice examined above, to preclude the persons whose names were listed in Annex I to Decision 2012/97, on the ground that their activities allegedly seriously undermined democracy, respect for human rights and the rule of law in Zimbabwe, from being regarded as falling within the category of persons ‘associated with individual members of the Government of Zimbabwe’, for the purposes of Article 6(1) of Regulation No 314/2004. That is indeed how they should be characterised, having regard to the findings and considerations in paragraphs 105, 106, 109 and 110 above.
130. In other words, it has to be concluded that, in the particular circumstances of Zimbabwe, as they emerge from the findings in paragraphs 95 to 104 above, the ‘natural persons whose activities seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe’ and the legal persons, entities or bodies belonging to those natural persons, all referred to in Articles 4 and 5 of Decision 2011/101, should not be regarded as other than persons associated with the members of the Government of Zimbabwe and the legal persons, entities or bodies belonging to such associates, but constitute, in fact, a particular category of those associates.
131. It is admittedly true that, at first sight, the wording of the abovementioned Articles 4 and 5, by employing the terms ‘as well as’ and ‘other … persons’, seems conducive to a conclusion to the contrary. However, when account is taken of the background which led to the adoption and extension, over a very long period, of restrictive measures against Zimbabwe, as that background is described in paragraphs 95 to 104 above, an interpretation of Article 6(1) of Regulation No 314/2004 which would permit the conclusion that the restrictive measures laid down in that regulation cannot be imposed on the persons referred to in paragraph 129 above cannot be accepted.
132. That is because it would be paradoxical to accept that the restrictive measures laid down by Regulation No 314/2004 might be adopted against family members of the leaders of Zimbabwe (see, to that effect, the judgment in Tay Za
v Council, paragraph 119 above, paragraph 63 and case-law cited) on the sole ground that they are persons associated with those leaders, where they need not be accused of any specific conduct undermining democracy, respect for human rights and the rule of law, and to exclude, at the same time, the adoption of such measures against persons who were the true instruments for the implementation of the policy of violence, intimidation and infringement of fundamental rights which the European Union imputes to those leaders. The characterisation of the latter persons as ‘associates’ of the leaders of Zimbabwe is even more justified than the characterisation of the family members of those leaders as such.
133. It follows that Article 11(b) of Regulation No 314/2004 constituted an adequate legal basis for the adoption of Implementing Regulation No 151/2012, with regard to all the persons concerned by the latter regulation.
134. All the foregoing considerations are confirmed when an examination is made of the grounds stated in connection with the listing in Annex I to Decision 2011/101, as amended by Decision 2012/97, of the applicants to whom reference is made in footnote No 33 of the application. It must be observed, in that regard, that, as correctly stated by the Council, the majority of the applicants concerned occupied positions which makes it possible to characterise them as leaders of Zimbabwe or associates of those leaders and to justify, accordingly, on that ground alone, their listing in that annex. Irrespective of that observation however, it is clear that, in all those cases, the brief description of the conduct which is imputed to them indicates that that conduct constitutes activity which is plainly linked to the policy of violence, intimidation and infringement of the fundamental rights of the Zimbabwean people which the European Union imputes to the leaders of that State.
135. Thus, for example, in the cases of Mr Joseph Chinotimba (applicant No 15) and Mr Gilbert Moyo (applicant No 54), it is alleged that they took part in acts of violence during the 2008 elections. As regards applicant No 30, Mr Nolbert Kunonga, the entry relating to him in Annex I to Decision 2011/101, as amended by Decision 2012/97, is as follows: ‘Self-appointed Anglican Bishop. Vociferous supporter of the regime. His followers were backed by the police in committing acts of violence against church supporters in 2011’. The grounds given for the listing of all the other applicants to whom reference is made in footnote No 33 in the application are broadly comparable in content.
136. In the light of all the foregoing, the first plea in law must be rejected as being unfounded.
The third plea in law: infringement of the obligation to state reasons
137. The applicants claim that, although until 2007 no reasons were stated for the restrictive measures imposed in relation to the situation in Zimbabwe, the Council and the Commission have latterly begun to provide some reasons. However, in so far as the applicants are concerned, the reasons stated in the contested acts do not comply with the principles to be found in the case-law and they consist of general assertions, which do not disclose in a clear and unequivocal fashion the actual and specific reasons why the view was taken that the restrictive measures at issue should be imposed on each of the persons and entities concerned. It is, according to the applicants, impossible for a person or entity concerned to ascertain why they have been retained on the list of persons and entities subject to those restrictive measures, while the names of other persons and entities have been removed, or to find out how they could become eligible for delisting in the future. In their reply, the applicants refer ‘for example’ to the ‘too vague and general’ entries relating to 39 of the applicants which are to be found in Annex I to Decision 2011/101, as replaced by Decision 2012/97.
138. The applicants also argue that, according to the case-law, a decision to renew restrictive measures imposed previously must set out the actual and specific reasons why the relevant authority considers, following re-examination, that the freezing of the funds of the party concerned remains justified. In the present case, the defendant institutions did not comply with that obligation. The defendants have never stated whether and on what basis they consider that the activities of any of the applicants seriously undermine democracy, respect for human rights or the rule of law in Zimbabwe, even though they added entirely new allegations of serious criminal conduct in respect of the applicants, allegations which had never been put forward before.
139. The above-mentioned obligations are particularly relevant in the present case, since the defendant institutions have sought to justify the renewal of the restrictive measures in question as regards the applicants by reference to their past conduct, thereby applying an ‘undisclosed presumption’ as to the conduct of those persons in the future. The applicants refer, in that context, to the judgment in Case T‑362/04 Minin
v Commission [2007] ECR II‑2003, paragraph 72, and claim that, as in the case which gave rise to that judgment, the defendant institutions ought to have explained why the application to them of the restrictive measures at issue remained necessary.
140. Last, the applicants claim that the defendant institutions adopted the decision to renew the restrictive measures at issue against them on the basis of undisclosed reasons. Those reasons, disclosed for the first time in the defences, consist, first, in a previously unstated definition of what the defendant institutions regard as ‘association’ with the Government of Zimbabwe, second, a description of criteria according to which the applicants could be considered to be either obstructive of or supportive of the implementation of the GPA or to be in a position to influence government policy in Zimbabwe and, third, the assumption that each of the applicants was about to engage in violence during the elections which were to take place in Zimbabwe in 2013. According to the applicants, the defendant institutions have made generalised assumptions based on unsupported allegations as regards past misconduct and their membership of a political party, ZANU-PF, to which they of course had the right to belong.
The relevant case-law
141. According to settled case-law, the purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, secondly, to enable those Courts to review the legality of that act (see Case C‑417/11 P Council
v Bamba [2012] ECR, paragraph 49 and case-law cited).
142. The statement of reasons required by Article 296 TFEU 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 measures and to enable the court having jurisdiction to exercise its power of review (see Council v Bamba, paragraph 141 above, paragraph 50 and case-law cited). In particular, the statement of reasons for an act which imposes a freezing of funds must identify the actual and specific reasons why the author of that act considers, in the exercise of its discretion, that that measure must be adopted in respect of the person concerned ( Council
v Bamba, paragraph 141 above, paragraph 52).
143. The statement of reasons required by Article 296 TFEU must, however, be appropriate to the act at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the statement of reasons to specify all the relevant matters of fact and law, since the question whether the statement of reasons is adequate 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. In particular, the reasons given for a decision are sufficient if it was adopted in circumstances known to the party concerned which enable him to understand the scope of the measure concerning him (see Council
v Bamba, paragraph 141 above, paragraphs 53 and 54, and case-law cited).
144. In order to determine whether or not the statement of reasons in the contested acts is sufficient with regard to each of the applicants concerned by those measures, the Court must examine, first, whether those acts contain reasons that are sufficient in general terms, so as to justify the adoption and renewal of restrictive measures in view of the situation in Zimbabwe. If that requirement was respected, it would then be necessary to examine whether the contested acts contain reasons that are sufficient in the specific case of each applicant, so as to justify the imposition or renewal of the measures at issue with regard to the person or entity concerned.
The grounds for the adoption and renewal of restrictive measures against Zimbabwe
145. It must be observed that the contested acts did no more than renew, against all the applicants, restrictive measures which had been previously imposed by other acts (see paragraph 15 above). It necessarily follows that those acts were adopted in circumstances known to the applicants. Those circumstances include, in particular, the considerations and events recalled in paragraphs 95 to 104 above, and those referred to in paragraphs 109 and 110 above, of which the applicants could not have been unaware. It follows that, on a reading of the contested acts and the acts preceding them as referred to above, the applicants were in a position to understand the reasons why the Council established restrictive measures against the categories of persons referred to in Article 4(1) and Article 5(1) of Decision 2011/101 and in Article 6(1) of Regulation No 314/2004. Those reasons enable the applicants to challenge, as may be necessary, the merits of the decision to establish such measures in view of the situation in Zimbabwe, and the Court to review the legality of such measures.
146. The same is true of the reasons justifying the subsequent decisions which extended the period of validity of the measures in question. In particular, the events and considerations recalled in paragraphs 109 and 110 above, as set out in the contested acts and the preceding acts, make it possible to understand why it was decided, notwithstanding the signing of the GPA and the subsequent formation of what was called the Government of National Unity, to maintain in force the restrictive measures against persons and entities linked to ZANU-PF, which previously had monopolised power, although comparable measures were not established against members of the Government of National Unity who had not been members of the former government.
The specific grounds justifying the adoption and renewal of the restrictive measures at issue against each of the applicants
147. The Court must examine whether the contested acts contain a statement of reasons which is sufficient so far as concerns the particular reasons which led the defendant institutions to consider that each of the applicants fell within one or more of the categories of persons on whom it had been decided to impose restrictive measures.
148. In that regard, the Court must, at the outset, disregard as of no relevance to this case the argument which the applicants base on the judgment in Minin
v Commission, paragraph 139 above (paragraph 72). The passage in that judgment relied on by the applicants concerns not the reasons stated in the regulations at issue in that case, but the legal basis for those regulations. More specifically, the issue in that case was whether Articles 60 EC and 301 EC could constitute an adequate legal basis for the adoption of those regulations and, in that context, the determination whether the restrictive measures imposed on the applicant in the case concerned, in his capacity as an associate of the former President of Liberia, Charles Taylor, were actually intended to interrupt or reduce, wholly or in part, economic relations with a third country, given that Charles Taylor had ceased to hold power as President in Liberia after August 2003, in other words before the adoption of those regulations in that case ( Minin
v Commission, paragraph 139 above, paragraphs 70 and 71). That is the background to the consideration relied on by the applicants, in paragraph 72 of that judgment, that ‘the restrictive measures taken against Charles Taylor and his associates remain necessary to prevent them from using misappropriated funds and property to interfere in the restoration of peace and stability in Liberia and the region’.
149. Yet in this case, President Mugabe and ZANU-PF did not cease to hold power in Zimbabwe. As stated above, in particular in paragraphs 109 and 110, they merely agreed to share power with the MDC party, which had previously been in opposition, and, moreover, according to the authors of the contested acts, the implementation of that power-sharing agreement, that is the GPA, was hindered by ZANU-PF. Further, it has already been observed that the reasons stated for the contested acts meet the requisite legal standard, as reasons in general terms justifying the renewal of the restrictive measures at issue notwithstanding the signing of the GPA and the formation of what was called the Government of National Unity.
