62015TJ0288
JUDGMENT OF THE GENERAL COURT (Fifth Chamber, Extended Composition)
27 September 2018 (
*1
)
(Common foreign and security policy — Restrictive measures taken in view of the situation in Egypt — Freezing of funds — Admissibility — Objectives — Criteria for inclusion of persons targeted — Renewal of designation of the applicants on the list of persons targeted — Factual basis — Plea of illegality — Legal basis — Proportionality — Right to fair trial — Presumption of innocence — Right to good administration — Error of law — Manifest error of assessment — Right to property — Rights of the defence — Right to effective judicial protection)
In Case T‑288/15,
Ahmed Abdelaziz Ezz, residing in Giza (Egypt),
Abla Mohammed Fawzi Ali Ahmed Salama, residing in Cairo (Egypt),
Khadiga Ahmed Ahmed Kamel Yassin, residing in Giza,
Shahinaz Abdel Azizabdel Wahab Al Naggar, residing in Giza,
Represented initially by J. Lewis, B. Kennelly, QC, J. Pobjoy, Barrister, J. Binns, S. Rowe, Solicitors, and J.-F. Bellis, lawyer, and subsequently by B. Kennelly, J. Pobjoy, S. Rowe and H. de Charette, lawyer,
applicants,
v
Council of the European Union, represented by M. Bishop and I. Gurov, acting as Agents,
defendant,
APPLICATION pursuant to Article 263 TFEU seeking, first, the annulment of Council Decision (CFSP) 2015/486 of 20 March 2015 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2015 L 77, p. 16), secondly, of Council Decision (CFSP) 2016/411 of 18 March 2016 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2016 L 74, p. 40) and, thirdly, of Council Decision (CFSP) 2017/496 of 21 March 2017 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2017 L 76, p. 22), in that those acts concern the applicants,
THE GENERAL COURT (Fifth Chamber, Extended Composition),
composed of D. Gratsias (Rapporteur), President, I. Labucka, A. Dittrich, I. Ulloa Rubio and P. G. Xuereb, Judges,
Registrar: L. Grzegorczyk, Administrator,
having regard to the written part of the procedure and further to the hearing on 4 July 2017,
gives the following
Judgment
I. Background to the dispute and factual context
A. Acts adopted by the Council in respect of the applicants
1
In the wake of political events which took place in Egypt from January 2011, the Council of the European Union adopted, on 21 March 2011, on the basis of Article 29 TEU, Council Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 63).
2
Recitals 1 and 2 of Decision 2011/172 read as follows:
‘(1)
On 21 February 2011, the European Union declared its readiness to support the peaceful and orderly transition to a civilian and democratic government in Egypt based on the rule of law, with full respect for human rights and fundamental freedoms and to support efforts to create an economy which enhances social cohesion and promotes growth.
(2)
In this context, restrictive measures should be imposed against persons having been identified as responsible for misappropriation of Egyptian state funds and who are thus depriving the Egyptian people of the benefits of the sustainable development of their economy and society and undermining the development of democracy in the country.’
3
Article 1(1) of Decision 2011/172, as amended by the corrigendum to that decision (OJ 2014 L 203, p. 113), provides as follows:
‘All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for misappropriation of Egyptian state funds, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.’
4
The second paragraph of Article 5 of Decision 2011/172, in its original version, provided that that decision was applicable until 22 March 2012. The third paragraph of Article 5 of that decision provides that that decision is to be kept under constant review and is to be renewed, or amended as appropriate, if the Council deems that its objectives have not been met. Pursuant to the latter provision, the Council renewed that decision several times for a period of one year by adopting, successively, Decision 2012/159/CFSP of 19 March 2012 (OJ 2012 L 80, p. 18), Decision 2013/144/CFSP of 21 March 2013 (OJ 2013 L 82, p. 54), Decision 2014/153/CFSP of 20 March 2014 (OJ 2014 L 85, p. 9), Decision (CFSP) 2015/486 of 20 March 2015 (OJ 2015 L 77, p. 16), Decision (CFSP) 2016/411 of 18 March 2016 (OJ 2016 L 74, p. 40), and Decision (CFSP) 2017/496 of 21 March 2017 (OJ 2017 L 76, p. 22).
5
The applicants, Ahmed Abdelaziz Ezz, Abla Mohamed Fawzi Ali Ahmed Salama, Khadiga Ahmed Ahmed Kamel Yassin and Shahinaz Abdel Azizabdel Wahab Al Naggar, were designated since the adoption of Decision 2011/172, respectively, in the seventh, eighth, ninth and tenth lines of the list in the annex to that decision. The identifying information relating to each of them, which appeared on that list, was, with respect to the first applicant, ‘Former Member of Parliament; Date of birth: 12.01.1959; Male’, in relation to the second applicant, ‘Wife of Ahmed Abdelaziz Ezz; Date of birth: 31.01.1963; Female’, in relation to the third applicant, ‘Wife of Ahmed Abdelaziz Ezz; Date of birth: 25.05.1959; Female’, and, in relation to the fourth applicant, ‘Wife of Ahmed Abdelaziz Ezz; Date of birth: 09.10.1969; Female’. Decision 2017/496 made a correction concerning the name of the second applicant.
6
The ground for the designation of the applicants, as amended by the corrigendum to Decision 2011/172, was as follows: ‘Person subject to judicial proceedings by the Egyptian authorities in respect of the misappropriation of state funds on the basis of the United Nations Convention against corruption’. That ground has remained identical in successive renewals of that decision. In particular, the amendments relating to the ground for designation, introduced by Decision 2017/496, did not concern the applicants, but only other persons designated on the same list.
7
On the basis of Article 215(2) TFEU and Decision 2011/172, the Council adopted Regulation (EU) No 270/2011 of 21 March 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 4). That regulation reproduces, in essence, the provisions of Decision 2011/172 and the list in Annex I thereto is identical to that in the annex to that decision. Council Implementing Regulation (EU) 2017/491 of 21 March 2015 implementing Regulation No 270/2011 (OJ 2017 L 76, p. 10), made amendments to the list in Annex I to that regulation, corresponding to those introduced by Decision 2017/496.
B. Proceedings brought by the applicants before the courts of the European Union before or at the same time as the present proceedings
8
By an action brought on 20 May 2011, registered at the Registry of the General Court under number T‑256/11, the applicants sought the annulment of Decision 2011/172 and Regulation No 270/2011, in so far as those acts concern them.
9
On 24 May 2013, the applicants brought a new action, registered at the Registry of the General Court under number T‑279/13, by which they sought the annulment of Decision 2011/172, as amended by Decision 2013/144 and Regulation No 270/2011, ‘renewed by decision of the Council notified to the applicants by letter dated 22 March 2013’ in so far as those acts concern them.
10
The action brought by the applicants in Case T‑256/11 was dismissed by the judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93). On 5 May 2014, the applicants brought an appeal against that judgment.
11
On 30 May 2014, each of the applicants brought a separate action against Decision 2014/153 (Cases T‑375/14, Al Naggar v Council, T‑376/14, Yassin v Council, T‑377/14, Ezz v Council and T‑378/14, Salama v Council).
12
The judgment of 5 March 2015, Ezz and Others v Council (C‑220/14 P, EU:C:2015:147), dismissed the applicants’ appeal referred to in paragraph 10 above.
13
On 29 May 2015, the applicants lodged a statement of modification intended to extend the original form of order sought in the action brought by them in Case T‑279/13 to ‘Council Decision (CFSP) 2015/485 of 20 March 2015 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt’.
14
By order of 15 February 2016, Ezz and Others v Council (T‑279/13, not published, EU:T:2016:78), made on the basis of Article 126 of the Rules of Procedure of the General Court, the applicants’ action in the case at issue was dismissed. First, the General Court rejected as manifestly inadmissible the form of order sought in the statement of modification referred to in paragraph 13 above on the ground of lis pendens. The General Court held that the parties, submissions and subject matter in the present action and in the statement of modification were identical and that the latter had been lodged after that action (order of 15 February 2016, Ezz and Others v Council, T‑279/13, not published, EU:T:2016:78, paragraphs 22 to 30). Secondly, it rejected the form of order sought in the action as manifestly lacking any foundation in law (order of 15 February 2016, Ezz and Others v Council, T‑279/13, not published, EU:T:2016:78, paragraphs 43 to 79).
15
By orders of 21 March 2016 of the President of the Eighth Chamber of the General Court, Cases T‑375/14, T‑376/14, T‑377/14 and T‑378/14 were removed from the register following the withdrawal from the proceedings of the applicants (orders of 21 March 2016, Al Naggar v Council, T‑375/14, not published, EU:T:2016:185, of 21 March 2016, Yassin v Council, T‑376/14, not published, EU:T:2016:186, of 21 March 2016, Ezz v Council, T‑377/14, not published, EU:T:2016:187 and of 21 March 2016, Salama v Council, T‑378/14, not published, EU:T:2016:188).
16
By application registered at the Court Registry on 26 May 2016, registered at the Court Registry under number T‑269/16, the first applicant brought an action against Decision 2016/411, in so far as that decision concerns him. By separate application, registered on the same day at the Court Registry under number T‑269/16, the second, third and fourth applicants brought an action against Decision 2016/411, in so far as that decision concerns them.
17
On 12 September 2016, the General Court, by order, dismissed as manifestly inadmissible the applicants’ actions referred to in paragraph 16 above on the ground of lis pendens in relation to the lodging of the applicants’ statement of modification in the present action against Decision 2016/411, which is referred to in paragraph 22 below (orders of 12 September 2016, Ezz v Council, T‑268/16, not published, EU:T:2016:606, paragraph 15, and of 12 September 2016, Salama and Others v Council, T‑269/16, not published, EU:T:2016:607, paragraph 15).
II. Procedure and forms of order sought
18
By application lodged at the Registry of the General Court on 29 May 2015, the applicants brought the present action. According to the first page and paragraph 1 of the application, the applicants seek the annulment of ‘Council Decision (CFSP) 2015/485 of 20 March 2015 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt’, in so far as that decision relates to them. They also claim that the Council should be ordered to pay the costs.
19
In a letter to the Registry of the General Court dated 24 August 2015, the applicants indicated that the application was to be read as referring to Decision 2015/486, the reference to ‘2015/485’ resulting from a typographical error.
20
On 15 February 2016, the Council lodged its defence. In that document it claims that the Court should:
–
dismiss the action;
–
order the applicants to pay the costs.
21
The reply and the rejoinder were lodged on 31 March 2016 and 27 May 2016 respectively.
22
On 25 May 2016, on the basis of Article 86 of the Rules of Procedure, the applicants lodged a statement of modification in which they claim that the Court should:
–
annul Decision 2016/411, in so far as that decision relates to the applicants;
–
order the Council to pay the costs.
23
On 30 June 2016, the Council submitted observations on the statement of modification, in which it states that it maintains the form of order sought in the defence.
24
On 25 July 2016, the applicants requested a hearing.
25
By decision of 4 October 2016, the case was reassigned to the Fifth Chamber.
26
On 31 March 2017, by way of a measure of organisation of procedure, the Court requested the parties to provide it with a number of documents.
27
The applicants and the Council replied to those requests on 11 and 21 April 2017 respectively.
28
On a proposal from the Fifth Chamber, the General Court, by decision of 5 April 2017, referred the case to the Fifth Chamber (Extended Composition).
29
On 18 May 2017, by way of a measure of organisation of procedure, the General Court, first, requested the parties to provide it with additional information and, secondly, questioned them on the issue of the impact, in the present case, of some of its previous decisions.
30
On 26 May 2017, the applicants lodged a second statement of modification, in which they claim that the Court should annul, first, Decision 2017/496 and secondly, Implementing Regulation 2017/491, in so far as those acts concern them.
31
The parties replied to the General Court’s requests referred to in paragraph 29 above by letters dated 1 and 8 June 2017.
32
By a procedural document dated 8 June 2017, the applicants requested the Court to adopt, on the basis of Article 92(1), Article 93(1) and Article 94 of the Rules of Procedure, a measure of inquiry providing for the examination of their legal representative in Egypt as a witness. On 19 June 2017, the Council submitted its observations on that request for a measure of inquiry.
33
On 26 June 2017, the Council lodged observations on the statement of modification, in which it stated that it maintains the form of order sought in the defence.
34
The hearing was held on 4 July 2017. At the request of the applicants, the hearing took place in camera, having heard the Council. The applicants specified, however, that that request did not imply the confidential treatment of certain information in the General Court’s decision terminating the proceedings. [confidential] (
1
).
35
On 19 September 2017, the Court reopened the oral phase of the proceedings and invited the parties to comment on the possible impact on the present action of the judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583). The parties provided their reply to the Court on 4 October 2017.
III. Law
A. The admissibility of the form of order sought in the application
36
In the statement of defence, the Council relies on several pleas of inadmissibility against the form of order sought in the action for annulment of ‘Council Decision (CFSP) 2015/485 of 20 March 2015 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt’, in so far as that decision relates to them. First, the Council considers that those conclusions refer either to a non-existent act, or to an act against which the applicants manifestly do not have standing to bring proceedings. Secondly, it takes the view that, in so far as the correction by the applicants in their letter of 24 August 2015 was made after the expiry of the time limit of two months provided for in respect of actions based on Article 263 TFEU, the action against Decision 2015/486 is out of time. Finally, it contends that, if the present action is shown to have been brought after the statement of modification in Case T‑279/13, lodged by the applicants on the same day, that action must be declared to be inadmissible on the ground of lis pendens.
37
In the reply, the applicants submit that the reference to ‘2015/485’ was merely a typing error, which was confirmed by the General Court in the order of 15 February 2016, Ezz and Others v Council (T‑279/13, not published, EU:T:2016:78). Furthermore, they contest the existence of lis pendens regarding that order.
38
In that regard, in relation, first of all, to the first plea of inadmissibility, it should be recalled that, according to settled case-law, the requirement that, under Article 76 of the Rules of Procedure, the application must contain the subject matter of the proceedings implies that the statement must be sufficiently clear and precise as to enable the defendant to prepare its defence and the Court to decide the case, if necessary without other supporting information (see judgment of 13 September 2013, Anbouba v Council, T‑592/11, not published, EU:T:2013:427, paragraph 33 and the case-law cited).
39
However, the contested act can be identified by implication from the content of the application (see, to that effect, order of 13 April 2011, Planet v Commission, T‑320/09, EU:T:2011:172, paragraph 23 and the case-law cited). Moreover, the Court of Justice and the General Court have already accepted the possibility of reclassifying heads of claim that designate in an imprecise or erroneous manner the contested act or acts, where the content of the application and the factual and legal context make it possible to identify those acts unambiguously (see, to that effect and by analogy, judgments of 7 July 1993, Spain v Commission, C‑217/91, EU:C:1993:293, paragraphs 14 to 16, and of 13 September 2013, Anbouba v Council, T‑592/11, not published, EU:T:2013:427, paragraph 24).
40
In the present case, whereas, as indicated in paragraph 18 above, the applicants, on the first page and in paragraph 1 of the application, make reference to ‘2015/485’ to indicate the contested decision in the application, it must be noted that, by contrast, they refer to the full title of Decision 2015/486. Moreover, the provisions cited by the applicants in the body of the application are those of Decision 2015/486 and not those of Council Decision (CFSP) 2015/485 of 20 March 2015 extending the mandate of the European Union Special Representative in Kosovo (OJ 2015 L 77, p. 12). In addition, the applicants attached to the application a copy of Decision 2015/486 and not of Decision 2015/485.
41
The applicants confirmed, moreover, in their letter to the Registry of the Court of 24 August 2015 (see paragraph 19 above), that the present action must be regarded as seeking the annulment of Decision 2015/486, in so far as that act refers to them, since the reference ‘2015/485’ in the application constitutes a mere typographical error which does not affect the admissibility of that action. Consequently, the present action cannot be regarded as relating to a non-existent act, or to an act against which the applicants manifestly do not have standing to bring proceedings.
42
Secondly, as regards the second plea of non-admissibility, contrary to what the Council maintains, the date of lodging the application, namely 29 May 2015, and not the date of lodging of the applicants’ letter of 24 August 2015, must be taken into account when considering whether the time limit for bringing an action against Decision 2015/486 has been complied with in the present case. As is apparent from paragraphs 40 and 41 above, the content, alone, of the application and its annexes makes it possible to identify without difficulty that decision as being the subject matter of the action. Having regard to the date of 24 March 2015 which appears on the letter by which the Council notified that decision to the applicants, the lodging of the application on 29 May 2015 satisfies the time limit for bringing an action against that decision, in accordance with the provisions of the sixth paragraph of Article 263 TFEU and Article 60 of the Rules of Procedure.
43
Finally, with regard to the third plea of non-admissibility, as the Council accepted in the reply, moreover, the General Court found, in paragraphs 22 to 30 of the order of 15 February 2016, Ezz and Others v Council (T‑279/13, unpublished, EU:T:2016:78), that the lodging of the statement of modification submitted in Case T‑279/13, to adapt the forms of order sought and the pleas in law of the application to Decision 2015/486, was subsequent to the lodging of the present action and that that statement of modification should therefore be dismissed as manifestly inadmissible on the ground of lis pendens. The form of order in the application is therefore not inadmissible on that ground.
44
The pleas of inadmissibility referred to in paragraph 36 above must therefore be rejected.
B. Substance
45
In the present action, the applicants seek the annulment of the Council decisions by which, in the context of adopting Decision 2015/486, Decision 2016/411 and Decision 2017/496, their designation in the annex to Decision 2011/172 was renewed, respectively, in 2015, 2016 and 2017 (‘the contested decisions’). In support of those claims, the applicants put forward five pleas in law. In the first plea, they rely on a plea of illegality in respect of Article 1(1) of Decision 2011/172, as renewed by Decisions 2015/486, 2016/411 and 2017/496, and in respect of Article 2(1) of Regulation No 270/2011, alleging, in essence, a lack of legal basis and an infringement of the principle of proportionality. The second, third, fourth and fifth pleas in law allege, respectively, infringement by the Council of Article 6 TEU, considered together with Article 2 and Article 3(5) TEU, and of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’), in that the Council failed to ensure that the legal proceedings in Egypt concerning the applicants respected fundamental rights, infringement of the general criteria laid down in the abovementioned provisions of Decision 2011/172 and Regulation No 270/2011, infringement of the rights of the defence and of the right to effective judicial protection and an unjustified and disproportionate restriction on the applicants’ right to property and damage to their reputation.
46
As a preliminary point, it is appropriate to examine the Council’s argument that pleas in law which are identical, at least in essence, to the pleas set out in paragraph 45 above have already been examined and rejected in the judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93) and, following the appeal against that judgment, in the judgment of 5 March 2015, Ezz and Others v Council (C‑220/14 P, EU:C:2015:147). The Council concludes from this that the present action should be dismissed, by way of an order, as manifestly lacking any foundation in law, on the basis of Article 126 of the Rules of Procedure.
47
In that regard, first, it should be noted that, in the context of the first and second pleas in law, the applicants complain that the Council failed to take into account certain items of information concerning political and judicial developments which have occurred since the adoption of Decision 2011/172 and which reveal, in general, infringements by the Egyptian authorities of the rule of law and of fundamental rights and, in particular, breaches of the right to a fair trial and respect for the presumption of innocence of the first applicant in the context of the ongoing criminal proceedings brought against him. The applicants claim that they informed the Council of that information, in particular in their letter of 23 December 2014. In the statements of modification, they argue that they submitted additional information of the same nature to the Council prior to the renewal of their designation in 2016 and 2017.
48
In the judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93), and in the order of 15 February 2016, Ezz and Others v Council (T‑279/13, not published, EU:T:2016:78), ruling on the applicants’ actions referred to in paragraphs 8 and 9 above, that complaint was not considered by the General Court. Furthermore, the applicants withdrew in the course of proceedings in their actions in Cases T‑375/14 to T‑378/14.
49
In addition, it should be recalled that Article 2(3) of Decision 2011/172 provides that, where observations are submitted, or where substantial new evidence is presented, the Council shall review its decision and inform the person or entity concerned accordingly. Furthermore, in accordance with the third paragraph of Article 5 of that decision, the latter is to be kept under constant review and is to be renewed if the Council deems that its objectives have not been met.
50
It follows from the combination of those provisions that the Council may, in any review prior to the renewal of Decision 2011/172, or at any time, determine, on the basis of substantial evidence or observations submitted to it, whether the factual situation has changed since the applicants’ original designation or since a previous review, so that their designation is no longer justified (see, to that effect and by analogy, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 46).
51
In the present case, it cannot be excluded, without examination, that the evidence presented by the applicants in their correspondence with the Council, prior to the adoption of the contested decisions, was of such a substantial nature as to call into question the renewal of their designation under the contested decisions.
52
Moreover, it is true that, in the decisions of the General Court and of the Court of Justice referred to in paragraph 46 above, similar pleas in law to the third, fourth and fifth pleas have already been examined. Consequently, in the context of the latter pleas, the applicants are not entitled to call into question the lawfulness of their original designation or of the renewal of their designation by Decision 2013/144 by submitting to the General Court questions already decided by the abovementioned decisions of the European Union judicature, as such a challenge is incompatible with the relative authority of res judicata which attaches not only to the operative part of those decisions, but also to the ratio decidendi on which they are based (see, to that effect, judgments of 1 June 2006, P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission, C‑442/03 P and C‑471/03 P, EU:C:2006:356, paragraphs 39 to 41; of 15 May 2008, Spain v Council, C‑442/04, EU:C:2008:276, paragraph 25, and of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 117). Moreover, objections or arguments raised against the contested decisions, which are based on the same elements of facts or points of law as those already examined by the EU judicature in the context of the applicants’ earlier actions, may be rejected as manifestly unfounded (see, to that effect and by analogy, order of 15 February 2016, Ezz and Others v Council, T‑279/13, not published, EU:T:2016:78, paragraph 41 and the case-law cited).
53
However, there is no reason to presume, without an assessment of the merits of the factual and legal elements presented in the context of the present action, in support of those pleas, that those elements have already been examined by the EU judicature (see, to that effect, order of 15 February 2016, Ezz and Others v Council, T‑279/13, not published, EU:T:2016:78, paragraph 41).
54
Consequently, the present action cannot be dismissed by the General Court as manifestly lacking any foundation in law without examining the arguments put forward by the applicants in support of the pleas in law in that action.
55
It is necessary to examine, first of all, the first and second pleas, which are based on the complaint set out in paragraph 47 above.
1.
The first and second pleas in law, raising, first, a plea of illegality in respect of Article 1(1) of Decision 2011/172, as renewed by Decisions 2015/486, 2016/411 and 2017/496, and in respect of Article 2(1) of Regulation No 270/2011 and, secondly, alleging infringement by the Council of Article 6 TEU, in conjunction with Articles 2 and 3 TEU and Articles 47 and 48 of the Charter
(a)
Preliminary observations
56
As a preliminary point, it must be determined, first, whether the scheme of restrictive measures provided for in Decision 2011/172 may require the Council to take into account circumstances such as those relied on by the applicants in support of the complaint referred to in paragraph 47 above and, secondly, the factual context in which the applicants informed the Council of those circumstances and the treatment of that information by the Council.
(1) Legal background
57
First of all, it should be recalled that Article 2 TEU and Article 3(5) TEU require the institutions of the European Union to promote, in particular in international relations, the values and principles on which the European Union is founded, namely, in particular, respect for human dignity, the rule of law and fundamental rights.
58
Secondly, as the Court of Justice has pointed out, respect for those values and for the principles on which the European Union is founded is required of all actions of the European Union, including those in the area of the common foreign and security policy (CFSP), as is apparent from the provisions, read together, set out in the first subparagraph of Article 21(1), Article 21(2)(b) and (3) TEU, and Article 23 TEU (see, to that effect, judgment of 14 June 2016, Parliament v Council, C‑263/14, EU:C:2016:435, paragraph 47).
59
In particular, Article 21(1) TEU provides that the European Union’s action on the international scene is to seek to advance in the wider world, inter alia, the rule of law, the universality and indivisibility of human rights and respect for international law.
60
Finally, with regard more particularly to the right to a fair trial and to respect for the presumption of innocence, the breach of which is alleged in the present case, it should be noted that, according to the European Court of Human Rights (‘the ECtHR’), the right to a fair trial, as enshrined in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), which correspond, in the EU legal order, to Articles 47 and 48 of the Charter, holds a prominent place in a democratic society, particularly in criminal matters (ECtHR, 7 July 1989, Soering
v. United Kingdom, CE:ECHR:1989:0707JUD001403888, §113).
61
Similarly, it should be stressed that the principles of independence and impartiality of justice and the right to effective judicial review are essential standards for respect for the rule of law, which itself forms one of the primary values on which the European Union is founded, as is clear from Article 2 TEU, the preambles of the EU Treaty and of the Charter (see, to that effect, judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraphs 87 and 88).
62
As the ECtHR has stated, in essence, the requirements arising from the right to a fair trial and respect for the presumption of innocence aim, in particular in criminal matters, to guarantee that the final decision on the merits of the charges against the person concerned is reliable and to prevent it from being vitiated by a denial of justice or even arbitrariness, which would constitute the very denial of the rule of law (see, to that effect and by analogy, ECtHR, 17 January 2012, Othman (Abu Qatada)
v. United Kingdom, CE:ECHR:2012:0117JUD000813909, §260, and 21 June 2016, Al-Dulimi and Montana Management Inc.
v. Switzerland, CE:ECHR:2016:0621JUD000580908, §145 and 146 (
2
)).
63
In the present case, the characteristics of the scheme set out in Decision 2011/172 do not justify an exception to the Council’s general obligation, when adopting restrictive measures, to respect fundamental rights that form an integral part of the EU legal order (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 25 and the case-law cited), which would have the effect of exempting it from any verification of the protection of fundamental rights in Egypt.
64
In that regard, it should be noted that, under Article 1(1) of Decision 2011/172, the purpose of that decision is to freeze the assets of persons responsible for misappropriation of Egyptian state funds and of persons associated with them, as listed in the annex thereto. As is apparent from recital 1, that decision is part of a policy of support for the Egyptian authorities based, in particular, on the objectives of consolidating and supporting democracy, the rule of law, human rights and the principles of international law set out in Article 21(2)(b) TEU (see, to that effect, judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 44). The sole purpose of the freezing of assets enacted by that decision is to assist the Egyptian authorities with establishing any misappropriation of state funds that has taken place and to ensure that it remains possible for those authorities to recover the proceeds of misappropriation. It is therefore purely precautionary and has no criminal connotation (see, to that effect, judgments of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraphs 77, 78 and 206, and of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraphs 62 and 64).
65
Accordingly, when considering whether to designate a person on the list annexed to Decision 2011/172 or to renew that designation, it is for the Council to verify, first, that the evidence at its disposal makes it possible to establish that that person is the subject of one or more ongoing legal proceedings in respect of acts that may be characterised as the misappropriation of state funds, and, secondly, whether those proceedings are such as to allow that person to be classified as satisfying the criteria laid down in Article 1(1) of Decision 2011/172 (see, to that effect and by analogy, judgments of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraph 156, and of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 65).
66
It follows from the foregoing that, in the context of cooperation with the Egyptian authorities, it is not, in principle, for the Council to assess the accuracy and relevance of the information on which the Egyptian legal proceedings are based (see, to that effect and by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 66 and case-law cited), it being for the Egyptian authorities to make such an assessment. The Court held, in that regard, that it was not for the Council or the General Court to verify whether the investigations to which the applicants were subject were well founded, but only to verify whether that was the case as regards the decision to freeze funds in the light of the request for assistance by the Egyptian authorities (judgment of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraph 77). However, the Council may be required, taking into account in particular the applicant’s observations, to seek from those authorities clarifications concerning that information if those observations lead it to doubt the adequacy of the evidence they have already supplied (see, to that effect and by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 68 and the case-law cited).
67
Accordingly, 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. However, to the extent that the Council has provided evidence of the existence of judicial proceedings against the applicant, it is incumbent upon the applicant to provide solid evidence that is at least relevant and credible in support of his allegations (see, to that effect and by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraphs 72 to 75 and the case-law cited).
68
Consequently, first, in so far as Decision 2011/172 is part of a policy of support for the Egyptian authorities based, in particular, on the objectives of consolidating and supporting democracy, the rule of law, human rights and the principles of international law, the hypothesis that that decision is manifestly inappropriate in the light of those objectives owing to the existence of serious and systematic fundamental rights infringements cannot be completely ruled out. Moreover, the purpose of that decision, recalled in paragraph 64 above, is irrelevant having regard, in particular, to those objectives, if the Egyptian authorities’ finding that state funds have been misappropriated is vitiated by a denial of justice or by arbitrariness.
69
On the other hand, whereas, as is apparent from paragraphs 65 and 66 above, the existence of ongoing legal proceedings in Egypt constitutes, in principle, a sufficiently solid factual basis for the designation of the persons on the list annexed to Decision 2011/172 and its renewal, that is not the case when the Council must form a reasonable presumption that the decision taken at the end of those proceedings will not be reliable, especially since it is not, in principle, for the Council to assess the accuracy and relevance of the evidence on which those proceedings are based.
70
Therefore, in the context of the scheme of restrictive measures such as those provided for in Decision 2011/172, it cannot be excluded that the Council is obliged to assess whether the legal proceedings on which they are based can be considered as reliable in the light of the evidence submitted by the persons concerned relating to infringements of the rule of law and fundamental rights, in particular the right to a fair trial, provided that there is objective, reliable, specific and consistent evidence such as to raise legitimate questions concerning the observance of that right.
71
Moreover, notwithstanding its precautionary nature, the freezing of assets under Decision 2011/172 has a substantial negative impact on the freedoms and rights of the persons concerned so that, in order to ensure a fair balance between the objectives of the freezing of assets and the protection of those rights and freedoms, it is essential that the Council should be able, where necessary, to assess appropriately, under the supervision of the EU courts, the risk of such infringements occurring (see, to that effect and by analogy, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 131 and 132).
72
That analysis is not called into question by the arguments provided by the Council in the context of the present action.
73
In the first place, it should be noted that the Council does not dispute, in the present proceedings, that the consideration of the applicants’ allegations relating to the breach of fundamental rights in the Egyptian political and judicial context could be relevant in the context of the review prior to the adoption of the contested decisions. [confidential]. Similarly, in its written reply to the General Court dated 4 October 2017, the Council stated that, during the review of the designation of the applicants on the list annexed to Decision 2011/172 in 2016 and 2017, it had taken due account of the applicants’ allegations of serious human rights violations in the context of legal proceedings in Egypt.
74
In the second place, the Council’s argument that it is not for it to verify whether guarantees equivalent to those offered by EU law in the field of fundamental rights are provided in Egyptian judicial proceedings relates to the scope of the obligation to assess respect for fundamental rights in the Egyptian political and judicial context, but does not call into question the existence of that obligation. [confidential].
75
That interpretation is confirmed by the Council’s reference to paragraph 175 of the judgment of 7 July 2017, Azarov v Council (T‑215/15, under appeal, EU:T:2017:479), which sought, as is apparent from paragraph 166 of that judgment, to reject an argument of the applicant in that case alleging that it was for the Council, before adopting the decision contested in the case at hand, to verify whether the Ukrainian legal system guaranteed protection of fundamental rights at least equivalent to that guaranteed in the European Union.
76
In the third place, relying on the judgments of 5 March 2015, Ezz and Others v Council (C‑220/14 P, EU:C:2015:147), and of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93), in order to argue, in essence, that the applicants’ allegations only tend to call into question the merits of the judicial proceedings and not their existence, such that the legality of freezing their assets would not be affected by those allegations, the Council does not take account of subsequent developments in that case-law cited, inter alia, in paragraph 66 above.
77
In that regard, it should be pointed out that, in the analogous context of Council Decision 2011/72/CFSP of 31 January 2011 concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2011 L 28, p. 62), the General Court found that it was not apparent from the documents provided by the applicant that the lack of independence of the Tunisian judicial system vis-à-vis the political authorities alleged by him was such as to specifically affect the judicial proceedings against him or that that dysfunction was systemic (judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 73). The General Court has, therefore, already examined whether the Council should take into account observations which call into question the basis of the judicial proceedings against the applicant, in particular by invoking serious shortcomings in the judicial system at issue affecting the guarantees offered by the latter with regard to fundamental rights.
78
Moreover, the Council’s argument mentioned in paragraph 76 above is difficult to reconcile with the fact that [confidential].
79
Finally, in the fourth place, the fact that, as the Council contends, it did not adopt Decision 2011/172 and the subsequent decisions on the basis of a decision by a competent Egyptian authority, but with a view to achieving the objectives of the CFSP and within the framework of its autonomous power in that respect confirms the analysis of the General Court. It is specifically for the Council, in the exercise of that autonomous power, to examine carefully and impartially all the relevant aspects of the case, including the applicants’ allegations of breaches of fundamental rights concerning the judicial proceedings which form the factual basis for their designation in the annex to Decision 2011/172.
80
Consequently, when examining the first and second pleas, it is for the General Court, having regard to the intensity of the judicial review which each of those pleas involve, to rule on the issue of whether the applicants’ allegations relating to breaches of the rule of law and fundamental rights in Egypt constituted objective, reliable, accurate and consistent evidence capable of giving rise to legitimate questions and whether the Council has taken sufficient account of them.
(2) Factual Background
(i) Evidence relating to legal proceedings against applicants in Egypt
81
In the first place, it should be recalled that, as the General Court has already found, the applicants were originally designated in the annex to Decision 2011/172 on the basis of documents issued by the Egyptian authorities showing, on the one hand, that the first applicant was the subject of criminal proceedings in Egypt for conduct which may be characterised as misappropriation of state funds and, on the other hand, that all the applicants were the subject of an order for seizure of their assets related to those criminal proceedings (see, to that effect, judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraphs 132 to 134 and 137 to 140). It is apparent from the documents in the case file that that original designation was based, inter alia, on information contained in documents annexed to letters from the Egyptian authorities dated 13 and 24 February 2011.
82
Secondly, it is apparent from the documents in the case file that this information was subsequently supplemented and updated by a letter from the Egyptian authorities dated 13 February 2014, to which an updated table of criminal proceedings against the first applicant was annexed.
83
Seven sets of criminal proceedings are mentioned in the document of 13 February 2014. The first two sets of criminal proceedings (Cases Nos 38 and 107 of 2011) concern acts of unlawful profit and the third set of criminal proceedings (Case No 291 of 2011) concern acts of money laundering related to the acts referred to in the first two sets of proceedings. The fourth, fifth, sixth and seventh sets of criminal proceedings (Cases Nos 457 and 541 of 2011 and 156 and 376 of 2013) concern, respectively, tax evasion, abuse of a dominant position, further acts of tax evasion and, finally, money laundering.
84
In the third place, as is apparent from the Council’s response to the General Court’s request, in the context of the measure of organisation of the procedure of 31 March 2017, to provide it with all the information at its disposal concerning the applicants, the documents which the Egyptian authorities had provided to the Council with a view to adoption of Decision 2015/486 included, in particular, a memorandum from the Egyptian Prosecutor General’s Office (‘the PGO’) dated 9 February 2015. The applicants claim that that document was never communicated to them.
85
As stated at the beginning of the PGO memorandum of 9 February 2015, it is intended to respond to a request for clarification expressed in the framework of the Maghreb/Mashreq Council working group, following questions from certain Member States. That request for clarification concerned the legal procedures to be followed in cases such as those concerning the persons designated on the list annexed to Decision 2011/172 and the prescribed period within which they should be dealt with.
86
The PGO memorandum of 9 February 2015 refers, in particular, to the existence of remedies provided for in Egyptian criminal procedure which allow the persons concerned to submit, first, for review by the Court of Cassation of the Arab Republic of Egypt (‘the Egyptian Court of Cassation’) the first instance judgment which convicted them and, secondly, the judgment that again convicted them following the annulment of the first judgment and the referral back of the case. Moreover, it states that, in the latter case, the Egyptian Court of Cassation gives final judgment on the dispute either by dismissing the appeal or by ruling itself on the merits.
87
As to the remainder, it follows from the Council’s written reply of 21 April 2017 that the other documents provided by the PGO in February 2015 merely constituted an update of the information already provided concerning the status of the criminal proceedings against the first applicant, which update did not show any change in those proceedings as compared with the indications in the document of 13 February 2014.
88
Fourthly and finally, it is apparent from the documents of the case file that, prior to the renewal of the applicants’ designation in 2016 and in 2017, the Egyptian authorities provided updated information on the status of the judicial proceedings against the first applicant. In particular, that information showed, firstly, the closure of the investigations in Case No 156 of 2013 following the administrative settlement of the dispute and, secondly, the existence of three additional proceedings in Cases Nos 4 and 5482 of 2011 and No 244 of 2015 concerning, respectively, allegations of offences committed within the finance department of the company El-Dekheila, profiteering and money laundering. In addition, a memorandum dated 5 December 2016 from the Egyptian National Committee for the Recovery of Assets Abroad (‘the NCRAA’) was communicated to the Council on 6 January 2017. However, the content of that memorandum is identical to that of the PGO memorandum of 9 February 2015. In their reply to the questions of the General Court dated 1 June 2017, the applicants acknowledged that they had become aware of that document on 27 January 2017, namely before the renewal of their designation by Decision 2017/496.
(ii) Information supplied by the applicants prior to the renewal of their designation for the years 2015, 2016 and 2017
89
First of all, it should be noted that, in their letter of 23 December 2014 to the Council, to which the applicants refer in the context of the complaint referred to in point 47 above, they expressed, inter alia, their concerns that the criminal proceedings against the first applicant had not been brought in good faith and on the basis of evidence and that they were unfounded and politically motivated. They substantiated those concerns by referring to the context in which those proceedings were brought and to the analysis of those proceedings by the Egyptian Court of Cassation and considered that they were reinforced by a number of documents relating, first, to respect for the right to a fair trial of the first applicant and, secondly, to respect for the rule of law in Egypt since the departure, in February 2011, of the then President of the Arab Republic of Egypt, Mr Mohammed Hosni Mubarak.
90
The applicants attached to their letter of 23 December 2014 the documents supporting those concerns, which were annexed to the application. [confidential].
91
First, there are two reports by the International Bar Association’s Human Rights Institute (IBAHRI), dated November 2011 and February 2014, on the situation of the legal professions in Egypt. The 2011 IBAHRI report, entitled ‘Justice at a Crossroads: the Legal Profession and the Rule of Law in the New Egypt’, was drawn up following a survey by that non-governmental organisation in Egypt in June 2011. Its purpose is, first, to examine the difficulties encountered by lawyers in that country in relation to respect for the rule of law and fundamental rights before the events of 2011 and in the period immediately following them and, secondly, to issue recommendations with a view to ensuring compliance with those principles. The IBAHRI report of 2014, entitled ‘Separating Law and Politics: Challenges to the Independence of Judges and Prosecutors in Egypt’, which is based on a survey conducted in Egypt between June and November 2013, aims to follow up on the recommendations of the 2011 IBAHRI report and focuses more specifically on obstacles to the independence of the Egyptian judiciary.
92
Secondly, the applicants submitted a report by Mr D., a member of a law firm established in the United Kingdom, dated 27 July 2011 and a report by Mr M., a lawyer in Geneva, dated 4 February 2013, relating to several criminal proceedings against the first applicant. It is apparent from those reports that Mr D. and Mr M. were instructed, as observers, by the legal representatives of the first applicant in Egypt in order to assess compliance with the right to a fair trial of the latter in the context of the criminal proceedings brought against him in Egypt.
93
With regard to Mr D’s report, it concerns the investigations of the Prosecutor General of the Arab Republic of Egypt (‘the Egyptian Prosecutor General’) and the hearings held from 7 to 12 May and from 11 to 15 June 2011 in the first criminal proceedings against the applicant, which, as can be seen from the documents in the file, correspond to Procedure No 107 of 2011 in the documents provided by the Egyptian authorities. According to the report, the former Minister of Industry, a senior official of the Ministry of Industry and the first applicant are accused of having conspired to enable the latter to obtain energy licences for two companies in his group in breach of the rules governing the public procedure for awarding such licences to the steel sector.
94
The content of Mr D.’s report is based on a reading of the prosecution’s file, to which the author had access, and on his direct observations during the various hearings he attended. That report includes a description of the elements contained in the prosecution’s case file as set out in the reference to the Criminal Court of 28 February 2011, a report of the hearings, in particular the hearing of witnesses, and a critical analysis of the evidence gathered by the prosecution.
95
In his report, Mr D. criticises, first, the haste with which he believes the Egyptian authorities handled the case in question and, secondly, the conditions in which the hearings he attended took place, which, in his opinion, give rise to breaches of the presumption of innocence and of the rights of the defence of the first applicant. In view of those observations, he concludes in his report that, ‘having seen the manner in which the Learned Judge directed the proceedings, it does not fill one with confidence that he will reach a correct decision in this case [and that] ... under so much public pressure ... [would feel under pressure to] convict the defendants, thereby leaving it to the Court of Cassation to overturn his verdict’.
96
With regard to Mr M.’s report, it concerns the hearings held in 2012 in two of the criminal proceedings against the first applicant, one relating, according to the terms of the report, to charges of fraudulent acquisition of El-Dekheila shares and the other regarding alleged money laundering related to those charges, which correspond, according to the documents in the file, to Cases Nos 38 and 291 of 2011 in the documents provided by the Egyptian authorities.
97
The assessment made by Mr M. in his report is based, first, on the reports drawn up by Mr A., an Egyptian lawyer instructed to attend the hearings on his behalf, Mr M. stating that he had initially chosen not to attend the hearings personally because of the ‘elevated risk to [his] personal safety [arising from] demonstrations carried out in front of the courthouse ... throughout the course of the proceedings against [the first applicant]’ and, secondly, on his direct observation of one of the hearings in Case No 38 of 2011.
98
The first part of Mr M.’s report contains a description of the courtroom as he himself observed it and analyses, in the second part, the various points in respect of which he identified, in Mr A.’s reports, potential infringements of fundamental rights, namely the presence of a metal cage for the detention of accused persons, the presence of guards in the courtroom, auditory difficulties, the insufficiently impartial attitude of the criminal court and the prejudice caused by the media coverage. In view of those observations, he concludes that, ‘under international human rights standards, it is likely [that the first applicant’s] rights have been infringed and that in particular he has not been afforded a fair trial’. Furthermore, ‘[i]n either the acquisition fraud or the money laundering trials, there is therefore a significant risk of [legally] unsafe convictions’.
99
Thirdly, the applicants refer the Council to three judgments of the Egyptian Court of Cassation, of 2 December 2012, 12 May 2013 and 14 December 2013 respectively. In those judgments, the Egyptian Court of Cassation, first, set aside the first instance judgments, which had held the accused, in particular the first applicant, responsible in each of the cases concerned and which had imposed various penalties on them, including fines and imprisonment and, secondly, referred the cases back to the trial judge for a new decision. As can be seen from the Egyptian authorities’ document referred to in paragraph 82 above, those three judgments were delivered in the criminal proceedings in Cases No 107 of 2011 (unlawfully granted energy licences), No 291 of 2011 (money laundering) and No 38 of 2011 (fraudulent acquisition of shares in the company El-Dekheila) respectively.
100
Fourthly, the applicants relied on a judgment of the Criminal Court of the Swiss Confederation (‘the Swiss Federal Criminal Court’) of 12 December 2012 and two judgments of the Constitutional Court of the Principality of Liechtenstein (‘the Liechtenstein Constitutional Court’) of 28 August 2012 and 30 September 2013. Those judgments concern international mutual legal assistance procedures following requests from the Egyptian authorities. The first of those judgments annulled a decision by the Swiss authorities to grant them access to the file of criminal proceedings against Egyptian nationals, in particular for money laundering offences.
101
In its judgment of 12 December 2012, the Swiss Federal Criminal Court relied on a certain amount of public information available in reports of international organisations or in the press to find that, ‘regardless of the problem of respect of human rights in [Egypt], [that country] is currently facing an uncertain internal transition featuring the instability of institutions and [the apparent questioning of the independence] and the existing respect between [the executive and judicial] authorities’. On the basis of this information, the court considered that ‘there [was] a risk that the [applicants] could incur immediate and irreparable prejudice’.
102
The two judgments of the Constitutional Court of Liechtenstein of 28 August 2012 and 30 September 2013 annulled two judicial decisions dismissing the appeal by a company held by the first applicant against an order freezing its assets because of criminal proceedings against the first applicant in Egypt. That court considered that the sources of information on which that company relied, which included, in particular, the 2011 IBAHRI report and the report of Mr M., were sufficient to consider that it had ‘[demonstrated] the danger of infringements of fundamental rights [of the first applicant in Egypt]’, given that it was merely required to plausibly demonstrate that danger.
103
It is apparent from the documents in the case file that the documents in question, with the exception of the above-mentioned IBAHRI report of 2014, had already been communicated by the applicants in order to support, in particular, their first and second pleas in law in Cases T‑375/14 to T‑378/14 and that the Council, which submitted a defence in which it replied to those pleas, had therefore already been aware of them in that context.
104
In the correspondence with the Council prior to the renewal of the applicants’ designation in 2016 and 2017, the applicants submitted certain additional evidence relating to respect for fundamental rights in Egypt.