150. As regards, next, the assertion that the defendant institutions attempted to justify the renewal of the restrictive measures at issue by referring to the applicants’ past conduct, it must be observed that it is not inconceivable that the past conduct of one or other of the applicants might justify the imposition or renewal of restrictive measures against him or her. That is even more the case where, as has been stated, the individuals and the political party, namely ZANU-PF, who were in power in Zimbabwe when the violence and infringements of fundamental rights referred to in the contested acts occurred, were still in power when those acts were adopted, albeit under a power-sharing agreement. Accordingly, as regards compliance with the obligation to state reasons, which is the sole subject-matter of this plea in law, it must be observed that the reference to the past conduct of one or other applicant cannot demonstrate that the statement of reasons in the acts at issue is lacking or insufficient. Whether, having regard to the alleged past conduct, the imposition or renewal of the restrictive measures at issue against the persons or entity concerned is justified is a matter which relates to the question of whether the contested acts are well founded and must be examined as part of the analysis of the pleas relating to the substantive legality of the acts at issue, in particular the second plea in law (see paragraph 235 below).
151. As regards the applicants’ argument that the grounds for the renewal of the restrictive measures at issue against them were disclosed only in the defences to this action (see paragraph 140 above), it is necessary to recall the settled case-law that a decision of an institution must be self-sufficient and the reasons on which it is based may not be stated in written or oral explanations given subsequently when the decision in question is already the subject of proceedings brought before the Courts of the European Union (the judgment in Case T‑16/91 RV Rendo and Others
v Commission [1996] ECR II‑1827, paragraph 45, and the judgment of 7 July 2011 in Case T‑161/04 Valero Jordana
v Commission, paragraph 107). While a statement of reasons which has begun to be expressed in a contested act may be enlarged upon and clarified during the proceedings, the institution which is the author of that act is not entitled to substitute an entirely new statement of reasons in place of the initial statement of reasons ( Valero Jordana
v Commission, paragraph 107; see also, to that effect, the judgments in Rendo and Others
v Commission, paragraph 55, and in Case T‑4/01 Renco
v Council [2003] ECR II‑171, paragraph 96).
152. It is apparent from that case-law that the Court’s assessment whether or not the statement of reasons in the contested acts is sufficient must be based solely on the reasons to be found in those acts, set in their context as it derives from, inter alia, previous acts which imposed or renewed restrictive measures against Zimbabwe. Consequently, reasons which are entirely new, disclosed by the defendant institutions in the course of proceedings, cannot compensate for any lack of or insufficiency of reasons stated in the contested acts. It was however open to those institutions to enlarge upon and clarify, before the Court, the reasons for the contested acts as they are found in those acts.
153. That said, the Court cannot fail to point out that, in order to comply with the obligation to state reasons, the authors of the contested acts were not obliged to set out in those acts their own interpretation of the concept of ‘association’ with the Government of Zimbabwe or, more generally, their interpretation of the relevant provisions and case-law. The question whether those acts are based on an incorrect or erroneous interpretation of that concept and, more generally, of the relevant provisions and case-law goes to the substance of the case and does not concern the issue of compliance with the obligation to state reasons. It follows that any observations on those subjects, put forward by the defendant institutions in their written pleadings before the Court, do not constitute a statement of reasons for the contested acts which is disclosed in the course of proceedings.
154. All those arguments having been rejected, the Court must examine the sufficiency of the reasons stated by the authors of the contested acts to justify the listing, in the list of persons and entities subject to the restrictive measures at issue, of each of the applicants.
155. In that regard, it must first be observed that both Annexes I and II to Decision 2012/97 (which became Annexes I and II to Decision 2011/101, following its amendment by Decision 2012/97) and Annex I to Regulation No 151/2012 (which became Annex III to Regulation No 314/2004) take the form of tables. Those tables comprise a first column containing the name of the person or entity concerned, a second column headed ‘Identifying information’ and a third column headed ‘Grounds for designation’. As regards natural persons, the latter two columns indicate, inter alia, the governmental or administrative post which the person concerned occupies or, as it may be, occupied, or, in the cases of some individuals who had not occupied such posts, the status of those persons considered to be relevant by the authors of the contested acts. In a good number of cases there is also information that the individual concerned is a member of ZANU-PF, which alone held power before the signing of the GPA, and, where appropriate, a brief description of the acts of violence and intimidation or infringements of fundamental rights of the Zimbabwean people imputed to the individual concerned by the Council.
156. As regards legal persons and entities, the column relating to ‘[g]rounds’ indicates either that they belong to one or other of the natural persons referred to in Part I of the corresponding Annex or that they are associated with ‘the ZANU-PF faction of the Government’ and, in the case of applicant No 117, the company OSLEG (Private) Ltd, that it is ‘controlled by the Zimbabwean army’.
157. Next, it must be observed that, under Article 6(1) of Regulation No 314/2004, the freezing of funds and economic resources established by that regulation applies to members of the Government of Zimbabwe and to their associates, both natural and legal persons, entities or bodies. Further, under Article 4(1) and Article 5(1) of Decision 2011/101, the restrictive measures established by that decision apply to members of the Government of Zimbabwe and to their associates, both natural and legal persons, including [any other] ‘natural or legal person whose activities seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe’, who, as stated in paragraph 146 above, must be regarded as constituting a particular category of such associates.
158. It follows that, if the statements of reasons in the contested acts are to meet the requisite legal standard, those acts must include, with respect to each applicant, a clear and specific indication of the facts which serve to justify the person concerned being characterised as a member of the Government of Zimbabwe or as a person associated with such a member.
159. With regard to applicant No 1, Mr Johannes Tomana; applicant No 4, Ms Flora Buka; applicant No 11, Mr Phineas Chihota; applicant No 13, Mr Patrick Anthony Chinamasa; applicant No 19, Mr Ignatius Morgan Chiminya Chombo; applicant No 21, Mr Nicholas Tasunungurwa Goche; applicant No 27, Mr Saviour Kasukuwere; applicant No 33, Mr Andrew Langa; applicant No 36, Mr Joseph Mtakwese Made; applicant No 40, Mr Paul Munyaradzi Mangwana; applicant No 41, Mr Reuben Marumahoko; applicant No 52, Mr Emmerson Dambudzo Mnangagwa; applicant No 53, Mr Kembo Campbell Dugishi Mohadi; applicant No 59, Mr Obert Moses Mpofu; applicant No 62, Ms Olivia Nyembesi Muchena; applicant No 66, Mr Isack Stanislaus Gorerazvo Mudenge; applicant No 69, Mrs Joyce Teurai Ropa Mujuru; applicant No 70, Mr Isaac Mumba; applicant No 72, Mr Herbert Muchemwa Murerwa; applicant No 75, Mr Didymus Noel Edwin Mutasa; applicant No 79, Mr Walter Mzembi; applicant No 81, Mr Sylvester Nguni; applicant No 82, Mr Francis Chenayimoyo Dunstan Nhema; applicant No 83, Mr John Landa Nkomo; applicant No 85, Mr Magadzire Hubert Nyanhongo; applicant No 87, Ms Sithembiso Gile Glad Nyoni; applicant No 95, Mr S. T. Sekeramayi, and applicant No 97, Mr Webster Kotiwani Shamu, the grounds stated in Decision 2012/97 and Implementing Regulation No 151/2012 clearly indicate the posts which those persons occupied when those acts were adopted. The posts indicated fully justify the characterisation of those applicants as members of the Government of Zimbabwe. Consequently, the abovementioned contested acts must be regarded as containing statements of reasons to the requisite legal standard in so far as they concern those applicants.
160. As regards the other applicants who are natural persons, other than the applicants referred to in paragraph 159 above and applicant No 15, Mr Joseph Chinotimba, applicant No 30, Mr Nolbert Kunonga and applicant No 54, Mr Gilbert Moyo (whose situations are examined in paragraphs 170 and 171 below), it must be observed that with regard to the other applicants there is considerable variation in status held or posts occupied. More specifically, there are: army or air force officers; the Director-General of the Central Intelligence Organisation; police officers; high ranking civil servants, namely applicant No 7, Mr George Charamba, who is the Permanent Secretary, Department for Information and Publicity, applicant No 65, Mr Tobaiwa Mudede, who is ‘Registrar General’, that is, the person responsible for, inter alia, maintaining the electoral roll, applicant No 96, Mr Lovemore Sekeremayi, who is the ‘Chief Elections Officer’ and applicant No 110, Mr Paradzai Willings Zimondi, who is the Prisons Director; provincial governors; the Governor of the Reserve Bank of Zimbabwe (the Zimbabwe central bank); Members of Parliament, namely applicant No 25, Mr Newton Kachepa, who is the member of parliament for the constituency of Mudzi Nord, and applicant No 37, Ms Edna Madzongwe, who is the ‘President of Senate’; ZANU-PF officials, namely again applicant No 37 (member of the Politburo in addition to being President of the Senate of Zimbabwe), applicant No 57, Mr Simon Khaya Moyo, who is Chairman of the Politburo, applicant No 63, Ms Oppah Chamu Zvipange Muchinguri, and applicant No 98, Mr Nathan Marwirakuwa Shamuyarira, who are Politburo Secretaries, and applicants No 93, Mr Stanley Urayayi Sakupwanya, and No 94, Mr Tendai Savanhu, who are Politburo Deputy Secretaries, and applicant No 103, Mr Mishek Julius Mpande Sibanda, who is ‘Cabinet secretary’.
161. Mention must also be made of applicant No 28, Mr Jawet Kazangarare, of whom it is stated, in the annexes to Decision 2012/97 and Implementing Regulation No 151/2012, that he is a ‘ZANU-PF Councillor in Hurungwe North and war veteran’, and of applicant No 102, Mr Jabulani Sibanda, of whom it is stated in the same acts that he is ‘Former Chair, National War Veterans Association’.
162. Last, among the other natural persons affected by the contested acts are former members of the government, two former provincial governors, namely applicant No 9, Mr Tinaye Chigudu, and applicant No 60, Mr Cephas George Msipa, and a former ‘Senior Assistant Police Commissioner’, namely applicant No 68, Mr Bothwell Mugariri.
163. With respect to the majority of applicants referred to in paragraphs 160 to 162 above, in others words all the applicants other than those referred to in paragraph 169 below, the Court considers that the reference to the posts which they were occupying when the contested acts were adopted, or which they had occupied in the past, is, in itself, sufficient to justify their being listed in the list of persons subject to the restrictive measures at issue. The persons concerned include high ranking officials or civil servants (including provincial governors) and police and military officers. The individuals occupying such posts are people who work closely with the government of a country and can legitimately be characterised as ‘associates’ of the members of that government, and no additional justification is necessary. The same is true of the members of the ZANU-PF Politburo, which is the governing body of the political party which held power alone in Zimbabwe from the date of the country’s independence until the signing of the GPA.