105
First, the applicants attached to their letter to the Council dated 29 February 2016 a letter from their Egyptian legal representatives concerning the various legal proceedings against the first applicant mentioned by the Egyptian authorities in documents dated 2 January 2016. In particular, in three of these proceedings (Cases Nos 4 of 2011, 274 of 2012 and 376 of 2013), those legal representatives claimed that they had never been informed of the existence of ‘formal’ investigations and that their request for access to the file had been rejected by the Egyptian authorities. Furthermore, in their letters of 14 March 2016, the applicants, relying on the opinion of an Egyptian lawyer annexed to those letters, claimed that their right to be heard had not been respected before the freezing order adopted by the Egyptian authorities in respect of them had been issued.
106
Secondly, in a letter dated 7 March 2017, the applicants drew the Council’s attention to the fact that the first applicant had been remanded in custody as from that date and that they considered that to be a breach of the guarantees enshrined, inter alia, in Article 5 of the ECHR.
(iii) The Council’s treatment of the evidence provided by the applicants
107
First of all, it is apparent from the documents in the case file that the Council replied to the applicants’ letter of 23 December 2014 in its letter of 24 March 2015. That latter letter does not contain any explicit reference to the applicants’ allegations calling into question respect for fundamental rights in Egypt, and in particular the right to a fair trial of the first applicant, nor to the documents mentioned in paragraphs 91 to 102 above, which support those allegations. However, the Council responded to the applicants’ concerns about the basis of the criminal proceedings brought against the first applicant, which were, inter alia, supported by those allegations, in the following terms: ‘[The] Council does not share your view that the circumstances in which the prosecution was brought against your client show there is no evidence for it and that it is politically motivated’.
108
[confidential]
109
Moreover, it is not apparent from the documents in the case file that the Council’s assessment of the applicants’ observations and of the documents gave rise to ad hoc verification with the Egyptian authorities.
110
It therefore follows from all the above that, in the context of the review of the designation of the applicants prior to the adoption of Decision 2015/486, the Council considered, implicitly but necessarily, that the observations and documents in question, irrespective of their relevance and credibility, were not such as to call into question the renewal of Decision 2011/172. In particular, in the light of the PGO memorandum of 9 February 2015 and the Council’s explanations, it has to be assumed that the Council considered that they did not call into question the assessment of respect for fundamental rights in Egypt carried out on the basis, inter alia, of that memorandum and that they therefore did not call for additional verification.
111
As is apparent from the Council’s letters of 21 March 2016 and 22 March 2017 to the first applicant, that position with regard to the applicants’ allegations concerning infringements of the rule of law and of fundamental rights in Egypt did not change when their designation was renewed in 2016 and 2017.
112
First, in its letter of 21 March 2016, the Council stated that the applicants’ complaints concerning the way in which the Egyptian authorities had handled the cases concerning the first applicant should be dealt with under the Egyptian legal system and procedures. Secondly, in its letter of 22 March 2017, it stated that it had assessed the observations of the first applicant concerning the level of protection of his fundamental rights in the judicial proceedings in Egypt and that it had concluded that it was reasonable to continue to support the efforts of the Egyptian authorities to recover the sums lost by the Egyptian State.
113
In that regard, it must be noted that, by the complaint referred to in paragraph 47 above, the applicants submit, in essence, that that position reflects, on the part of the Council, a disregard for the scope of the evidence which they submitted to it and its resulting obligations in respect of that evidence. In the first plea in law, they submit that those errors render Decisions 2015/486, 2016/411 and 2017/496 unlawful in so far as they renew the scheme of restrictive measures in Decision 2011/172 in their entirety. In the second plea in law, they claim that the contested decisions, in so far as they renew their designation, do not comply with the Council’s obligation to respect fundamental rights under Article 6 TEU, in conjunction with Articles 2 and 3(5) TEU and Articles 47 and 48 of the Charter. It is therefore for the General Court, when examining those pleas, to rule on the merits of the Council’s position as regards the evidence submitted to it by the applicants, in the light of the evidence that it otherwise had in its possession relating to the situation in Egypt.
(b)
As regards the first plea, alleging that Decisions 2015/486, 2016/411 and 2017/496 and Regulation No 270/2011 are vitiated by illegality
114
This plea consists of two parts, alleging that Decisions 2015/486, 2016/411 and 2017/496 are vitiated by illegality, in so far as they renew Article 1(1) of Decision 2011/172 and that Article 2(1) of Regulation No 270/2011 is unlawful, respectively.
(1) The first part, alleging that Decisions 2015/486, 2016/411 and 2017/496 are vitiated by illegality, in so far as they renew Article 1(1) of Decision 2011/172
115
According to the applicants, even supposing that Article 1(1) of Decision 2011/172 could have been based on the objectives referred to in recital 1 of that decision when it was adopted, that was no longer the case at the date of adoption of Decision 2015/486 because of the changes in the political and judicial context in Egypt reflected by the information which they had transmitted to the Council before that date.Accordingly, they claim that Decision 2015/486 cannot be based on an objective of support for the new Egyptian authorities because (i) those authorities were deposed after the adoption of Decision 2011/172, (ii) the Egyptian political context is unstable, marked by infringements of fundamental rights and of the rule of law and (iii) because the Council had become aware, through their intervention, of information establishing that the Egyptian authorities did not guarantee fair, impartial and independent judicial treatment of the first applicant, or respect for the rule of law. In the second statement of modification, they further claim that the evidence they provided to establish the lack of legal basis of Article 1(1) of Decision 2011/172 also demonstrates the disproportionate nature of those provisions in relation to the objectives pursued by the Council.
116
The Council disputes that it is open to the applicants to rely on a plea of illegality against Article 1(1) of Decision 2011/172 and Article 2(1) of Regulation No 270/2011, in respect of which, in its view, they could bring an action under Article 263 TFEU. In addition, it contends, in general terms, that the arguments submitted by the applicants in the context of the present plea in law have already been rejected by the General Court and by the Court of Justice. Furthermore, according to the Council, infringement of the criteria for listing is not relevant in respect of the examination of the appropriateness of the legal basis. It also submits that the various circumstances invoked by the applicants in the context of the present plea, namely the political changes in Egypt, the situation of fundamental rights in that country and the alleged infringement of the first applicant’s fundamental rights, are irrelevant in assessing the legality of the measures adopted in the context of Decision 2011/172.
117
It should be noted at the outset that, in the context of this part, the applicants rely on two separate complaints. First, they claim that Article 1(1) of Decision 2011/172, as renewed by Decisions 2015/486, 2016/411 and 2017/496, lacks a legal basis, in that its provisions, it is claimed, no longer meet the objectives of the CFSP. Secondly, they claim, implicitly in the application and the first statement of modification and expressly in the second statement of modification, infringement by the Council of the principle of proportionality on account of the manifestly inappropriate nature of the renewal of those provisions in the light of developments in Egypt.
(i) The complaint alleging lack of legal basis
118
First of all, it should be recalled that, according to settled case-law, review of the legal basis of an act enables the competence of the author of the act to be verified and the procedure for the adoption of that act to be verified as to whether it is vitiated by any irregularity. Furthermore, the choice of the legal basis for an EU measure must rest on objective factors amenable to judicial review, which include the aim and content of that measure (see judgment of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraph 42 and the case-law cited; order of 15 February 2016, Ezz and Others v Council, T‑279/13, not published, EU:T:2016:78, paragraph 47).
119
In the present complaint, the applicants dispute the application, in the present case, of the reasoning by which the General Court, in paragraph 47 of the order of 15 February 2016, Ezz and Others v Council (T‑279/13, unpublished, EU:T:2016:78), held that the ‘social and legal developments’ which had taken place since their original designation, which they relied on in the context of a plea also based on the lack of a legal basis, could only have an impact on the validity of the reasons for the contested decisions and could not be examined in the context of the review of the choice of legal basis for those measures.
120
According to the applicants, it follows from the case-law that, where the aim and content of a measure are premised on a particular social and legal context, the review of its legal basis must necessarily include a consideration of the development of that context.
121
However, it must be pointed out that the reasoning of the General Court criticised by the applicants can be transposed to the present case.
122
In that respect, it should be recalled that, as the General Court held in its judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93, paragraph 44), as regards Decision 2011/172, it is sufficient for that measure to pursue objectives related to those set out in Article 21 TEU for it to be considered as falling within the CFSP. Moreover, as the Court of Justice has held, in view of the broad scope of the aims and objectives of the CFSP, as expressed in Article 3(5) TEU and Article 21 TEU and in the specific provisions relating to the CFSP, in particular Articles 23 and 24 TEU, disputing the validity of that measure in the light of the objectives defined in Article 21 TEU does not establish a lack of legal basis for that measure (see, to that effect, judgment of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraph 46).
123
The same reasoning applies in the context of Decisions 2015/486, 2016/411 and 2017/496, which merely renewed Decision 2011/172 and are part of the same policy aimed, as stated in recital 1 of the latter decision, at supporting Egypt’s political and economic stabilisation process, while respecting the rule of law and fundamental rights.
124
Even supposing that the situation in Egypt in respect of which the Council adopted Decision 2011/172 has evolved, and in a manner contrary to the democratisation process which the policy underpinning that decision is intended to support, that circumstance cannot, in any event, have the result of affecting the competence of that institution to renew that decision on the basis of Article 29 TFEU. Notwithstanding that circumstance, the purposes pursued by Decisions 2015/486, 2016/411 and 2017/496 and the rules whose validity they renew nevertheless fall within the scope of the CFSP, which in the present case is sufficient to dismiss the applicants’ complaint (see, to that effect, judgment of 14 June 2016, Parliament v Council, C‑263/14, EU:C:2016:435, paragraphs 45 to 54).
125
The case-law cited by the applicants cannot call those considerations into question.
126
In the first place, with regard to the judgment of 8 June 2010, Vodafone and Others (C‑58/08, EU:C:2010:321), it suffices to note that the Court did not examine the question as to whether a provision of the EU Treaty falling within the CFSP constituted an appropriate legal basis, but whether this was the case with regard to Article 95(1) EC (now Article 114(1) TFEU), which implies an examination of the general context and the specific circumstances of the area harmonised by the measure adopted on that basis, as those circumstances existed at the time of its adoption (see, to that effect, judgment of 8 June 2010, Vodafone and Others, C‑58/08, EU:C:2010:321, paragraphs 32 to 35 and 39 to 47). The Court’s reasoning in that judgment cannot therefore be transposed in the present case.
127
In the second place, as regards paragraphs 191 to 193 of the judgment of 11 July 2007, Sison v Council (T‑47/03, not published, EU:T:2007:207), those points relate to the General Court’s examination of a plea alleging failure to state reasons and not a plea alleging lack of legal basis. They are therefore irrelevant.
128
In the third place, as regards paragraph 110 of the judgment of 22 April 2015, Tomana and Others v Council and Commission (T‑190/12, EU:T:2015:222), it should be noted that this paragraph must be read in the context of the reasoning of the General Court. By that reasoning, the Court did not seek to review the validity of the assessments made by the Council on the development of the situation in Zimbabwe and on the need to maintain the restrictive measures adopted in the light of that development, but only to verify whether, by those measures, the Council had sought to pursue CFSP objectives (see, to that effect, judgment of 22 April 2015, Tomana and Others v Council and Commission, T‑190/12, EU:T:2015:222, paragraphs 93 to 111).
129
Accordingly, the complaint based on a lack of a legal basis must be rejected.
(ii) The complaint alleging infringement of the principle of proportionality
130
As a preliminary point, it should be recalled that, in general, the Council has a broad discretion to adopt acts in the framework of the CFSP, which is an area involving political, economic and social choices on its part, in which it is called upon to undertake complex assessments (see, to that effect, judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 120 and case-law cited). Similarly, the case-law recognises that the Council has a broad margin of discretion in defining the general criteria defining the circle of persons who may be the subject of restrictive measures, in the light of the objectives on which those measures are based (see, to that effect, judgments of 21 April 2015, Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 41, and of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 48). A margin of discretion of the same scope must therefore be recognised in respect of extension of the application of those criteria.
131
It is therefore not for the General Court to rule, in the context of the present action, on the merits of the Council’s policy of support for the political stabilisation process in Egypt, referred to in recital 1 of Decision 2011/172, within the framework of which that decision and subsequent decisions fall.
132
Similarly, it is not for the General Court to substitute its assessment for that of the Council as to the geographical or political context to which Decision 2011/172 relates and the need to renew it in the light of that context. It is for the Court merely to examine whether, in assessing that need, the Council manifestly failed to appreciate the importance and gravity of the factors relating to the Egyptian political and judicial context put forward by the applicants, in the light of the other information at its disposal and the objectives of that decision.
133
It is in the light of those considerations that the various arguments put forward by the applicants in support of the present plea must be examined.
– The first argument, alleging that the ‘new Egyptian authorities’, supported by the Council, have been deposed
134
To start with, the applicants’ argument that Decision 2011/172 could no longer be considered as forming part of a ‘policy of supporting the new Egyptian authorities’, in accordance with paragraph 44 of the judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93), as those authorities had been deposed, is based on false premises.
135
First, in the light of the purpose of Decision 2011/172, recalled in paragraph 64 above, the restrictive measures imposed in that context must, in principle, be maintained until the conclusion of the legal proceedings in Egypt in order to retain their effectiveness. Therefore, the renewal of these measures cannot depend on successive changes of government in the political transition process following Mr Mubarak’s departure in February 2011.
136
Secondly, it is clear from paragraph 44 of the judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93), that, by the expression ‘policy of supporting the new Egyptian authorities’ the General Court intended to refer to the ‘readiness to support the peaceful and orderly transition to a civilian and democratic government in Egypt based on the rule of law, with full respect for human rights and fundamental freedoms’, which is set out in recital 1 of Decision 2011/172. It is true that, as is apparent from the IBAHRI report of 2014, the President of the Republic elected in Egypt in June 2012 in the context of the democratic transition process, Mr Mohammed Morsi, was removed from office in June 2013. However, contrary to the applicants’ assumption, the terms of that recital do not suggest that the policy of support for that process was limited to the support of the government formed by that leader, which was the first civilian government to emerge from elections following Mr Mubarak’s departure in 2011. In any event, as indicated in paragraph 131 above, it is not for the General Court to rule on whether that policy of support remained relevant after Mr Morsi was removed from office.
137
Those considerations clearly cannot be called into question [confidential]. Indeed, it is sufficient to recall that, as indicated in paragraph 135 above, those measures must, in principle, be maintained until the conclusion of judicial proceedings in that country in order to ensure their effectiveness.
138
The argument that the Egyptian ‘new authorities’ have been deposed must therefore be rejected.
– The second argument, alleging risks caused by the instability of the Egyptian political context and alleged infringements of the rule of law and fundamental rights
139
At the outset, it should be noted that, as the applicants maintain, the evidence they produced, in particular that resulting from the IBAHRI reports, point to significant political and institutional instability in Egypt following Mr Mubarak’s departure on 11 February 2011, which, as is apparent from the applicants’ answer of 1 June 2017 to the questions of the General Court, continued until the adoption of a new constitution in January 2014 and the election of Mr Al-Sissi as President of the Republic a few months later. It also follows from those documents that the political context of that period was marked by significant tensions between the authorities and political opponents, giving rise to the loss of human lives.
140
As regards the judicial context, the documents in question suggest that the political tensions referred to in paragraph 139 above have resulted, inter alia, in a repressive criminal policy targeting political opponents and an insufficient level of protection of fundamental rights. Reference is also made to repeated interference or attempts by the executive authorities to interfere with the prerogatives of the judicial authorities, at least during Mr Morsi’s term of office. Similarly, these documents reflect the intense media coverage of criminal proceedings against former leaders and their relatives, in particular those against Mr Mubarak and the first applicant, and the pressure of public opinion that sought to have those persons held responsible and that feared that that process would be compromised by failures of the judicial system.
141
Those documents also contain a description of the functioning of the Egyptian judicial system during the reporting period. Thus, those documents refer to characteristics of that system which, according to their authors, weaken the protection of fundamental rights by the Egyptian judicial authorities, which protection is, in principle, ensured by the legal framework imposed on them. Among those characteristics are mentioned, in particular, the powers conferred on the executive to appoint prosecutors and in respect of the careers of judges, as well as problems relating to the method of recruitment and training of judges in the field of, inter alia, international standards relating to fundamental rights. Those characteristics also include the material conditions in which the criminal hearings described in the reports of Mr D. and Mr M. have been conducted, some of which, according to those reports, appear not to be specific to the hearings described and which, according to their authors, indicate that not all the guarantees resulting from the right to a fair trial are guaranteed.
142
Furthermore, it also follows from those documents that, first, in its judgment of 12 December 2012, the Swiss Federal Criminal Court relied on evidence relating to the political instability prevailing in Egypt in 2012 and on evidence testifying to executive interference in judicial cases, based on various public sources and that, secondly, in its judgments of 28 August 2012 and 30 September 2013, the Constitutional Court of Liechtenstein considered that the evidence of the 2011 IBAHRI report concerning the Egyptian judicial system as well as the evidence of the report of Mr M. was such as to suggest a risk of infringement of the fundamental rights of the first applicant in Egypt.
143
However, even assuming that all the facts referred to in the documents in question can be regarded as established, they cannot, in any event, demonstrate that the renewal of Decision 2011/172 by Decision 2015/486 was manifestly contrary to the objectives referred to in recital 1 of that decision.
144
In the first place, those facts do not lead to the conclusion that the political and institutional instability that characterised the Egyptian political context between 2011 and 2014 would have had the effect of undermining any capacity of the Egyptian judicial system to guarantee respect for the rule of law and fundamental rights, and that the freezing of assets enacted by Decision 2011/172 as part of a policy aimed, inter alia, at ensuring respect for those principles would therefore have become manifestly inappropriate.
145
It is true that it is apparent from the documents in question that the political and institutional instability in Egypt may have been a factor of uncertainty, particularly in 2012, as to the risk of interference by the executive in pending cases to the extent that, from the point of view of a European court, it would justify the annulment of legal assistance measures.
146
However, that instability could not be sufficient justification for the Council to discontinue the renewal of Decision 2011/172, in view of the evidence otherwise available to it on the date when Decision 2015/486 was adopted. First of all, [confidential]. Secondly, none of the evidence provided by the applicants suggests that the criminal proceedings against the persons referred to in Decision 2011/172 in Egypt have been affected by that instability. Finally, when adopting Decisions 2015/486, 2016/411 and 2017/496, the Council had at its disposal an up-to-date report of the criminal proceedings in question (see paragraphs 87 and 88 above) concerning the persons designated in the annex to Decision 2011/172, which did not indicate that the proceedings had been thus affected, as they appeared to have followed their normal course, and in some cases even led to the closure of the case in the absence of evidence or to the annulment of the sentences imposed on those persons by the Egyptian Court of Cassation.
147
Furthermore, the same conclusion must be drawn from the alleged infringements of fundamental rights committed in Egypt during the reporting period, in the context of clashes between the authorities and demonstrators, in particular political opponents, and a repressive criminal policy against the latter. Indeed, it does not appear from the evidence provided by the applicants that those infringements, even if presumed to have occurred, could have had an influence on the criminal proceedings concerning the alleged perpetrators of misappropriation of State funds in respect of which Decision 2011/172 was adopted. With regard to the evidence relating to those criminal proceedings, it must be noted that, while it suggests that the conduct of some of them may have come under pressure from public opinion, it cannot be inferred from this that those proceedings, as a whole, were systematically vitiated by infringements of the right to a fair trial and respect for the presumption of innocence.
148
Those considerations are not called into question by the evidence relating to the functioning of the judicial system which emerges, in particular, from the IBAHRI reports of Mr D. and Mr M. It is true that those reports refer to shortcomings in the protection of the independence of the judicial authorities by the Egyptian legal framework and to practical problems that are likely to weaken the practical implementation of respect for fundamental rights within that system. However, they do not suggest that those circumstances would systematically undermine the ability of the Egyptian judicial authorities to ensure respect for the rule of law and fundamental rights in criminal proceedings such as those on which the Council relied as the basis for Decision 2011/172.
149
Nor are those considerations called into question by the judgment of the Swiss Federal Criminal Court of 12 December 2012 and the judgments of the Constitutional Court of Liechtenstein of 28 August 2012 and 30 September 2013, relied on by the applicants. Even if the judicial measures annulled by those courts were comparable to the measures adopted in the context of Decision 2011/172, it follows, in any event, from those judgments that they were taken in the light of factual and legal circumstances different from those which are relevant to the present plea in law. First, it should be noted that, in those judgments, the courts in question ruled on the facts which could be taken into account in 2012 and 2013, respectively, and not on facts which occurred subsequently. Secondly, the annulled measures did not constitute a scheme of measures, but individual measures, and it was not necessary, in order to put an end to those measures, to demonstrate, as in the present case, the risk of systematic infringements of fundamental rights in the Egyptian judicial context.
150
Finally, the additional documents concerning the general situation of the rule of law and fundamental rights produced by the applicants in 2016 and 2017 do not justify a different analysis with regard to Decision 2016/411 and Decision 2017/496.
151
First, the statements made on behalf of the European Union between 2011 and 2016, which the applicants rely on in the first statement of modification, do not concern the judicial proceedings on which the Council relied in Decision 2011/172. Furthermore, the fact that EU authorities express their concerns about infringements of fundamental rights and breaches of the rule of law committed in Egypt, or request the Egyptian authorities to refrain from such infringements or breaches, including in the judicial context, does not in itself preclude the Council from assisting those same authorities in specific judicial proceedings. In particular, it should be noted that, in the context of a policy aimed, in particular, at respect for the rule of law and fundamental rights in Egypt, assisting the Egyptian authorities in combating the misappropriation of state funds is not contrary to the expression of concerns or requests seeking to ensure respect for those principles by those authorities themselves, but is, on the contrary, complementary to such concerns.
152
Secondly, with regard to the report of the International Commission of Jurists, dated September 2016, entitled ‘Egypt’s judiciary: A Tool of Repression, Lack of Effective Guarantee of Independence and Accountability’, it is not apparent from any of the evidence in the case file that the applicants communicated that report to the Council prior to the adoption of Decision 2017/496. Therefore, the Council cannot be accused of failing to take into account the evidence contained in that report in determining whether or not the renewal of Decision 2011/172 was consistent with the objectives of the policy under which it was made. Moreover, it is true that that evidence converges with that contained in the IBAHRI reports with regard to the functioning of the Egyptian judicial system, including for the period after that covered by the latter reports. However, that evidence does not relate to the criminal proceedings on which the Council has relied and does not suggest that the ability of that judicial system to ensure respect for fundamental rights is systematically compromised with regard to those proceedings.
153
In the second place, the evidence provided by the applicants does not demonstrate that the Council committed a manifest error of assessment by considering that it had sufficient information at its disposal to consider it reasonable to continue the cooperation with the Egyptian authorities undertaken in the framework of Decision 2011/172, without it being necessary for it to carry out further verification.
154
The applicants do not establish that, by implicitly but necessarily making such an assessment, the Council manifestly erred in weighing up the various factors relevant to the continuation of that cooperation, which involved, in particular, taking into account, first, the purpose of that cooperation and, secondly, the objectives of the policy within which that cooperation was provided, namely support for Egypt’s political and economic stabilisation process while respecting the rule of law and fundamental rights.
155
In that regard, in so far as the sole purpose of the scheme of restrictive measures laid down by Decision 2011/172 is to assist the Egyptian authorities with establishing any misappropriation of state funds that has taken place and to ensure that it remains possible for those authorities to recover the proceeds of misappropriation, it cannot be excluded that the renewal of that scheme is still valid, even in the event of political and judicial developments unfavourable to the progress of democracy, the rule of law or respect for fundamental rights. Accordingly, it was for the Council to assess whether, in the light of the evidence at its disposal, it could reasonably consider that continued assistance to the Egyptian authorities in the fight against the misappropriation of state funds remained, even in such a context, an appropriate means of promoting the objectives of political stability and respect for the rule of law in the country.
156
First, as noted in paragraphs 144 to 152 above, the evidence provided by the applicants alone does not make it possible to conclude that the capacity of the Egyptian judicial authorities to guarantee respect for the rule of law and fundamental rights in the judicial proceedings on which Decision 2011/172 is based is definitively compromised by those political and judicial developments.
157
Secondly, the Council could take into consideration the existence of guarantees offered by the Egyptian legal framework. Thus, it was apparent from the IBAHRI reports that, on the one hand, Egypt is a party to the International Covenant on Civil and Political Rights and to regional instruments of international law relating to the protection of fundamental rights and that, on the other hand, the independence of the judiciary is guaranteed by the Egyptian Constitution, with progress in this area having been made by the new Constitution adopted in February 2014. Furthermore, it was apparent from the particulars of the PGO memorandum of 9 February 2015 mentioned in paragraph 86 above, concerning the remedies offered by Egyptian criminal procedure to the persons designated by Decision 2011/172, that those procedures were part of a legal framework offering guarantees as to the effective judicial protection of the persons concerned. Moreover, as pointed out in paragraph 146 above, it was apparent from the updated report on the criminal proceedings in question also provided by the Egyptian authorities for the purpose of adopting Decisions 2015/486, 2016/411 and 2017/496 that some of the persons designated in the annex to Decision 2011/172 had obtained the annulment of their convictions.
158
In that regard, with regard, in particular, to the PGO memorandum of 9 February 2015, the applicants cannot argue that it is inadmissible in respect of the present plea in so far as it seeks the annulment of Decision 2015/486, since it is common ground that the Council was able to rely on its content in order to adopt that decision. Furthermore, as noted in paragraph 88 above, the content of that memorandum was taken up in the NCRAA memorandum of 5 December 2016, provided to the applicants prior to the adoption of Decision 2017/496. Furthermore, in its written response, dated 21 April 2017, to a measure of organisation of procedure, the Council added those memoranda to the case file. The applicants were therefore able to make observations with respect to the content of that document, including in their written response, dated 1 June 2017, to the General Court’s questions and at the hearing.
159
Finally, as underlined in paragraph 151 above, the fact that the Council is assisting the Egyptian authorities in the fight against the misappropriation of state funds does not run counter to the concerns and demands expressed by the European Union authorities regarding possible infringements of fundamental rights and the rule of law committed in Egypt.
160
Consequently, the Council did not commit a manifest error of assessment in considering that it had sufficient evidence at its disposal concerning the Egyptian political and judicial context to continue the cooperation with the Egyptian authorities undertaken in the framework of Decision 2011/172 and that the evidence produced by the applicants did not justify additional verification before the renewal of that decision.
– The third argument, alleging that there is a risk that the first applicant’s right to a fair trial may not be respected in the criminal proceedings against him in Egypt
161
As regards this argument, it should be noted that, even if the evidence produced by the applicants indicates a risk that the Egyptian authorities do not guarantee the first applicant’s right to a fair trial, that circumstance is only likely to affect, if applicable, the legality of the renewal of the applicants’ designation in the annex to Decision 2011/172. However, it is not likely to affect the legality of the renewal of the scheme of freezing of funds provided for in Article 1(1) of that decision.
162
The criteria set out in Article 1(1) of Decision 2011/172 provide, in a general and abstract manner, for the designation of persons responsible for misappropriation of Egyptian state funds and persons associated with them. Those criteria do not imply the existence of a link between the designation of those persons and the specific criminal proceedings against the first applicant.
163
Moreover, the risk of infringements of the first applicant’s right to a fair trial cannot, by itself, constitute an indication of systematic infringements of that right likely to affect the rights of all the persons designated in the annex to Decision 2011/172.
164
Consequently, in so far as it supports a plea of illegality in respect of Article 1(1) of Decision 2011/172, as renewed by Decision 2015/486, the present argument is ineffective. That argument can only be relevant in the context of the second plea, alleging breach, by the contested decisions, of the obligation to respect fundamental rights. It must therefore be examined in that context.
165
Accordingly, it follows from all the above that the applicants have not demonstrated the manifestly inappropriate nature of the renewal, by Decisions 2015/486, 2016/411 and 2017/496, of Article 1(1) of Decision 2011/172 in the light of the situation in Egypt and, consequently, the existence of a breach of the principle of proportionality. The first part of the present plea must therefore be rejected as a whole, without there being any need to examine the plea of inadmissibility raised by the Council, in the defence, against the plea of illegality on which that part is based (see, to that effect, judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 54 and the case-law cited).
(2) The second part of the plea, alleging that Article 2(1) of Regulation No 270/2011 has no legal basis
166
The applicants invoke the lack of a legal basis for Regulation No 270/2011 which, in their view, cannot be based either on Article 215(3) TEU, in the absence of a valid decision, or on Article 215(2) TEU, in the absence of a link between them and the government of a third country.
167
In that regard, it suffices to note, first, that, as is apparent from paragraphs 118 to 165 above, the present plea of illegality, in so far as it relates to Article 1(1) of Decision 2011/172, as renewed by Decisions 2015/486, 2016/411 and 2017/496, must be rejected and, secondly, that the General Court has ruled, in the context of the applicants’ actions in Cases T‑256/11 and T‑279/13, that Regulation No 270/2011 was lawfully based on Article 215(2) TFEU, as that provision allows restrictive measures to be adopted against any person, provided that they have been provided for by a decision adopted within the framework of the CFSP (judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraphs 30 to 33, and order of 15 February 2016, Ezz and Others v Council, T‑279/13, not published, EU:T:2016:78, paragraph 49). The present plea of illegality is therefore unfounded and, there being no need to examine its admissibility, should be rejected.
168
Therefore, this part and, accordingly, the first plea in its entirety must be rejected.
(c)
The second plea in law, alleging infringement by the Council of Article 6 TEU, in conjunction with Articles 2 and 3 TEU and Articles 47 and 48 of the Charter
169
The second plea in law consists of two parts.
170
In the first part, the applicants argue that, pursuant to Article 6 TEU, in conjunction with Articles 2 and 3(5) TEU, the Council is under an obligation to promote fundamental rights. The applicants claim that the Council, first, failed to satisfy itself that their fundamental rights had been observed and, moreover, proceeded on the basis of an irrefutable presumption that the Egyptian authorities conducted themselves in accordance with those rights, contrary to the requirements of the case-law (judgments of 21 December 2011, N. S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 105 and 106, and of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 139). They believe that their right to a fair trial and to the presumption of innocence, enshrined in Articles 47 and 48 of the Charter, has been infringed in the judicial proceedings against them in Egypt. In their response of 4 October 2017 to the General Court’s question regarding the impact of the judgment of 26 July 2017 in Council v LTTE (C‑599/14 P, EU:C:2017:583) on the present case, the applicants claim that that judgment confirms their position.
171
Furthermore, as indicated in paragraph 164 above, the argument raised by the applicants in the first part of the first plea is also relevant to the present plea, alleging that the objectives of Decision 2011/172 referred to in recital 1 thereof preclude the renewal of their designation, in view of the risk, indicated by the evidence the applicants have provided to the Council, that the Egyptian authorities will not guarantee the first applicant’s right to a fair trial. That argument, which has a basis distinct from the applicants’ arguments in support of the first part of the present plea, must be regarded as forming the second part of this plea.
172
The Council disputes the scope which the applicants, in the present plea, seek to give to its obligation to take into account their allegations relating to the infringement of the first applicant’s fundamental rights in the criminal proceedings against him.
173
It should be noted at the outset that the dispute between the parties in this plea does not concern, as in the first part of the first plea, whether the Council’s failure to carry out verification concerning respect for the rule of law and fundamental rights in Egypt affected, as a whole, the legality of the renewal of the scheme of restrictive measures adopted in Decision 2011/172. It concerns the question whether the Council’s alleged disregard for the applicant’s right to a fair trial in the criminal proceedings against him affected the legality of the individual measures to renew the freezing of assets, first, of that applicant and, secondly, of the second to fourth applicants.
174
As a further preliminary point, it should be noted that the applicants, at least in the context of the application, do not allege infringements of the right to a fair trial and of the presumption of innocence of the second to fourth applicants in the judicial proceedings against them. Those latter applicants are designated in the annex to Decision 2011/172 on the ground that they are the subject of judicial proceedings related to the criminal proceedings against the first applicant. It must therefore be inferred that the applicants consider that the invalidity of the designation of the first applicant arising from infringements of his fundamental rights thereby invalidates the designation of the second to fourth applicants.
175
It is appropriate, first, to examine the second part.
(1) As regards the second part, alleging that renewal of the applicants’ designation is contrary to the objectives set out in recital 1 of Decision 2011/172
176
It should be pointed out that, as noted in paragraph 68 above, the purpose of Decision 2011/172, namely to assist the Egyptian authorities with establishing any misappropriation of state funds that has taken place and to ensure that it remains possible for those authorities to recover the proceeds of such misappropriation, is irrelevant, in particular, to the objectives of promoting democracy, the rule of law and human rights, referred to in recital 1 of that decision, to which that freezing of assets contributes, if establishing that misappropriation and that recovery are vitiated by a denial of justice or by arbitrariness.
177
Otherwise, such a freezing of assets would clearly not contribute to the Egyptian authorities’ fight against the misappropriation of state funds or, a fortiori, to the objectives of the policy of promoting democracy, the rule of law and human rights, the framework of which underpins Decision 2011/172, and is therefore, it is claimed, manifestly disproportionate to those objectives.
178
However, in this part of the plea, the applicants maintain that the evidence they submitted to the Council demonstrated that the Council ought to have anticipated that the Egyptian authorities would not offer the first applicant fair, independent and impartial treatment in the criminal proceedings against him. Consequently, for that argument to be accepted, it is necessary that the evidence provided by the applicants clearly refers to infringements of the right to a fair trial and of the presumption of innocence of the first applicant that are sufficiently serious to lead the Council to the conclusion that the latter would probably suffer irreparable harm in the criminal proceedings in question and that the outcome of those proceedings would probably result in a denial of justice. That evidence must therefore be sufficiently conclusive to convince the Council, on the basis of its examination alone, that it could no longer renew the freezing of the applicants’ assets without adopting a decision that is manifestly inappropriate in the light of its objectives.
179
In that regard, in so far as the present part of the plea refers to the renewal of Decision 2011/172 in 2015, it should be recalled that, prior to Decision 2015/486, the applicants provided the Council, inter alia, with the reports of Mr D. and Mr M., described in paragraphs 92 to 98 above, which directly address the question of infringements of the right to a fair trial and of the presumption of innocence of the first applicant in the context of specific criminal proceedings. It should also be recalled that, as can be seen from paragraphs 99 and 103 above, the Council also had the opportunity, on that date, to consider the grounds of the judgments of the Egyptian Court of Cassation ruling in those criminal proceedings, those grounds having possible relevance when assessing the applicants’ allegations relating to those infringements. Finally, the evidence relating to the Egyptian judicial system, referred to in paragraphs 140 to 142 above, could constitute contextual evidence when assessing the risk that the outcome of the criminal proceedings against the first applicant would be affected by such infringements.
180
First of all, it should be noted that the reports by Mr D. and Mr M. contain a number of elements suggesting that the various components of the right to a fair trial were not respected at the stages of the criminal proceedings observed in those reports and both conclude that there is a risk of legal weakness in the decisions ruling on the merits of the charges brought against the first applicant.
181
In the first place, the reports at issue contain a number of observations suggesting that the conditions under which the hearings they describe were held were not fully adequate in order to exercise the defence rights of the defendants, including the first applicant, due to (i) the difficulty experienced by counsel, and even more so by the first applicant, in following the conduct of the hearing and in participating in it under normal conditions, (ii) the difficulty which the first applicant’s counsel had communicating with him and, (iii) the limitations imposed by the criminal court on the defendants and their representatives with regard to presenting evidence, producing defence witnesses and effectively challenging the evidence and witnesses produced by the prosecution, and even with regard to allowing the defendants themselves to speak.
182
In the second place, the reports in question, in particular Mr D.’s report, allege, in essence, that the first applicant’s concerns regarding impartiality are objectively justified. First, according to Mr D.’s report, the particularly short time frame of the prosecutor’s investigations and the absence of any questioning of the other Egyptian industrialists who benefited from free energy licences indicate an unfavourable bias against that person, which thereby vitiates those investigations. Likewise, the author of that report considers that a similar bias on the part of the court resulted, during the hearings, in unequal treatment by the criminal court with regard, on the one hand, to various interventions by the prosecution, and even hostile behaviour provoked by exculpatory witness statements and, on the other hand, in respect of interventions by defence lawyers and defendants. Secondly, Mr M.’s report infers a lack of impartiality on the part of the criminal court in question, both in respect of the spatial proximity of the members of the panel of judges to the prosecutor and regarding the interventions of that panel’s president, which appeared to reflect a desire to favour the prosecution.
183
In the third place, it is apparent from their reports that Mr D. and Mr M. considered that the conditions for ensuring respect for the presumption of innocence of the first applicant were not fulfilled. With regard to Mr D., he refers, first, to insufficient gathering of evidence in the course of the prosecution’s investigations, which, in his view, were conducted in a summary manner and, secondly, the advantage conferred on the prosecution by the criminal court because of the management of the conduct of the hearing which, in his view, left the impression that the criminal court feared being ‘criticised for being unsympathetic to the citizens’. As regards Mr M., he considers first, that the physical isolation measures taken with regard to the defendant during the hearing and, secondly, the media coverage of the hearing, which he considered to be intrusive, may have undermined respect for that principle.
184
Finally, in the fourth place, in his report, Mr D. expresses his doubts as to the independence, in the present case, of the judicial authorities on the basis of the same evidence which led him to question their impartiality. In particular, he stresses the likely impact, in his view, of the fear of public opinion on the court’s assessment of the guilt of the first applicant.
185
Moreover, it follows from two of the judgments of the Egyptian Court of Cassation that, in the criminal proceedings in Cases Nos 38 and 291 of 2011, that court noted the failure to take account, first, of the applicants’ objections and, secondly, of their requests for a stay of proceedings. Furthermore, it should be noted that, in the three criminal proceedings in question (Cases Nos 38, 107 and 291 of 2011), it is alleged that the court at first instance, inter alia, failed to prove that the guilt of the defendant was based on specific evidence and, in Case No 291 of 2011, presumed the guilt of the first applicant in respect of the misappropriation of state funds in the other two cases, which was a necessary precondition to establish his guilt in the money laundering offences at issue in the proceedings.
186
Finally, it should be noted that the IBAHRI reports identified certain features and problems inherent in the Egyptian judicial system which could affect the independence of the judicial authorities (see paragraphs 140 and 141 above).
187
That being the case, it should be noted that, whatever the relevance of the evidence contained in the documents in question when assessing the existence of infringements of the right to a fair trial and respect for the presumption of innocence of the first applicant, it was not, in any event, of such a nature, in itself, to lead the Council to the conclusion that the reliability of the criminal proceedings against that person would probably be irreversibly affected by serious infringements of those rights and, consequently, to oblige it to put a definitive end to the designation of the applicants. In view of all the information available to the Council at the time of the adoption of Decision 2015/486, the assumption that those procedures could lead, on the contrary, to a final decision that would not be vitiated by such infringements was not implausible.
188
In that regard, on the date of adoption of Decision 2015/486, it was apparent from the information provided by the Egyptian authorities concerning the status of the criminal proceedings against the first applicant (see paragraphs 82, 83 and 87 above) that, following the setting aside by the Egyptian Court of Cassation of the first instance judgments, the cases had been referred back to the trial court and were ongoing. It was further specified that, in Case No 107 of 2011, an expert opinion had been requested and that, in Case No 291 of 2011, the proceedings had been suspended pending final decision in Cases Nos 38 and 107 of 2011.
189
Consequently, on the basis of that information, the Council could reasonably consider that the competent Egyptian court would be in a position to rule again on the merits, on referral from the Egyptian Court of Cassation, under conditions free from circumstances, alleged in the reports of Mr D. and Mr M., that could infringe the right of the first applicant to a fair trial and that, consequently, those conditions would avert the risk that its decisions would not be reliable.
190
In particular, that information suggests that, in the cases in question, some of the considerations on which the setting aside by the Egyptian Court of Cassation was based were taken into account in the context of the referral procedure. Accordingly, it cannot be excluded that the expert opinion requested in Case No 107 of 2011 is intended to draw inferences from the finding of that court that the criminal intent of the defendants has not been established. Similarly, the stay of proceedings in Case No 291 of 2011 appears to respond to the finding of that court that, in order to be able to rule in that case, the court of first instance presumed the guilt of the first applicant as regards the misappropriation of state funds considered in Cases Nos 38 and 107 of 2011.
191
Furthermore, on the date of adoption of Decision 2015/486, the applicants had not submitted any evidence suggesting that the right to a fair trial and respect for the presumption of innocence of the first applicant had been infringed in the context of the referral of Cases Nos 38, 107 and 291 of 2011 to the trial court after the decisions of the Egyptian Court of Cassation.
192
In any event, the Council could infer from the PGO memorandum of 9 February 2015 that the first applicant would have the opportunity to present, before the Egyptian Court of Cassation, a new appeal against the forthcoming decision of the court of first instance, which, where appropriate, would rule definitively on the merits, should it allow the appeal. The applicants did not dispute the accuracy of that information before the General Court.
193
It must therefore be concluded that, on the date of adoption of Decision 2015/486, the information available to the Council did not give rise to a presumption that the first applicant would probably be convicted on the basis of infringements of his right to a fair trial and respect for the presumption of innocence and that such infringements were likely to cause irreparable harm to the applicants. The decision to renew the designation of the applicants in the annex to Decision 2011/172 was therefore not manifestly inappropriate in the light of the objectives, first, of freezing their assets and, secondly, of the policy of support for the Egyptian authorities in respect of which that freezing of assets took place.
194
The evidence submitted by the applicants prior to the adoption of Decision 2016/411 and Decision 2017/496 was not such as to justify that, in 2016 and 2017, the Council would change its position as to the renewal of that designation.
195
First, in the context of the first statement of modification, the applicants rely on three factors, namely (i) a legal opinion of their Egyptian legal representatives, of 10 March 2016, which indicates that the decision of the Egyptian court, dated 23 February 2011, validating the order to freeze their funds issued by the Egyptian Prosecutor General on 21 February 2011 was adopted in breach of their right to a fair trial, and (ii) the total cumulative duration of the various prison sentences imposed on the first applicant which, it is claimed, constitutes inhuman and degrading treatment within the meaning of Article 4 of the Charter and Article 3 of the ECHR and (iii) the fact that, in their letter of 2 February 2016, the Egyptian authorities referred to several judicial investigations of which the first applicant and his legal representatives in Egypt had not been informed, according to a document of 28 February 2016 from those representatives.
196
As regards the first factor, namely a legal opinion of the applicants’ Egyptian legal representatives, of 10 March 2016, it is not disputed that the applicants attached it to the letter dated 14 March 2016 sent by each of them to the Council.
197
In that regard, it should be noted that, first of all, as is apparent from the letter from the Egyptian authorities dated 14 March 2016, the judicial decisions validating the freezing orders issued by the Egyptian Prosecutor General may be challenged within three months. That information is not called into question by the applicants. However, in the legal opinion of their legal representatives in Egypt, on which the applicants have relied, there is no reference to an appeal against the Egyptian court’s decision of 23 February 2011 or of the content of any judgment ruling on such an appeal. Therefore, even assuming that the allegations contained in that legal opinion are sufficiently persuasive, there is nothing to suggest that the judicial protection provided by Egyptian law with respect to decisions such as that of 23 February 2011 has not been effective.
198
Furthermore, the applicants do not contest that the freezing order of 21 February 2011, validated by a judicial decision of 23 February 2011, is justified by the existence of ongoing criminal proceedings in Case No 38 of 2011 in respect of an offence characterised by the Egyptian Prosecutor General as misappropriation of state funds and by the need to prevent, as a precautionary measure, the flight of funds that may have been misappropriated. Consequently, apart from the question of the merits of the criminal characterisation of those facts, which is not raised in the present plea, the infringements alleged in the legal opinion of 10 March 2016 cannot, in any event, be such as to call into question the basis of that order and its application to the assets of all the applicants. Furthermore, it is not disputed that, as is apparent from that letter from the Egyptian authorities, the fourth applicant obtained from the Egyptian Public Prosecutor, at her request, the exclusion of certain assets belonging to her prior to her marriage from the scope, inter alia, of the freezing order of 21 February 2011. Consequently, it appears that the decision validating the freezing order of 23 February 2011 does not preclude the possibility, in particular, for the second to fourth applicants, to submit requests to exclude certain of their property from the scope of that order and thus to ensure that the negative effects of that order on their right of ownership is limited to what is necessary to satisfy the objectives of that order. Accordingly, the Council was entitled to consider that that order, on which it relied to designate those persons, was reliable, notwithstanding the allegations contained in the legal opinion of 10 March 2016.
199
Finally, it is not disputed that, as is apparent from the Egyptian authorities’ letter of 14 March 2016, two other freezing orders were adopted in respect of all the applicants in Cases Nos 107 and 291 of 2011 and that those orders were still in force at the date of that letter. Consequently, even assuming that the allegations contained in the legal opinion of 10 March 2016 could call into question the Council’s ability to rely on the order of 21 February 2011 for the designation of the second to fourth applicants, they could not, in any event, oblige it to discontinue the renewal of that designation, which could at the very least be based on the other orders referred to above.