164. Further, the Court also considers that, in circumstances such as those of this case, reference to the fact that a person occupied in the past a post on the basis of which he can be characterised, while occupying that post, as a member of the government of the country concerned or as an associate of such a member, constitutes sufficient justification of his being characterised, after leaving that post, as an associate of members of the government of the country concerned. Where, as in this case, there has not been in the interim any collapse in the country concerned of the regime which was in power when the person concerned was a member of its government or an associate of such a member, it is legitimate to infer, in the absence of evidence or indications to the contrary, that, after leaving his or her post, that person is an associate of members of the government of that country who are former colleagues or persons whom that person worked with or worked under.
165. As regards any argument that it is possible that those persons may have been removed from their former posts because they did not support the repressive policy of the regime, on which assumption their inclusion among the persons subject to the restrictive measures at issue would not be justified, reference must be made to the purpose of the obligation to state reasons, as stated in the case-law quoted in paragraph 141 above, and it must be recalled that the question of the statement of reasons, which concerns an essential procedural requirement, is separate from that of evidence of the alleged facts, since the latter question relates to the substantive legality of the act at issue 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 ( Council
v Bamba, paragraph 141 above, paragraph 60).
166. A person whose name has been listed in the list of persons subject to the restrictive measures at issue on the ground that he was formerly a member of the government or formerly a high ranking member of the Zimbabwean authorities has available to him, on reading that information, the essential material to permit him to challenge that listing, by claiming, as the case may be, that he had severed all links with the regime considered to be repressive by the authors of the contested acts and that, for precisely that reason, he was removed from his post. The Courts of the European Union also have the material required to carry out their review, in so far as the grounds stated in the act at issue indicate that it is necessary, in order to examine the merits of those grounds, to investigate whether, having regard to the post formerly occupied by the person concerned, the links between that person and the regime persisted or, on the contrary, were severed.
167. It must be emphasised that the foregoing considerations, which relate to an analysis of whether the defendant institutions have complied with the obligation to state reasons, do not, in the circumstances of this case and in view of the particular situation in Zimbabwe (see paragraph 130 above), involve either the creation of a presumption or a reversal in the burden of proof to the detriment of the parties concerned. Their significance is simply that the reference, in the grounds of the contested acts, to posts formerly occupied by some applicants, discloses that the authors of those acts considered that, for that reason, the applicants concerned remained associates of the Zimbabwean leadership and that they were not aware of anything to call into question that proposition. In the event of challenge, it is the task of the authors of the contested acts to establish, before the Courts of the European Union, the truth of the link with the government by reason of the posts formerly occupied by the parties concerned, the latter also having the right to submit, for purposes of rebuttal, any evidence in their possession to the contrary.
168. It follows that the reference, in the contested acts, to the posts formerly occupied by the applicants mentioned in paragraph 162 above constitutes a reason which is sufficient to justify the inclusion of those applicants among the persons subject to the restrictive measures at issue.
169. On the other hand, with regard to the applicants mentioned below, the Court considers that the mere reference to their status or to the post which they occupied is not, in itself, sufficient to justify their being listed in the list of persons subject to the restrictive measures at issue. Included in this category are the military officers with the rank of colonel or below, namely applicant No 24, Mr Stephen Gwekwerere, applicant No 32, Mr R. Kwenda, applicant No 42, Mr G. Mashava, applicant No 49, Mr Cairo Mhandu, applicant No 50, Mr Fidellis Mhonda, applicant No 58, Mr S. Mpabanga, applicant No 64, Mr C. Muchono, applicant No 78, Mr S. Mutsvunguma, applicant No 80, Mr Morgan S. Mzilikazi, applicant No 91, Mr Victor Tapiwe Chashe Rungani, and applicant No 101, Mr Chris Sibanda; the police officers of lower rank than those mentioned in paragraph 160 above, namely applicant No 67, Mr Columbus Mudonhi (‘Assistant Inspector’), applicant No 70, Mr Isaac Mumba (‘Superintendent’), applicant No 99, Mr Dani Rangwani (‘Police Detective Inspector’); applicant No 25, Mr N. Kachepa (Member of Parliament), and, last, the two applicants mentioned in paragraph 161 above.
170. As regards applicants No 15, No 30 and No 54, namely Mr Joseph Chinotimba, Mr Nolbert Kunonga and Mr Gilbert Moyo respectively, in its defence the Council considered that they formed a special category of persons on whom the imposition of the restrictive measures at issue was justified by the specific conduct of which they were accused in the grounds stated in Decision 2012/97 and Implementing Regulation No 151/2012. That applies however only to applicant No 30, Mr Nolbert Kunonga, who is described, in the second column of the annexes to those two acts, as a ‘Self-appointed Anglican Bishop’. That status alone is plainly not sufficient to justify the imposition of restrictive measures on the person concerned.
171. On the other hand, as regards the applicants No 15 and No 54, it is clearly stated in the same column of those annexes, in particular, that each man was a ‘leader of ZANU-PF militia’. That status, if proved, is sufficient ground to characterise them as associates of the members of the Government of Zimbabwe appointed by ZANU-PF and, accordingly, to justify their inclusion among the persons subject to the restrictive measures at issue, irrespective of the specific conduct which is imputed to them in the third column of those annexes.
172. It can be concluded, at this point, from the foregoing that the reasons stated for the contested acts meet the requisite legal standard with regard to all the applicants who are natural persons, with the exception of the applicants referred to in paragraph 169 above and applicant No 30, Mr Nolbert Kunonga. In order to assess whether or not the statement of reasons for Decision 2012/97 and Implementing Regulation No 151/2012 with regard to the latter applicants is sufficient, it is necessary to look at the conduct imputed to those persons by the authors of those two acts.
173. It must be observed that the contested acts contain additional references to the specific conduct of the majority of the other applicants who are natural persons. The Council contends that, with regard to those other applicants, it has ‘gone the extra mile’ by providing information on their actual involvement in the policies which were undermining fundamental rights, the rule of law and democracy in Zimbabwe. The applicants challenge that assertion, but that challenge is based on a mistaken premise, since the applicants consider that the status of a person, as a member of the Government of Zimbabwe or as an associate of such a member, is not sufficient to justify that person being listed in the list of persons subject to the restrictive measures at issue. Yet it is apparent from the considerations set out in the analysis of the first plea in law that, with respect to the members of the government who held that status before the formation of the Government of National Unity and with respect to their associates, such status is indeed sufficient to justify the adoption of such measures (see, in particular, paragraph 105 above). The same holds good with respect to former members of the government or former high ranking civil servants (see paragraph 168 above). Accordingly, that argument of the applicants must be rejected.
174. As regards the applicants for whom a reference to the specific conduct imputed to them in the contested acts is required (see paragraph 172 above), it is apparent from reading those acts that what they are alleged to have done is, in essence, to have directly taken part in the violence and intimidation, and moreover as leaders and instigators. In all cases other than those of the applicants No 30 and No 89, Mr Nolbert Kunonga and Mr Dani Rangwani (with respect to whom the alleged conduct dates from 2011 and 2007 respectively), the violence or intimidation in question occurred during the 2008 election campaign. In all cases, with the exception of that of applicant No 30, Mr Nolbert Kunonga, and that of applicant No 89, Mr Dani Rangwani, the precise location where the person concerned is alleged to have been active is stated. In the case of applicant No 30, it is stated that he was a vociferous supporter of the regime’ and it is added that ‘[h]is followers were backed by the police in committing acts of violence against church supporters in 2011’. In the case of applicant No 89, it is stated that he was ‘involved in group of 50 men paid directly by ZANU-PF to locate and torture MDC supporters in April 2007’.
175. The information stated with regard to the applicants referred to in paragraph 174 above and, more generally, all the grounds inserted by the contested acts in the third column of Annex III to Regulation No 314/2004 and the table headed ‘Persons’ in the Annex to Decision 2011/101 with regard to all applicants, has a scope which is comparable to that considered to be sufficient by the Court of Justice in Council
v Bamba, paragraph 141 above (paragraphs 57 to 59). As applied in the case which gave rise to that judgment, that statement of reasons identifies actual and specific factors, in terms of the status held or post occupied and the kinds of conduct mentioned, which show, according to the authors of the contested acts, that the parties concerned were involved in the violence, intimidation and infringements of fundamental rights in Zimbabwe.
176. Contrary to what is claimed by the applicants, it is clear that the grounds in the third column of the abovementioned annexes are not too vague or general, neither with regard to the 39 applicants who are discussed in paragraph 137 above, nor as regards the other natural persons concerned. It must also be stated that, as is also indicated in the recitals of the contested acts, to which reference is made above in the examination of the first plea in law, the accusations made against the regime of President Robert Mugabe with regard to violence, intimidation and infringements of fundamental rights in Zimbabwe, both generally and more particularly during the 2008 election, were matters of international public knowledge, of which the applicants could not have been unaware. Those accusations, whether they are true or false, are accordingly part of the background to the contested acts which, as is apparent from the case-law cited in paragraph 143 above, is of relevance to the examination of whether the obligation to state reasons has been complied with.
177. With knowledge of that background, the applicants concerned could readily understand what they were accused of and, as necessary, challenge those allegations in general or more specifically with regard to the location where they were alleged to have been active or, at the least, claim that if the alleged violence, intimidation or infringements of fundamental rights actually took place, they took no part (see, to that effect, Council
v Bamba, paragraph 141 above, paragraph 59).
178. It must also be stated that the Council annexed to its defence, inter alia, a document of 1 046 pages (Annex B.19), which contains, according to the description in the summary list of annexes, ‘Elements … of public knowledge corroborating the information given in the contested [restrictive] measures’. According to the Council, what is stated in the annexes to the contested acts, with regard to the conduct of the applicants undermining fundamental rights, the rule of law and democracy in Zimbabwe, is public knowledge, as is shown, in detail, in the various documents submitted in Annex B.19.
179. In the light of the foregoing, that annex need not be taken into consideration in order to assess whether the statement of reasons for the contested acts is sufficient. The Court considers, accordingly, that there is no need to adopt the measure of organisation of the procedure proposed by the applicants with regard to that annex (see paragraph 25 above).
180. Having regard to the Council’s explanation, as summarised in paragraph 178 above, it is plain that the documents in Annex B.19 to the Council’s defence must be distinguished from the documents requested by the applicants in their request mentioned in paragraph 19 above. As stated previously, shortly after the submission of the applicants’ request for the adoption of a measure of organisation of the procedure as mentioned in paragraph 25 above, the Council sent to the applicants the documents sought in their request mentioned in paragraph 19 above. It follows that the documents in Annex B.19 to the Council’s defence are not, as such, documents on which the Council relied when adopting Decision 2012/97 and Implementing Decision 2012/124.
181. The purpose of Annex B.19 to the Council’s defence must, rather, be considered to have been not to state reasons ex post for the contested acts, but to show that, having regard to the background to the adoption of those acts, the statement of reasons for those acts was sufficient (see, to that effect, Council
v Bamba, paragraph 141 above, paragraph 62).
182. Last, the Court also considers that the specific grounds, as they are set out in the annexes to Decision 2012/97 and Implementing Regulation No 151/2012 with regard to the applicants who are legal persons, in order to justify their being listed in the list of persons and entities subject to the restrictive measures at issue, are likewise sufficient. With respect to each of the entities concerned, it is stated that the entity is either owned by one or other of the natural persons who are subject, under the same acts, to restrictive measures, or that it is associated with the Zimbabwean Government, an agency of the government or the ‘ZANU-PF faction’ in the Zimbabwean Government. Those reasons are sufficient to enable the entities concerned to challenge their merits and to enable the Court to carry out its review.
183. In conclusion, the Court must hold that the reasons stated in the contested acts meet the requisite legal standard with regard to all the applicants and the third plea in law must therefore be rejected as being unfounded.
The fourth plea in law: infringement of the rights of the defence
184. The applicants claim that the principle of respect for the rights of the defence in the context of this case requires the institutions of the European Union to meet two main obligations. First, they must inform the person or entity concerned of the case and the evidence adduced against it to justify the imposition of restrictive measures. Second, the person or entity concerned must be afforded the opportunity effectively to make known its point of view on that evidence. Further, the applicants state that, in the event of the renewal of a restrictive measure previously decided on with respect to a person or entity, the need to protect the rights of the defence and the right to be heard make it necessary that the person or entity is provided with the incriminating evidence and that the person or entity is able to submit its observations on that evidence before any decision on the renewal of the measure at issue.
185. Yet in this case, according to the applicants, none of them were provided, either before the adoption of the contested acts or after it, with evidence capable of justifying with regard to each of them the acts at issue. Nor did they have the opportunity to submit observations on that evidence. The contested acts do not contain any safeguards in that respect. Furthermore, those acts include allegations of serious criminal misconduct, without giving any indication of the source of those allegations and without taking account of the data protection concerns identified by the Commission and the European Data Protection Supervisor (EDPS) which may arise where the Council or the Commission processes data concerning criminal offences or convictions.
186. As the Court of Justice has stated, in a review of restrictive measures the Courts of the European Union must, in accordance with the powers conferred on them, 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 EU legal order. That obligation is expressly laid down by the second paragraph of Article 275 TFEU (see the judgment of 28 November 2013 in Case C‑280/12 P Council
v Fulmen and Mahmoudian [2013] ECR, paragraph 58 and case-law cited).
187. One of those fundamental rights is respect for the rights of the defence, which is affirmed in Article 41(2) of the Charter of Fundamental Rights and includes the right to be heard and the right to have access to the file, subject to legitimate interests in maintaining confidentiality (see Council
v Fulmen and Mahmoudian, paragraph 186 above, paragraphs 59 and 60, and case-law cited).
188. According to the same case-law, the question whether there is an infringement of the rights of the defence 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 (see Council
v Fulmen and Mahmoudian, paragraph 186 above, paragraph 63 and case-law cited).
189. In this case, it is clear that, although the applicants have narrated, in their application, the provisions, general principles and case-law applicable in this area, their specific complaint, as summarised in paragraph 185 above, is that the Council failed to disclose to them, before the adoption of the contested acts, the evidence for the conduct which is imputed to them by those acts and which constitutes the justification for the measures adopted with respect to them, and failed to give them the opportunity to submit their observations on that evidence.
190. Yet it is not appparent from the file and, it may be added, the applicants do not claim, that, prior to the request for the disclosure of evidence which they sent to the Council five days before the bringing of the action (see paragraph 19 above), the applicants had made a request to the Council for disclosure of the evidence on which the Council relied as justification for the imposition on them of the restrictive measures at issue.
191. It follows that the applicants start from the premise that if the Council was to respect their rights of defence, it ought to have disclosed to them that evidence on its own initiative and without any request having been made to it. That premise is however incorrect.
192. As the Court held in its judgment in Case T‑390/08 Bank Melli Iran
v Council [2009] ECR II‑3967, paragraph 97, 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. It would in fact be excessive to require spontaneous disclosure of the material in the file, given that when a fund-freezing measure is adopted it is not certain that the person concerned intends to check, by means of access to the file, the matters of fact supporting the allegations made against it by the Council.
193. Yet following the analysis of the third plea in law, it has been concluded that the reasons stated in the contested acts meet the requisite legal standard (see paragraph 183 above). In other words, the Court must hold that the applicants had in their possession information which was sufficiently precise, as required by the case-law concerned, and that, accordingly, it was the responsibility of the applicants themselves to request, if they wished, disclosure of the evidence concerning them on which the Council had relied. As has been stated, the applicants made such a request only five days before the lodging of the initiating application.
194. There is nothing in the file to suggest that the applicants could not, had they wished, have submitted such a request earlier. On the contrary, there is material which indicates that the applicants were aware of the possibility of contacting the Council on the subject of the restrictive measures imposed on them and, in that context, of requesting disclosure of the evidence concerning them.
195. In particular, it must be observed that the Council lodged in the file a letter dated 1 September 2011, which applicant No 1, Mr Johannes Tomana, had sent to the President of the European Council, ‘on behalf of all the natural and legal persons and legal entities’ listed in the Annex to Decision 2011/101. In that letter, Mr Johannes Tomana disputed that the grounds stated in that annex to justify the imposition of restrictive measures on all those persons were either sufficient or well founded. On the other hand, Mr Johannes Tomana made no request for the disclosure of the evidence for the claims made in the annex concerned.
196. It must also be observed that, in their response to a written question from the Court, the applicants, with the exception of Mr Johannes Tomana, have not stated that they had not authorised Mr Tomana to write the letter concerned also on their behalf. They merely denied that Mr Johannes Tomana acted on their behalf ‘for the purposes of being notified of their designations’.
197. It may be added that it is not only by means of sending the abovementioned letter that Mr Johannes Tomana asserted that he also acted on behalf of the other applicants. With their initiating application, the applicants lodged a letter sent to their representatives by Mr Johannes Tomana, in which the latter asserts that he represents all the other applicants and, on their behalf and his own, gives instructions to those representatives to initiate proceedings.
198. It must also be observed that a reply was given to Mr Johannes Tomana’s letter dated 1 September 2011 by a letter dated 20 September 2011 from the Head of Cabinet of the President of the European Council, in which it was stated that the grounds for the imposition of restrictive measures on the persons and entities concerned were set out in the Annex to Decision 2011/101 and reference was made, in addition, to the Council Notice of 16 February 2011 for the attention of the persons, entities and bodies to which restrictive measures provided for in Decision 2011/101 apply (OJ 2011 C 49, p. 4). That notice mentioned, inter alia, that the persons, entities and bodies concerned by the restrictive measures at issue could ‘submit a request to the Council … that the decision to include them on the [list concerned] should be reconsidered’ and indicated the address to which such a request was to be sent. A similar notice was moreover published in the Official Journal on 18 February 2012 (OJ 2012 C 48, p. 13), following the adoption of Decision 2012/97.
199. Irrespective of whether those factors justified the Council’s decision to notify Mr Johannes Tomana of the adoption of Decision 2012/97 and thereby notify the other natural persons mentioned in that decision, as the Council asserts that it did, those factors confirm that the applicants could have contacted the Council earlier in order to obtain the evidence which they requested and obtained following the request made by them which is referred to in paragraph 19 above.
200. As regards the latter request, the Council’s response to it, by sending the evidence requested (in a non-confidential version), was somewhat delayed, by around seven months, a period justified according to the Council by the need to obtain the ‘declassification’ of many of the documents concerned. In the absence of any reason to suggest otherwise, one can imagine that the Council’s response to any earlier request by the applicants on the same subject would have been the same, in other words the Council would have sent to them a non-confidential version of the evidence requested.
201. It must be added that the fact that the Council did not send to the applicants the evidence requested by their letter mentioned in paragraph 19 above until 27 November 2012 had no effect on whether the applicants had the opportunity to present their point of view before the Court. The applicants requested and obtained from the Court an extension, on two occasions, of the period for the lodging of their reply and they therefore had the opportunity of commenting on that evidence in their reply. Their arguments concerning those documents are examined below, as part of the analysis of the second plea in law.
202. In their reply, after repeating the complaint summarised in paragraph 185 above, the applicants also claimed that, following the disclosure by the Council of the evidence on which it had relied to adopt the contested acts, they were seriously prejudiced by the fact that only in 2013 were they called on to respond to allegations relating to alleged conduct dating from around five years earlier.
203. An assertion which is so succinct and general cannot however be sufficient ground for the annulment of the contested acts on the basis of an infringement of the applicants’ rights of defence. The applicants do not identify either the specific allegations the rebuttal of which caused them difficulties, or the nature and causes of the difficulties they experienced. Further, the applicants do not explain why their first request for the disclosure of that evidence was made only five days before the bringing of these proceedings.
204. Even if this plea in law is to be understood as meaning that the applicants claim that, prior to the adoption of the contested acts, the defendant institutions did not make it possible for them effectively to make known their point of view on the grounds adduced against them in those acts, it must be observed that, according to the case-law, the right of a person or entity, with respect to whom restrictive measures previously imposed are renewed by a further act, to be heard prior to the adoption of that act must be respected where the author of the act concerned has adduced new evidence against those persons or entities and not where the renewal is based, in essence, on grounds which are the same as those which justified the adoption of the original act imposing the restrictive measures concerned (judgments in Case T‑383/11 Makhlouf
v Council [2013] ECR, paragraph 43, and Joined Cases T‑174/12 and T‑80/13 Syrian Lebanese Commercial Bank
v Council [2014] ECR, paragraph 149; see also, to that effect, the judgment in Case C‑27/09 P France
v People’s Mojahedin Organization of Iran [2011] ECR I‑13427, paragraph 62).
205. Yet in this case the grounds set out in the contested acts as justification for the imposition of the restrictive measures at issue on the applicants are not essentially different from those set out in the earlier acts, namely Decision 2011/101, in the version prior to its amendment by Decision 2012/97, and in Regulation No 314/2004, before its amendment by Implementing Regulation No 151/2012.
206. While the grounds in the contested acts contain further detail on the conduct imputed to many of the applicants, or a more detailed description of that conduct, the grounds justifying the listing of the applicants in the list of persons and entities subject to the restrictive measures at issue remain essentially the same as those set out in the earlier acts. In no instance is it apparent that, when the restrictive measures at issue were renewed, the grounds mentioned in the earlier acts were abandoned in order to be replaced by different grounds, as was the situation in the case which gave rise to the judgment in France
v People’s Mojahedin Organization of Iran, paragraph 204 above.
207. As regards, in particular, persons named in the list of persons and entities subject to the restrictive measures at issue by reason of the posts which they held or had held in the past, in other words all the applicants with the exception of those referred to in paragraph 169 above, it has already been observed (see paragraph 163 above) that reference to the posts which they held when the contested acts were adopted, or which they had held earlier, is, in itself, sufficient ground for their being listed in the list of persons subject to the restrictive measures at issue. Both the earlier acts and the contested acts refer, with respect to each of those persons, to the same posts.
208. It follows that, if the applicants are also putting forward a complaint such as that envisaged in paragr aph 204 above, that complaint cannot be accepted.