200
As regards the second factor, namely the total duration of the prison sentences imposed on the first applicant, assuming that that factor is relevant to assessing whether there has been an infringement of the first applicant’s right to a fair trial and the presumption of innocence, it is not apparent from the documents in the case file that this was submitted to the Council prior to the adoption of Decision 2016/411. In any event, it suffices to note that the judgment of the ECtHR of 9 July 2013, Vinter and Others v. the United Kingdom (CE:ECHR:2013:0709JUD006606909), cited by the applicants in support of their allegations, does not lead to the conclusion that a sentence of a term of imprisonment such as that resulting from the cumulative sentences imposed on the first applicant constitutes, in itself, irrespective of the conditions for the execution of those sentences, an infringement of the prohibition of inhuman and degrading treatment. In addition, the total cumulative sentence of 54 years imprisonment, relied on by the applicants, was calculated on the basis of the convictions handed down by the court of first instance in the criminal proceedings in Cases Nos 38, 107 and 291 of 2011. However, those decisions were set aside by the Egyptian Court of Cassation and there is no reason to assume that, in the referred proceedings, prison sentences of a similar cumulative duration will again be imposed on the first applicant. The alleged infringement is therefore, in any event, purely hypothetical.
201
With regard to the third factor, namely the judicial investigations of which the first complainant and his legal representatives were not informed, it should be noted that that factor relates to investigations in three cases concerning, in Case No 376 of 2013, money laundering offences, in Case No 4 of 2011, profiteering, in Case No 274 of 2012 (now Case No 244 of 2015), again, money laundering offences. However, unlike the criminal proceedings in Cases Nos 38, 107 and 291 of 2011, nothing in the reference to those cases in the Egyptian authorities’ letter of 2 January 2016 allows a link to be established between those investigations and the misappropriation of state funds within the meaning of Article 1(1) of Decision 2011/172. Consequently, the Council could not, in any event, rely on those investigations for the designation of the applicants (see, to that effect, judgment of 28 May 2013, Al Matri v Council, T‑200/11, not published, EU:T:2013:275, paragraphs 48 and 73), so that the alleged infringements committed in the course of those investigations cannot, in any event, affect the renewal of the applicants’ designation.
202
Secondly, in the second statement of modification, the applicants rely, moreover, on the provisional remand in custody of the first applicant on 7 March 2017, which, according to them, infringes the relevant provisions of the Egyptian Constitution and Article 143 of the Egyptian Criminal Procedure Act as well as the guarantees against arbitrary detention enshrined in Article 5 of the ECHR.
203
According to the evidence provided by the applicants, the first applicant was originally remanded in custody in Case No 107 of 2011 for a period of 30 months, until it was terminated by a decision of the criminal court of 5 August 2013, the maximum period of 18 months provided for that purpose by Article 143 of the Egyptian Criminal Procedure Act having expired. The applicants consider that the remand in custody of that person following the hearing of 7 March 2017 in that case is contrary to those provisions and is not based on any justification. In support of those allegations, they provide, in particular, a copy of Article 54 of the Egyptian Constitution of 18 January 2014 and Article 143 of the Criminal Procedure Act, opinions of Egyptian lawyers on the application of that provision, the request for the immediate release of the first applicant filed by his legal representatives in Egypt on 8 April 2017 as well as the case-law of the ECtHR concerning Article 5 of the ECHR.
204
However, it should be noted that, in his letter of 7 March 2017 to the Council, the first applicant merely claimed that his remand in custody had, according to his legal representatives in Egypt, infringed his right to a fair trial, that he had already been detained for more than three years and that his convictions had been quashed by the Egyptian Court of Cassation. However, in that letter, the first applicant did not set out the evidence provided by the applicants before the General Court in support of their allegations of infringement of the provisions of Egyptian national law and safeguards against arbitrary detention, including copies of the relevant provisions of Egyptian national law. Furthermore, it is not apparent from the documents in the file that, prior to the adoption of Decision 2017/496, the first applicant provided the Council with any concrete evidence to support his claim that he had actually been remanded in custody after the hearing on 7 March 2017.
205
However, it should be recalled that, according to settled case-law, the legality of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (see judgments of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 22 and the case-law cited, and of 4 September 2015, NIOC and Others v Council, T‑577/12, not published, EU:T:2015:596, paragraph 112 and the case-law cited).
206
Consequently, the legality of the renewal of the applicants’ designation in 2017 cannot be assessed in the light of the evidence which they submitted for the first time in the context of the second statement of modification, referred to in paragraphs 202 and 203 above. That evidence, in any event, cannot be validly relied on to demonstrate an error by the Council in the assessment of the evidence brought to its attention by the applicants prior to the adoption, in particular, of Decision 2017/496.
207
In those circumstances, even assuming that the remand in custody of the first applicant is relevant in the assessment of any infringements of his right to a fair trial and of the presumption of innocence, the information provided to the Council on the date of adoption of Decision 2017/496 did not, in any event, allow one to draw a clear conclusion as to the existence or even likelihood of a serious infringement of the first applicant’s fundamental rights, such that the renewal of his designation would manifestly run counter to the objectives of Decision 2011/172.
208
First, that information did not make it possible to ascertain, in a sufficiently conclusive manner, whether the first applicant was actually remanded in custody and for what period. Secondly, the circumstances in which the first applicant had previously been detained for a period exceeding three years and in which the prison sentences imposed on him had been set aside were not, in themselves, such as to reveal the unlawful or arbitrary nature of that remand in custody. Consequently, that information could not oblige the Council to discontinue the designation of the first applicant.
209
The second part of the second plea must therefore be rejected.
(2) The first part, alleging that the Council failed to ensure that the applicants’ fundamental rights had been respected and applied an irrefutable presumption of respect for those fundamental rights by the Egyptian authorities
210
The applicants claim, in essence, that, in the light of the provisions of the EU Treaty and the principles of EU law governing the Council’s obligations relating to respect for fundamental rights, the Council could not, in the presence of the evidence they had provided to it, apply to their detriment an irrefutable presumption of respect for the first applicant’s right to a fair trial and of respect for the presumption of innocence and consequently refrain from carrying out verification. According to the applicants, by renewing their designation on the basis, in particular, of criminal proceedings concerning that person without conducting investigations, the Council endorsed the infringement of that person’s rights in those proceedings.
211
In that regard, it should be recalled that, when adopting restrictive measures which are of individual scope for the persons concerned, the Council is bound by the principle of sound administration which requires, inter alia, that it examine carefully and impartially the evidence provided to it, in particular, of the observations and any exculpatory evidence that may have been submitted by those persons (see, to that effect and by analogy, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 114, 115 and 119).
212
Consequently, the effectiveness of the judicial review guaranteed by Article 47 of the Charter requires, in principle, a full review of the legality of the grounds on which the decision to include a person’s name on the list of persons subject to restrictive measures is based. In particular, the Courts of the European Union must ensure that that decision, which affects that person individually, is taken on a sufficiently solid factual basis (see, to that effect, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 49 and the case-law cited).
213
In particular, as the General Court found in paragraph 69 above, in the context of the scheme of restrictive measures provided for in Decision 2011/172, the existence of judicial proceedings in Egypt against the person concerned cannot constitute a sufficiently solid factual basis if there is reason to presume that the decision taken at the end of those proceedings will not be reliable, that is, in particular, contrary to the requirements deriving from the right to a fair trial and respect for the presumption of innocence.
214
In accordance with the general principles set out above, it is therefore for the General Court to carry out, in principle, a full review of whether the Council fulfilled its duty of careful and impartial examination by ensuring that it could consider the criminal proceedings against the first applicant to be reliable. In particular, that review implies verifying whether the Council rightly considered that it had sufficient evidence to consider that that was the situation in the present case, notwithstanding the applicants’ allegations to the contrary.
215
It is true that the Council cannot be required to request additional information from the Egyptian authorities in the absence of concrete evidence to substantiate those allegations. However, it has no discretion to determine whether the evidence provided by the applicants required it to take such steps (see, to that effect and by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraphs 68 to 73).
216
In the present case, the General Court found, in paragraphs 110 to 112 above, in the light of the documents available to the Council and the explanations provided by the Council, that the Council considered that the evidence provided by the applicants, irrespective of its relevance and credibility, did not call into question the assessment it had been able to make concerning respect for fundamental rights guaranteed in the Egyptian judicial proceedings, in particular on the basis of the PGO memorandum of 9 February 2015, confirmed by the NCRAA memorandum of 5 December 2016. Moreover [confidential].
217
In that regard, it must be held that, in the light of the evidence provided by the applicants and the information available to the Council on the date when the contested decisions were adopted, the Council could not be required to carry out further verification.
218
Admittedly, as the description of the content of the PGO memorandum of 9 February 2015 in paragraphs 85 and 86 illustrates, that memorandum and the NCRAA memorandum of 5 December 2016, which are identical in content, merely set out the legal framework within which the criminal proceedings against the persons on the list annexed to Decision 2011/172 are conducted and provide general assurances as to the respect by the Egyptian judicial authorities of the right to a fair trial and the presumption of innocence. However, it does not contain any specific reply to the applicants’ allegations relating to the infringement of those rights in the context of the criminal proceedings against the first applicant and in respect of the evidence supporting those allegations, resulting, in particular, from the reports of Mr D. and Mr M.
219
However, as noted in paragraph 188 above, on the date of adoption of Decision 2015/486, the Council had at its disposal a certain amount of information concerning the subsequent stages of the criminal proceedings regarding which there were alleged infringements of fundamental rights.
220
In the first place, the Council was informed, at least from 2014, of the setting aside, by the Egyptian Court of Cassation, of the sentences handed down against the first applicant at first instance. The Council was entitled, therefore, to consider that the infringements of the first applicant’s right to a fair trial and to respect for the presumption of innocence which, according, inter alia, to the reports of Mr D. and Mr M., had vitiated the proceedings leading to those sentences, were no longer likely, even if presumed to be established, to alter the reliability of the criminal proceedings in question.
221
The content of the judgments in question of the Egyptian Court of Cassation, which, as noted in paragraph 103 above, the Council had already been able consult in the context of the applicants’ appeals in Cases T‑375/14 to T‑378/14, confirmed that analysis. It is apparent from the grounds of those judgments that the decisions of the court of first instance were not set aside solely because of procedural irregularities, but because of errors of law affecting the reasoning underlying those decisions as a whole and relating, in particular, as noted in paragraph 185 above, to shortcomings concerning the taking into account of the objections of the defendants and the demonstration of their guilt. Consequently, it could be inferred that, in the context of the referral of the case to the court of first instance, it was for that court to fully review, on the merits, the liability of the defendants and, where appropriate, the resulting penalties.
222
Moreover, the Council could legitimately infer from those judgments that the judicial protection afforded by the possibility, under Egyptian criminal law, of bringing an appeal before the Egyptian Court of Cassation had been effective in relation to the first applicant and constituted a concrete guarantee of the protection of his right to a fair trial and to the presumption of innocence. That analysis could be supported by the fact that, in the criminal proceedings in Cases Nos 38 and 291 of 2011, the relevant judgments of that court had ordered that the cases be transferred to another chamber and that, in the criminal proceedings in Case No 107 of 2011, the case be transferred to another court.
223
In the second place, as noted in paragraph 190 above, it could be inferred from the expert opinion requested in Case No 107 of 2011 and from the stay of proceedings in Case No 291 of 2011, pending the final decision in Cases Nos 38 and 107 of 2011, which facts are not contested by the applicants, that the considerations of the Egyptian Court of Cassation leading to the annulment of the sentences of the first applicant had been taken into account by the court of first instance.
224
In the third place, the possibility, referred to in the PGO memorandum of 9 February 2015, of presenting, in criminal cases, a second appeal before the Egyptian Court of Cassation leading, in the event that it is allowed, to a decision of the latter ruling definitively on the merits constituted an element that is, in itself, certainly insufficient to rule out any risk of infringements of the fundamental rights of the first applicant, but which nevertheless remained relevant in the present case.
225
To the extent that, as stated in paragraph 222 above, the grounds for the judgments of the Egyptian Court of Cassation indicated the existence of effective judicial protection, the Council could reasonably assume that, in the event that the first applicant were to bring a second appeal against the decisions of the court of first instance ruling on the case referred back to it in the criminal proceedings in question, such judicial protection would again be afforded to him.
226
Finally, in the fourth place, it follows from paragraph 191 above that the applicants, at the date of adoption of Decision 2015/486, had not put forward any evidence such as to raise legitimate questions as to the risk that the right to a fair trial and respect for the presumption of innocence of the first applicant had been disregarded by the court of first instance following the referral of the cases in question by the Egyptian Court of Cassation.
227
In those circumstances, it must be noted that, in the light of all the information available to it on that date, the Council was entitled to consider that it had sufficient evidence to conclude, first, that the alleged infringements of the first applicant’s fundamental rights, assuming that those infringements were established, were no longer likely to influence the course of the criminal proceedings in question and, secondly, that there were no legitimate grounds to fear that the outcome of those criminal proceedings might be affected by such infringements occurring at a later stage. Consequently, the Council could reasonably assume, on the basis of that evidence, that those criminal proceedings were reliable, without the need for further verification with the Egyptian authorities in that respect.
228
As regards the evidence produced by the applicants concerning the adoption of Decisions 2016/411 and 2017/496, it must be inferred from the analysis of that evidence, in paragraphs 195 to 208 above, that it was not such as to call into question that assessment.
229
First, it follows from paragraphs 197 to 201 above that the applicants have not established that the infringements of fundamental rights which they alleged in order to challenge the renewal of their designation in 2016 were likely to affect the reliability of the criminal proceedings on which the Council was able to base that renewal.
230
Secondly, it follows from paragraphs 204 to 208 above that the evidence provided by the applicants to the Council before the adoption of Decision 2017/496, which was insufficiently substantiated, was not, on its own, such as to raise legitimate questions as to the risk that the fundamental rights of the first applicant might have been infringed as a result of his alleged remand in custody and that the Council cannot be accused of failing to take into account the evidence which the applicants presented for the first time before the General Court in order to demonstrate the existence of such an infringement. It is for the Council to assess whether, where appropriate, that evidence makes it necessary to obtain additional information from the Egyptian authorities for the purposes of any subsequent renewal of the applicants’ designation.
231
Those considerations cannot be called into question by the judgment of the Swiss Federal Criminal Court of 12 December 2012 and the two judgments of the Constitutional Court of Liechtenstein of 28 August 2012 and 30 September 2013, cited by the applicants to support their claims. It is true, as indicated in paragraphs 101 and 102 above, that those decisions annulled legal assistance measures adopted in respect of the Egyptian authorities, not because of infringements of the right to a fair trial of the persons concerned, but because of the risk that the persons concerned might suffer harm as a result of such infringements. Moreover, with regard more particularly to the last two judgments referred to above, they concerned a request by the Egyptian authorities based on the criminal proceedings against the first applicant, and the court in question ruled, inter alia, in the light of the reports by IBAHRI and Mr M., which were also submitted to the Council. However, as noted in paragraph 149 above, even assuming that the legal assistance measures annulled by those courts are comparable to the measures against the applicants in the present case, the decisions taken by those courts were based on factual circumstances different from those brought to the attention of the Council. As stated in paragraphs 218 to 230 above, in the light of all the information available to it on the date of the contested decisions, the Council was entitled to consider that there were no legitimate grounds for fearing that the outcome of the judicial proceedings against the applicants might be affected by infringements of their right to a fair trial and to the presumption of innocence.
232
It follows from all the foregoing that, in the light of all the information at its disposal, the Council did not err in its assessment of the evidence submitted to it by the applicants relating to infringements of fundamental rights committed in the context of the judicial proceedings against them in Egypt by considering that they did not require further verification. The applicants therefore wrongly claim that the Council applied to their detriment an irrefutable presumption of respect for those rights by the Egyptian authorities and breached its obligation to ensure such respect, in particular with regard to the rights enshrined in Articles 47 and 48 of the Charter. The first part of the second plea and, accordingly, that plea in its entirety must therefore be rejected.
2.
The third plea in law, alleging failure to observe the general criteria of Article 1(1) of Decision 2011/172 and Article 2(1) of Regulation No 270/2011
233
By the third plea, the applicants submit that the renewal of their designation does not comply with the general criteria laid down in Article 1(1) of Decision 2011/172 and Article 2(1) of Regulation No 270/2011, on the grounds, first, that the Council failed to provide evidence that they had been found responsible for the misappropriation of Egyptian state funds and, secondly, that it had not demonstrated that the ground on which the renewal was based, namely the fact that they were the subject of legal proceedings brought by the Egyptian authorities for misappropriation of state funds on the basis of the United Nations Convention against Corruption (UNCAC), had a sufficient factual basis. This plea consists, in essence, of four parts. By the first part, the applicants maintain that the first applicant is not the subject of legal proceedings for misappropriation of state funds within the meaning of the UNCAC, since the facts which are alleged against him cannot be so characterised. By the second part, they claim that, as the judgments of the Egyptian Court of Cassation allegedly demonstrate, since the criminal convictions of the first applicant have been set aside, the proceedings brought against that applicant are not based on any evidence. By the third part, they argue that the legal proceedings against the first applicant are politically motivated. By the fourth part, they submit, in essence, that the evidence provided by the Egyptian authorities with regard to the individual situation of the second to fourth applicants does not constitute a sufficient basis for their designation.
234
For its part, the Council contends that the applicants are merely repeating arguments which were expressly rejected by the Court of Justice and the General Court in their judgments of 5 March 2015, Ezz and Others v Council (C‑220/14 P, EU:C:2015:147) and of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93), and that they are disregarding the principle of res judicata. Furthermore, in its observations on the first statement of modification, it submits that the interpretation of the concept of misappropriation of state funds adopted in the context of the scheme of restrictive measures enacted under Decision 2011/172 is to be preferred to a different interpretation made in the context of another scheme of restrictive measures.
(a)
Preliminary observations
235
In the first place, it must be noted that, in so far as the contested decisions relate to failure to comply with the criteria set out in Article 2(1) of Regulation No 270/2011, the present plea is ineffective. Those decisions relate only to the renewal of the designation of the applicants in the annex to Decision 2011/172. Those criteria are not, therefore, applicable in the present case. Accordingly, it is appropriate to examine the merits of the present plea only in so far as it relates to failure to comply with the criteria set out in Article 1(1) of Decision 2011/172 and extended by Decisions 2015/486, 2016/411 and 2017/496.
236
In the second place, as is clear from the case-law referred to in paragraphs 64 and 65 above, because of the nature and purpose of freezing the applicants’ assets, it was the task of the Council, with a view to designating the applicants, to verify, first, that the evidence at its disposal made it possible to establish that those persons were the subject of one or more ongoing legal proceedings relating to facts likely to involve misappropriation of state funds and that, secondly, those proceedings allowed them to be characterised in accordance with the criteria laid down in Article 1(1) of Decision 2011/172.
237
In that regard, it should be noted that, as the Council notes, the General Court and the Court of Justice have already ruled on the question whether it was entitled to rely on the judicial proceedings against the applicants to make their original designation in the light of the criteria set out, in particular, in Article 1(1) of Decision 2011/172.
238
First, in its judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93), the General Court held that the Council was entitled to include the applicants’ names in the annex to Decision 2011/172 solely on the ground that they were the subject of legal proceedings in Egypt that were in any way connected with investigations into the misappropriation of state funds. The criteria defined in Article 1(1) of that decision include both persons being prosecuted for their involvement, to varying degrees, in the misappropriation of Egyptian state funds and persons associated with them, who are the subject of proceedings connected with those criminal proceedings, including protective measures to preserve any misappropriated assets (see, to that effect, judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraphs 67, 95 and 97). Furthermore, ruling on the appeal against that judgment in Case C‑220/14 P, the Court of Justice approved the reasoning of the General Court (judgment of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraphs 71 to 73).
239
Secondly, the General Court, in its judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93, paragraphs 132 to 134 and 137 to 140), considered that the evidence provided by the Egyptian authorities to the Council made it possible, on the one hand, to consider that the facts alleged against the applicant by those authorities had been characterised by the latter as misappropriation of state funds and, on the other hand, to consider that the second to fourth applicants, who were subject to a freezing order by the Egyptian Prosecutor General, approved by a criminal court and connected with investigations into misappropriation of state funds, were subject to judicial proceedings linked to investigations into misappropriation of state funds. The Court, for its part, considered that that reasoning did not err in law (judgment of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraphs 75 to 84).
240
Furthermore, it must be held that in Case T‑279/13, the General Court, in deciding on an action brought, inter alia, against the renewal of the applicants’ designation by Decision 2013/144, rejected as manifestly unfounded a plea alleging failure to comply with the criteria set out, in particular, in Article 1(1) of Decision 2011/172, as renewed by Decision 2013/144, on the ground that the complaints made in support of that plea had already been rejected by the General Court in Case T‑256/11 (order of 15 February 2016, Ezz and Others v Council, T‑279/13, not published, EU:T:2016:78, paragraphs 54 to 64).
241
It follows that, in accordance with the case-law concerning the relative authority of res judicata, referred to in paragraph 52 above, the applicants are not entitled, in the context of the present plea, to call into question the legality of their original designation or the renewal of their designation by Decision 2013/144 by submitting to the General Court questions already settled by the grounds for the decisions of the General Court and the Court of Justice referred to in paragraphs 238 to 240 above.
242
Moreover, the complaints or arguments set out in the various parts of that plea, which are based on the same factual and legal elements as those examined by the General Court and the Court of Justice in the abovementioned grounds for their decisions, must be rejected as manifestly unfounded.
243
However, as stated in paragraph 53 above, it is for the General Court to verify whether the applicants submit, in that context, new factual and legal elements which it has not yet examined and whether those elements are such as to call into question the compliance of the renewal of their designation with the criteria of Article 1(1) of Decision 2011/172.
244
In the third place, it should be noted that, in principle, in the context of the renewal of the applicants’ designation, it is for the Council alone to verify that the applicants continue to be subject to the same judicial proceedings. Since, at the time of their original designation, the Council was able to satisfy itself, to the requisite legal standard, that the liability of those persons for acts which could be characterised as misappropriation of state funds was, at the very least, alleged in those proceedings or, alternatively, that they were subject to related judicial proceedings as associated persons, the Council cannot be required, of its own motion, to carry out such verification each time that designation is renewed. Such an obligation can only exist where there is new information which tends to call into question the involvement of such persons or the characterisation of those facts.
245
In that regard, as recalled in paragraph 66 above, it is not, in principle, for the Council to assess the accuracy and relevance of the evidence on which Egyptian judicial proceedings are based, this assessment being the liability of the Egyptian authorities. The Council is only required, in the light of the applicant’s observations in particular, to ask the Egyptian authorities for clarifications concerning that information if it has legitimate doubts as to the sufficiency of the evidence already provided by those authorities.
246
It is in the light of those considerations that the Court must examine the various parts of the present plea in law.