209. The other arguments put forward by the applicants within this plea in law do not relate to an alleged infringement of their rights of defence. The applicants claim, in essence, that the defendant institutions had no solid evidence to support the imposition on them of the restrictive measures at issue. They state, in that context, that if they had been brought before a criminal court with respect to the conduct imputed to them in contested acts, relevant and robust evidence would have had to be presented to secure their conviction. Further, according to the applicants, the United Kingdom has recognised that there is no evidence against some of the applicants of their alleged conduct as described in the contested acts.
210. Yet those arguments are of no relevance to the question of whether there was any infringement of the applicants’ rights of defence. Where appropriate, those arguments might be of relevance if it were disputed that the contested acts are well founded and that the facts on which those acts are based are true and accurate. The question of whether the applicants have actually made such a challenge is examined in paragraphs 261 to 266 below.
211. The applicants further claim that, in its proposal for a regulation mentioned in paragraph 120 above, the Commission provided for a number of safeguards designed to ensure respect for their rights of defence, which have not been respected in this case. Yet the Commission’s proposal alluded to by the applicants was never adopted, and consequently the question of whether the safeguards which it provided for were respected in this case is of no relevance. For the same reason, there is no need to analyse the opinion of the EDPS on various legislative proposals imposing certain specific restrictive measures in respect of Somalia, Zimbabwe, the Democratic Republic of Korea and Guinea (OJ 2010 C 73, p. 1), also alluded to by the applicants (see paragraph 185 above). That opinion also concerns the Commission proposal referred to above, which was not followed by the Council.
212. In their reply, the applicants also claimed that the defendant institutions had never written to them to inform them that their names had been entered on the list of names of persons subject to the restrictive measures at issue. According to the applicants, publication of a notice relating to that information in the Official Journal cannot be regarded as sufficient.
213. Yet that is an argument which relates to the question of service of the contested acts on the applicants, which is of no relevance in the context of examination of whether their rights of defence were respected prior to the adoption of those acts. Service of those acts necessarily follows their adoption. The question of whether the Council ought to have served the contested acts by post on each of the applicants concerned by those acts and, in particular, whether service by post on Mr Johannes Tomana is also equivalent to service on all the other applicants, as contended by the Council (see paragraph 199 above) is relevant to the identification of the starting point for the period for initiating proceedings. However, in this case, and in any event, there is no question but that the action was brought in time, and it may be added that this point has not been disputed by the defendant institutions.
214. Since none of the complaints submitted by the applicants within the fourth plea in law can be accepted, that plea must be rejected.
The second plea in law: manifest error of assessment
215. By the second plea in law, the applicants claim that the Council and the Commission committed a manifest error of assessment in considering that the criteria for including the applicants in the list of persons and entities subject to the restrictive measures at issue were met.
Preliminary observations
216. The Court has previously held, in Bank Melli Iran
v Council, paragraph 192 above (paragraph 36), that, so far as the general rules defining the procedures for giving effect to restrictive measures are concerned, the Council has broad discretion as to what to take into consideration for the purpose of adopting economic and financial sanctions on the basis of Articles 60 EC and 301 EC, consistent with a common position adopted on the basis of the CFSP. Because the Courts of the European Union may not, in particular, substitute their assessment of the evidence, facts and circumstances justifying the adoption of such measures for that of the Council, the review carried out by the General Court must be restricted to checking that the rules governing procedure and the statement of reasons have been complied with, that the facts have been made out, and that there has been no manifest error of assessment of the facts or misuse of power. That limited review applies, especially, to the Council’s assessment of the considerations of appropriateness on which such measures are based.
217. Those considerations are equally applicable to restrictive measures adopted under Article 215 TFEU, the content of which reflects that of Articles 60 and 301 EC (see paragraph 122 above).
218. It is however clear from that case-law that the discretion enjoyed in this area by the Council does not prevent the courts of the European Union from determining, when carrying out the review of lawfulness, whether the facts on which the Council has relied are true and accurate. The effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights also requires that the Courts of the European Union should ensure that a decision which affects 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, 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 Council
v Fulmen and Mahmoudian, paragraph 186 above, paragraph 64 and case-law cited).
219. To that end, it is for the Courts of the European Union, in order to carry out that examination, to request the competent European Union authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination. That is because it is the task of the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded. There is no requirement that that authority produce before the Courts of the European Union all the information and evidence underlying the reasons alleged in the act annulment of which is sought. It is however necessary that the information or evidence produced should support the reasons relied on against the person concerned ( see Council
v Fulmen and Mahmoudian, paragraph 186 above, paragraphs 65 to 67, and case-law cited).
220. If the competent European Union authority finds itself unable to comply with the request by the Courts of the European Union, it is then the duty of those Courts to base their decision solely on the material which has been disclosed to them, namely the statement of reasons in the contested measure, the observations and exculpatory evidence that may have been produced by the person concerned and the response of the competent European Union authority to those observations. If that material is insufficient to allow a finding that a reason is well founded, the Courts of the European Union shall disregard that reason as a possible basis for the contested decision to list or maintain a listing. If, on the other hand, the competent European Union authority provides relevant information or evidence, the Courts of the European Union must then determine whether the facts alleged are made out in the light of that information or evidence and assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person concerned (see Council
v Fulmen and Mahmoudian, paragraph 186 above, paragraphs 68 and 69, and case-law cited).
221. It must however be emphasised that, as stated moreover in the case-law cited in paragraph 219 above, the Courts of the European Union must determine whether the facts relied on to justify the adoption of restrictive measures are made out solely where the persons affected by those measures challenge those facts before those courts. Such a determination is part of the analysis of the question whether the contested acts are well founded, which it is not for the Courts of the European Union to examine of their own motion.
222. Further, in circumstances where the Council defines abstractly the criteria which may justify the listing of a person, or an entity, in the list of persons or entities subject to restrictive measures, it is the task of the Courts of the European Union to determine, on the basis of pleas in law raised by the person or entity concerned or, where appropriate, raised by the courts of their own motion, whether the situation of the person or entity concerned corresponds to the abstract criteria defined by the Council. That review extends to the assessment of the facts and circumstances relied on as justifying the listing of the person or entity concerned in the list of those who are subject to restrictive measures, and to the verification of the evidence and information on which that assessment is based (see, to that effect, Bank Melli Iran
v Council, paragraph 192 above, paragraph 37).
223. Those are the considerations which must be taken into account when the Court undertakes an analysis of the complaints and arguments put forward by the applicants within this plea in law. In that regard, the Court will first examine the complaints and arguments presented in the application, before proceeding to an examination of the question whether the complaints and arguments put forward in the reply are admissible, and if so, well founded.
The complaints and arguments presented in the application
224. The applicants claim that the restrictive measures at issue, like those which preceded them, target, under Articles 4 and 5 of Decision 2011/101, the persons and entities ‘whose activities seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe’. It follows, according to the applicants, that the Council and the Commission could impose those measures solely on persons and entities with respect to whom there existed evidence that they were currently engaged in activities which seriously undermined democracy, respect for human rights and the rule of law in Zimbabwe. Further, that involvement should be continuing.
225. Yet the conclusion of the Council and the Commission, that each of the applicants satisfies that criterion is, according to the applicants, in error, for several reasons. First, some of the applicants were subject to the restrictive measures at issue on the ground that they were ‘member[s] of the ZANU-PF government’ or belonged to the ‘ZANU-PF faction’. That ground is, according to the applicants, not sufficient since it does not represent an allegation of wrongdoing. Further, to be a member of a political party is a right guaranteed by the Constitution of Zimbabwe. Moreover, the restrictive measures at issue target the members of the former government of Zimbabwe. They do not target either the Government of National Unity, which was in power in Zimbabwe when the contested acts were adopted, or ZANU-PF. What is more, the European Union expressly supports the Government of National Unity.
226. Second, some applicants were, it is claimed, listed as persons and entities subject to the restrictive measures at issue on the ground that they were associated with, or had ties with, a ZANU-PF member of the government or the ZANU-PF faction in the government. That ground is, it is claimed, insufficient. In the first place, those applicants are not alleged to have engaged in any wrongdoing, let alone to have actually participated in activities that can genuinely be described as seriously undermining democracy, respect for human rights and the rule of law in Zimbabwe. In the second place, in the judgment Tay Za
v Council, paragraph 119 above, the Court of Justice clearly stated that the mere claim that a person or entity is associated with the leaders of a third country is not sufficient ground for the imposition of restrictive measures on that person or entity.
227. Third, with regard to a large number of the applicants, the grounds relied on to justify their listing as persons or entities subject to the restrictive measures at issue refer, according to the applicants, to conduct which allegedly took place in the past, and, in many cases, several years before the adoption of the measures at issue and even before the formation of the Government of National Unity. Such grounds are insufficient in the light of the objective of the restrictive measures at issue, which is to encourage the persons concerned to ‘reject policies that lead to the suppression of human rights, of the freedom of expression and of good governance’. Targeting individuals that have no involvement in or influence over government policy on the basis of their past conduct alone cannot conceivably encourage them to reject these policies. In that regard, the applicants consider, referring also to the recitals of Common Position 2002/145 and to a statement of the High Representative of the European Union for Foreign Affairs and Security Policy, that the conduct of persons concerned which occurred solely in the past is not sufficient ground for their being named in the list of persons and entities subject to restrictive measures such as those at issue in this case.
228. It is clear that those arguments of the applicants are based on a mistaken premise, in that the applicants seem to take the view that the restrictive measures at issue could affect only the persons or entities whose activities seriously undermined democracy, respect for human rights and the rule of law in Zimbabwe. Such a claim is incorrect.
229. As has already been stated as part of the analysis of the first and third pleas in law, it is clear from the wording of Articles 4 and 5 of Decision 2011/101 (see paragraphs 7 and 8 above) that that is but one of three categories of persons on whom the restrictive measures envisaged by that decision can be imposed. The other two categories consist, respectively, of the ‘members of the Government of Zimbabwe’ and ‘any natural or legal persons, entities or bodies associated with them’. In other words, the status of a person or an entity, the fact of being a member of the Government of Zimbabwe or associated with such a member is, in itself, sufficient ground for the imposition on that person or entity of the restrictive measures laid down by Decision 2011/101.
230. Moreover, it is apparent, in essence, from the considerations set out in paragraphs 129 to 133 above, that the persons and entities whose activities seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe constitute only one particular category of associates of the leaders of that country. That is why their listing in Annex III to Regulation No 314/2004 is justified, even though the text of that regulation does not specifically mention that category of persons and entities.
231. In the light of those considerations, the applicants’ arguments summarised in paragraphs 225 and 226 above cannot be accepted. It is very clear from the judgment in Tay Za
v Council, paragraph 119 above (paragraph 63), that, on the basis of Articles 60 EC and 301 EC or of Article 215 TFEU, restrictive measures can be imposed on members of the Government of Zimbabwe, who are undoubtedly to be categorised as among the leaders of that country, and on their associates. Any reference to specific conduct of the latter category of persons serves, ultimately, only as evidence of their status as associates of members of the government of that country. It follows that such references are not essential either with respect to members of the government, nor even with respect to their associates where, in the case of the latter, their status as associates of members of the government can be inferred from other circumstances, such as the posts which they hold or held in the past.
232. Further, the reference to the fact that the members of the government concerned are members of ZANU-PF does not mean, as the applicants appear to claim, that the persons concerned (and the entities associated with them) are subject to sanctions for the sole reason that they are members of a political party. It must be recalled that ZANU-PF is not just any political party, but the party which monopolised power during the period of violence, intimidation and infringements of the fundamental rights of the Zimbabwean people relied on by the authors of the contested acts and the other acts which preceded them to justify their adoption. It must also be recalled that the Government of National Unity, which was in power in Zimbabwe when the contested acts were adopted, was composed of (i) individuals who were members of the ZANU-PF party, and who were moreover, in the majority of cases, previous members of the government of Zimbabwe prior to the formation of the Government of National Unity, that is to say during the period of violence, intimidation and infringements of fundamental rights justifying the adoption of the restrictive measures at issue and (ii) individuals proposed by the opposition parties (see, also, paragraphs 104, 109 and 110 above).
233. In those circumstances, it is evident that the reference, in the grounds for the contested acts, to the fact that a member of the government targeted by those acts was a member of ZANU-PF, or of ‘the ZANU-PF faction’ in the government, serves to explain why that member of the government was the target of restrictive measures, whereas comparable measures were not imposed on other members of the same government that were proposed by the former opposition parties.
234. Further, it follows from what has been stated in paragraph 110 above that, even after the formation of the Government of National Unity, it was legitimate to impose restrictive measures on the members of that government who had previously been among the leaders of Zimbabwe before its formation, and on their associates. Accordingly, as regards those persons, the issue of a manifest error of assessment can arise only in the event that the authors of the contested acts erred in taking the view that one or other of the persons or entities subject to the restrictive measures at issue was a member of the Government of Zimbabwe who was proposed by ZANU-PF or associated with such a member, when that was not the case. Yet in the application the applicants make no such claim.
235. It must further be observed that the applicants misinterpret the judgment in Tay Za
v Council, paragraph 119 above, when they assert that the Court of Justice confirmed there that the mere association of a person or entity with the leaders of a third country is not sufficient ground for the imposition on that person or entity of restrictive measures. In paragraph 63 of that judgment, the Court of Justice expressly stated that, ‘in order for it to be possible for them to be adopted on the basis of Articles 60 EC and 301 EC as restrictive measures imposed on third countries, the measures in respect of natural persons must be directed only against the leaders of such countries and the persons associated with those leaders’. It is only family members of persons associated with the leaders of a third county who were excluded by the Court of Justice from the application of such measures, where those measures are imposed for the sole reason that the persons concerned have a family link with associates of the leaders of the country concerned, irrespective of the personal conduct of the persons concerned (see paragraph 128 above).
236. Nor can the Court accept the applicants’ argument that, for a large number of them, the grounds for the contested acts referred to their conduct in the past, indeed to a rather distant past in some cases. Plainly, since the authors of the contested acts had decided to refer to the specific conduct of one or other of the persons or entities targeted by the contested acts, there could be no question of conduct other than in the past. Such a reference cannot be deemed to be of no relevance solely because the conduct in question dates from the more or less remote past. In the absence of arguments and evidence to the contrary, the view can properly be taken that individuals who, in the past, were personally involved in the acts of violence and in the infringements of fundamental rights which the authors of the contested acts impute to those who alone formed the leadership of Zimbabwe before the formation of the Government of National Unity, and to the political party of which they were members, namely ZANU-PF, remain, for the purposes of the case-law mentioned in paragraph 235 above, ‘associates’ of the leaders of that country, and consequently the imposition on them of restrictive measures is, according to that same case-law, legitimate.
237. As regard the applicants’ argument that, in essence, the restrictive measures at issue targeted, solely on the basis of their conduct in the past, individuals who were not involved in the policy-making of the Government of Zimbabwe and were without influence on that policy, that argument can only be understood as meaning that the applicants claim that the c ontested acts target, at least in part, persons or entities who were neither leaders of Zimbabwe nor associates of those leaders.
238. As part of the analysis of the third plea in law, the Court examined the question whether the grounds set out in the contested acts were sufficient to justify the imposition of those measures on all the applicants and concluded that they were (see paragraphs 155 to 182 above). It must also be stated that the applicants have not made clear which of them were concerned by that argument. Further, it must be observed that those who are to be categorised as ‘associates’ of the members of governments of a third country are not only those who are involved in the formulation of the policies of that government and who exercise an influence on those policies, but also individuals involved in the implementation of those policies, particularly where the policies in question consist in the perpetration of violence, intimidation and infringements of the fundamental rights of the people. For all the above reasons, that argument must be rejected.
239. The applicants also state that the names of some persons were removed from the list of persons subject to the restrictive measures at issue. The applicants mention, by way of example, Mr Charumbira, Mr Gambe and Mr Kuruneri, who had been subject to the restrictive measures imposed on Zimbabwe until 2011, but with respect to whom those measures have not, thereafter, been renewed. According to the applicants, the individuals with respect to whom the restrictive measures at issue were repealed had originally been listed because of their conduct in the past. The applicants claim that the position of the Council and the Commission as regards the individuals maintained on the list in question is arbitrary and is in breach of the principles of legal certainty and equal treatment. Further, the United Kingdom authorities have confirmed that individuals no longer associated with ZANU-PF had been removed from the list in question. The applicants claim that it is therefore difficult to understand why some individuals who are alleged to have been involved in misconduct in the past should be maintained on the list in question, while others are removed from it.
240. The ground for the listing, in the list of persons subject to the restrictive measures at issue, of the three persons mentioned by the applicants in the context of that argument are stated in Annex III to Regulation No 314/2004, in the version amended by Commission Regulation (EC) No 77/2009 of 26 January 2009 amending Regulation No 314/2004 (OJ 2009 L 23, p. 5), and in the Annex to Common Position 2004/161, as amended by Council Common Position 2009/68/CFSP of 26 January 2009 renewing restrictive measures against Zimbabwe (OJ 2009 L 23, p. 43). In the case of Mr Charumbira, it is stated in the grounds that he is ‘Former Deputy Minister for Local Government, Public Works and National Housing [and] Former member of the Government with ongoing ties’. In the case of Mr Gambe, it is stated that he is ‘Chairman, Electoral Supervisory Commission [and that he] Shares responsibility for fraudulent elections in 2005’. Last, as regards Mr Kuruneri, the abovementioned two texts state that he is ‘Former Minister of Finance and Economic Development [and] Former member of the Government with ongoing ties’.
241. In response to a question put to the Council, as a measure of organisation of procedure, on why it had decided not to renew the restrictive measures imposed on those three individuals, the Council stated, in essence, that it ‘wanted to relax the pressure on Zimbabwe somewhat, in order to acknowledge the improvement in the state of the country’.
242. The Court observes that it is indicated in Article 6(1) of Regulation No 314/2004, and in Article 4(1) and Article 5(1) of Decision 2011/101, that the restrictive measures at issue are to be imposed on members of the Government of Zimbabwe and their associates, the latter category also including ‘natural persons whose activities seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe’.
243. However, it does not follow from those provisions that the Council and the Commission are required to list on the list of persons subject to those measures all members of the Government of Zimbabwe and all associates of such members. If the case-law cited in paragraph 216 above is also taken into account, the Court can, on the contrary take the view that those provisions are to be interpreted as meaning that a person who is neither a member of the Government of Zimbabwe nor a person associated with such a member cannot be subject to those measures but that, as far as the members of the Government of Zimbabwe and their associates are concerned, the Council has a broad discretion enabling it, when appropriate, not to impose those measures on such a person, where the Council considers that, in the light of the objectives of those measures, it would not be appropriate to do so.
244. In this case, the reasons why the restrictive measures at issue were not renewed with respect to other persons are of no relevance to the situation of the applicants.
245. Before it can be concluded that the contested acts are vitiated by a manifest error of assessment with regard to the applicants, it must be demonstrated either that those acts are founded on an incorrect factual basis, or that, while the facts adduced with regard to the applicants are true and accurate, the Council committed a manifest error of assessment when it held that was necessary to maintain in force the restrictive measures at issue with respect to the applicants. Yet as regards the first possibility, the applicants do not deny, in the application, that the facts adduced against them in the contested acts are true and accurate (see also paragraphs 261 to 263 below). As regards the second possibility, the applicants offer no explanation as to why the Council ought to have taken the view that the restrictive measures to which they were subject ought not to have been renewed against them.
246. Pleading, in vague and general terms, the principles of equal treatment and legal certainty cannot fill those gaps in the applicants’ arguments.
247. According to settled case-law, the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see Bank Melli Iran
v Council, paragraph 192 above, paragraph 56 and case-law cited). Yet in this case the applicants do not explain how their situation is comparable to that of the persons with respect to whom the restrictive measures were not renewed.
248. It must be observed, in that regard, that if the non-renewal with respect to those other persons is justified on valid grounds, the applicants had to indicate what those grounds were and why they would also be applicable to their situation. In that event, a comparison with the situation of other persons and, consequently, recourse to the principle of equal treatment would have been redundant. If there are valid reasons why the restrictive measures at issue ought not to have been renewed with respect to the applicants, that in itself is sufficient to justify the annulment of contested acts, irrespective of how the Council has chosen to treat other persons previously subject to the same restrictive measures.
249. On the other hand, if, hypothetically, the non-renewal of the restrictive measures at issue with respect to other persons was not justified on any valid ground, the Council would have committed an illegal act, which cannot be used by the applicants to their advantage. It is a matter of settled case-law that the principle of equal treatment must be reconciled with the principle of legality, that no person may seek to rely, in his own favour, on an illegal act in favour of others (see Bank Melli Iran
v Council, paragraph 192 above, paragraph 59 and case-law cited).
250. Likewise, as regards the applicants’ reference to the principle of legal certainty, suffice it to state that the applicants offer no explanation as to how that principle was infringed by reason of the renewal of the restrictive measures at issue with respect to them. In particular, they do not even claim that, having regard to the provisions applicable at the time of adoption of contested acts, they were entitled to expect, as far as they were concerned, the non-renewal of the restrictive measures at issue.
251. In conclusion, there is nothing in the arguments set out in the application in support of the second plea in law to show that the contested acts are vitiated by any form of illegality, or that the contested acts are based on a manifest error of assessment.
The complaints and arguments presented in the reply
252. In order to dispute the grounds relied on by the authors of the contested acts to justify the imposition of restrictive measures at issue are well founded, the applicants put forward, in their reply, different arguments. The Court must examine first whether those arguments are admissible, and then, if they are, whether they are well founded. In that regard, a distinction will be made between the arguments relating to the applicants who are natural persons and those relating to the applicants who are legal persons.
– The applicants who are natural persons
253. In a section of the reply headed ‘The procedure followed by the defendants’, it is stated that the Council and the Commission ‘incorrectly assume that the applicants do not challenge the truthfulness of the reasons provided’ for their listing on the list of persons subject to the restrictive measures at issue. The applicants produced, as an annex to their reply, ‘witness statements’ drawn up by 40 of them. The applicants maintain that those statements were ‘the … first chance to have their say on the grounds for their designation in the contested [acts], and on the documents in Annex B19’ to the Council’s defence. In those statements, the applicants concerned dispute the allegations made with regard to each of them in the grounds for the contested acts. Some of those statements are accompanied by annexes.