(b)
The first part of the third plea, alleging incorrect legal characterisation of the legal proceedings against the first applicant
247
In support of the first part of the third plea, the applicants submit that only one of the cases concerning the first applicant, Case No 38 of 2011, relates to facts characterised by the Egyptian authorities as misappropriation of state funds. They maintain, in that regard, that the facts alleged against him cannot be characterised as misappropriation of state funds within the meaning of the UNCAC, in particular because, first, they relate to the activities of a private company and, secondly, because the acts alleged against that applicant were not carried out in his capacity as a public official. In the context of the first statement of modification, they add that, of the cases concerning him referred to in the Egyptian authorities’ letter of 2 January 2016, only four concern judicial proceedings. Furthermore, they challenge the characterisation of misappropriation of state funds under EU law, and in particular the case-law of the General Court and ‘general international law’. They also claim that the Council must base its position on an autonomous definition of that concept, distinct from the scope conferred on it by the Egyptian authorities. In the context of the second statement of modification, they argue that compliance with the definition, in EU law, of the concept of misappropriation of state funds must be assessed in the light of three conditions, consisting of (i) unlawful use of funds or property held by a public entity or placed under its control for purposes contrary to their object, (ii) damage suffered by that entity that is financially quantifiable and (iii) the requirement that the alleged misappropriations must have affected respect for the rule of law in Egypt. Those conditions, it is claimed, are not fulfilled in the present case in respect of Case No 38 of 2011. Finally, the applicants consider that Cases Nos 107, 291 and 639 of 2011 do not concern misappropriation of state funds. According to them, the first of those cases relates only to the conclusion of an unlawful agreement to obtain energy licences, the second to charges of money laundering and the third to charges concerning errors in the calculation of the payment of the tax due from the company El-Dekheila.
248
It should be noted at the outset that the documents originally transmitted by the Egyptian authorities to the Council, annexed to the application, referred only, in respect of the first applicant, to one criminal case against him in Case No 38 of 2011. However, as noted in paragraph 83 above, the updated information provided by the Egyptian authorities in 2014 and 2015 referred to seven sets of criminal proceedings (Cases Nos 38, 107, 291, 457, 541 of 2011 and 156 and 376 of 2013). Finally, as indicated in paragraph 88 above, the information submitted by the Egyptian authorities prior to the adoption of Decision 2016/411 and Decision 2017/496 referred to three other ongoing proceedings concerning the first applicant in Cases Nos 4 and 5482 of 2011 and No 244 of 2015.
249
As a further preliminary point, it should be noted that, in their correspondence with the Council prior to the renewal of their designation in 2015, 2016 and 2017, the applicants relied, in essence, on the complaints and arguments presented in the context of the present action in support of the present part of the third plea. In its letters of 24 March 2015, 21 March 2016 and 22 March 2017, the Council replied to the applicants that the first applicant was still the subject of legal proceedings for misappropriation of state funds and that it was for the Egyptian courts to rule on the basis of those proceedings. With particular reference to Case No 38 of 2011, the Council, in the first of those letters, observed, inter alia, that the concept of misappropriation of Egyptian state funds could cover acts committed by a public official consisting of profiteering or causing wilful damage to public assets. It noted that the proceedings against the first applicant in that case were based on the assumption that the company El-Dekheila should be classified, at the time of the facts, as a public undertaking, since the Egyptian State held a substantial minority holding in it and that, consequently, the assets of that company should be regarded as public assets and that the first applicant, chairman of the board of directors of that company at the time of the facts, should be regarded as a public official.
(1) The arguments and complaints set out in support of the form of order sought in the application
250
First of all, it should be noted that the complaints and arguments put forward by the applicants in support of the form of order sought in the application relate exclusively to Case No 38 of 2011, the applicants having argued, without substantiating their allegation, that only the facts referred to in that case could satisfy the criteria of Article 1(1) of Decision 2011/172. In accordance with the considerations set out in paragraph 244 above, those complaints and arguments need only be examined in the light of the evidence submitted by the Egyptian authorities subsequent to the applicants’ original designation. By contrast, in so far as those objections tend to call into question that original designation itself, they must be rejected as inadmissible in accordance with paragraph 241 above.
251
In that regard, it should be noted that, in the document of 13 February 2014 sent by the Egyptian authorities, it is stated that Case No 38 of 2011 concerns unlawful profiteering allegedly committed by the first applicant, in his capacity as chairman of the board of directors of the company El-Dekheila, by acquiring a 67% stake in the capital of that company and by changing the prices charged by that company in order to sell the metallurgical products manufactured by his own company on the basis that they were all products of a single entity. The judgment of the Egyptian Court of Cassation of 14 December 2013 concerning the appeal against the first instance judgment in that case confirms, in essence, that description of the facts alleged against the first applicant. That judgment also confirms that it was found against the first applicant that the Egyptian State had a holding in the company in question, that it was subject to public control and that, in his capacity as chairman of its board of directors, he was regarded as a public official. Moreover, that judgment states that, in addition to those charges, the first applicant is accused of having caused, to the same company El-Dekheila, substantial financial losses in the context of a credit agreement entered into in the name of that company.
252
It must be noted that those factors cannot call into question the finding made by the General Court in paragraphs 137 to 140 of the judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93), approved by the Court of Justice, that the information provided to the Council allowed the first applicant to be considered as being the subject of criminal proceedings for acts characterised as misappropriation of state funds.
253
In that regard, in the analogous context of Decision 2011/72, relating to the situation in Tunisia, the General Court held that the concept of misappropriation of state funds, within the meaning of Article 1(1) of Decision 2011/72, encompasses any unlawful use of resources belonging to public authorities or under their control for purposes contrary to those for which they were intended, in particular for private purposes, and which results in a financially quantifiable loss for those public authorities (judgments of 30 June 2016, CW v Council, T‑224/14, not published, EU:T:2016:375, paragraph 89; of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 98, and of 30 June 2016, CW v CouncilT‑516/13, not published, EU:T:2016:377, paragraph 69). This interpretation can be transposed in the present case, since the wording of Article 1(1) of Decision 2011/72 is, in essence, the same as the provisions of Decision 2011/172 and has similar objectives.
254
In the present case, it is apparent from the information that was available to the Council that the Egyptian authorities considered that the first applicant, who according to them exercised the functions of a public official, in his capacity as chairman of the board of directors of a company under public control and part of whose capital was, at the time of the events, held by the Egyptian State, had used those functions in order to make unlawful profits, to the detriment of the financial interests of that company, which were intended, in particular, to benefit his own private companies. Accordingly, even if the Egyptian authorities have not given an express criminal characterisation of those acts as being misappropriation of Egyptian state funds, the characterisation they have adopted corresponds to that concept, as defined by case-law.
255
Moreover, it should be noted that the applicants do not dispute that the Egyptian authorities have made a criminal characterisation of the facts alleged against the applicant in Case No 38 of 2011 corresponding to the concept of misappropriation of state funds. Indeed, their complaints in the present case are based precisely on the premise that those authorities wrongly considered that those facts fell within that concept and that the Council should not have approved that position for the purposes of determining whether the judicial proceedings in that case made it possible to consider that the first applicant met the criteria of Article 1(1) of Decision 2011/172.
256
However, as the General Court and the Court of Justice held, the Council was entitled to designate the applicant solely on the ground that he was the subject of judicial proceedings in Egypt in any way connected to investigations concerning the misappropriation of state funds, namely, as the General Court held on the basis of an assessment found by the Court of Justice not to err in law, acts characterised by the Egyptian authorities as corresponding to that concept. Consequently, in so far as the information relating to Case No 38 of 2011, updated in 2014 and 2015, did not call into question the analysis of the position of the Egyptian authorities made by the Council and the General Court with regard to that case, the Council could, for the same reason, renew that designation, on the understanding that the judicial proceedings in that case were still ongoing.
257
However, contrary to the premise on which the applicants’ arguments are based, it follows from the principles referred to in paragraphs 66 and 245 above that it is not for the Council to rule on the accuracy and relevance of the criminal characterisation adopted by the Egyptian authorities with regard to the facts in respect of which they are prosecuting the first applicant, since that task falls within the jurisdiction of the Egyptian courts responsible for determining the guilt of that person. In the present case, it is not disputed that, on the date of the renewal of the designation of the first applicant in 2015, the trial court, in the case in question, had not yet ruled in that regard in the case referred by the Egyptian Court of Cassation after the latter had set aside the first instance judgment.
258
Moreover, the evidence relied on by the applicants to call into question the criminal characterisation adopted by the Egyptian authorities was not such as to give rise to legitimate doubts on the part of the Council and to require additional information.
259
In that regard, the argument that the criminal characterisation adopted by the Egyptian authorities did not correspond to the provisions of the UNCAC cannot call into question the Council’s entitlement to rely on the judicial proceedings in Case No 38 of 2011. The reference to that convention in the grounds for the designation of the first applicant simply means that the Egyptian authorities sought to refer to it in the judicial proceedings in question. However, the Council did not freeze the applicants’ assets on the basis of the provisions of that convention, but in the context of a policy of cooperation with the Egyptian authorities decided under the autonomous power conferred on it by the CFSP and in the light of its own objectives, set out in recitals 1 and 2 of Decision 2011/172. Consequently, while it cannot, of course, be excluded that the question of consistency between the criminal characterisation adopted by the Egyptian authorities and the provisions of the UNCAC must be examined by the competent Egyptian court, that question is not, however, within the competence of the Council, since it was able to ascertain that that criminal characterisation corresponded to the concept of misappropriation of state funds within the meaning of Article 1(1) of Decision 2011/172.
260
In any event, the provisions of Article 2(a)(iii) of the UNCAC, relied by the applicants, provide that a public official may be defined as ‘any person defined as a “public official” in the domestic law of a State party’. However, the applicants themselves admit that Article 119(g) of the Egyptian Penal Code, the provisions of which have been reproduced in the annex to the application, provides, for the purposes of characterising misappropriation of state funds, that the expression ‘public official’ must be interpreted within the meaning of that code as applying to employees of any company in which the Egyptian State has a holding. Moreover, it does not follow from that provision of the Egyptian Penal Code that the question whether a company should be classified as a ‘public undertaking’ or a ‘public company’ is decisive, since part of the funds of that company are held by the State. Consequently, it follows from the evidence produced by the applicants themselves that, by considering that the first applicant, in his capacity as chairman of the board of directors of El-Dekheila, was a public official, the Egyptian authorities applied the Egyptian Penal Code and that such application complies with Article 2(a)(iii) of the UNCAC. The claim that this classification was not consistent with other provisions of Egyptian domestic law, in particular company law, is a factor which it is for the competent Egyptian court alone to assess. Furthermore, it is irrelevant, as the applicants claim, that the first applicant could not be classified as a public official under the criteria set out respectively in Article 2(a)(i) and Article 2(a)(ii) of the UNCAC. It is clear from the wording of Article 2, as a whole, that the criteria successively set out in paragraphs (i), (ii) and (iii) of that article are alternative and not cumulative.
261
It follows from all of the above that the Council was entitled to rely on the existence of judicial proceedings in Case No 38 of 2011 to consider that it had a sufficient factual basis to renew the designation of the first applicant under Decision 2015/486, irrespective of whether the other judicial proceedings against the first applicant which had been brought to its attention satisfied the criteria of Article 1(1) of Decision 2011/172 (see, to that effect and by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraphs 49 and 100).
262
Moreover, as noted in paragraph 201 above, the ongoing judicial proceedings in Cases Nos 107 and 291 of 2011, which were among the judicial proceedings the Council was aware of before adopting Decision 2015/486, are also linked to misappropriation of state funds. In the first of those cases, the first applicant is accused of having conspired with the Minister for Trade and Industry and the President of the Industrial Development Authority with a view to obtaining, in breach of the applicable rules, energy licences for the companies in his group, in a procedure for the public sale of such licences to the steel sector. In that case, therefore, the applicant is alleged to have participated in the unlawful award, for his benefit, of resources under State control by the public officials responsible for allocating those resources, resulting in a financial loss to the State equivalent to the amount which the applicant’s companies should have paid in order to benefit from those resources. The criminal characterisation of those acts therefore corresponds to the concept of misappropriation of Egyptian state funds within the meaning of Article 1(1) of Decision 2011/172, as defined in paragraph 253 above. Furthermore, Case No 291 of 2011 relates to money laundering operations regarding the funds which the first applicant, according to the Egyptian authorities, unlawfully benefited from in the circumstances referred to in Cases Nos 38 and 107 of 2011. Accordingly, although Case No 291 of 2011 related to facts that did not in themselves correspond to the concept of misappropriation of state funds, on the basis of the information provided by the Egyptian authorities, it did have a direct connection with misappropriation of state funds. It should be noted that, while the applicants argued that none of the cases mentioned by the Egyptian authorities other than Case No 38 of 2011 related to facts that could be characterised as misappropriation of state funds, they did not present any arguments that could call into question the above considerations.
263
It follows from the foregoing that the first part of the third plea must be rejected in so far as it supports the claims for annulment in the application.
(2) The arguments and complaints set out in support of the claims sought in the first statement of modification
264
In the first statement of modification, the applicants continue to challenge the characterisation of misappropriation of state funds in relation to the facts in Case No 38 of 2011, based on evidence prepared by the legal representatives of the first applicant in Egypt and testimony given by the first applicant. However, for the reasons set out in paragraph 257 above, that argument and that evidence must be rejected. They do not seek to dispute the fact that the Egyptian public prosecutor has criminally characterised the facts of the case in terms corresponding to the concept of misappropriation of state funds, but only to dispute that characterisation itself and whether the charges brought against the first applicant in that context are well-founded. In particular, the applicants submit, in essence, that the transactions which he is alleged to have carried out were done properly and with the agreement of the competent authorities. While that evidence may be taken into account by the Egyptian court competent to rule on his liability in that case, it was not such as to call into question the adequacy of the evidence at the Council’s disposal, which enabled it to consider that the criminal characterisation of those facts, made on the basis of Egyptian criminal law, met the criteria of Article 1(1) of Decision 2011/172. In that regard, it should be noted that the evidence submitted by the Egyptian authorities in their letter of 2 January 2016 did not differ substantially, as regards this case, from the information they had already submitted to the Council and was therefore not such as to call the latter’s assessment into question.
265
The applicants’ arguments seeking to show that that assessment does not comply with the case-law of the General Court and of the ECtHR is not persuasive.
266
In the first place, contrary to what is suggested by the applicants, the fact that the concept of misappropriation of state funds, within the meaning of Article 1(1) of Decision 2011/172, must be interpreted autonomously and independently of any national system (judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraphs 84 and 96) does not mean that that concept could possibly exclude acts that have been thus criminally characterised by the Egyptian authorities. On the contrary, in accordance with that case-law, that concept refers, at the very least, to acts which may be characterised as such under Egyptian criminal law (see, by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 95). However, in the present case, as pointed out in paragraph 260 above, the applicants accept that the characterisation adopted in the present case by the Egyptian authorities complies with the Egyptian Criminal Code.
267
Moreover, any other interpretation would tend to call into question the reasoning of the General Court, upheld by the Court of Justice and cited in paragraph 238 above, according to which the designation of the applicants in the annex to Decision 2011/172, solely on the ground that they were the subject of judicial proceedings in Egypt that have any connection whatsoever with investigations into misappropriation of state funds, met the criteria of Article 1(1) of Decision 2011/172 (see, to that effect, judgments of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraphs 71 to 73, and of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraphs 67, 95 and 97).
268
In the second place, the case-law of the General Court and of the Court of Justice regarding the concept of a public body, cited by the applicants, is not relevant. First, as stated in paragraph 260 above, the question whether the company El-Dekheila can be classified as a public undertaking or a public company is not decisive for the characterisation of misappropriation of state funds under Egyptian criminal law, where the State has a holding, or even a minority holding, in that company. Secondly, the case-law cited relates to an issue that is entirely separate from the question of whether the actions alleged against the first applicant in Case No 38 of 2011 can be characterised as misappropriation of state funds, in a context, which is also entirely distinct, of restrictive measures against Iran with the aim of preventing nuclear proliferation. In the cases that gave rise to that case-law, the question arose as to whether the applicant undertaking was an offshoot of the Iranian State, in the sense that it participated in the exercise of governmental powers or ran a public service under the control of the authorities (see, to that effect, judgment of 29 January 2013, Bank Mellat v Council, T‑496/10, EU:T:2013:39, paragraph 42 and the case-law cited). It should also be noted that, in those cases, the classification of the companies in question as offshoots of the Iranian State by the authority which adopted restrictive measures against them was not founded, as in the present case, on national judicial proceedings based on such a classification.
269
In the third place, the references by the applicants to the judgment of 15 September 2016, Klyuyev v Council (T‑340/14, EU:T:2016:496), are not relevant. As those references illustrate, in that judgment the General Court noted that the restrictive measures at issue were based solely on a letter from the Prosecutor General of Ukraine, which contained only a general and generic statement linking the applicants’ names, among those of other former senior officials, to an investigation which, in essence, sought to verify the very existence of misappropriation of state funds and did not contain any additional details. The Council thus had no information concerning the facts or conduct specifically alleged against the applicant by the Ukrainian authorities (judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraphs 40 and 41).
270
This is not the situation in the present case since, on the one hand, the first applicant is the subject of ongoing legal proceedings and not merely a preliminary investigation. On the other hand, the information provided by the Egyptian authorities in 2014, 2015 and 2016 was not merely a general statement relating to the misappropriation of state funds, but contained a precise and concrete description of the facts alleged against him, at least in Cases Nos 38, 107 and 291 of 2011, making it possible to understand the exact nature of the criminal offences to which those cases related and the degree of involvement attributed to him as well as the development of judicial proceedings in those cases. The factual context of the present case is not, therefore, in any event, comparable to that in Case T‑340/14, irrespective of whether the restrictive measures adopted under Decision 2011/172 are comparable to measures such as those examined in that case.
271
Assuming that the applicants seek to rely on the judgment of 15 September 2016, Klyuyev v Council (T‑340/14, EU:T:2016:496), in order to maintain that it is for the Council to verify the Egyptian authorities’ allegations concerning the facts in the legal proceedings relating to the first applicant, it follows from paragraphs 256, 257 and 264 above that such reasoning cannot be accepted.
272
The applicants’ argument that the Council’s assessment does not comply with ‘general international law’ cannot be accepted either. In that regard, it suffices to note that the applicants refer to the concept of ‘organ of the State’, as defined in the commentary of the United Nations International Law Commission on the 2001 Resolution on Responsibility of States for Internationally Wrongful Acts and in international arbitral decisions ruling on responsibility of States in the context of disputes between States and private companies. Thus, those references, for reasons similar to those set out in paragraph 268 above, are irrelevant in the present case.
273
As to the applicants’ claim that only four of the cases referred to in the Egyptian authorities’ letter of 2 January 2016 concerned ongoing judicial proceedings, this is irrelevant since, for the same reasons as those set out in paragraphs 261 and 262 above, the Council could continue to rely on Cases Nos 38, 107 and 291 of 2011 to find that, on the date of adoption of Decision 2016/411, there were ongoing judicial proceedings relating to the misappropriation of state funds by the first applicant.
274
The arguments and complaints set out in support of the claims sought in the first statement of modification must therefore be rejected.
(3) The arguments and complaints set out in support of the claims sought in the second statement of modification
275
In the second statement of modification, the applicants largely repeat the arguments of the application and of the first statement of modification. In particular, they continue to question the accuracy and relevance of the facts on which the allegations against the first applicant are based in Case No 38 of 2011, inter alia with regard to the assessment of the prejudice suffered by the State. However, for the same reasons as those set out in paragraphs 251 to 262 and 264 to 273 above, that argument must be rejected. With regard to the new complaints and arguments, the following should be noted.
276
In the first place, it is contrary to the case-law of the General Court and of the Court of Justice applicable in the present case for the applicants to assert that the criteria of Article 1(1) of Decision 2011/172 must be interpreted as meaning that it is for the Council to ascertain whether the misappropriation of state funds in question is liable to undermine the rule of law in Egypt, having regard to the amount or type of misappropriated funds or to the context in which it occurred.
277
First of all, it must be noted that, as is clear from paragraphs 238 to 240 above, the Court of Justice and the General Court have already settled the issue of the requirements that had to be met by the factual evidence on which the Council relied to designate the applicants in order to comply with the criteria set out in Article 1(1) of Decision 2011/172. It must be noted, however, that the Court of Justice and the General Court did not consider that one of those requirements was that the misappropriation of state funds had to be likely to undermine the rule of law in Egypt.
278
Secondly, it should be noted that, as the General Court has held, Decision 2011/172 is fully based on the CFSP and meets the objectives referred to in Article 21(2)(b) and (d) TEU (see paragraph 122 above). The General Court also held that the statement made in recital 2 of Decision 2011/172, that the persons referred to in Article 1(1) of that decision are ‘thus depriving the Egyptian people of the benefits of the sustainable development of their economy and society and undermining the development of democracy in the country’, does not constitute an additional condition that must be satisfied when designating a new person on the list annexed to that decision. It is only a clarification of the ultimate objective of that decision (judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 143). That reasoning has, in essence, been upheld by the Court of Justice (judgment of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraphs 44 to 46 and 70).
279
It must therefore be inferred from those considerations that, by contributing to the Egyptian authorities’ fight against the misappropriation of state funds, the freezing of the assets of persons responsible for misappropriating state funds or associated persons referred to in Article 1(1) of Decision 2011/172 is presumed to be consistent with the general objectives of the Council’s policy of support for Egypt, referred to in recital 1 of that decision, namely, inter alia, respect for the rule of law and fundamental rights. Consequently, Article 1(1) of that decision does not require, in order for a person to be designated on the list annexed to that decision, that the misappropriation of state funds, to which the judicial proceedings justifying that designation relate, should be specific in nature, having regard to the amount or nature of the misappropriated funds or to the context of those facts, so that they may be regarded as undermining the rule of law in Egypt.
280
Finally, the applicants cannot, in that regard, refer to the case-law of the General Court concerning the restrictive measures adopted in the context of decisions adopted by the Council having regard to the situation in Ukraine, in so far as the interpretation of the general criteria for determining the circle of persons subject to those measures was carried out by the General Court in the light of the particular legal context of those decisions, which is distinct from that of Decision 2011/172.
281
In particular, it should be noted that recital 2 of Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26), which was at issue in the cases giving rise to the judgments of 15 September 2016, Klyuyev v Council (T‑340/14, EU:T:2016:496), and of 15 September 2016, Yanukovych v Council (T‑348/14, EU:T:2016:508), cited by the applicants, states:
‘The Council agreed to focus restrictive measures on the freezing and recovery of assets of persons identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights infringements, with a view to consolidating and supporting the rule of law and respect for human rights in Ukraine.’
282
The purpose of freezing the assets of persons identified as being responsible, in particular, for misappropriating state funds is, therefore, to consolidate and support the rule of law and respect for human rights in Ukraine. It is in that context that the General Court was entitled to take the view that the registration criterion laid down by Decision 2014/119 was to be interpreted as meaning that it did not concern, in abstract terms, any act of misappropriation of state funds, but rather that it concerned acts of misappropriation of state funds or public assets which, having regard to the amount or the type of funds or assets misappropriated or to the context in which the offence took place, were, at the very least, such as to undermine the legal and institutional foundations of Ukraine, and in particular the principles of legality, prohibition of arbitrary exercise of power by the executive, effective judicial review and equality before the law and, ultimately, to undermine respect for the rule of law in that country (judgments of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 91, and of 15 September 2016, Yanukovych v Council, T‑348/14, EU:T:2016:508, paragraph 102).
283
On the other hand, as indicated in paragraph 279 above, the purpose of Decision 2011/172 is to assist the Egyptian authorities in their fight against the misappropriation of state funds, respect for the rule of law and fundamental rights being only one of the general objectives of the Council’s policy of support for Egypt as a whole, in the context of which, inter alia, that decision falls. The principles set out by the General Court in the judgments referred to in paragraphs 281 and 282 below cannot therefore be transposed to the present case.
284
In the second place, the applicants wrongly refer to the criteria for determining whether a legal person is detained or controlled by another person or entity, set out in paragraphs 62 and 63 of the Council document of 24 June 2015 entitled ‘EU Best Practices for the Effective Implementation of Restrictive Measures’. As illustrated, inter alia, in paragraph 66 of that document, those criteria are intended solely to ascertain, in order prevent a person or entity from circumventing the freezing of its own assets, whether the assets of another legal person are owned or controlled by the first person or entity and whether or not those assets should be frozen. Those criteria are therefore in no way applicable in order to determine whether the Council should consider that the ongoing judicial proceedings in Egypt, on which it relies to designate the persons in the annex to Decision 2011/172, relate to misappropriation of state funds.
285
In the third and last place, it should be noted that the evidence submitted for the first time in the context of the second statement of modification challenging the characterisation of misappropriation of state funds in relation to the facts of the legal proceedings in Cases Nos 107 and 291 of 2011 cannot be accepted. With regard to the first of those cases, it was found in paragraph 262 above that the facts involved in the judicial proceedings corresponded to the concept of misappropriation of state funds within the meaning of Article 1(1) of Decision 2011/172. Contrary to what the applicants maintain, the description of those facts by the Egyptian authorities in the documents registered by the Council on 6 January 2017, which is not substantially different from that contained in the documents available to the Council in 2015 and 2016, does not call into question that analysis. With regard to Case No 291 of 2011, it was also found in paragraph 262 above that, although the case concerned money laundering, it had a connection with the misappropriation of state funds, in so far as the money laundering alleged against the first applicant related to the misappropriated funds from which he allegedly benefited in Cases Nos 38 and 107 of 2011. The description of Case No 291 of 2011 in the above-mentioned documents does not contain any new element that would call into question the connection between that case and the misappropriation of state funds that is the subject of the other cases referred to above.
286
It follows from the foregoing that the complaints and arguments submitted in the second statement of modification in support of the first part of the third plea and, consequently, that part must be rejected in its entirety.
(c)
The second part of the third plea, alleging that there is no factual basis for the judicial proceedings against the first applicant, as established by the Egyptian Court of Cassation
287
In support of the second part of the third plea, the applicants allege that the Egyptian Court of Cassation ‘rejected’ the proceedings brought against the first applicant in its decisions of 20 December 2012, 12 May 2013 and 14 December 2013. Furthermore, in the decision of 14 December 2013, that court considered that, in Case No 38 of 2011, there was no evidence to incriminate the applicant in respect of the criminal characterisation adopted and that the court of first instance had wrongly refused to take into account the evidence and arguments presented by the defendant. It should therefore be inferred that that procedure is based on weak and unfounded allegations and that the Council could not continue to rely solely on statements by the Egyptian authorities, but should conduct its own investigations. Furthermore, the applicants argued that, in the same decision, that court found that the Egyptian State had suffered no prejudice.
288
In the first place, in so far as, by the present part, the applicants submit that the Egyptian Court of Cassation dismissed the charges brought against the first applicant in Cases Nos 38, 107 and 291 of 2011, it suffices to recall that, in the judgments on which they rely, that court did not rule on the merits, but only set aside the sentences handed down by the court of first instance and referred the cases back to the latter for a new ruling. Furthermore, it appears that, following those judgments, the proceedings in those cases have followed their course pending a new decision by the trial court. Consequently, the Council was entitled to consider that the decisions of that court in the cases in question had not put an end to the corresponding judicial proceedings and that, consequently, it could continue to renew the designation of the first applicant on the basis of those proceedings.
289
In the second place, in so far as the applicants submit, in the context of the present part, that the considerations set out by the Egyptian Court of Cassation in its judgment of 14 December 2013 call into question the basis of the allegations in Case No 38 of 2011, it should be noted that they do not claim that this is the situation in Cases Nos 107 and 291 of 2011. However, as noted in paragraphs 262 and 285 above, the Council could also rely on the judicial proceedings in the latter two cases to renew the designation of the first applicant.
290
As regards Case No 38 of 2011, it is clear from the content of the judgment of the Egyptian Court of Cassation of 14 December 2013 that that court carried out a judicial review of the first instance judgment having regard solely to compliance with the applicable legal rules and not with regard to the merits of the assessment of the facts. It did not, therefore, rule on the proven character of the facts on which the proceedings in that case are based or on the nature and extent of the liability of the defendants, which is therefore for the trial court to determine following the referral of that case. That analysis is confirmed by the explanations of the Egyptian authorities provided in the PGO memorandum of 9 February 2015 and the NCRAA memorandum of 5 December 2016, which indicate that, in a first appeal against the decision of the trial court in a criminal case, the Egyptian Court of Cassation considers questions of law only.
291
The considerations of the Egyptian Court of Cassation in its judgment of 14 December 2013 to which the applicants refer therefore do not, contrary to their interpretation, constitute an assessment of the merits of the allegations against the first applicant and the sufficiency of the evidence on which those allegations are based, but an assessment of the legal compliance of the reasoning of the trial court ruling on those allegations and evidence.
292
Furthermore, it should be noted that, in the part of the judgment of the Egyptian Court of Cassation of 14 December 2013 to which the applicants specifically refer in the application, that court did not, contrary to what they claim, consider that there was no evidence to incriminate the applicant on the basis of the allegations made against him or that the court of first instance had wrongly refused to take into account the evidence and arguments presented by the defendant. The part of that judgment at issue concerns the court’s examination of the Prosecutor General’s appeal against the decision of the court of first instance, by which it acquitted some of the defendants of some or all of the charges. That part of that judgment therefore does not concern the examination of the first applicant’s appeal against the convictions handed down against him by the judgment at first instance and the applicants cannot therefore, in any event, refer to it in support of the present part of the third plea.
293
With regard to the part of the judgment of the Egyptian Court of Cassation of 14 December 2013 cited by the applicants in the second statement of modification in support of their argument based on the absence of prejudice suffered by the Egyptian State in Case No 38 of 2011, it suffices to note that that court merely noted, first, a contradiction in the reasoning of the court of first instance, relating to the fact that the latter had criticised the first applicant for having sought, on the one hand, to seize control of the company El-Dekheila and, on the other, to destroy it and, secondly, the unsubstantiated nature of the estimate of the prejudice suffered by the State and the fines imposed on the defendants. Accordingly, those considerations only imply that the court of first instance must ensure, in the context of the referral procedure, that its reasoning is consistent in order to rule on the existence of a prejudice suffered by the State and, where appropriate, that the assessment of that prejudice is sufficiently substantiated. However, those considerations in no way preclude the existence of such prejudice.
294
The second part of the third plea must therefore be rejected.
(d)
The third part of the third plea, alleging that the criminal proceedings to which the first applicant is subject are politically motivated
295
In support of the third part of the third plea, the applicants suggest that the proceedings against the first applicant were not brought in good faith, which, in their view, can be inferred from the absence of any evidence supporting the allegations made by the Egyptian public prosecutor, the judgments of the Egyptian Court of Cassation of 20 December 2012, 12 May 2013 and 14 December 2013 and the evidence relating to the infringement of fundamental rights submitted by the applicants in the first and second pleas in law. In that regard, they consider that the Council did not state, in its letter of 24 March 2015, the basis on which it rejected their allegation that the proceedings were politically motivated.
296
In the first place, with regard to the allegation that there was no evidence to support the judicial proceedings against the first applicant, it suffices to recall that, as is clear from the General Court’s examination of the applicants’ arguments in support of the first part of the present plea in paragraphs 250 to 285 above, it is neither for the Council nor the General Court to rule on the sufficiency of the evidence gathered by the prosecution against the first applicant in the judicial proceedings in question, which is a matter for the Egyptian trial court. Furthermore, it follows from the documents provided to the Council by the Egyptian authorities that the judicial proceedings, at least in Cases Nos 38, 107 and 291 of 2011, were based on certain specific facts gathered by the Egyptian Prosecutor General with a view to establishing the liability, inter alia, of the first applicant for the criminal offences identified in those proceedings. Accordingly, without prejudice to the legal characterisation of those factors which it is for the competent Egyptian court to determine, it cannot be asserted that those judicial proceedings are not based on any evidence.
297
In the second place, it does not follow from the content of the judgments of the Egyptian Court of Cassation of 20 December 2012, 12 May 2013 and 14 December 2013 that the criminal proceedings were not brought in good faith. It is true that, as was pointed out in paragraphs 185 and 221 above, in those judgments, that court noted shortcomings on the part of the court of first instance in examining the evidence submitted to it as regards the guilt, in particular, of the first applicant in Cases Nos 38, 107 and 291 of 2011. However, in so doing, that court did not criticise the proceedings brought against that person in such a way as to call into question the intentions underlying those proceedings, but only with respect to the examination of the merits of those proceedings by the court of first instance. Furthermore, it could only be inferred from those judgments that it would be for the court of first instance to review, on the merits, the liability of the defendants, but not that it should necessarily dismiss the charges against them.
298
In the third place and finally, even if the evidence submitted by the applicants in the first and second pleas in law in support of the existence of infringements of fundamental rights and the rule of law in Egypt, in particular in the judicial proceedings concerning the first applicant, was such as to raise legitimate doubts about such infringements, it could not, in any event, have been automatically inferred from that evidence that those proceedings were brought for purely politically reasons. Moreover, even if some of the documents produced by the applicants in that context, in particular the reports of IBAHRI and of Mr D. concerning the conduct of the proceedings in Case No 107 of 2011, expressly indicate a risk of political instrumentalisation of judicial proceedings against persons who belonged to the ruling circles under the mandate of the former President of the Republic, Mr Mubarak, those documents do not contain sufficiently precise and consistent evidence to substantiate such a risk with regard to the first applicant. Furthermore, as pointed out in paragraphs 221 to 226 above, the Council could legitimately consider, in the light of the judgments of the Egyptian Court of Cassation and subsequent stages of the proceedings, that the first applicant was likely to enjoy sufficient judicial protection against the risk that the criminal proceedings against him might lead to a decision prejudicing his right to a fair trial and respect for the presumption of innocence. The same observation can be made as regards the risk that that decision may be affected by the alleged political motivations for bringing those criminal proceedings.
299
Consequently, it follows from all the foregoing that the Council was entitled to consider that the judicial proceedings on which the renewal of the designation of the first applicant was based were not liable to be affected by political considerations. The third part of the third plea must therefore be rejected.
(e)
The fourth part of the third plea, alleging the inadequacy of the evidence relating to the individual situation of the second to fourth applicants
300
In the application, the applicants merely submit that the failure of the designation of the first applicant to comply with the general criteria laid down in Article 1(1) of Decision 2011/172 also invalidates the designation of the second to fourth applicants, which is based solely on an order freezing funds in criminal proceedings against their spouses. In the reply, they submit that that order cannot serve as a basis for the renewal of their designation on the ground that no proceedings against the first applicant have been successful and that no proceedings have been brought against the second to fourth applicants. Such an order is, it is claimed, by its nature, ancillary to the proceedings to recover the funds in question. The applicants state that the third and fourth applicants are no longer subject to the freezing order in respect of their personal assets. In the context of the first statement of modification, they submit that the Egyptian authorities’ letter of 2 January 2016 does not refer to the second to fourth applicants and that they were unable to submit their observations on the Egyptian authorities’ letter of 7 March 2016. They further submit that the second applicant has not been married to the first applicant since December 2013 and that the Council was informed of this on 29 January 2016. In the second statement of modification, they submit that the second to fourth applicants were not provided, before their designation was renewed by Decision 2017/496, with the information on which the Council based that renewal. Furthermore, the information provided by the Egyptian authorities does not refer to the second to fourth applicants. Only the freezing order adopted in Case No 38 of 2011 could serve as a basis for renewing the designation of those persons, as the other freezing orders relate to criminal proceedings that do not concern cases of misappropriation of state funds. Furthermore, none of the information provided by the Egyptian authorities, it is claimed, indicates that the second to fourth applicants remained subject to a decision to freeze assets. Finally, they submit that changing the scope of the freezing of the assets of the third and fourth applicants confirms that they cannot be held responsible for misappropriating state funds.
301
At the outset, it should be recalled that, as noted in paragraphs 238 and 239 above, the General Court, upheld by the Court of Justice, considered that the Council had been able to base the designation of the second to fourth applicants on the existence of a freezing order connected to the investigations into the misappropriation of state funds to which the first applicant was subject, the criteria of Article 1(1) of Decision 2011/172 including not only persons prosecuted criminally for such acts, but also persons associated with them who are subject, in particular, to precautionary measures designed to preserve any misappropriated assets.
302
In those circumstances, in so far as the applicants’ argument set out in paragraph 300 above seeks to call into question the original designation of the second to fourth applicants, on the grounds, in particular, that the order of 2011 does not constitute a solid basis and that those persons were never the subject of criminal proceedings, it fails to have regard for the authority of res judicata which attaches to the grounds of the judgments of 5 March 2015, Ezz and Others v Council (C‑220/14 P, EU:C:2015:147), and of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93). It is therefore inadmissible.
303
In so far as it seeks to call into question the renewal of that designation, the applicants’ arguments set out in paragraph 300 above are, in part, manifestly unfounded. Having regard to the considerations of the General Court, approved by the Court of Justice (see paragraphs 238 and 239 above), the applicants cannot rely, first of all, on the fact that the judicial proceedings concerning the first applicant have not concluded, since the General Court and the Court of Justice held that the Council could rely on the existence of ongoing judicial proceedings. Secondly, they cannot rely either on the fact that no judicial proceedings have been brought against the second to fourth applicants, since the Council is entitled, according to the General Court and the Court of Justice, to designate them on the ground that they are the subject of proceedings related to criminal proceedings for misappropriation of state funds, as associated persons within the meaning of Article 1(1) of Decision 2011/172, as such related proceedings themselves constitute, in the present case, judicial proceedings. Likewise, the argument in the second statement of modification, that the exclusion of the personal assets of the third and fourth applicants from the scope of the freezing order made against them demonstrates that they are not responsible for misappropriation of state funds, is based on the manifestly incorrect premise that the assets of those persons were frozen on the ground that they themselves were suspected by the Egyptian authorities of misappropriating state funds.
304
In short, the only new question raised by the arguments put forward in support of this part of the third plea is whether, after the original designation of the second to fourth applicants, there have been any changes in the situation of the first applicant or in their own individual situation which would prevent their original designation from being renewed on the basis, inter alia, of the freezing order which formed the basis for that original designation.
305
In the first place, with regard to the argument alleging that the renewal of the designation of the first applicant is not well founded, as set out in the application, it suffices to note that the first three parts of that plea, which seek to call into question this well-foundedness, were rejected in paragraphs 250 to 299 above, at least with regard to Cases Nos 38, 107 and 291 of 2011. The validity of the renewal of the designation of the second to fourth applicants cannot therefore be challenged on that basis.
306
In the second place, with regard to the arguments relating to the limitation of the scope of the freezing of the assets of the third and fourth applicants, presented for the first time in the reply, those arguments, even if they are admissible, are irrelevant. The applicants merely argue that that freezing of assets no longer concerns the personal assets of those persons, but they do not claim that it was definitively terminated, including in respect of assets held jointly with the first applicant. That interpretation is confirmed by the documents provided by the applicants in support of their allegations. They indicate, first, in the case of the third applicant, that the freezing of her assets no longer applies, by court decision, to the property and assets inherited from her father prior to the judicial proceedings concerning the first applicant and, secondly, in the case of the fourth applicant, that the Egyptian Prosecutor General terminated the freezing of the assets held by her before her marriage with the first applicant. It must therefore be inferred from those elements that the part of the third and fourth applicants’ assets not affected by the above-mentioned court decisions continues to be subject to the freezing of assets imposed in 2011 by the Egyptian Prosecutor General against all the applicants, which the latter do not contest. Those arguments must therefore be rejected.
307
In the third place, with regard to the arguments presented in the first statement of modification relating to the information concerning the second to fourth applicants that the Council had at its disposal before adopting Decision 2016/411, the applicants do not dispute that, by letter dated 7 March 2016, the Egyptian authorities informed the Council that all of those persons continued to be the subject of three freezing orders in four sets of criminal proceedings against the first applicant in Cases Nos 38, 107 and 291 of 2011 and that the second and third applicants were also subject to an assets freeze in Case No 4 of 2011. In those circumstances, the fact that those persons are not referred to in the letter from those authorities of 2 January 2016 is irrelevant. Moreover, the fact that the applicants were not able to submit their observations on the information contained in the letter of 7 March 2016 is irrelevant to this plea and can only be examined in the context of the fourth plea, alleging, inter alia, infringement of the applicants’ rights of defence. Finally, as regards the fact that the second applicant divorced the first applicant, this cannot have any influence on the renewal of the designation of that person, since, as confirmed by the letter of 7 March 2016, she nevertheless continues to be subject to asset freezing measures in the context of some of the criminal proceedings against her former husband. That renewal is not based on the ground concerning the nature of her relationship with the latter, but on the ground that she is the subject of legal proceedings connected to proceedings relating to the misappropriation of state funds. Moreover, the applicants do not claim that, as a result of that divorce, the second applicant no longer has any relationship, in particular of a property nature, with the first applicant. That is why the fact that the Council continued to designate that person in the annex to Decision 2011/172, when adopting Decision 2016/411, as the spouse of the first applicant, cannot affect the legality of the renewal of her designation. Those arguments must therefore be rejected.
308
In the fourth place and finally, with regard to the arguments presented in the context of the second statement of modification, it should first be noted that, for the same reasons as those given in paragraph 307 above, the fact that the information contained in the Council’s letter of 27 January 2017 was not specifically addressed to the second to fourth applicants until after their designation had been renewed is irrelevant. Moreover, the applicants admit that, in so far as that letter was addressed to the legal representatives of the first applicant, who also represent the second to fourth applicants, those applicants were able to verify, before the renewal of their designation, the evidence on which the Council relied. Furthermore, the applicants wrongly claim that the Council could only rely on the freezing order adopted in Case No 38 of 2011. As noted in paragraphs 262 and 285 above, Cases Nos 107 and 291 of 2011 also concern misappropriation of state funds, so that the Council could also rely on the freezing orders adopted in respect of all the applicants with regard to those cases. Finally, with regard to the argument that none of the information provided by the Council concerning the adoption of Decision 2017/496 demonstrates that the second to fourth applicants remained subject to a freezing of their assets, it suffices to note that the Council included in that information a copy of the various orders adopted in 2011 with respect to all the applicants. However, those applicants merely argue that the scope of those orders was subsequently modified, as they had stated in the first statement of modification, but they do not provide any concrete evidence to suggest that those orders were no longer in force with regard to the second to fourth applicants. Those arguments must therefore be rejected.
309
It follows from all the foregoing considerations that the fourth part of the third plea must be rejected. The plea must therefore be dismissed in its entirety.
3.
The fourth plea in law, alleging infringement of the rights of the defence and of the right to effective judicial protection
310
The fourth plea comprises, in essence, five parts. By the first part, the applicants submit that the Council never provided them with credible and concrete evidence to justify the application of restrictive measures against them. By the second part, they argue that the Council has not provided any evidence that it has conducted a careful and impartial examination of the merits of the reasons for renewing the designation, in particular having regard to their observations. By the third part, the applicants submit that the Council failed to provide them with all the information on which it based its decision to renew their designation. By the fourth part, the applicants submit that, if the Council had provided them with all the documents at its disposal, that demonstrates that it merely reiterated the statements made by the Egyptian authorities without carrying out any verification. By the fifth part, the applicants submit that the Council did not respond to their requests for a hearing, despite the need for an oral hearing in the light of their observations.
311
The Council submits that, in the judgments of 5 March 2015, Ezz and Others v Council (C‑220/14 P, EU:C:2015:147), and 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93), the applicants’ complaints relating to the infringement of their rights of defence and their right to effective judicial protection have already been rejected with regard to their original designation. As regards the renewal of that designation, those complaints were also rejected in the order of 15 February 2016, Ezz and Others v Council (T‑279/13, unpublished, EU:T:2016:78). Furthermore, in its observations on the first statement of modification, it disputes that it has breached its obligation to communicate the information at its disposal and to allow the applicants to submit their observations in the context of adopting Decision 2016/411. In its observations on the second statement of modification, the Council adds that the fact that it did not accept or take into account the applicants’ observations does not mean that it did not consider them. It also contends that it was not required to notify the second to fourth applicants separately of the information provided to the legal representatives of the first applicant, which related to the legal situation of the first applicant only. Finally, it contends, in essence, that the designation of the second applicant as wife of the first applicant has no bearing on the issue.
312
According to settled case-law, the courts of the European Union must, in accordance with the powers conferred on them under the TFEU, ensure the review, in principle the full review, of the lawfulness of all European Union acts in the light of the fundamental rights forming an integral part of the European Union legal order, which includes in particular respect for the rights of the defence and the right to effective judicial protection (judgments of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 326, and of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 97 and 98).
313
In particular, in proceedings relating to the adoption of the decision to designate an individual on a list of individuals and entities whose assets have been frozen or the decision to renew that designation, respect for the rights of the defence requires that the competent European Union authority disclose to the individual concerned the evidence against that person available to that authority and relied on as the basis of its decision, so that that individual may defend his rights in the best possible conditions and may decide, with full knowledge of the relevant facts, whether there is any point in bringing an action before the Courts of the European Union. In addition, when that disclosure takes place, the competent European Union authority must ensure that that individual is placed in a position in which he may effectively make known his views on the grounds advanced in the case at hand. Lastly, where the decision is one whereby the name of the individual concerned is to be maintained on such a list, compliance with that dual procedural obligation must, contrary to the position in respect of an initial listing, precede the adoption of that decision (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 111 to 113 and the case-law cited). However, that dual procedural obligation only applies when, in the context of the renewal of the designation of the persons concerned, the competent authority relies on fresh evidence. Furthermore, the persons concerned shall have a right always available to them to submit observations, in particular during the periodic review of the restrictive measures concerning them (see, to that effect, judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraphs 26 and 27 and the case-law cited).
314
Moreover, the corollary of the right to be heard is that the competent authority must give reasons for its decision by identifying the individual, specific and concrete reasons why the competent authorities consider that the person concerned should continue to be subject to restrictive measures despite any exculpatory evidence presented by that person (see, to that effect, judgments of 22 November 2012, M., C‑277/11, EU:C:2012:744, paragraph 88, and of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 114 and 116).
315
Furthermore, it should be taken into account that the question of whether there is an infringement of the rights of the defence and of the right to effective judicial protection must be examined in relation to the specific circumstances of each particular case, including the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question (judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 102).
316
In the present case, as noted in paragraphs 81 to 88 above, with a view to adopting the contested decisions, the Council relied not only on the information already available to it when the applicants were first designated in 2011, but also on an update of that information in 2014, 2015, 2016 and 2017 concerning, in particular, the development of the judicial proceedings to which the applicants were subject. In so far as the ground for designating the applicants is based on the existence of ongoing judicial proceedings, it is for the Council to ascertain, in particular on the occasion of the periodic review of that designation with a view to its possible renewal, the stage reached in those judicial proceedings and, where appropriate, their outcome (see, to that effect and by analogy, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 46 and 52). Consequently, in order to respect the applicants’ rights of defence and the right to effective judicial protection, it was for the Council to provide them with that updated information, to allow them, before adopting the contested decisions, to submit observations in that respect and to indicate to them, in the grounds for those decisions, the reasons why it continued to consider that the renewal of their designation was justified.
317
In that regard, it must be noted that, as the applicants have stated in the reply, they do not seek, in this plea, to plead infringement of their rights of defence and of their right to effective judicial protection with regard to their original designation, a complaint in respect of which, they admit, the General Court has already ruled. However, they do seek to rely on the similar infringement allegedly committed by the Council in the context of the contested decisions. Consequently, the fact that the General Court has already examined whether there is such an infringement with regard to the original designation of the applicants and the renewal of that designation in 2013 cannot, contrary to what the Council maintains, be held against the applicants in this plea.
318
It is in the light of those considerations that the Court must examine the various parts of the present plea in law. It is necessary, first of all, to examine together the first and third parts of this plea, both of which tend, in essence, to allege a breach by the Council of its prior obligation to communicate the information on which it intended to base the contested decisions
(a)
The first and third parts, alleging, in essence, a breach of the obligation of prior notification of the evidence which serves as the factual basis for the contested decisions
319
First of all, it should be noted that, as the first part refers to the absence of serious indicia or credible evidence to support the renewal of the applicants’ designation, it must be rejected as ineffective in the context of this plea. This question relates to whether that renewal is well founded, which has already been dealt with in the third plea and is therefore distinct from the question of whether the applicants’ rights of defence and right to effective judicial protection have been infringed (see, to that effect and by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 134).
320
That said, it must be noted that the Council did not forward, prior to adopting the contested decisions, all the information provided to it by the Egyptian authorities and on which it based its decision to find that the applicants’ renewal remained justified.
321
In the first place, [confidential]. As the latter clarified in their replies to the General Court’s questions of 1 June 2016, it was only later, for the purpose of adopting Decisions 2016/411 and 2017/496, that documents with similar content were provided to them by the Council. Moreover, in its letter of 24 March 2015 to the applicants, in which it justifies the renewal of the designation of the applicants for 2015, the Council makes no explicit reference to that document. [confidential]. Moreover, as noted in paragraphs 157, 192, 224 and 290 above, that document provided useful guidance for the assessment of that risk and, in general, for the assessment of the legal context of the judicial proceedings that have been brought against the applicants. [confidential]. Moreover, the fact that, prior to Decision 2016/411 and Implementing Regulation 2017/491, the Council provided them with documents of similar content tends to undermine that position.
322
In the second place, as noted in paragraph 307 above, the Council did not forward the letter from the Egyptian authorities dated 7 March 2016 until after Decision 2016/411 had been adopted. That letter contained specific information concerning maintenance of the freezing orders with regard to all the applicants, which responds to the applicants’ objections concerning the fact that the second to fourth applicants were not referred to at all in the letter sent to them from those authorities on 2 January 2016. That letter of 7 March 2016 was therefore clearly an item of evidence on which the Council could base its decision to renew the designation of the above-mentioned persons, which is confirmed, moreover, in its letter of 21 March 2016 to the applicants, in which it replied to their objections by referring to that letter and enclosing a copy of it therewith.
323
In the third place, as noted in paragraph 308 above, the Council’s letter of 27 January 2017, which contained information specifically concerning the individual situation of the second to fourth applicants, was notified to the applicants’ legal representatives solely for the attention of the first applicant. However, since the addressees of that letter also represented the second to fourth applicants before the Council, they were in a position, on behalf of their clients, to take note of the information specifically concerning them and to submit observations in that regard. Consequently, it cannot be considered that the Council breached its obligations towards the second to fourth applicants by notifying the letter of 27 January 2017 to the legal representatives of all the applicants, solely in their capacity as representatives of the first applicant.
324
However, it follows from paragraphs 321 and 322 above that, in the context of adopting Decision 2015/486 and Decision 2016/411, the Council acted in breach of its obligations by failing to provide, in due course, some of the information on which it had relied to renew the designation of the applicants under those decisions and, consequently, by not allowing them to submit their observations in that regard before that renewal.
325
However, it should be recalled that, according to settled case-law, for the existence of an irregularity relating to the rights of the defence to lead to the annulment of the contested act, it is necessary that, because of that irregularity, the procedure could have led to a different result, thus materially affecting the applicant’s rights of defence (see, to that effect, judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 81 and the case-law cited).
326
On the one hand, with regard to the PGO memorandum of 9 February 2015, it was noted in paragraph 158 above that the applicants were able to submit observations on that document to the General Court in the context of the present action, [confidential] in their written reply dated 1 June 2017 [confidential]. Their right to effective judicial protection has therefore been preserved. Moreover, it is not apparent from those observations that the applicants, if they had been able to consult that document before Decision 2015/486, would have been able to question its content or relevance for the purposes of renewing their designation. Consequently, they do not establish that, if this had been the case, the procedure could have had a different outcome.
327
On the other hand, with regard to the letter from the Egyptian authorities of 7 March 2016, it is common ground that the applicants were able to consult that letter by way of the Council’s letter of 21 March 2016 and that they do not dispute that that consultation occurred with a sufficient interval to allow them to submit observations in that respect in their first statement of modification. However, as is evident from examination of those observations in paragraph 307 above, they would not have changed the outcome of the procedure if they could have been submitted before the adoption of Decision 2016/411.
328
Consequently, the infringements noted in paragraphs 321, 322 and 324 above cannot result in the annulment of the contested decisions. The first and third parts of the present plea must therefore be rejected.
(b)
The second part of the fourth plea, alleging that there is no evidence that the Council carried out a thorough and impartial examination of the merits of the reasons for the renewal of the applicants’ designation
329
By this part, the applicants claim that the Council provided no evidence to show that it took sufficient account of their observations submitted prior to each of the renewals of their designation, on the premise that consideration of those observations should have led it to conclude that the reasons for the successive renewals were not well founded.
330
In that regard, it should be recalled that, according to settled case-law, although for those rights to be observed, the EU institutions must enable the persons concerned to make their views known effectively, those institutions cannot be required to accept them. In order for the submission of views by those persons to be effective it is necessary only that they have been submitted in good time so that the EU institutions may take cognisance of them and assess, with all the requisite attention, their relevance for the content of the measure being adopted (see judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 126 and the case-law cited).
331
In the present case, the mere fact that the Council did not conclude that the renewal of the designation of the applicants was not well founded, or even consider it useful to carry out verification in the light of the applicant’s observations, cannot, in any event, in itself constitute an infringement of the applicants’ rights of defence, since they were able to submit their observations in good time.
332
Assuming that, by this part, the applicants seek to allege a failure to state reasons for the contested decisions, it should be noted that, in its letters of 24 March 2015, 21 March 2016 and 22 March 2017, the Council identified the individual, specific and concrete reasons for which it considered it necessary to renew the applicants’ designation. In those letters, it also replied to some of the applicants’ observations. The fact that it did not address all the issues raised by the applicants in their very numerous letters does not mean that it did not take them into account, but only that it did not consider them decisive in respect of the renewal of their designation.
333
It should also be noted that the contested decisions, which renew the designation of the applicants for the fourth, fifth and sixth time respectively, took place in a context known to them. First of all, the reason for their designation has not changed since their original designation. In addition, the General Court and the Court of Justice have already settled important questions concerning the legality of those grounds. Secondly, it is apparent from the documents in the case file that, since the applicants’ original designation, the Council has taken steps to provide the applicants, if not before the adoption of its successive decisions, at least immediately after adoption, with the documents from the Egyptian authorities on which it based its decisions, so that the applicants have been able to determine, in the light of those documents, whether it was necessary to bring an appeal and have been able to challenge their validity effectively. Similarly, the General Court was able to determine, to the requisite legal standard, in the light of all that evidence, the specific and concrete reasons on which the contested decisions are based and to exercise its judicial review of those decisions.
334
The second part must therefore be rejected.
(c)
The fourth part of the fourth plea, alleging that the Council is merely reiterating the statements made by the Egyptian authorities without carrying out any verification
335
With regard to this part, it should be noted that it is raised only in the alternative, in the event that the Council has sent to the applicants all the documentation at its disposal. However, it was noted in paragraph 321 above that this had not been the case, as the Council had not provided them with the PGO memorandum of 9 February 2015. In any event, the fact that the Council relied on the statements of the Egyptian authorities without carrying out verification cannot constitute an infringement of the applicants’ rights of defence and of their right to effective judicial protection (see, to the effect, judgment of 18 February 2016, Council v Bank Mellat, C‑176/13 P, EU:C:2016:96, paragraphs 89 and 90). The present part must therefore be rejected.
(d)
The fifth part of the fourth plea, alleging that the Council failed to respond to the applicants’ requests for a hearing
336
In the context of the present part, the applicants claim that they requested an ‘urgent’ hearing in their letters of 23 December 2014, 12 January 2015, 3 February 2015, 2 March 2015 and 29 January 2016 and that this hearing was necessary in order, in their view, to prevent the ‘manifest errors’ committed by the Council.
337
In that regard, it is apparent from the case-law referred to in paragraph 313 above that the Council had, in the present case, a margin of discretion in determining whether or not to grant the applicants’ requests for a hearing. Indeed, in the context of a simple renewal of the original decision, the applicants’ right to be heard implies only that they can effectively put forward their point of view by submitting, at any time and in particular when their designation is being reviewed, observations which it is for the Council to examine impartially and carefully. In so far as the applicants were able to duly submit to the Council a certain number of documents that could constitute exculpatory evidence and set out the conclusions they drew from those documents, they do not establish that, in the circumstances of the case, a hearing would have been necessary. The Council had sufficient period of time before adopting the contested decisions to ask the applicants, if it had considered it necessary, to submit further explanations or clarifications in writing concerning that exculpatory evidence or, where appropriate, to carry out verification with the Egyptian authorities. Furthermore, as recalled in paragraph 330 above, the Council was not required to accept the view expressed by the applicants in their observations. Consequently, the alleged circumstance that a hearing would have been needed to prevent the Council from committing ‘manifest’ errors of assessment cannot establish the existence of an infringement of the applicants’ right to be heard because such a hearing was not organised. Moreover, it is apparent from the General Court’s examination of the first, second and third pleas in law, in paragraphs 114 to 308 above, that the applicants did not submit, before the adoption of the contested decisions, any evidence requiring the organisation of a hearing.
338
It is therefore appropriate to reject the fifth part of the fourth plea, and consequently, that plea in its entirety.
4.
The fifth plea in law, alleging an unjustified and disproportionate restriction on the applicants’ right to property and damage to their reputation
339
In support of this plea, the applicants refer to the arguments set out in paragraphs 102 to 110 of the application in Case T‑279/13. In their view, those arguments are supported by the fact that they have been subject to an asset freeze for more than four years. Hence, the Council had, it is claimed, considerable time to verify with the Egyptian authorities the amount of the alleged misappropriated funds but failed to do so. In the first statement of modification, first of all, the applicants submit that the condition according to which the principle of proportionality requires that a provision be capable of achieving its legitimate objectives has not been respected in so far as maintenance of the restrictive measures against the applicants is neither relevant nor appropriate to achieve the objective of supporting the rule of law in Egypt provided for in Decision 2011/172. They refer to their arguments presented in that regard in the first plea. Secondly, they argue that their designation is not necessary on the ground that its objectives could be achieved in a less onerous manner by means of decisions of the judicial authorities of the Member States. Finally, they argue that it is not alleged by the Egyptian authorities, in the legal proceedings on which the Council relied, that they had transferred funds resulting from misappropriation of Egyptian state funds to the European Union. Furthermore, they claim that their arguments are reinforced by the significant period of six years that has elapsed since their original designation.
340
The Council disputes this argument by pointing out, in essence, that the General Court has already ruled on whether the contested measures comply with the principle of proportionality.
341
In the first place, it suffices to note that, in paragraphs 70 to 74 of the order of 15 February 2016, Ezz and Others v Council (T‑279/13, unpublished, EU:T:2016:78), the General Court rejected the arguments put forward by the applicants in support of a plea similar to the present plea in the case giving rise to that order. Consequently, without it being necessary to examine whether the applicants are entitled to refer to a pleading annexed to the application without including its content in that application, their references to paragraphs 102 to 110 of the application in the above-mentioned case must be rejected.
342
In the second place, with regard to the Council’s failure to verify the amount of the misappropriated funds, despite the time available since the applicants’ original designation, it should be recalled that the General Court held that, in the absence of a judicial decision ruling on whether the court proceedings in Egypt are well founded, the Council could not know the nature, or itself state the quantum, of any possible misappropriation of Egyptian state funds by the first applicant (judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 208). In the present case, it is apparent from the documents in the case file that none of the criminal proceedings against the first applicant have resulted, at this stage, in a final judicial decision. In particular, with regard to the proceedings in Cases Nos 38, 107 and 291 of 2011, it is apparent that, following the annulment of the decisions of the trial court by the Egyptian Court of Cassation and the referral of those cases for a new decision, those proceedings are still pending. That argument must therefore be rejected.
343
In the third place, it is apparent from the General Court’s examination of the first part of the first plea and the second part of the second plea, in paragraphs 118 to 165 and 176 to 208 above, that the applicants have not established that the Council committed a manifest error of assessment as to whether, in the light of the objectives of the policy which underpins Decision 2011/172, it is necessary to maintain the application of that decision in general and to renew the designation of the applicants in particular. Consequently, the argument that the contested decisions are neither relevant nor appropriate to achieve the objective of supporting the rule of law sought by the Council must be rejected.
344
In the fourth place, it should be recalled that, in the case giving rise to the judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93), the General Court considered that the measures taken by the Council, in particular on the basis of Article 1(1) of Decision 2011/172, were appropriate to reach the desired objective of that decision. Those measures assist effectively with establishing misappropriation of state funds to the detriment of the Egyptian authorities and make it easier for those authorities to obtain the restitution of the proceeds of such misappropriation (judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 206). Consequently, the applicants are not entitled to call into question those considerations by arguing that the Egyptian authorities’ letter of 24 February 2011 was addressed to the national judicial authorities and that, consequently, an administrative and political decision by the Council was neither necessary nor appropriate to freeze their assets. That argument must therefore be dismissed as inadmissible.
345
In the fifth place, with regard to the applicants’ argument that the Egyptian authorities did not allege, in the context of the judicial proceedings against the applicants, a transfer of funds resulting from misappropriation of Egyptian state funds to the European Union, it has already been recalled in paragraph 238 above that, in the case giving rise to the judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93), the General Court, upheld by the Court of Justice on appeal, found that the Council was entitled to designate the applicants in the annex to Decision 2011/172 solely on the ground that they were the subject of judicial proceedings in Egypt that are in any way connected with investigations into misappropriation of state funds. This argument is therefore partly inadmissible, in so far as it seeks to challenge the applicants’ original designation and partly manifestly unfounded, in so far as it seeks to challenge the renewal of that designation.
346
In the sixth place and finally, it should be recalled that the Court of Justice held that restrictions on the use of the right to property of persons who were targeted by a restrictive measure, such as the freezing of the applicants’ assets stem not only from the general scope of the measure in question but also, in some cases, from the actual duration of its application (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 132 and the case-law cited). Accordingly, the duration of the period during which a measure such as the contested measure is applied is one of the factors that the Courts of the European Union must take into account when examining the proportionality of that measure (see, to that effect, judgment of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 172).
347
However, in the present case, the mere fact that the freezing of the applicants’ assets in the European Union was renewed again by Decision 2017/496, having been maintained for a period of six consecutive years, cannot, on its own, entail an infringement of the principle of proportionality. In that regard, first, as already noted in paragraph 135 above, with regard to the purpose of Decision 2011/172, the restrictive measures imposed in that context must, in principle, be maintained until the conclusion of the judicial proceedings in Egypt in order to ensure their effectiveness. It is not disputed that, at the date of the renewal of the applicants’ designation in 2017, the criminal proceedings against the first applicant were still pending. Furthermore, as noted in paragraph 308 above, the applicants did not submit any evidence suggesting that the freezing orders adopted in respect of all of them were no longer in force. Secondly, the applicants do not allege, in support of this argument, the excessive duration of those proceedings. Moreover, it should be noted that those proceedings, which concern complex facts, have undergone a number of developments and, in particular, that the first instance decisions have been annulled by the Egyptian Court of Cassation and referred back for a new ruling. The documents in the file therefore do not demonstrate that the duration of these proceedings is manifestly excessive. This argument must therefore be rejected.
348
For the above reasons, therefore, the fifth plea in law must be rejected.
349
Accordingly, since none of the pleas put forward in the present action can be upheld, it is appropriate, without the need to order the investigative measure requested by the applicants, to dismiss this action in its entirety.
IV. Costs
350
Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
351
Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Council.
On those grounds,
THE GENERAL COURT (Fifth Chamber, Extended Composition)
hereby:
1.
Dismisses the action;
2.
Orders Ahmed Abdelaziz Ezz, Abla Mohammed Fawzi Ali Ahmed Salama, Khadiga Ahmed Ahmed Kamel Yassin and Shahinaz Abdel Azizabdel Wahab Al Naggar to bear their own costs and, in addition, pay the costs incurred by the Council of the European Union.
Gratsias
Labucka
Dittrich
Ulloa Rubio
Xuereb
Delivered in open court in Luxembourg on 27 September 2018.
E. Coulon
Registrar
D. Gratsias
President
Table of contents
I. Background to the dispute and factual context
A. Acts adopted by the Council in respect of the applicants
B. Proceedings brought by the applicants before the courts of the European Union before or at the same time as the present proceedings
II. Procedure and forms of order sought
III. Law
A. The admissibility of the form of order sought in the application
B. Substance
1. The first and second pleas in law, raising, first, a plea of illegality in respect of Article 1(1) of Decision 2011/172, as renewed by Decisions 2015/486, 2016/411 and 2017/496, and in respect of Article 2(1) of Regulation No 270/2011 and, secondly, alleging infringement by the Council of Article 6 TEU, in conjunction with Articles 2 and 3 TEU and Articles 47 and 48 of the Charter
(a) Preliminary observations
(1) Legal background
(2) Factual Background
(i) Evidence relating to legal proceedings against applicants in Egypt
(ii) Information supplied by the applicants prior to the renewal of their designation for the years 2015, 2016 and 2017
(iii) The Council’s treatment of the evidence provided by the applicants
(b) As regards the first plea, alleging that Decisions 2015/486, 2016/411 and 2017/496 and Regulation No 270/2011 are vitiated by illegality
(1) The first part, alleging that Decisions 2015/486, 2016/411 and 2017/496 are vitiated by illegality, in so far as they renew Article 1(1) of Decision 2011/172
(i) The complaint alleging lack of legal basis
(ii) The complaint alleging infringement of the principle of proportionality
– The first argument, alleging that the ‘new Egyptian authorities’, supported by the Council, have been deposed
– The second argument, alleging risks caused by the instability of the Egyptian political context and alleged infringements of the rule of law and fundamental rights
– The third argument, alleging that there is a risk that the first applicant’s right to a fair trial may not be respected in the criminal proceedings against him in Egypt
(2) The second part of the plea, alleging that Article 2(1) of Regulation No 270/2011 has no legal basis
(c) The second plea in law, alleging infringement by the Council of Article 6 TEU, in conjunction with Articles 2 and 3 TEU and Articles 47 and 48 of the Charter
(1) As regards the second part, alleging that renewal of the applicants’ designation is contrary to the objectives set out in recital 1 of Decision 2011/172
(2) The first part, alleging that the Council failed to ensure that the applicants’ fundamental rights had been respected and applied an irrefutable presumption of respect for those fundamental rights by the Egyptian authorities
2. The third plea in law, alleging failure to observe the general criteria of Article 1(1) of Decision 2011/172 and Article 2(1) of Regulation No 270/2011
(a) Preliminary observations
(b) The first part of the third plea, alleging incorrect legal characterisation of the legal proceedings against the first applicant
(1) The arguments and complaints set out in support of the form of order sought in the application
(2) The arguments and complaints set out in support of the claims sought in the first statement of modification
(3) The arguments and complaints set out in support of the claims sought in the second statement of modification
(c) The second part of the third plea, alleging that there is no factual basis for the judicial proceedings against the first applicant, as established by the Egyptian Court of Cassation
(d) The third part of the third plea, alleging that the criminal proceedings to which the first applicant is subject are politically motivated
(e) The fourth part of the third plea, alleging the inadequacy of the evidence relating to the individual situation of the second to fourth applicants
3. The fourth plea in law, alleging infringement of the rights of the defence and of the right to effective judicial protection
(a) The first and third parts, alleging, in essence, a breach of the obligation of prior notification of the evidence which serves as the factual basis for the contested decisions
(b) The second part of the fourth plea, alleging that there is no evidence that the Council carried out a thorough and impartial examination of the merits of the reasons for the renewal of the applicants’ designation
(c) The fourth part of the fourth plea, alleging that the Council is merely reiterating the statements made by the Egyptian authorities without carrying out any verification
(d) The fifth part of the fourth plea, alleging that the Council failed to respond to the applicants’ requests for a hearing
4. The fifth plea in law, alleging an unjustified and disproportionate restriction on the applicants’ right to property and damage to their reputation
IV. Costs
(
*1
)	Language of the case: English.
(
1
)	Confidential data omitted.
(
2
)	Paragraph 124 of the vademecum.