254. The applicants add that many of those of their number who have provided such a statement say that they have never before seen the material which served as the basis for their listing in the list of persons subject to the restrictive measures at issue, or the documents to be found in Annex B19 to the Council’s defence. The same applicants say that they do not know the ‘sources or the dates’ of the documents included in that annex, many of which seem to have been produced by their political opponents. In any event, the applicants declare that the allegations against them ‘are seriously damaging and completely unfounded’. They ‘rebut the allegations in the strongest terms possible, given the vagueness of the allegations’.
255. According to the applicants, in some cases, those of their number who have provided statements also explain that they were working closely with the MDC party within the Government of National Unity and that, consequently, they could not understand why the restrictive measures at issue had been imposed on them, when not imposed on their MDC counterparts occupying comparable government posts.
256. Next, in the section of their reply devoted to ‘manifest errors of assessment’, the applicants claim that the Council and the Commission failed to prove that their listing in the list of persons and entities subject to the restrictive measures at issue was justified. Further, that section of the reply repeats, in essence, the same arguments as those put forward in support of the second plea in law in the application, which have already been examined above (see paragraphs 228 to 251 above).
257. It is therefore plain that, in their reply, the applicants dispute the truth and accuracy of the facts relied on in the contested acts to justify the imposition on them of the restrictive measures at issue. Yet it is no less plain that the arguments put forward in the application in support of the second plea in law, as summarised in paragraphs 224 to 227 above, contain no challenge of that kind.
258. That is, in essence, why the Council challenges the admissibility of that section of the applicants’ arguments. For its part, the Commission, while emphasising the fact that only in their reply did the applicants challenge, for the first time, the truth and accuracy of the facts adduced against them in the grounds for the contested acts, does not raise an objection that that section of the applicants’ argument is inadmissible.
259. When invited, in the context of a measure of organisation of procedure, to reply to the arguments summarised in paragraph 258 above, the applicants stated that they had raised, in their application, a plea in law alleging a manifest error of assessment and that they had clearly stated, again in the application, that the allegations made in the contested acts were vague and unsupported, with the result that they were unable to provide a substantive response. The applicants added that they cannot be criticised, since, with the exception of applicant No 1, Mr Johannes Tomana, none of them were notified of the restrictive measures at issue. The applicants further stated that they had requested from the Council the material on which the allegations against them in the contested acts were based and that they had provided a substantive response to those allegations, once they had knowledge of the explanations provided by the Council in its defence and in the supporting documents produced by the Council.
260. The Court recalls that, under the first paragraph of Article 48(2) of the Rules of Procedure, no new plea in law may be introduced in the course of the proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. However, a plea in law which constitutes an amplification of a plea made previously, whether directly or by implication, in the original application, and which is closely connected therewith, must be declared to be admissible. Moreover, arguments which in substance have a close connection with a plea raised in the application initiating the proceedings cannot be considered new pleas and they may be raised at the stage of the reply or the hearing (see the judgment of 12 September 2012 in Case T‑394/06 Italy
v Commission, paragraph 48 and case-law cited).
261. In this case, the Court finds that the applicants did not assert, in the application, that the facts relied on in the grounds for the contested acts as regards each of them were inaccurate. In other words, the applicants did not dispute, in the application, the truth and accuracy of those facts, which, as was stated in paragraph 221 above, is a prerequisite of their truth and accuracy being reviewed by the Courts of the European Union. The essence of the second plea in law, as presented in the application, is that the authors of the contested acts committed a manifest error, in so far as they considered that the grounds stated with respect to each of the applicants in those acts justified the imposition of the restrictive measures at issue on the applicant concerned. A plea claiming such an error, whether it is characterised as an error in law or as a manifest error of assessment, must be distinguished from a plea which calls into question the truth and accuracy of the grounds concerned. It does not constitute an amplification of such a plea and has no close connection with it.
262. Further, it is not possible to link the arguments put forward by the applicants in their reply, as they are described above, to some of the claims put forward by them in the application, with regard to the first and fourth pleas in law (see paragraphs 81, 82, 90, 108 and 185 above). It must be stated that those two pleas are not designed to claim that the contested acts are not well founded and, more specifically, to challenge the truth and accuracy of their grounds, but rather to claim, respectively, that there is no adequate legal basis to justify the adoption of the contested acts and that the rights of the defence were not respected. Moreover, even if that consideration is set aside, it is clear that while, in the sections of the application devoted to the arguments summarised in paragraphs 81 and 185 above, the applicants refer to the absence of proof of the ‘allegations’ within the grounds of the contested acts, they do not assert that those ‘allegations’ are either inaccurate or untrue, far less undertake a full and detailed refutation of them. Such a full refutation is even more necessary when there are a large number of applicants and various grounds are stated in the contested acts.
263. It follows that the arguments put forward for the first time in the reply to call into question the truth and accuracy of the grounds in the contested acts constitute a new plea in law. The Court cannot hold that this plea is based on matters of law or of fact which came to light in the course of the procedure, since, when the application was lodged, the applicants were aware of the grounds stated in the contested acts with respect to each one of them and had ample opportunity to dispute the truth and accuracy of those grounds.
264. Contrary to what is claimed by the applicants, the production in the course of proceedings by the Council of, first, Annex B.19 to its defence and, second, its response to the applicants’ request mentioned in paragraph 19 above, cannot permit any other conclusion. It is clear that, by the arguments which they put forward for the first time in their reply, the applicants are not disputing the reliability or relevance of one or other piece of evidence supporting the grounds in the contested acts, but the truth and accuracy of those grounds as such. However, since the applicants had already become acquainted with those acts before the bringing of proceedings, it was undoubtedly possible for them to challenge, as early as in the application, the truth and accuracy of those grounds, even though they were not then aware of the evidence supporting those grounds. As is apparent from the case-law mentioned in paragraph 219 above, had there been such a challenge, it would have been the task of the Courts of the European Union to request from the competent authority the production of the evidence concerned and to examine whether the evidence produced supported those grounds. Yet the applicants made no such challenge in their application.
265. The consideration that the applicants could have challenged in the application the truth and accuracy of the grounds in the contested acts concerning them is even more apposite if account is taken of the fact that those grounds relate to either to posts, in the Zimbabwean government or public authorities, held by the applicants, or to their alleged conduct. Even if each of the applicants was unaware of the evidence which supported the grounds stated with respect to them in the contested acts, each of them was undoubtedly capable of determining, merely on reading the grounds relating to them, whether those grounds were or were not true and, if not, of challenging their truth and accuracy, already in the application.
266. It follows that the arguments put forward in the reply by the applicants who are natural persons, in order to challenge the truth and accuracy of the grounds justifying the imposition of the restrictive measures at issue on them, are inadmissible and must be disregarded as such, there being no need to examine the substance of those arguments.
– The applicants who are legal persons
267. While the assertions made by the applicants in the reply and summarised in paragraph 253 above make no distinction between natural persons and legal persons, it is plain that the truth and accuracy of the grounds justifying the listing, in the list of entities subject to the restrictive measures at issue, of the legal persons named among the applicants is again challenged in the reply. For the reasons stated above (see paragraphs 260 to 266 above), those arguments must be rejected as being inadmissible, since they are out of time.
268. The applicants also put forward in their reply a number of other arguments relating to the legality of the imposition of the restrictive measures at issue on legal persons.
269. The applicants state that Article 6(1) of Regulation No 314/2004 and Article 5 of Decision 2011/101 provide for the freezing of funds and economic resources belonging to legal persons who are associated with members of the Government of Zimbabwe or ‘whose activities seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe’. Accordingly, the authors of the contested measures were not entitled, according to the applicants, to freeze the funds of entities allegedly associated with government associates, with the government generally, or with one faction of the government.
270. On that basis, the applicants call into question, first, the freezing of funds of applicant No 113, Divine Homes. That applicant is allegedly associated with an alleged associate of the government, namely applicant No 6, Mr David Chapfika. According to the applicants, even if it is accepted that Mr David Chapfika is an associate of the government, which they deny, that status alone is insufficient to justify freezing the funds of applicant No 113.
271. Second, no member of the government is mentioned, in the contested acts, as being associated with the applicants No 115 to No 121 inclusive, Jongwe Printing, M & S Syndicate (Private) Ltd, Osleg, Swift Investments (Private) Ltd, Zidco Holdings (Private) Ltd, Zimbabwe Defence Industries or Zimbabwe Mining Development. The essential prerequisite of those entities being included among those subject to the restrictive measures at issue is not therefore present.
272. Third, it is clear from the case-law of the Court that the grounds put forward in the contested acts to justify the freezing of funds and economic resources of the entities in question are insufficient. The authors of the contested acts ought to have carried out a case-by-case analysis in order to assess the degree to which each entity was owned or controlled, the nature of the control alleged, and its relevance to the restrictive measures at issue. No analysis of that kind was carried out with respect to those entities.
273. Fourth and last, according to the applicants, the proposal was made to the Council that the name of Zimbabwe Mining Development should be removed from the list of entities subject to the restrictive measures at issue and the Council and the Commission have given no explanation of why that proposal was not ultimately acted upon.
274. In response to a question, as part of a measure of organisation of procedure, as to the plea in law in the application to which those arguments relate and, as the case may be, as to whether there were matters of fact and law which came to light in the course of proceedings which justified the presentation of those arguments for the first time in the reply, the applicants stated that those arguments related to the first three pleas in law of the action and that, in addition, they were in response to certain arguments put forward by the Council in its defence.
275. The Court finds that the arguments summarised in paragraphs 272 and 273 above raise, in essence, an issue which relates to the sufficiency of the reasons stated in the contested acts, which the Court must, when necessary, review on its own motion (see the judgment in Case C‑367/95 P Commission
v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 67 and case-law cited). It follows that the substance of those arguments must be examined.
276. To support their argument summarised in paragraph 272 above, the applicants refer to the judgments in Joined Cases T‑246/08 and T‑332/08 Melli Bank
v Council [2009] ECR II‑2629, Case T‑562/10 HTTS
v Council [2011] ECR II‑8087 and in Case T‑53/12 CF Sharp Shipping Agencies
v Council [2012] ECR. Yet none of those cases supports the applicants’ arguments.
277. It is admittedly true that, in Melli Bank
v Council, paragraph 276 above (paragraph 146), the Court stated that the provision at issue in that case required an assessment on a case-by-case basis, as regards the entity concerned, of the status of an entity which is ‘owned or controlled’ and that, in addition to indicating the legal basis of the measure adopted, the obligation to state reasons incumbent on the author of that measure relates to that very circumstance. However, even if the fact that that judgment concerns the interpretation and application of a provision other than those at issue in this case is disregarded, it is in any event clear that, in this case, the authors of the contested acts did in fact carry out an analysis on a case-by-case basis and stated reasons in the contested acts on the basis of the results of that analysis.
278. As stated in the context of analysis of the third plea in law, the contested acts state to the requisite legal standard the grounds which justified the listing, in the list of persons and entities subject to the restrictive measures at issue, of all the applicants, including applicant No 121, Zimbabwe Mining Development. The contested acts state, with respect to each applicant, whether a natural person or a legal person, the specific and particular grounds which justify the imposition on them of the restrictive measures at issue. Further, the authors of the contested acts were not required to offer a specific explanation of why they did not decide to act on a proposal to withdraw, from that list, the name of applicant No 121.
279. Further, it must be observed that the Court referred to the abovementioned consideration in Melli Bank
v Council, paragraph 276 above (paragraph 146), in order to reject an argument of the Council that there was no need to state, in the decisions at issue in that case, the names of entities which were owned or controlled and to which fund freezing measures applied. That consideration is therefore of no relevance to this case, where the names of all the entities to which the restrictive measures at issue apply are clearly stated in the contested acts.
280. In the other two judgments relied on by the applicants, the Court annulled the contested acts because of infringements of the obligation to state reasons. Yet in this case it has already been held, in the analysis of the third plea in law, that the statement of reasons in the contested acts met the requisite legal standard with respect to all the applicants. Consequently, the other two judgments relied on by the applicants are also of no relevance to this case.
281. As regards the arguments summarised in paragraphs 269 and 270 above, they are linked to the argument put forward as part of the second plea in law and summarised in paragraph 237 above, with the result that they constitute an amplification of the second plea in law and must be held to be admissible.
282. As regards the substance, the arguments concerned cannot be accepted. The applicants’ position is, in essence, that only entities belonging to, or controlled by, the members of the Government of Zimbabwe can be considered to be associated with them, for the purposes of Article 6(1) of Regulation No 314/2004 and Article 5 of Decision 2011/101. That position cannot be accepted. An interpretation of the two provisions at issue that the entities belonging to, or controlled by, natural persons (or, as may be, legal persons) associated with members of the Government of Zimbabwe may also be subject to the restrictive measures laid down by those provisions is wholly compatible with their wording. The same is true of the interpretation that the entities belonging to, or controlled by, the Government of Zimbabwe itself must be considered to be associated, within the meaning of those two provisions, with the members of that government.
283. Moreover, that interpretation of the abovementioned provisions is the only one which is compatible with the objective of the restrictive measures at issue (see paragraph 97 above). The interpretation suggested by applicants would be likely to result in those measures losing a large part, if not all, of their effectiveness. It would be paradoxical if a natural person associated with members of the Government of Zimbabwe were to be subject to a freezing of his funds and economic resources, without it being possible to extend that freezing to the entities which that natural person controls, directly or indirectly. In that event, it would be very simple for the natural person concerned to evade the freezing of funds established by the restrictive measures at issue, by making use for that purpose of legal persons or other entities controlled by him. That would also apply if it was accepted that the abovementioned provisions do not permit the implementation of freezing of funds and economic resources with respect to entities directly controlled by the Government of Zimbabwe or the State of Zimbabwe.
284. In the light of all the foregoing, the second plea in law must be rejected.
The fifth plea in law: infringement of the applicants’ fundamental rights and the principle of proportionality
285. The greater part of the applicants’ arguments in support of this plea in law consists of references to case-law and to various texts, namely the Charter of Fundamental Rights, the United Nations Charter, Council Document 15114/05 of 2 December 2005 titled ‘Guidelines on implementation and evaluation of restrictive measures (sanctions) in the framework of EU Common Foreign and Security Policy’, the opinion of the EDPS mentioned in paragraph 210 above and a report of the Independent Reviewer of Terrorism Legislation in the United Kingdom.
286. Essentially, the applicants plead, rather succinctly, an infringement of their fundamental rights and of the principle of proportionality. They repeat their arguments, examined above in the analysis of the first plea in law, particularly in paragraph 106 above, that the restrictive measures at issue do not pursue any legitimate objective of the CFSP. However, according to the applicants, even if those measures do pursue such an objective, they are disproportionate to that objective. In support of that complaint, the applicants refer in a lapidary fashion to certain arguments which have already been examined and rejected above. In particular, the applicants claim that, with respect to some of their number, it is not even claimed in the contested acts that they were responsible, at the time when the measures at issue were adopted, for the policies of the government of Zimbabwe or that they had any influence on those policies. The applicants also claim, in essence, that the statement of reasons in the contested acts is inadequate, in that the authors of those acts failed to explain how the restrictive measures at issue could contribute to the realisation of any legitimate objective of the CFSP. They also state that the Global Political Agreement (GPA) calls for the restrictive measures to be lifted. There is no need for further analysis of those arguments, since they broadly overlap with the arguments, much more fully stated, put forward with respect to the first three pleas in law. For the reasons set out above in the analysis of those pleas, the Court must again reject those arguments, which, it may be added, have no connection with the principle of proportionality.
287. The applicants also refer, in support of their complaint that the restrictive measures at issue are ‘disproportionate’, to the alleged ‘far-reaching nature’ of these measures, their ‘severe negative economic and reputational impact’, and the ‘nature of the allegations’ made against them in the grounds of the contested acts.
288. Since, in their arguments, the applicants also refer, if only by citation, to other texts, to respect for private and family life, to the freedom to conduct a business and the right to property, it must be recalled that, under Article 7 of the Charter of Fundamental Rights, ‘[e]veryone has the right to respect for his or her private and family life, home and communications’. Further, under Article 16 of the Charter, ‘[t]he freedom to conduct a business in accordance with Union law and national laws and practices is recognised’. Last, Article 17(1) of the Charter provides:
‘Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.’
289. In this case, there is no doubt that the restrictive measures contained in the contested acts entail restrictions on the exercise by the applicants of their fundamental rights as described above (see, to that effect, Kadi and Al Barakaat International Foundation
v Council and Commission, paragraph 119 above, paragraph 358, and the judgment in Case T‑187/11 Trabelsi and Others
v Council [2013] ECR, paragraph 76).
290. However, according to settled case-law, those fundamental rights do not enjoy, in EU law, absolute protection, but must be viewed in relation to their social function (see, to that effect, the judgment in Case C‑348/12 P Council
v Manufacturing Support & Procurement Kala Naft [2013] ECR, paragraph 121, and Makhlouf
v Council, paragraph 204 above, paragraph 99 and case-law cited). Consequently, the exercise of those rights may be restricted, provided that those restrictions in fact correspond to objectives of public interest pursued by the European Union and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the rights so guaranteed (see Makhlouf
v Council, paragraph 204 above, paragraph 97 and case-law cited).
291. In particular, Article 52(1) of the Charter of Fundamental Rights provides, first, that ‘[an]y limitation on the exercise of the rights and freedoms recognised by [the Charter of Fundamental Rights] must be provided for by law and respect the essence of those rights and freedoms’, and, second, that ‘[s]ubject 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.’
292. Yet the restriction on the exercise of the fundamental rights described above to which the applicants are entitled must be regarded as having been ‘provided for by law’ since, as is clear from what is stated above in relation to the first and second pleas in law, the criteria laid down in Article 6(1) of Regulation No 314/2004 and in Article 4(1) and Article 5(1) of Decision 2011/101 were respected.
293. Further, it is clear from the analysis of the first plea in law that the measures concerned do in fact contribute to the achievement of objectives of general interest recognised by the Union or to the need to protect the rights and freedoms of others (see paragraph 93 above).
294. That being the case, this plea in law can only be understood as meaning that the applicants plead a breach of the principle of proportionality, with which Article 52(1) of the Charter of Fundamental Rights requires compliance.
295. In that regard, it must be recalled that the principle of proportionality, as one of the general principles of EU law, requires that measures adopted by the EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued by the legislation in question. Consequently, when 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 (the judgment in Case C‑189/01 Jippes and Others [2001] ECR I‑5689, paragraph 81, and the judgment of 6 May 2010 in Case T‑388/07 Comune di Napoli
v Commission, paragraph 143).
296. It must however also be recalled that, with regard to judicial review of compliance with the principle of proportionality, the Court of Justice has held that the EU 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. The Court of Justice concluded that the legality of a measure adopted in such spheres can be affected only if the measure is manifestly inappropriate with regard to the objective which the competent institution is seeking to pursue (see Council
v Manufacturing Support & Procurement Kala Naft, paragraph 290 above, paragraph 120 and case-law cited).
297. In this case, it must be recalled that, as was stated in paragraph 97 above, the objective of the restrictive measures at issue is to encourage the persons and entities affected by them to reject policies that lead to the suppression of human rights and freedom of expression and the hindrance of good governance. Admittedly, those measures are supposed to act indirectly, the underlying idea being that those targeted by them will reject the abovementioned policies in order to have the restrictions imposed on them revoked as far as they are concerned. None the less, in the case of a sovereign third country, such as Zimbabwe, it is self-evident that the Union can influence its policies only indirectly.
298. It must also be recalled that the contested acts are the product of the deep concern felt by the European Union authorities as regards the situation in Zimbabwe, that concern being first expressed ten years earlier (see paragraph 1 above). Yet that concern, which the applicants have not in these proceedings claimed to be unjustified, was still present when the contested acts were adopted. The competent EU authorities cannot therefore be accused of an infringement of the principle of proportionality by reason of having maintained in force the previously imposed restrictive measures and of having extended their scope, with the intention of bringing to an end a situation of deep concern of such long standing (see, to that effect, Council
v Manufacturing Support & Procurement Kala Naft, paragraph 290 above, paragraph 126).
299. Moreover, it is clear that the applicants have not suggested any specific less onerous measure which would have had an effect comparable to that of the measures at issue and which might have achieved the same objectives.
300. It must also be noted that the restrictive measures at issue are inherently temporary and reversible and therefore do not impair the ‘essential content’ of the fundamental rights relied on by the applicants. That is even more the case when all the applicants are natural or legal persons established in Zimbabwe and not within the European Union, which means that the disadvantages arising from those measures, although undeniably significant, are not as onerous as in the case of natural or legal persons established within the European Union.
301. Last, it must be observed that both Regulation No 314/2004 and Decision 2011/101 provide for exceptions to the restrictive measures which they establish. Thus, under Article 7(1) of Regulation No 314/2004, the competent authorities may authorise the release of funds or economic resources ‘necessary for basic expenses, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums and public utility charges’ or ‘intended exclusively for payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services’. Further, Article 4(3) to (5) of Decision 2011/101 provides for derogations from the prohibition on entry into or transit through the territory of the Member States, inter alia ‘where travel is justified on urgent and imperative humaritarian grounds’.
302. In the light of all the foregoing, and taking into account, in particular, the case-law cited in paragraph 298 above, the Court considers it to be established that the restrictive measures are proportionate. Accordingly the fifth plea in law must be rejected, and this action must therefore be dismissed in its entirety.
Costs
303. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs of the Council and the Commission, as applied for by the latter. The United Kingdom must bear its own costs, in accordance with Article 87(4) of the Rules of Procedure.
Operative part
On those grounds,
THE GENERAL COURT (Eighth Chamber)
Hereby:
1. Dismisses the action;
2. Orders Mr Johannes Tomana and the 120 other applicants listed in the annex hereto to bear their own costs and to pay the costs incurred by the Council of the European Union and the European Commission;
3. Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs.