JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
30 June 2016 (*)
(Common foreign and security policy — Restrictive measures directed against certain persons and entities in view of the situation in Tunisia — Measures taken against persons responsible for misappropriation of public funds and associated persons and entities — Freezing of funds — List of persons, entities and bodies subject to the freezing of funds and economic resources — Inclusion of the applicant’s name — Inadequate factual basis — Error of fact — Error of law — Right to property — Freedom to conduct a business — Proportionality — Rights of defence — Right to effective judicial protection — Obligation to state reasons)
In Case T‑545/13,
Fahed Mohamed Sakher Al Matri, residing in Doha (Qatar), represented by M. Lester, Barrister, G. Martin, Solicitor, and B. Kennelly, Barrister,
applicant,
v
Council of the European Union, represented by M. Bishop and I. Gurov, acting as Agents,
defendant,
APPLICATION for annulment, first, 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), implemented by Council Implementing Decision 2013/409/CFSP of 30 July 2013 (OJ 2013 L 204, p. 52), by Council Decision 2014/49/CFSP of 30 January 2014 (OJ 2014 L 28, p. 38) and by Council Decision (CFSP) 2015/157 of 30 January 2015 (OJ 2015 L 26, p. 29), and, secondly, of Council Regulation (EU) No 101/2011 of 4 February 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia (OJ 2011 L 31, p. 1), implemented by Council Implementing Regulation (EU) No 735/2013 of 30 July 2013 (OJ 2013 L 204, p. 23), by Council Implementing Regulation (EU) No 81/2014 of 30 January 2014 (OJ 2014 L 28, p. 2) and by Council Implementing Regulation (EU) No 147/2015 of 30 January 2015 (OJ 2015 L 26, p. 3), in so far as those acts apply to the applicant,
THE GENERAL COURT (Eighth Chamber),
composed of D. Gratsias (Rapporteur), President, M. Kancheva and C. Wetter, Judges,
Registrar: L. Grzegorczyk, Administrator,
having regard to the written part of the procedure and further to the hearing on 19 November 2015,
gives the following
Judgment
Background to the dispute
1        On 31 January 2011, following political developments in Tunisia during the months of December 2010 and January 2011, the Council of the European Union adopted, on the basis of Article 29 TEU, Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2011 L 28, p. 62).
2        Recitals 1 and 2 of Decision 2011/72 state:
‘(1)      On 31 January 2011, the Council reaffirmed its full solidarity and support with Tunisia and its people in their efforts to establish a stable democracy, the rule of law, democratic pluralism and full respect for human rights and fundamental freedoms.
(2)      The Council further decided to adopt restrictive measures against persons responsible for misappropriation of Tunisian State funds and who are thus depriving the Tunisian 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 of Decision 2011/72, in its original version, provided:
‘1.      All funds and economic resources belonging to, owned, held or controlled by persons responsible for misappropriation of Tunisian State funds, and natural or legal persons or entities associated with them, as listed in the Annex, shall be frozen.
2.      No funds or economic resources shall be made available, directly or indirectly, to, or for the benefit of, natural or legal persons or entities listed in the Annex.
3.      The competent authority of a Member State may authorise the release of certain frozen funds or economic resources, or the making available of certain funds or economic resources, under such conditions as it deems appropriate, after having determined that the funds or economic resources concerned are:
(a)      necessary to satisfy the basic needs of the persons listed in the Annex and their dependent family members, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges;
(b)      intended exclusively for the payment of reasonable professional fees and the reimbursement of incurred expenses associated with the provision of legal services;
(c)      intended exclusively for the payment of fees or service charges for the routine holding or maintenance of frozen funds or economic resources; or
(d)      necessary for extraordinary expenses...
4.      By way of derogation from paragraph 1, the competent authorities of a Member State may authorise the release of certain frozen funds or economic resources, provided that the following conditions are met:
(a)      the funds or economic resources are the subject of a judicial, administrative or arbitral lien established prior to the date on which the natural or legal person, entity or body referred to in Article 1(1) was included in the Annex, or of a judicial, administrative or arbitral judgment rendered prior to that date;
(b)      the funds or economic resources will be used exclusively to satisfy claims secured by such a lien or recognised as valid in such a judgment, within the limits set by applicable laws and regulations governing the rights of persons having such claims;
(c)      the lien or judgment is not for the benefit of a natural or legal person, entity or body listed in the Annex; and
(d)      recognising the lien or judgement is not contrary to public policy in the Member State concerned.
…
5.      Paragraph 2 shall not apply to the addition to frozen accounts of:
(a)      interest or other earnings on those accounts; or
(b)      payments due under contracts, agreements or obligations that were concluded or arose prior to the date on which those accounts became subject to this Decision,
provided that any such interest, other earnings and payments remain subject to paragraph 1.’
4        Council Decision 2012/724/CFSP of 26 November 2012 amending Decision 2011/72 (OJ 2102 L 327 p. 45) added to Article 1(5) of Decision 2011/72 a point (c) according to which ‘payments due under judicial, administrative or arbitral decisions rendered in the Union or enforceable in the Member State concerned’ are also to be excluded from the application of Article 1(2).
5        Article 2 of Decision 2011/72 provides:
‘1.      The Council, acting upon a proposal by a Member State or the High Representative of the Union for Foreign Affairs and Security Policy, shall establish and amend the list in the Annex.
2.      The Council shall communicate its decision, including the grounds for the listing, to the person or entity concerned, either directly, if the address is known, or through the publication of a notice, providing such person or entity with an opportunity to present observations.
3.      Where observations are submitted, or where substantial new evidence is presented, the Council shall review its decision and inform the person or entity concerned accordingly.’
6        Article 3(1) of Decision 2011/72 provides:
‘The Annex shall include the grounds for listing the persons and entities.’
7        Article 5 of Decision 2011/72 provides:
‘This Decision shall apply for a period of 12 months. It shall be kept under constant review. It shall be renewed, or amended as appropriate, if the Council deems that its objectives have not been met.’
8        The list originally annexed to Decision 2011/72 contained only the names of Mr Zine el-Abidine Ben Hamda Ben Ali, former President of the Republic of Tunisia, and his wife, Mrs Leïla Bent Mohammed Trabelsi.
9        On 4 February 2011, on the basis of Article 2(1) of Decision 2011/72 and of Article 31(2) TEU, the Council adopted Implementing Decision 2011/79/CFSP implementing Decision 2011/72 (OJ 2011 L 31, p. 40). Article 1 of that implementing decision provided that the annex to Decision 2011/72 was to be replaced by the text set out in the annex to that implementing decision. That annex listed the names of 48 natural persons including, in particular, in the first and second lines, the names of the two persons referred to in paragraph 8 above, and, in the fifth line, the name of the applicant, Mr Fahed Mohamed Sakher Al Matri. Also stated in the fifth line of that annex, in the column headed ‘Identifying information’, was the following: ‘Tunisian, born in Tunis 2 December 1981, son of Naïma BOUTIBA, married to Nesrine BEN ALI, holder of NIC No 04682068’, and, in the column headed ‘Grounds’: ‘Person subject to judicial investigation by the Tunisian authorities in respect of the acquisition of movable and immovable property, the opening of bank accounts and the holding of financial assets in several countries as part of money-laundering operations’.
10      On 4 February 2011, on the basis of Article 215(2) TFEU and of Decision 2011/72, the Council also adopted Regulation (EU) No 101/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia (OJ 2011 L 31, p. 1). Article 2(1) and (2) of that regulation reproduces, in essence, the provisions of Article 1(1) and (2) of Decision 2011/72, while Articles 4, 5 and 6 reproduce, in essence, the provisions of Article 1(3), (4) and (5) of Decision 2011/72. Furthermore, the content of Annex I to that regulation is identical to that of the annex to Decision 2011/72, as amended by Implementing Decision 2011/79.
11      On 1 April 2011, the applicant brought an action for annulment of Implementing Decision 2011/79 and Regulation No 101/2011 in so far as those acts concern him.
12      On 23 February 2012, the applicant asked the Court to extend the form of order sought and the pleas of the action referred to in paragraph 11 above to Council Decision 2012/50/CFSP of 27 January 2012 amending Decision 2011/72 (OJ 2012 L 27, p. 11). That decision extended until 31 January 2013 the application of the restrictive measures provided for by Decision 2011/72, as amended by Decision 2011/79, while leaving the content of that decision and of the annex thereto unchanged.
13      The application of the restrictive measures provided for by Decision 2011/72, as amended by Decision 2011/79, was further extended, until 31 January 2014, by Council Decision 2013/72/CFSP of 31 January 2013 amending Decision 2011/72 (OJ 2013 L 32, p. 20). That decision nevertheless left the content of Decision 2011/72 and of the annex thereto, as amended by Decision 2011/79, unchanged.
14      In its judgment of 28 May 2013 in Al Matri v Council (T‑200/11, EU:T:2013:275), the General Court annulled Decision 2011/79 and Regulation No 101/2011, in so far as they concern the applicant, on the basis of the following grounds.
15      The Court found, first of all, on examining the plea alleging that Decision 2011/79 had no legal basis, that it followed from the wording of Article 1(1) of Decision 2011/72, interpreted in the light of the objectives of that decision, that the scope of the restrictive measures covered by that decision was restricted to those responsible for misappropriation of Tunisian State funds and their associates (judgment in Al Matri v Council, cited in paragraph 14 above, EU:T:2013:275, paragraphs 45 and 46).
16      The Court went on to find that the applicant had been included among the persons covered by Article 1(1) of Decision 2011/72 on the ground that he was subject to judicial investigation by the Tunisian authorities in respect of acts carried out as part of money-laundering operations. The Court noted, however, that it had neither been established nor even alleged that a person subject to judicial investigation for money laundering could be regarded, under Tunisian criminal law, on that ground alone, as responsible for misappropriation of State funds or as being associated with such a person (judgment in Al Matri v Council, cited in paragraph 14 above, EU:T:2013:275, paragraphs 47 and 48).
17      The Court therefore concluded from the considerations referred to in paragraphs 15 and 16 above that Decision 2011/79 had applied a criterion other than that laid down in Article 1(1) of Decision 2011/72 when it included the applicant in the list of persons whose assets were required to be frozen pursuant to Decision 2011/72 (judgment in Al Matri v Council, cited in paragraph 14 above, EU:T:2013:275, paragraph 50). Furthermore, it considered that the material put forward by the Council in order to challenge that conclusion was not conclusive (judgment in Al Matri v Council, cited in paragraph 14 above, EU:T:2013:275, paragraphs 53 to 73).
18      Consequently, the Court concluded that the plea alleging a lack of any legal basis had to be upheld, and Decision 2011/79 and, therefore, Regulation No 101/2011, annulled, in so far as those acts concerned the applicant (judgment in Al Matri v Council, cited in paragraph 14 above, EU:T:2013:275, paragraphs 74, 76 and 77).
19      It should be added that the Court considered that, owing to the annulment of Implementing Decision 2011/79 and Regulation No 101/2011 in so far as they related to the applicant, the applicant was to be deemed never to have been covered by the asset freeze at issue, and therefore there was no longer any need to adjudicate on the claim that Decision 2012/50 should be annulled (judgment in Al Matri v Council, cited in paragraph 14 above, EU:T:2013:275, paragraphs 84 and 85). The Court also considered that, owing to the difference between the date on which the annulment of Regulation No 101/2011 would take effect and the date on which the annulment of Decision 2011/79 would take effect, which was likely seriously to jeopardise legal certainty, it was necessary, on the basis of Article 264 TFEU, to maintain the effects of that decision provisionally until the annulment of Regulation No 101/2011 took effect (judgment in Al Matri v Council, cited in paragraph 14 above, EU:T:2013:275, paragraphs 87 to 90).
20      Furthermore, in two other judgments of the same date, the Court also upheld two other actions against the restrictive measures adopted under Decision 2011/72, as amended by Decision 2011/79, on the basis of considerations similar to those referred to in paragraphs 15 to 17 above (judgments of 28 May 2013 in Trabelsi and Others v Council, T‑187/11, ECR, EU:T:2013:273, and Chiboub v Council, T‑188/11, EU:T:2013:274).
21      Following delivery of the judgment in Al Matri v Council, cited in paragraph 14 above (EU:T:2013:275), on 8 July 2013 the Council sent a letter to the applicant’s lawyer informing the applicant of its intention to replace the reason for his inclusion in the list of persons whose assets were required to be frozen in accordance with Decision 2011/72 with the following text:
‘Person subject to judicial investigations by the Tunisian authorities for exerting wrongful influence over a public office-holder (ex-President Ben Ali) with a view to obtaining directly or indirectly an advantage for another person, complicity in the misuse of office by a public office-holder (ex-President Ben Ali) to procure an unjustified advantage for a third party and to cause a loss to the administration, and complicity in the misappropriation of Tunisian public monies by a public office-holder (ex-President Ben Ali)’.
22      The Council also enclosed with that letter copies in French and in English of nine certificates (attestations), dated 6, 10 and 11 June 2013, provided by the Tunisian Ministry of Justice. The applicant annexed those certificates to the application. The certificates were all issued by the Tribunal de Première Instance de Tunis (Court of First Instance of Tunis, Tunisia). In each one, the registrar of the competent investigating judge, whose corresponding reference number is specified, or, in some of them, the registrar of the senior investigating judge, certifies that an ‘investigation case’ with a particular reference number has been opened in respect of the applicant and other persons, is ‘under investigation’, and concerns the applicant who is ‘under investigation’ for conduct the criminal classification of which is specified. Those certificates also contain a reference to ‘Crimes committed before 14/01/2011’ and specify the articles of the Tunisian Criminal Code that relate to the conduct in question and under which it is punishable. Three of those certificates refer to cases in which the applicant is being investigated for ‘exercising undue influence on a servant with a view to directly or indirectly obtaining advantages to the benefit of others’, contrary to Article 87 of the Tunisian Criminal Code. Four others refer to ‘aiding and abetting in the abuse of capacity by a public servant to procure an unjustified advantage to a third party and cause harm to the administration’, contrary to Articles 32 and 96 of the Tunisian Criminal Code. Another certificate refers to ‘exercising undue influence on a public servant with a view to directly or indirectly obtaining advantages to the benefit of others and aiding and abetting in the abuse of capacity by a public servant to procure an unjustified advantage to a third party and cause harm to the administration’, contrary to Articles 32, 87 and 96 of the Tunisian Criminal Code. Lastly, one certificate refers to ‘aiding and abetting in embezzlement by a public servant of public money that he held owing to his position’, contrary to Articles 32 and 99 of the Tunisian Criminal Code. With the exception of one of the certificates relating to cases in which the applicant is under investigation for ‘aiding and abetting in the abuse of capacity by a public servant to procure an unjustified advantage to a third party and cause harm to the administration’, the other eight certificates name the former President of the Republic of Tunisia, referred to in paragraph 8 above, as the ‘public servant’ with whom the applicant is associated in the context of the conduct under investigation.
23      On 30 July 2013, following the judgments in Al Matri v Council, cited in paragraph 14 above (EU:T:2013:275), Trabelsi and Others v Council, cited in paragraph 20 above (EU:T:2013:273) and Chiboub v Council, cited in paragraph 20 above (EU:T:2013:274), the Council adopted Implementing Decision 2013/409/CFSP implementing Decision 2011/72 (OJ 2013 L 204, p. 52). In accordance with Article 1 of that implementing decision, the reasons given in the annex to that implementing decision replace the reasons for which the persons mentioned in that annex were initially covered by Decision 2011/72, as amended by Decision 2011/79. The persons mentioned in the annex to that implementing decision are those whose applications were granted by the judgments in Trabelsi and Others v Council, cited in paragraph 20 above (EU:T:2013:273), and Chiboub v Council, cited in paragraph 20 above (EU:T:2013:274), as well as the applicant. As regards the latter, whose name appears in the second line of that annex, the wording of those reasons is identical to that which was communicated to him by the Council in its letter of 8 July 2013 which is quoted in paragraph 21 above. On the same day, the Council adopted, on the basis of Article 12(1) of Regulation No 101/2011, Implementing Regulation (EU) No 735/2013 implementing Regulation (EU) No 101/2011 (OJ 2013 L 204, p. 23). Article 1 of that implementing regulation makes the same amendments to Annex I to Regulation No 101/2011 as Implementing Decision 2013/409 made to the annex to Decision 2011/72. In accordance with Article 2 of each of those acts, they entered into force on the day of their publication in the Official Journal of the European Union, that is on 31 July 2013.
24      On 3 October 2013, the applicant sent the Council a letter submitting his observations. In particular, the applicant claimed that the reasons for then including him on the list annexed to Decision 2011/72 and to Regulation No 101/2011 and the content of the certificates referred to in paragraph 22 above were insufficiently detailed. Furthermore, the certificates referred to matters that took place before the applicant was first listed, and therefore it would have been for the Council to raise them in relation to that first listing. Lastly, the Council had provided no evidence at all to support the allegations made in those certificates, nor any indication that it had carried out its own assessment of the facts alleged, which would have been all the more important given the political and judicial context of Tunisia. The applicant concluded by requesting that the Council immediately disclose all the evidence and information on which it had relied in listing his name in the annex to Decision 2011/72. The applicant also requested that the Council either explain what steps it had taken independently to assess the allegations contained in the certificates provided, or confirm that it had not taken any particular steps to carry out such an assessment and that it had not relied on any evidence other than those certificates. In the latter event, the applicant requested that his name be removed from the abovementioned list immediately.
25      The Council subsequently replied to the applicant’s observations by letter of 18 December 2013, contending, in essence, that the reasons for listing his name in the annex to Decision 2011/72 were linked to the concept of misappropriation of public funds and that the allegations against him were sufficiently detailed for him to be able to understand them. Thus, according to the Council, there were sufficient grounds for regarding the applicant as responsible for misappropriation of public funds for the purposes of Decision 2011/72 and Regulation No 101/2011. Furthermore, according to the Council, it had already disclosed, in its letter of 8 July 2013, the evidence and information requested by the applicant.
26      On 30 January 2014, the Council adopted Decision 2014/49/CFSP amending Decision 2011/72 (OJ 2014 L 28, p. 38). Under Article 1(1) of Decision 2014/49, Decision 2011/72 is to apply until 31 January 2015. Under Article 1(2) of Decision 2014/49, the annex to Decision 2011/72 is to be replaced by the annex to Decision 2014/49. That annex includes the names of the same persons as those whose names appeared in the annex to Decision 2011/72, as amended by Implementing Decision 2011/79, including the applicant, whose name appears in the fifth line. The reasons for which those persons were listed in the annex to Decision 2011/72 were amended, with the exception of those relating to the applicant and to two other persons referred to in Implementing Decision 2013/409, which had already been amended by Implementing Decision 2013/409, as stated in paragraph 23 above. Thus, in the first line of the annex, the reason given in respect of Mr Zine El-Abidine Ben Hamda Ben Ali, former President of the Republic of Tunisia, was now as follows: ‘Person subject to judicial investigations by the Tunisian authorities for misappropriation of public monies by a public office-holder, misuse of office by a public office-holder to procure an unjustified advantage for a third party and to cause a loss to the administration, and for exerting wrongful influence over a public office-holder with a view to obtaining directly or indirectly an advantage for another person.’ On the same day, the Council adopted Council Implementing Regulation No 81/2014 implementing Regulation (EU) No 101/2011 (OJ 2014 L 28, p. 2), which, in Article 1, replaces the annex to the latter regulation with a text identical to that contained in the annex to Decision 2014/49.
27      On 30 January 2015, the Council adopted Decision (CFSP) 2015/157 amending Decision 2011/72 (OJ 2015 L 26, p. 29) and Implementing Regulation (EU) No 147/2015 implementing Regulation (EU) No 101/2011 (OJ 2015 L 26, p. 3). Under Article 1(1) of Decision 2015/157, Decision 2011/72 is to apply until 31 January 2016 and, under Article 1(2), the entries for three persons other than the applicant in the annex to Decision 2011/72 are to be replaced by the entries set out in the annex to Decision 2015/157. Those entries are identical to the entries in respect of those persons set out initially in the annex to Decision 2011/72, except for the addition of a reference to their being ‘deceased’. Such entries in respect of the same persons were also added to Annex I to Regulation No 101/2011 by Article 1 of Implementing Regulation 2015/147.
Procedure and forms of order sought
28      By application lodged at the Court Registry on 8 October 2013, the applicant brought the present action. By that application, he claims that the Court should:
–        annul Decision 2011/72, ‘implemented by [Implementing] Decision 2013/409’, and Regulation No 101/2011, ‘implemented by ... Implementing Regulation ... No 735/2013’, in so far as those acts apply to him;
–        order the Council to pay the costs.
29      On 19 December 2013, the Council lodged its defence. The Council contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
30      By procedural document registered at the Court Registry on 7 February 2014, the applicant asked the Court for leave to extend the form of order sought and the pleas of the present action to Decision 2014/49 and Implementing Regulation No 81/2014, on the ground that those two acts extended the inclusion of his name on the list of persons subject to restrictive measures by a further year.
31      On 6 March 2014, the Council submitted observations in which it stated that it had no objection to the present action being considered to apply to Decision 2014/49 and to Implementing Regulation No 81/2014.
32      By letter of 17 June 2014, the Court Registry requested the parties to submit their observations on the Court’s proposal to stay the proceedings until delivery of a final ruling in Case C‑220/14 P, Ezz and Others v Council, concerning an appeal against the judgment of 27 February 2014 in Ezz and Others v Council (T‑256/11, ECR, EU:T:2014:93). The Court observed that, in the context of his first plea in law, the applicant was claiming that the Council had made a manifest error in finding that the criteria for including his name on the list were fulfilled in his case and that that plea raised questions similar to those raised by the second plea in the case that gave rise to the judgment in Ezz and Others v Council (EU:T:2014:93, paragraphs 55 to 104).
33      By letter of 23 June 2014, the Council stated that it had no objection to the proceedings being stayed. By letter of 4 July 2014, the applicant also stated that he had no objection in that regard. By order of the President of the Eighth Chamber of 18 July 2014, the proceedings were stayed, on the basis of Article 77(d) of the Rules of Procedure of the General Court of 2 May 1991, until the Court of Justice had given its final ruling in Case C‑220/14 P, Ezz and Others v Council.
34      Following delivery of the judgment of 5 March 2015 in Ezz and Others v Council (C‑220/14 P, ECR, EU:C:2015:147), dismissing the appeal, the proceedings were resumed on 5 March 2015. By letter of 24 March 2015, the Court requested the parties to submit their observations on the inferences to be drawn from that judgment for the present case. The Council and the applicant submitted their respective observations by letters of 27 March 2015 and 30 April 2015.
35      By procedural document registered at the Court Registry on 13 March 2015, the applicant asked the Court for leave to extend the form of order sought and the pleas of the present action to Decision 2015/157 and Implementing Regulation No 147/2015 for the same reasons as those already given in its request to modify the form of order sought referred to in paragraph 30 above. By letter of 14 April 2015, the Council informed the Court that it had no objection to that request.
Law
36      As a preliminary point, it must be noted that, in the application, the applicant seeks the annulment of Decision 2011/72, ‘implemented by [Implementing] Decision 2013/409’, and of Regulation No 101/2011, ‘implemented by ... Implementing Regulation ... No 735/2013’, in so far as those acts apply to him. Moreover, in his letters of 7 February 2014 and 13 March 2015, referred to in paragraphs 30 and 35 above, the applicant requests leave to extend the form of order sought and the pleas put forward in the application, first, to Decision 2014/49 and Implementing Regulation No 81/2014 and, secondly, to Decision 2015/157 and Implementing Regulation No 147/2015. Consequently, the applicant must be regarded as seeking the annulment, first, of Decision 2011/72, as successively amended by Implementing Decision 2013/409, Decision 2014/49 and Decision 2015/157 (together ‘the contested decision’), and, secondly, of Regulation No 101/2011, as successively amended by Implementing Regulations No 735/2013, No 81/2014 and No 147/2015 (together ‘the contested regulation’; and, together with the contested decision, ‘the contested acts’), in so far as those acts relate to him.
Admissibility of the applicant’s requests to modify the form of order sought and the pleas of the action
37      According to settled case-law, where the measure originally contested is, during the proceedings, replaced by another measure with the same subject-matter, the latter is to be considered a new factor allowing the applicant to modify his claims and pleas in law. It cannot be accepted that an EU institution or body should be able, in order to counter complaints contained in an application against one of its measures, to modify that measure or to substitute another for it and to rely in the proceedings on such an amendment or substitution in order to deprive the other party of the opportunity of extending his original pleadings to the later measure or of submitting supplementary pleadings directed against that measure (judgments of 3 March 1982 in Alpha Steel v Commission, 14/81, ECR, EU:C:1982:76, paragraph 8, and Al Matri v Council, cited in paragraph 14 above, EU:T:2013:275, paragraph 80).
38      In the present case, it is sufficient to note that Decisions 2014/49 and 2015/157 extended the period of application of Decision 2011/72, as amended by Implementing Decision 2013/409, and therefore the listing of the applicant’s name in the annex to Decision 2011/72 to which the present dispute relates, which constitutes in itself a basis for modification of the form of order sought by the applicant (see, by analogy, judgments in Alpha Steel v Commission, cited in paragraph 37 above, EU:C:1982:76, paragraph 8, and Al Matri v Council, cited in paragraph 14 above, EU:T:2013:275, paragraph 80).
39      Next, as regards Implementing Regulation No 81/2014, it must be noted that, as is apparent from paragraph 26 above, it replaced the entire annex to Regulation No 101/2011, as amended by Implementing Regulation No 735/2013, with a new annex. Thus, from the date of its entry into force, that is to say, 31 January 2014, it is Implementing Regulation No 81/2014 that has had the effect of maintaining the listing of the applicant’s name in the annex to Regulation No 101/2011, Implementing Regulation No 735/2013 having ceased to have effect from that date. Moreover, Implementing Regulation No 81/2014 is not, vis-à-vis the applicant, an act that is purely confirmatory of Implementing Regulation No 735/2013, in so far as his continued listing by virtue of that act necessarily results from a review of his situation (order of 15 February 2005 in PKK and KNK v Council, T‑229/02, ECR, EU:T:2005:48, paragraph 44, confirmed by judgment of 18 January 2007 in PKK and KNK v Council, C‑229/05 P, ECR, EU:C:2007:32, paragraph 103). Consequently, the applicant is entitled to request that his claims in relation to Regulation No 101/2011, as amended by Implementing Regulation No 735/2013, be extended to Implementing Regulation No 81/2014.
40      By contrast, as regards Implementing Regulation No 147/2015, it must be noted that, as is apparent from paragraph 27 above, that regulation merely amends the annex to Regulation No 101/2011 with regard to the listing in that annex of persons other than the applicant, those amendments, moreover, consisting only of the addition of a reference to their being ‘deceased’. Moreover, in answer to a question put by the Court in that regard in the context of a measure of organisation of procedure, the applicant accepted that those amendments concerned persons other than the applicant himself.
41      Furthermore, unlike Implementing Regulation No 81/2014 referred to in paragraph 39 above, Implementing Regulation No 147/2015 did not replace the annex to Regulation No 101/2011 with a new annex.
42      In addition, while it is the case that the list annexed to Regulation No 101/2011 is subject, under Article 12(4), to periodic review, at least annually, that review would not necessarily result in the adoption of a new legal act intended to extend the application of that regulation, which is not time-limited. In the present case, it must be noted that if it had not been necessary to amend the information concerning certain persons other than the applicant listed in the annex to that regulation, referred to in paragraph 40 above, the Council would not have adopted Implementing Regulation No 147/2015.
43      Consequently, Implementing Regulation No 147/2015 had neither the object nor effect of maintaining the applicant’s listing in the annex to Regulation No 101/2011 following a review of his situation. Accordingly, it must be held that the applicant does not have a legal interest in bringing proceedings against those amendments, which do not in any way affect his own interests (see, by analogy, order of 30 April 2001 in British American Tobacco International (Holdings) v Commission, T‑41/00, ECR, EU:T:2001:125, paragraphs 18 to 22). Those amendments cannot therefore be regarded as a basis for modifying the form of order sought by the applicant, and the applicant’s request to that effect is therefore inadmissible.
44      In those circumstances, since the requests to modify the form of order sought by the applicant were, moreover, submitted within the time-limit for bringing legal proceedings against the acts amending or replacing the acts originally challenged, those requests must be accepted as being admissible in so far as they concern the successive extensions of Decision 2011/72 effected by Decisions 2014/49 and 2015/157, and the amendments of Regulation No 101/2011 introduced by Implementing Regulation No 81/2014. By contrast, for the reasons set out in paragraphs 40 to 43 above, the request to modify the form of order sought with regard to Implementing Regulation No 147/2015 must be refused as being inadmissible.
Substance
45      In support of his claims for annulment of the contested acts, the applicant raises four pleas in law. By his first plea, which he puts forward in terms of a manifest error of assessment, the applicant complains that the Council wrongly considered that the criteria for including his name on the list annexed to the contested acts were satisfied. By his second plea, the applicant alleges infringement of his rights of defence and of his right to effective judicial protection; by his third plea, infringement of the obligation to state reasons; and, by his fourth plea, infringement of the right to property and of the freedom to conduct a business.
First plea in law, alleging that the Council wrongly considered that the criteria for including the applicant’s name on the list annexed to the contested acts were satisfied
46      The applicant, essentially repeating the observations put forward in his letter of 3 October 2013 (see paragraph 24 above), claims that, contrary to the principles established by the case-law on restrictive measures and the judgment in Al Matri v Council, cited in paragraph 14 above (EU:T:2013:275), the Council provided no evidence to establish, on the basis of accurate and relevant facts, that he was responsible for the misappropriation of Tunisian State funds. In particular, the applicant maintains that the certificates issued by the Tunisian Ministry of Justice on which the Council relies (‘the certificates at issue’) do not prove that responsibility, on account both of their vagueness and of the nature of the allegations they contain. The applicant disputes all the allegations contained in the certificates at issue and claims that the Council did not carry out any independent investigation or any verification of the accuracy or relevance of the evidence provided to it.
47      In its defence, the Council contends, in essence, that those arguments must be rejected.
–       Preliminary observations
48      It should be borne in mind that, according to the Court of Justice, the Courts of the European Union must, in their judicial review of restrictive measures, allow the Council a broad discretion in establishing the general criteria defining the category of persons that could be made subject to such measures (see, to that effect, judgments of 28 November 2013 in Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, ECR, EU:C:2013:776, paragraph 120, and of 21 April 2015 in Anbouba v Council, C‑605/13 P, ECR, EU:C:2015:248, paragraph 41).
49      By contrast, according to settled case-law, the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to include a person’s name on the list of persons subject to restrictive measures, the Courts of the European Union are to ensure that that decision, which affects that person individually, is taken on a sufficiently solid factual basis. That entails, in this instance, a verification of the factual allegations in the summary of reasons underpinning the acts at issue, in order to review whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support those acts, is substantiated (see judgment in Anbouba v Council, cited in paragraph 48 above, EU:C:2015:248, paragraph 45 and the case-law cited).
50      In the present case, the review as to whether the inclusion of the applicant’s name on the list annexed to the contested acts was well founded must be carried out by assessing whether the facts on which the reasons given to justify that listing are based constitute sufficient proof that the applicant satisfies the general criteria laid down by the Council in Article 1(1) of the contested decision to define the category of persons that could be made subject to such measures. Such an appraisal must be carried out by examining the evidence not in isolation but in the context in which it fits (see, to that effect, judgment in Anbouba v Council, cited in paragraph 48 above, EU:C:2015:248, paragraph 50 and the case-law cited). It is also apparent from the case-law that, in order to assess the nature, form and degree of the proof that the Council may be required to provide, it is necessary to take account of the specific nature and scope of the restrictive measures, as well as of their objective (see, to that effect, judgment in Council v Manufacturing Support & Procurement Kala Naft, paragraph 48 above, EU:C:2013:776, paragraphs 74 to 85, and Opinion of Advocate General Bot in Anbouba v Council, C‑605/13 P, ECR, EU:C:2015:2, point 111).
51      The present plea must be examined in the light of those considerations. It must be noted that, as is evident from the case-law referred to in paragraphs 48 to 50 above, the Council has a broad discretion in determining the criteria defining the category of persons subject to the restrictive measures at issue, but not in determining whether a person satisfies those criteria, the latter determination involving inter alia a process of legal characterisation over which the Courts of the European Union exercise full review. Consequently, the applicant’s first plea cannot be examined from the aspect of a manifest error of assessment, notwithstanding the applicant’s choice of heading for this plea. It is evident from the content of the application and from the applicant’s observations at the hearing that, in the context of his first plea, the applicant claims that the Council has neither established nor sought to establish the legal relevance of the facts on the basis of which he could be described as responsible for the misappropriation of public funds, or the material accuracy of those facts. This plea thus requires the Court to review whether the Council’s assessment of the sufficiency of the information available to it for the purpose of maintaining the applicant’s listing in the annexes to the contested acts is erroneous from the aspect both of an error of law and of an error of fact.
–       The Council’s obligations to examine and to verify the evidence with regard to the material accuracy of the content of the certificates at issue
52      First of all, the applicant claims, in essence, that the Council adopted the same approach as that found by the Court to be unlawful in the judgment in Al Matri v Council, cited in paragraph 14 above (EU:T:2013:275), when it maintained the applicant’s name in the annexes to the contested acts solely on the basis of the certificates at issue. In that judgment, the Court had already ruled that the Council had failed to provide evidence with regard to the applicant when it first listed his name in the annex to Decision 2011/72 and Regulation No 101/2011. He notes in that regard that, on the basis of a list provided by the Tunisian authorities containing the names and addresses of the former President of the Republic of Tunisia and his family, the Council included in the annex to those acts the names of 48 persons, including the applicant himself, for an identical reason: judicial investigations by the Tunisian authorities into money-laundering activities. He further suggests that the judicial proceedings relating to him in Tunisia, the validity of which he disputes, are politically motivated. Thus, the Council did not ask the Tunisian authorities for a list of persons identified as being responsible for misappropriating public funds, still less did it assess whether the applicant himself was responsible. Similarly, in the present case, the certificates at issue on which the Council relies do not demonstrate the existence of any investigation or any assessment by the Council to determine whether the applicant is responsible for misappropriation of Tunisian State funds.
53      It will be recalled in that regard that, as is apparent from paragraph 9 above, the applicant’s name was originally entered on the list annexed to Decision 2011/72 and to Regulation No 101/2011 by Decision 2011/79 on the ground that he was subject to judicial investigation by the Tunisian authorities in respect of the acquisition of movable and immovable property, the opening of bank accounts and the holding of financial assets in several countries as part of money-laundering operations. As noted in paragraphs 15 to 17 above, in its judgment in Al Matri v Council, cited in paragraph 14 above (EU:T:2013:275), the Court upheld the plea alleging that Decision 2011/79 had no legal basis, finding that that ground did not prove that the applicant was responsible for misappropriating public funds or associated with such a person. The Court noted, in particular, that it had neither been established nor even alleged that a person subject to judicial investigation for money laundering could be regarded under Tunisian criminal law, on that ground alone, as responsible for misappropriation of State funds or as being associated with such a person. The Court concluded that the Council had applied a different criterion from that laid down in Article 1(1) of Decision 2011/72 (judgment in Al Matri v Council, cited in paragraph 14 above, EU:T:2013:275, paragraphs 47 to 49). As noted in paragraphs 21 to 23 above, the Council adopted Implementing Decision 2013/409 and Implementing Regulation No 735/2013 on the basis of the certificates at issue following the annulment of Decision 2011/79, in so far as it concerns the applicant, in order to re-list the applicant in the annexes to the contested acts for reasons other than that which resulted in the annulment.
54      It should, moreover, also be noted that, as stated in paragraphs 21 and 23 above, the Council gave the following reasons for that re-listing: ‘Person subject to judicial investigations by the Tunisian authorities for exerting wrongful influence over a public office-holder (ex-President Ben Ali) with a view to obtaining directly or indirectly an advantage for another person, complicity in the misuse of office by a public office-holder (ex-President Ben Ali) to procure an unjustified advantage for a third party and to cause a loss to the administration, and complicity in the misappropriation of Tunisian public monies by a public office-holder (ex-President Ben Ali).’ In addition, as is apparent from paragraph 22 above, those reasons correspond to the three categories of conduct mentioned in the certificates at issue, which certify that an investigation is under way in the Court of First Instance of Tunis in relation to nine cases in which the applicant is, according to the French-language version of those certificates, ‘poursuivi’ (‘under investigation’, in the English-language version) for one or more of those categories of conduct.
55      It must be held that, contrary to what is stated by the applicant, the approach taken in this case by the Council, of relying solely on the certificates at issue, is not in itself contrary to the case-law and was, in particular, not judged to be unlawful by the Court in its judgment in Al Matri v Council, cited in paragraph 14 above (EU:T:2013:275).
56      In the first place, it should be noted at the outset that, in the judgment in Al Matri v Council, cited in paragraph 14 above (EU:T:2013:275), the Court did not annul Decision 2011/79 by upholding a plea that the Council had merely reproduced in the annex to that decision the grounds for the judicial investigations being conducted against persons named on the list provided by the Tunisian authorities, without itself carrying out an examination of those reasons or an ‘independent’ investigation. As is evident from paragraph 53 above, in the judgment in Al Matri v Council, cited in paragraph 14 above (EU:T:2013:275), the Court upheld a plea alleging that that decision was vitiated by the lack of any legal basis in so far as the reason relating to the existence of judicial investigations into money laundering, accepted by the Council, did not correspond to the criterion laid down in Article 1(1) of Decision 2011/72. Admittedly, in paragraphs 53 to 73 of the judgment in Al Matri v Council, cited in paragraph 14 above (EU:T:2013:275), the Court found that the documents on which the Council relied did not prove with any certainty that the money laundering which resulted in the applicant’s being subject to judicial investigation was consequent on the misappropriation of public funds. However, the sole purpose of those considerations was to respond to the Council’s arguments challenging the assertion that the Council had applied a criterion other than that laid down in Article 1(1) of Decision 2011/72 (see, to that effect, judgment in Al Matri v Council, cited in paragraph 14 above, EU:T:2013:275, paragraphs 53 to 73). Consequently, the grounds of that judgment did not preclude the Council from re-listing the applicant in the annexes to the contested acts in reliance only, where appropriate, on information provided by the Tunisian authorities, without carrying out its own investigation or even any additional checks.
57      In the second place, it must be pointed out that the case-law does not require the Council to carry out, systematically and on its own initiative, its own investigations or checks for the purpose of obtaining additional information, when it already has information provided by the authorities of a third country in taking restrictive measures against nationals of that country who are subject to judicial proceedings in that country.
58      It can, it is true, be inferred by analogy from the case-law on restrictive measures adopted in the fight against terrorism that it was for the Council, in this instance, to examine carefully and impartially the evidence that had been sent to it by the Tunisian authorities, that is to say, the certificates at issue, in the light, in particular, of the comments and any exculpatory evidence submitted by the applicant (see, to that effect and by analogy, judgment of 18 July 2013 in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, ECR, EU:C:2013:518, paragraph 114). Furthermore, in the context of the adoption of restrictive measures, the Council is under an obligation to observe the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights, which, according to settled case-law, entails the obligation for the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see, to that effect and by analogy, judgments in Commission and Others v Kadi, EU:C:2013:518, paragraph 99, and of 5 November 2014 in Mukarubega, C‑166/13, ECR, EU:C:2014:2336, paragraph 48).
59      However, as has been noted in paragraph 50 above, it is also apparent from the case-law that, in order to assess the nature, form and degree of the proof that the Council may be required to provide, it is necessary to take account of the specific nature and scope of the restrictive measures, as well as of their objective.
60      In that regard, as is apparent from recitals 1 and 2 of the contested decision, that decision forms part of a more general EU policy of support for the Tunisian authorities, intended to promote both the economic and the political stability of Tunisia. It thus satisfies the objectives of the common foreign and security policy (CFSP) which are defined, in particular, in Article 21(2)(b) and (d) TEU, pursuant to which the European Union is to engage in international cooperation with a view to consolidating and supporting democracy, the rule of law, human rights and the principles of international law and, moreover, to fostering the sustainable — notably economic — development of developing countries (see, to that effect and by analogy, judgments in Ezz and Others v Council, cited in paragraph 34 above, EU:C:2015:147, paragraph 46, and Ezz and Others v Council, cited in paragraph 32 above, EU:T:2014:93, paragraph 44).
61      It is against that background that, as Article 1(1) of the contested decision shows, the purpose of that decision is to freeze the assets of persons responsible for misappropriation of Tunisian State funds and of persons associated with them, whose names are listed in the annex to that decision. By obstructing the operation of Tunisian public institutions and of bodies which depend on them, such misappropriation of State funds is ‘depriving’, according to recital 2 of that decision, ‘the Tunisian people of the benefits of the sustainable development of their economy and society and undermining the development of democracy in the country’.
62      It therefore follows from Article 1(1) of the contested decision, read in the light of recitals 1 and 2 thereof, that the freezing of assets provided for by that decision is not intended to penalise any misconduct in which the persons concerned may have engaged, or to deter them, by coercion, from engaging in such conduct. As the applicant himself indicates, the sole purpose of that asset freeze is to facilitate the Tunisian authorities’ identification of any misappropriation of State funds that has taken place and to protect the possibility of the authorities recovering misappropriated public funds. It is, therefore, purely precautionary (see order of 14 July 2011 in Trabelsi and Others v Council, T‑187/11 R, EU:T:2011:384, paragraph 26 and the case-law cited, and, by analogy, judgment in Ezz and Others v Council, cited in paragraph 32 above, EU:T:2014:93, paragraphs 78 and 206).
63      That conclusion is not called into question by the fact, on which the applicant relies in the context of his fourth plea, that, in its note verbale dated 25 January 2011 addressed to the Tunisian authorities, the EU Delegation to Tunisia had asked the authorities for a list of persons they wished to punish. In so far as the precautionary nature of the asset freeze imposed by the contested decision is clear from the wording of Article 1(1) and recitals 1 and 2 of that decision, the words used by the EU delegation in a note verbale predating the adoption of that decision are irrelevant. In any event, it cannot be inferred from the terms of that note verbale that that asset freeze is coercive in nature, in so far as the EU Delegation is referring in that note to individuals who could be punished by the Tunisian authorities themselves, not by the EU institutions. Moreover, it must be noted that, in their reply of 29 January 2011 to that note verbale, the Tunisian authorities expressly ask the EU Delegation to Tunisia to submit to the EU institutions the list of persons attached to that reply ‘with a view to taking the necessary precautionary measures’.
64      Thus, such an asset freeze, imposed by the Council on the basis of the powers conferred on it by Articles 21 TEU and 29 TEU, has no criminal-law aspect (judgment in Ezz and Others v Council, cited in paragraph 32 above, EU:T:2014:93, paragraph 77). It cannot, therefore, contrary to what is suggested by the applicant, be treated in the same way as a decision to freeze assets that has been taken by a national judicial authority of a Member State in the relevant criminal proceedings, respecting the safeguards provided by those proceedings. Consequently, the requirements the Council must fulfil with regard to the evidence underpinning a person’s entry on the list of persons whose assets are to be frozen cannot be exactly the same as those which apply to the national judicial authority in the abovementioned case.
65      In the present case, what the Council must ascertain is, first, to what extent the certificates at issue prove that, as indicated by the grounds for the applicant’s listing in the annexes to the contested acts, referred to in paragraph 54 above, the applicant is subject to judicial investigations in respect of actions that may be characterised as misappropriation of State funds, and, secondly, whether those investigations are such that the applicant’s actions can be characterised as satisfying the criterion laid down in Article 1(1) of the contested decision. Only if those investigations were not successful would it, in the light of the case-law referred to in paragraph 58 above, be incumbent on the Council to investigate further. Thus, in paragraph 64 of the judgment in Al Matri v Council, cited in paragraph 14 above (EU:T:2013:275), the Court held that it was for the Council to ascertain that the documents which had been sent to it by the Tunisian authorities properly answered the question put by the EU Delegation to Tunisia, requesting the Tunisian authorities to send it a list of the natural and/or legal persons referred to by those authorities. The reason for this was, in essence, that those documents referred only to a judicial investigation for money laundering resulting from the abuse of official positions and professional and social activities, without establishing a link with the criterion laid down in Article 1(1) of Decision 2011/72 (see, to that effect, judgment in Al Matri v Council, cited in paragraph 14 above, EU:T:2013:275, paragraph 64).
66      Furthermore, in the context of the cooperation governed by the contested acts, it is not, in principle, for the Council itself to examine and assess the accuracy and relevance of the information relied on by the Tunisian authorities in conducting judicial investigations in respect of the applicant for conduct that could be characterised as misappropriation of State funds. As explained in paragraphs 62 and 63 above, in adopting the contested acts, the Council does not seek itself to punish the misappropriation of State funds being investigated by the Tunisian authorities, but to protect the possibility of the authorities identifying such misappropriation and recovering the funds thus misappropriated. It is therefore for those authorities, in the context of those investigations, to verify the information on which they are relying and, where appropriate, to draw the appropriate conclusions as regards the outcome of those investigations. Furthermore, as is apparent from paragraph 64 above, the Council’s obligations under the contested acts cannot be treated in the same way as those of a national judicial authority of a Member State in the context of asset-freezing criminal proceedings initiated, in particular, in the context of international cooperation in criminal matters. That interpretation is confirmed by the judgment in Ezz and Others v Council, cited in paragraph 34 above (EU:C:2015:147), in which the Court of Justice held, in circumstances similar to those of the present case, that it was for the Council or the General Court to verify not whether the investigations to which the appellants were subject were well founded, but only whether that was the case as regards the decision to freeze funds in the light of the Egyptian authorities’ request for assistance (judgment in Ezz and Others v Council, cited in paragraph 34 above, EU:C:2015:147, paragraph 77).
67      Admittedly, as is apparent in particular from paragraph 64 of the judgment in Al Matri v Council, cited in paragraph 14 above (EU:T:2013:275), referred to in paragraph 65 above, the Council cannot, in all circumstances, adopt the findings of the Tunisian judicial authorities contained in the documents provided by them. Such conduct would not be consistent with the principle of good administration nor, generally, with the obligation on the part of the EU institutions to respect fundamental rights in the application of EU law, under the combined provisions of the first subparagraph of Article 6(1) TEU and Article 51(1) of the Charter of Fundamental Rights (see, to that effect and by analogy, judgment of 22 December 2010 in DEB, C‑279/09, ECR, EU:C:2010:811, paragraph 30).
68      However, the Court of Justice has held, with regard to restrictive measures in the fight against terrorism, that it was for the competent authority to assess, having regard, inter alia, to the content of any comments by the person concerned, whether it was necessary to seek the assistance of the Sanctions Committee established by Resolution 1737 (2006), adopted on 23 December 2006 by the United Nations Security Council, in order to obtain the disclosure of information or evidence, confidential or not, to enable it to discharge its duty of careful and impartial examination (judgment in Commission and Others v Kadi, cited in paragraph 58 above, EU:C:2013:518, paragraph 115). In the same way, in the context of the contested acts, it is for the Council to assess, on the basis of the circumstances of the case, whether it is necessary to investigate further, in particular to seek the disclosure of additional evidence from the Tunisian authorities if it transpires that the evidence already supplied is insufficient. Information communicated to the Council, either by the Tunisian authorities themselves or in some other way, might conceivably lead that institution to doubt the adequacy of the evidence already supplied by those authorities. Furthermore, when availing themselves of the opportunity which the persons concerned must be given to submit their comments on the reasons which the Council intends to use to maintain their names in the annexes to the contested acts, those persons may submit such information, or even exculpatory evidence, which would require the Council to investigate further. In particular, while it is not for the Council to take the place of the Tunisian judicial authorities in assessing whether the judicial investigations referred to in the certificates at issue are well founded, it is not inconceivable that, in the light, in particular, of the applicant’s observations, the Council might be obliged to seek clarification from those Tunisian authorities with regard to the material on which those investigations are based.
69      In this instance, it should be noted first of all that, as he confirmed moreover at the hearing, in the present action, the applicant does not dispute the existence of the judicial investigations being conducted in his case in the Court of First Instance, Tunis, as certified by the certificates at issue.
70      Furthermore, it must be noted that each of the certificates at issue described in paragraph 22 above contains in the top left-hand corner a reference to the Court of First Instance, Tunis, and to the office of the investigating judge responsible for the case to which it relates. Similarly, each of those certificates has been drawn up by the registrar of the investigating judge concerned and bears the registrar’s name and signature, as well as the stamp of the case to which it relates, and the authenticity of each certificate is certified by the senior registrar of the Tribunal in question, whose name, signature and stamp is also included. Moreover, each certificate mentions the number of the case in question and the name of the applicant as being the person involved in that case. It also mentions the identity of the other persons involved or, if not, adds to the reference to the persons mentioned by name the words ‘et consorts’ (‘and consorts’, in the English-language version), enabling them to be identified. In addition, each certificate indicates the criminal classification of the conduct of which those persons are suspected, the fact that it pre-dates 14 January 2011, and the provisions of the Tunisian Criminal Code under such conduct is punishable. Consequently, there is nothing in the present case that would have enabled the Council to challenge the material accuracy of those certificates with regard to the judicial investigations concerning the applicant, the existence of which they certified.
71      Next, as to whether those investigations are well founded, it must be noted that there is nothing in the documents in the file that would have been communicated to the Council that would have justified a request by the Council for clarification in that respect from the Tunisian authorities. In particular, it does not appear that, prior to the adoption of the contested acts, the applicant submitted observations that might have prompted the Council to take such a step. Admittedly, however, as indicated in paragraph 24 above, the applicant did submit observations on 3 October 2013 which the Council was required to take into account prior to the successive adoption of Decision 2014/49 and Decision 2015/157 amending Decision 2011/72, and to the adoption of Implementing Regulation No 81/2014 amending Regulation No 101/2011. However, it must be noted that the information put forward in those observations did not oblige the Council to carry out any additional investigations.
72      The only two matters on which the applicant relied in the observations he put forward on 3 October 2013 challenging the validity of the judicial investigations mentioned in the certificates at issue are, first, the fact that he denies all the allegations against him set out in those certificates, and, secondly, the concerns expressed by a number of organisations regarding the lack of independence of the Tunisian judicial system vis-à-vis the political authorities. As regards that last point, the applicant emphasised in his observations that, in view of the fact that he was the son-in-law of the former President of the Republic of Tunisia, it was all the more important that the Council should have independently assessed whether those investigations were being conducted in accordance with the rule of law and with respect for his fundamental rights. In his application, the applicant indicates that, in view of his correspondence with the Council, the latter was not unaware that the allegations contained in the certificates at issue were ‘baseless’ and that he ‘strongly denie[d] them’. Furthermore, while not expressly relying on those matters in challenging the validity of the investigations referred to in the certificates at issue, the applicant states that he is among those regarded as the ‘former regime’ in Tunisia and that his status as a ‘wealthy businessman’ and son-in-law of the former President of the Republic of Tunisia have earned him the hostility of members of the current government. Like a number of such people, he is subject to investigation in Tunisia and to the freezing and confiscation of his assets, on the basis of allegations which he ‘vehemently denies’. In that context, the serious concerns expressed by certain organisations about the independence of the judiciary in Tunisia are not, in his view, surprising. At the hearing, counsel for the applicant indicated that he was not in a position to confirm that the judicial proceedings to which reference is made in the application corresponded to the judicial investigations mentioned in the certificates at issue. He did, however, confirm that he considered those judicial investigations to be politically motivated.
73      In that regard, first, it must be noted that, at no time prior to the adoption of the contested acts or, moreover, in the context of the present action, did the applicant communicate to the Council the reasons why he was contesting the facts on account of which he is subject to judicial investigation in Tunisia. Secondly, the applicant’s claims in relation to the political nature of the judicial proceedings brought against him in Tunisia are particularly vague and general and are not based on any concrete evidence. In particular, it must be noted that the applicant is not even seeking to establish a specific link between the presumed hostility towards him of certain members of the Tunisian executive, which he mentions, and the judicial investigations referred to in the certificates at issue which he does not accept are well founded. Furthermore, the documents from non-governmental organisations or third States produced by the applicant in support of his assertions regarding the lack of independence of the Tunisian judicial system vis-à-vis the political authorities do not support the applicant’s claims. None of those documents shows that the judicial investigations to which the applicant is subject and to which the certificates at issue refer are specifically affected by the dysfunction he mentions. Furthermore, it cannot be concluded from those documents that that dysfunction is systemic and that it would therefore have been for the Council to verify, in all circumstances, that those judicial investigations were well founded.
74      Admittedly, according to the case-law, it is the task of the competent EU 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 (judgment in Commission and Others v Kadi, cited in paragraph 58 above, EU:C:2013:518, paragraph 121). However, in the present case, since the Council adduced proof of the existence of the judicial investigations being conducted against the applicant, the reliability of which is not in dispute, it was for the applicant to indicate the concrete evidence on which he relies in order to challenge the validity of those investigations.
75      Furthermore, it must be noted that the applicant did not put forward in his letter of 3 October 2013 the claims set out in his application with regard to his various economic achievements which, according to the applicant, have contributed to Tunisia’s development, or to the fact that all his assets are derived from legitimate business transactions and that his businesses have used only private money. The Council cannot, therefore, be criticised for not having taken account of those points in the context of the adoption of Implementing Decision 2013/409 and of Implementing Regulation No 735/2013. In any event, those points are irrelevant as regards the existence of the judicial investigations mentioned in the certificates at issue. Still less can the Council be criticised for not having taken account, in the contested acts, of the applicant’s claims, put forward for the first time in his observations dated 30 April 2015, regarding the conclusions to be drawn from the judgment in Ezz and Others v Council, cited in paragraph 34 above (EU:C:2015:147), and concerning the allegedly contrived nature of the judicial investigations to which he is subject. Nor indeed could any account have been taken of those claims, which are not supported by any concrete evidence.
76      Consequently, it follows from the foregoing that, in the particular circumstances of this case, the Council was not obliged to carry out a further ‘independent’ assessment or additional investigations as to the accuracy of the facts mentioned in the certificates at issue, that is the judicial investigations referred to in those certificates and the facts to which those investigations relate.
–       The appropriateness of the information given in the certificates at issue having regard to the criterion laid down in Article 1(1) of the contested decision
77      The applicant relies, in essence, on the imprecise or incomplete nature of the content of the certificates at issue in claiming that it was not possible to characterise him as responsible for misappropriation of State funds on the basis of those certificates alone.
78      In the first place, according to the applicant, the certificates at issue merely certify that an investigation is underway in respect of the allegations against him. The applicant further maintains that no prosecutions or charges have been brought against him in relation to that investigation. In his observations of 30 April 2015 on the conclusions to be drawn from the judgment in Ezz and Others v Council, cited in paragraph 34 above (EU:C:2015:147), the applicant maintains, moreover, that his interpretation is reinforced by the judgment in Ezz and Others v Council, cited in paragraph 32 above (EU:T:2014:93), which limits the concept of persons responsible for misappropriation of State funds to persons either convicted of a criminal offence in respect of such conduct or prosecuted for a criminal offence in respect of such conduct. Lastly, at the hearing, the applicant argued that limiting the concept in that way helps to prevent judicial investigations of a person from going on indefinitely, as in this case, and thereby reduces the risk of ‘politically motivated’ proceedings.
79      In that regard, it should be borne in mind that, as indicated in paragraph 3 above, Article 1(1) of the contested decision restricts the category of persons covered by the contested acts to persons responsible for misappropriation of Tunisian State funds and to persons and entities associated with them. While there is, in some language versions of the contested acts, including the French-language version, a difference in terminology between that provision, which refers to misappropriation of ‘fonds publics tunisiens’ (Tunisian State funds), and Article 2(1) of the contested regulation, which mentions misappropriation of ‘fonds revenant à l’État tunisien’ (funds reverting to the Tunisian State) or ‘fonds de l’État tunisien’ (funds of the Tunisian State), those expressions must be regarded as being equivalent. Moreover, it must be noted that in other language versions of the contested acts, notably the English-language version, the expression used is always the same (‘Tunisian State funds’). As pointed out in paragraph 54 above, the Council found that the fact that the applicant is subject to judicial investigations in respect of three separate categories of offence was sufficient for him to be considered a person responsible for misappropriation of Tunisian State funds, or at least a person associated with a person so responsible, within the meaning of Article 1(1) of the contested decision.
80      As a preliminary point, it must be noted that, as indicated in paragraph 22 above, the French-language version of the certificates at issue indicates that the applicant is ‘poursuivi’ (being prosecuted) on account of the conduct mentioned therein. By contrast, in the English-language version, which is also in the file, the French term ‘poursuivi’ is rendered as ‘under investigation’. It is apparent from the documents in the file and the explanations given by the Council at the hearing that the French-language version of those certificates is a document which has been drawn up and authenticated by the Tunisian authorities and which they have translated from Arabic, and that the English-language version is a translation produced by an external entity on the basis of that French-language document. Yet the applicant has not produced anything that would cast doubt on the accuracy of the term ‘poursuivi’ chosen by the Tunisian authorities to describe, in French, his treatment by those authorities. In particular, it should be noted that the applicant’s arguments appear to rest on the premiss that, as he is still only subject to judicial investigation, the criminal proceedings to which he is subject have not yet reached the stage of a prosecution. However, the mere fact that, as the certificates at issue show, a judicial investigation by an investigating judge is underway in respect of the applicant does not in any way give grounds for assuming that a criminal prosecution has not already been brought against the applicant. Moreover, when questioned at the hearing about this discrepancy between his reasoning and the French-language wording of the certificates at issue, the applicant provided no information in relation to the criminal proceedings to which he is subject in Tunisia that could rule out the possibility that a criminal prosecution has already been brought in his case.
81      In any event, Article 1(1) of the contested decision cannot be interpreted as excluding the applicant from its scope on the ground that, as indicated in the certificates at issue, the investigation of that person’s possible conduct is ongoing.
82      In this regard, it must, first of all, be borne in mind that, according to settled case-law, where a provision of EU law is open to several interpretations, preference must be given to that interpretation which ensures that the provision retains its effectiveness (see judgment of 27 October 2011 in Commission v Poland, C‑311/10, EU:C:2011:702, paragraph 20 and the case-law cited).
83      Next, it must be noted that the contested acts do not indicate which stage of the judicial proceedings brought against a person for conduct that may be characterised as misappropriation of public funds must have been reached in order for that person to be capable of being regarded as responsible for such conduct for the purposes of the abovementioned provisions of the contested acts. Nor do those acts contain any reference, for the purpose of interpreting the concept of responsibility, to other provisions of EU law or to sources outside EU law, notably international law or Tunisian criminal law.
84      Furthermore, it must be noted that the expression ‘persons responsible for misappropriation of ... State funds’ or an equivalent expression is used in a number of Council decisions also taken on the basis of Article 29 TEU, and in the corresponding regulations adopted on the basis of Article 215 TFEU. That is true of Article 1(1) of Council Decision 2011/172/CFSP 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. 63), and of Article 2(1) of Council 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). As is apparent from the interpretation of the provisions of Decision 2011/172 applied in the judgment in Ezz and Others v Council, cited in paragraph 32 above (EU:T:2014:93), the fund-freezing measures provided for by that decision and by Regulation No 270/2011 are of the same precautionary nature as the measures at issue in the present case (judgment in Ezz and Others v Council, cited in paragraph 32 above, EU:T:2014:93, paragraph 78). In addition, like the contested acts, Decision 2011/172 and Regulation No 270/2011 implement, with regard to Egypt, the general objectives defined by Article 21(2)(b) and (d) TEU (judgment in Ezz and Others v Council, cited in paragraph 32 above, EU:T:2014:93, paragraph 44). Thus, both the contested acts and Decision 2011/172 and Regulation No 270/2011 pursue the same specific objectives under the European Union’s foreign policy, with the result that the concept of responsibility used in those acts must necessarily be given an autonomous interpretation that is independent of any national system (see, to that effect and by analogy, judgment of 22 September 2011 in Budějovický Budvar, C‑482/09, ECR, EU:C:2011:605, paragraph 37 and the case-law cited).
85      In those circumstances, given the objectives of the asset freeze laid down by Article 1(1) of the contested decision, as recalled in paragraphs 60 and 61 above, the provisions of that article which determine the category of persons covered by that asset freeze must be interpreted broadly (see, by analogy, judgment in Ezz and Others v Council, cited in paragraph 32 above, EU:T:2014:93, paragraph 67). Furthermore, in view of the purely precautionary nature of that asset freeze, the general principle of EU law of legality of criminal offences and penalties, enshrined in the first sentence of Article 49(1) of the Charter of Fundamental Rights, on the one hand, and that of the presumption of innocence, enshrined in Article 48(1) of the Charter, on the other, are not applicable in the present case and cannot, therefore, preclude such a broad interpretation (see, to that effect and by analogy, judgment in Ezz and Others v Council, cited in paragraph 32 above, EU:T:2014:93, paragraphs 70 to 84).
86      If the interpretation of Article 1(1) of the contested decision that the applicant defends were to be accepted, the effectiveness of the contested decision would be seriously undermined since, in that situation, a person who, in the context of criminal proceedings, was being investigated by the judicial authorities with a view to establishing whether he was responsible for the misappropriation of Tunisian State funds would have enough time, during those investigations, to transfer the assets held by him out of the European Union (see, by analogy, judgments in Ezz and Others v Council, cited in paragraph 34 above, EU:C:2015:147, paragraph 71, and Ezz and Others v Council, cited in paragraph 32 above, EU:T:2014:93, paragraph 66). It must therefore be held that Article 1(1) of the contested decision may be applied not only to persons found responsible for misappropriation of State funds by a final judicial decision in criminal proceedings, but also to persons subject to ongoing investigations by the judicial authorities with a view to establishing their responsibility in the context of such proceedings (see, by analogy, judgments in Ezz and Others v Council, cited in paragraph 34 above, EU:C:2015:147, paragraph 72, and Ezz and Others v Council, cited in paragraph 32 above, EU:T:2014:93, paragraph 67).
87      Contrary to what the applicant maintains, the findings of the General Court in the judgment in Ezz and Others v Council, cited in paragraph 32 above (EU:T:2014:93), confirmed by the Court of Justice in the judgment in Ezz and Others v Council, cited in paragraph 32 above (EU:C:2015:147), do not invalidate these conclusions.
88      Admittedly, in the judgment in Ezz and Others v Council, cited in paragraph 32 above (EU:T:2014:93), the General Court did not rule on the point as to whether ongoing investigations by the judicial authorities of conduct that may be characterised as misappropriation of State funds were sufficient for a person to be characterised as being responsible for such conduct. In so far as, in that case, it was established that the first of the applicants was the subject of a criminal prosecution and that the other applicants were the subject of judicial proceedings connected to that prosecution, it was not necessary to examine that issue (see, to that effect, judgment in Ezz and Others v Council, cited in paragraph 32 above, EU:T:2014:93, paragraphs 147 and 156).
89      However, as noted in paragraph 86 above, the General Court’s reasoning in paragraph 66 of the judgment in Ezz and Others v Council, cited in paragraph 32 above (EU:T:2014:93), confirmed by the Court of Justice in paragraph 71 of its judgment in Ezz and Others v Council, cited in paragraph 34 above (EU:C:2015:147), is applicable mutatis mutandis to the situation of a person such as the applicant.
90      In that regard, it cannot be held that investigations carried out by judicial authorities in criminal proceedings for conduct that may be characterised as misappropriation of State funds take place at too early a stage in the proceedings for the person concerned to be capable of being regarded as responsible for that conduct within the meaning of Article 1(1) of the contested decision. For the reasons set out in paragraph 86 above, the judicial authorities’ investigations would be at risk of failing if the applicant were able to transfer any funds derived from the alleged misappropriation of State funds, before those authorities were able to establish the facts and to lay charges against the applicant. Furthermore, should those investigations lead, at the end of the proceedings, to the applicant being absolved of responsibility, the Council would be obliged to end the freezing of assets at issue. Thus, in view of the precautionary nature of that freezing of assets, and its temporary and reversible nature, its application at the stage when judicial investigations are being carried out by an investigating judge is not vitiated by an error of law.
91      Furthermore, the argument which the applicant put forward at the hearing, relating to the risk of judicial investigations going on indefinitely, particularly if they are politically motivated, must be rejected in the present case. First, it is common ground that the freezing of assets at issue has been based on those judicial investigations only since the emergence of Implementing Decision 2013/409 and Implementing Regulation No 735/2013, that is since 30 July 2013. Moreover, even if those investigations had been ongoing since the applicant’s name was originally listed in the annex to Decision 2011/72 and to Regulation No 101/2011, which is not evident from the material in the file, those investigations cannot be regarded as having lasted an excessively long period of time as at the date of the most recent extension of Decision 2011/72 which is at issue in the present action, that is to say, the extension introduced by Decision 2015/157 on 30 January 2015. Secondly, it must be noted that the existence of judicial investigations which are being conducted by an investigating judge constitutes, in principle, an additional guarantee as regards the risk of political reprisals, when compared with a situation in which investigations are being conducted by authorities that are hierarchically subordinated to the executive.
92      In the second place, the nature of the conduct to which the judicial investigation of the applicant relates, that is the exerting of wrongful influence over a public office-holder and complicity in the misuse of office by that public office-holder, does not, according to the applicant, permit the inference that he is responsible for the misappropriation of State funds.
93      In that regard, it must indeed be noted, as it was in the judgments in Al Matri v Council, cited in paragraph 14 above (EU:T:2013:275), Trabelsi and Others v Council, cited in paragraph 20 above (EU:T:2013:273), and Chiboub v Council, cited in paragraph 20 above (EU:T:2013:274) and in the judgment of 2 April 2014 in Ben Ali v Council (T‑133/12, EU:T:2014:176), that the concept of misappropriation of State funds does not encompass all economic offences or crimes (judgments in Al Matri v Council, cited in paragraph 14 above, EU:T:2013:275, paragraph 45; Trabelsi and Others v Council, cited in paragraph 20 above, EU:T:2013:273, paragraph 91; Chiboub v Council, cited in paragraph 20 above, EU:T:2013:274, paragraph 52; and Ben Ali v Council, EU:T:2014:176, paragraph 69).
94      The concept of misappropriation of State funds is clear and precise and is generally understood to mean the illegal use of funds or assets belonging to, or under the control of, a public figure for a purpose contrary to that for which those funds or assets were intended, particularly for private purposes. That definition excludes in particular any criminal activities linked to the unlawful handling of private funds. Moreover, in the light of the objectives of the contested acts, set out in paragraph 61 above, which are intended to enable the Tunisian authorities to recover misappropriated Tunisian State funds, an asset freeze targeting also the persons responsible for offences or crimes related to the handling of funds which cannot in any way be characterised as State funds would not be appropriate for the purpose of achieving those objectives and would, in any event, be neither necessary nor proportionate.
95      Nevertheless, that concept does cover, at the very least, actions capable of being characterised in terms of Tunisian criminal law as misappropriation of State funds, in so far as it thus enables persons subject to judicial investigation by the Tunisian judicial authorities on account of actions characterised by them as misappropriation of State funds to be included within the scope of the contested acts.
96      In addition, for the reasons set out in paragraphs 80 to 85 above, the concept of misappropriation of State funds must be interpreted broadly. In particular, it must be noted that, for the purposes of interpreting that concept, as also for the purposes of interpreting the concept of responsibility, the contested acts do not refer back to sources external to EU law, notably international law or Tunisian criminal law. Thus, in the light of the specific objectives of those acts, the concept of misappropriation of State funds, like the concept of responsibility, must necessarily be given an autonomous interpretation.
97      It is conceivable, in this regard, that unlawful actions which have not been characterised in terms of criminal law by the Tunisian judicial authorities as misappropriation of State funds may nevertheless have had the effect of unduly depriving Tunisian public authorities of funding, thus making it necessary to freeze the assets of those responsible for such actions and the persons and entities associated with them in order to enable such funds possibly to be recovered by the Tunisian authorities. While relatively circumscribed, the concept of misappropriation of State funds can vary in scope depending on the national law applicable, the associated case-law and the particular facts of the case. Consequently, the objectives of the contested acts would not be achieved if the concept of misappropriation of State funds did not apply to actions that had not been characterised as such by the Tunisian judicial authorities in the context of a judicial investigation, but which could correspond to the Council’s intended definition of that concept in the contested decision. Moreover, as observed in paragraph 48 above, according to the case-law, the Council has a broad discretion in establishing the general criteria defining the category of persons that could be made subject to restrictive measures.
98      In those circumstances, taking into account the objectives of the contested acts, recalled in paragraphs 60 to 62 above, and the resulting principle of a broad interpretation, identified in paragraph 85 above, it must be held that the concept of misappropriation of Tunisian State funds encompasses any unlawful use of resources which belong to, or are under the control of, the Tunisian public authorities, for a purpose contrary to that for which those resources were intended, particularly for private purposes. In addition, in order to be caught by that concept, that unlawful use of Tunisian State resources must have led to those authorities’ interests being prejudiced, resulting in harm that is financially quantifiable.
99      Moreover, it must be noted that that interpretation results in a definition of that concept that is similar to the definition of the concept of misappropriation of the Union’s funds, as referred to in Article 4(4) of the European Commission’s proposal (COM (2012) 363 final) of 11 July 2012 for a Directive of the European Parliament and of the Council on the fight against fraud to the Union’s financial interests by means of criminal law, which is currently under consideration. According to that article, the act by a public official ‘to commit or disburse funds, or appropriate or use assets, contrary to the purpose for which they were intended and ... [damaging] the Union’s financial interests’ constitutes misappropriation of the Union’s funds.
100    In the present case, it must first of all be noted that one of the reasons which the Council gave for maintaining the applicant’s listing in the annexes to the contested acts relates to the judicial investigation of the applicant in Tunisia for complicity in the misappropriation of Tunisian public monies by a public office-holder, in this instance the former President of the Republic of Tunisia, who is also listed in the annexes to the contested acts on account of judicial investigations in respect of such misappropriation. Furthermore, as the applicant, moreover, himself admits, that reason is based on one of the nine certificates produced by the Tunisian authorities. As is apparent from the case-law referred to in paragraph 49 above, it is sufficient for one of the three reasons given by the Council to be valid in order for the applicant’s continued listing in the annexes to the contested acts to be legally justified. In the present case, that appears to be the case as regards the reason referred to above, which is based on the applicant’s presumed involvement in conduct characterised by the Tunisian authorities as misappropriation of State funds, which, as noted in paragraph 95 above, in itself justifies the inclusion within the scope of the contested acts of those responsible for such conduct. Consequently, that being the case, even if, as the applicant maintains in his second complaint, complicity in the misuse of office by a public office-holder and the exerting of wrongful influence over such an office-holder were not such as to justify his being included within the scope of those acts, that would be irrelevant.
101    In any event, it must be held that characterising conduct that is subject to judicial investigation as misuse of office within the meaning of Tunisian criminal law also means that a person responsible for such conduct will be included within the scope of the contested acts.
102    In that regard, as is evident, moreover, from the certificates at issue, the Tunisian Criminal Code defines the offence of misuse of office and the associated punishment in Article 96. The text of that article, added to the file by the Council pursuant to a measure of organisation of procedure, is as follows:
‘A civil servant or other public officer, director, member or employee of a local authority, an association representing national interests, a publicly owned industrial and commercial body, a company in which the State holds any share of the capital, either directly or indirectly, or a company owned by a local authority, who is responsible for buying, selling, manufacturing, administering or storing goods of any kind and who exploits his position to procure an unfair advantage for himself or for a third party, cause prejudice to the administration or contravene the rules regulating those activities with a view to ensuring the aforementioned advantage or prejudice, shall be liable to imprisonment for 10 years and to a fine equal to the amount of the advantage received or the prejudice suffered by the administration.’
103    It follows from the wording of that article that the misuse of office, under Tunisian criminal law, describes conduct whereby a civil servant or other public officer, whose duties involve, in one way or another, the management of public resources, abuses his position in order to procure for himself or for a third party an undue advantage and thereby causes prejudice to the administration. Consequently, it must be concluded that, in the present case, the conduct characterised as misuse of office that is imputed to the former President of the Republic of Tunisia falls within the concept of misappropriation of State funds for the purposes of Article 1(1) of the contested decision. In doing so, it fulfils both of the requisite conditions referred to in paragraph 98 above, that is to say, it involves, first, the use of State resources for unintended purposes, in particular in order to procure an advantage for a private person, and, secondly, prejudice to the interests of the public person concerned, causing that person harm which is financially quantifiable in so far as it is the result of unlawful use by the holder of an office involving the management of public assets or assets that are under the control of a public authority. The certificates at issue relating to the judicial investigations in respect of the misuse of office confirm that those conditions are fulfilled in the present case, since, in particular, they mention both the existence of an advantage procured for a third party and the existence of harm to the administration.
104    Admittedly, it is, by contrast, not apparent from Article 87 of the Tunisian Criminal Code that the offence of exerting wrongful influence provided for by and punishable under that article also fulfils the conditions referred to in paragraph 103 above. In particular, it is not apparent from the wording of that article that the concept of exerting wrongful influence, within the meaning of Tunisian criminal law, necessarily implies the existence of financially quantifiable harm to the administration. Moreover, the certificates at issue relating to the wrongful influence of which the applicant is suspected do not mention such harm. That is irrelevant however, since, for the same reasons as those relied on in paragraph 100 above, the conduct characterised as complicity in the misappropriation of State funds, on the one hand, and as complicity in the misuse of office, on the other, committed by the same public office-holder, corresponds in both cases to the concept of misappropriation of State funds within the meaning of the contested acts.
105    In the third place, according to the applicant, the only time an allegation of misappropriation of State funds is made against him, that allegation is made against the former President of the Republic of Tunisia and not against the applicant himself.
106    In that regard, the fact that the applicant is named in the certificates at issue relating to the misappropriation of State funds as the accomplice of the former President of the Republic of Tunisia and not as the actual perpetrator of the misappropriation of funds does not preclude him from being responsible, within the meaning of the contested acts, for such misappropriation.
107    Furthermore, whatever variations there may be in its scope under the applicable law, the concept of complicity refers in any event to participation in an offence punishable under criminal law which may engage the criminal responsibility of the person identified as an accomplice. Even though the extent of the responsibility of an accomplice to an offence may, under the relevant law and in certain cases, be regarded as being of lesser importance than that of the principal perpetrator(s), the fact remains that that responsibility, however minimal, may result in a criminal conviction. It is, moreover, apparent from the case-file that that is so in this instance. First, it is evident from the certificates at issue that the applicant is the subject of a criminal investigation by an investigating judge for complicity in the misappropriation of State funds and complicity in the misuse of office, or is being prosecuted for these offences. Secondly, as those certificates indicate and as is confirmed by the wording of Article 32 of the Tunisian Criminal Code, supplied by the Council in the context of a measure of organisation of procedure, an accomplice is defined by that article as being a person who knowingly incites the commission of the offence or aids the perpetrators of the offence in the various ways set out in that article, which provides that the accomplice, thus defined, is to be ‘punished accordingly’. Consequently, no error of law can be imputed to the Council as a result of its having concluded that an accomplice to a misappropriation of Tunisian State funds or to a misuse of power akin to such misappropriation of State funds could be regarded as being responsible for that misappropriation within the meaning of Article 1(1) of the contested decision.
108    In any event, it must be noted that, in the context of his first plea, the applicant did not seek to dispute the fact that he could be regarded not as a person responsible for the misappropriation of State funds within the meaning of Article 1(1) of the contested decision, but as a natural person associated with a person so responsible, within the meaning of those provisions. In particular, the applicant did not challenge the fact that he could be characterised in this way as a result of complicity in the misappropriation of State funds for which the former President of the Republic of Tunisia is allegedly responsible, which is the subject of an ongoing judicial investigation by an investigating judge that also relates to the former President of the Republic of Tunisia. Moreover, it must be noted that, since the adoption of Decision 2014/49/CFSP and Regulation No 81/2014, the reasons for the latter’s listing in the annexes to the contested acts mention in particular the ‘misappropriation of public monies by a public office-holder’ and the ‘misuse of office by a public office-holder to procure an unjustified advantage for a third party and to cause a loss to the administration’ (see paragraph 26 above). As recalled in paragraph 79 above, it is apparent from the actual wording of Article 1(1) of the contested decision that the category of persons covered by that provision also includes persons and entities associated with persons responsible for misappropriation of State funds.
109    In that regard, as the Council confirmed at the hearing, it has not ruled out the possibility that the applicant could be considered a person responsible for misappropriation of State funds as well as a person associated with a person so responsible. Furthermore, contrary to what is suggested by the applicant in connection with his plea relating to a failure to state reasons, the Council was not legally obliged to indicate in which of those categories it was placing him in order to add his name to the annexes to the contested acts. The contested decision does not make any distinction in the treatment of those two categories of persons, and therefore the freezing of assets provided for by that decision applies irrespective of category and in accordance with uniform conditions laid down in Article 1(2) to (5) of that decision.
110    Furthermore, it should be noted that the purpose of including in the category of persons whose assets are to be frozen persons associated with those responsible for misappropriation of State funds is precisely to ensure that the freezing of assets is not circumvented by persons considered responsible for misappropriation of State funds through the transfer of such assets to associated persons or entities (see, to that effect and by analogy, judgments in Ezz and Others v Council, cited in paragraph 34 above, EU:C:2015:147, paragraph 72, and Ezz and Others v Council, cited in paragraph 32 above, EU:T:2014:93, paragraph 67). Even on the assumption that the expression ‘associated persons’ should be interpreted strictly, it should at the very least include those regarded as accomplices of the perpetrators of the misappropriation of State funds, those perpetrators being, by definition, among the persons responsible for such misappropriation, whatever the meaning given to the term ‘responsible’. As is apparent from paragraph 107 above, the concept of complicity, in the ordinary sense of the term, implies a particularly close degree of association with the perpetrator of the crime or offence in question. Consequently, an accomplice must necessarily be viewed as a person associated with a person responsible for such a crime or offence, if the inclusion of such associated persons in the category of persons covered by the asset freeze at issue is not to be deprived of any effect.
111    In the fourth place, according to the applicant, there is no allegation that the applicant himself is in possession of misappropriated funds, which is not consistent with the objective of returning frozen funds to Tunisia after a criminal trial.
112    However, it must be held that the interpretation of Article 1(1) of the contested decision set out in paragraphs 85 to 86, 95 to 98 and 107 to 110 above precludes the Council from being required to supply evidence expressly referring to the fact that the applicant is in possession of the misappropriated funds in order to include him in the category of persons covered by that provision.
113    First, as is apparent from paragraphs 86 and 110 above, neither the concept of persons responsible for misappropriation of State funds nor the concept of associated persons necessarily implies that it must be established that such persons are in fact in possession of misappropriated funds. Furthermore, for reasons similar to those set out in those paragraphs, the objectives of the freezing of assets at issue would not be achieved if that were the case. Thus, while waiting for such possession to be established, the persons concerned would have sufficient time to transfer the misappropriated funds out of the European Union. Moreover, those persons could also transfer the funds to associated persons or entities not subject to the asset freeze at issue, the Council having failed to establish that those persons or entities were in possession of the misappropriated funds.
114    In the fifth place, according to the applicant, the certificates at issue do not mention ‘actions that enable concealment of the illicit origin of assets deriving from misappropriation of State funds’, as the Court put it in its judgment in Al Matri v Council, cited in paragraph 14 above (EU:T:2013:275). He maintains, moreover, that a link between the actions of which he is accused and State funds or public offices has not been established.
115    In that regard, as stated in paragraphs 53 and 56 above, in the case giving rise to the judgment in Al Matri v Council, cited in paragraph 14 above (EU:T:2013:275), the Court, in its examination of the applicant’s plea relating to the failure to comply with the general criteria laid down in Article 1(1) of Decision 2011/72, was prompted to rule on whether the fact that the applicant was subject to judicial investigation in respect of money laundering could justify his being regarded as a person responsible for misappropriation of State funds or as being associated with such a person. That is why, in its judgment, the Court was prompted to find that the concept of money laundering did not necessarily correspond to actions that enable the illicit origin of assets deriving from misappropriation of State funds to be concealed. Furthermore, the Court also held in that judgment that the documents produced by the Council did not support the conclusion that the claims of money-laundering operations as a result of the abuse of official positions relating to the applicant were linked to the holding of public office (judgment in Al Matri v Council, cited in paragraph 14 above, EU:T:2013:275, paragraphs 39, 47 to 49 and 60 to 62).
116    In the present case, however, unlike the money laundering claims referred to in paragraph 115 above, as is apparent from paragraphs 100 to 104 and 107 to 110 above, the allegations of complicity in the misappropriation of State funds by an office-holder, on the one hand, and of complicity in the misuse of office by an office-holder, on the other, on which the Council relies, represent a direct and obvious connection with the concept of misappropriation of State funds within the meaning of Article 1(1) of the contested decision and Article 2(1) of the contested regulation. For the reasons set out in those paragraphs, the conduct to which those allegations relate implies, by definition, participation in actions falling within the scope of misappropriation of State funds. It is therefore irrelevant that the certificates at issue do not mention actions aimed at concealing the illicit origin of those funds. Furthermore, the link between the actions imputed to the applicant and State funds or public offices must be deemed to have been established by the certificates at issue, since those certificates name him as a presumed accomplice of the former President of the Republic of Tunisia in respect of the conduct referred to above.
117    In the sixth place, according to the applicant, the certificates at issue do not contain any allegations that he benefited from the misappropriation of State funds imputed to the former President of the Republic of Tunisia. For reasons similar to those set out in paragraph 113 above, the applicant’s complaint that the certificates at issue do not contain allegations that he benefited from the misappropriation of State funds imputed to Mr Ben Ali must be rejected. First, it does not follow from paragraphs 86 and 110 above that, in order to be regarded as a person responsible for misappropriation of Tunisian State funds or as a person associated with such a person, it is necessary for the applicant to have derived an advantage from the misappropriation of funds in question. Thus, in so far as, as an accomplice of the perpetrator of what may be characterised as misappropriation of State funds, the applicant could be included in either of those categories, the question as to whether or not he derived an advantage from those actions cannot be a relevant criterion. Secondly, it would be contrary to the objective of the asset freeze to limit it to persons who had benefited from the misappropriation of State funds alleged, just as it would be contrary to that objective, as indicated in paragraph 113 above, to limit it to persons established as being in possession of the misappropriated assets.
118    In the seventh place, according to the applicant, the matters referred to in the certificates at issue relate to events that took place before he was first listed in the annexes to the contested acts, and therefore they should have been raised at the time of that first listing, or at least during the proceedings before the Court in the case that gave rise to the judgment in Al Matri v Council, cited in paragraph 14 above (EU:T:2013:275).
119    It must be held that that circumstance cannot, by itself, call into question the legality of the contested acts. First of all, it is common ground that the investigations mentioned in those certificates were ongoing as at the date of the contested acts. Furthermore, the applicant is not claiming that the matters to which those certificates relate occurred a relatively long time ago and are therefore time-barred, which, moreover, is not in any way apparent from the material in the file. In addition, it does not follow from the wording of Article 1(1) of the contested decision or from its context and objectives that the misappropriation of State funds which has caused the persons responsible for those matters and the persons associated with them to be subject to the asset freeze imposed by that provision should have occurred at any particular date or in any particular period.
120    It is true that the Council did not rely on those matters when it first listed the applicant in the annexes to the contested acts, or during the proceedings in the case that gave rise to the judgment in Al Matri v Council, cited in paragraph 14 above (EU:T:2013:275). However, contrary to what is suggested by the applicant, it cannot in any way be inferred from that circumstance alone that those matters would not constitute an appropriate factual basis to justify maintaining his name in those annexes after judgment was delivered in Al Matri v Council, cited in paragraph 14 above (EU:T:2013:275). Moreover, it is not claimed that the Council could have known of the matters mentioned in the certificates at issue before those certificates were drawn up, which, as is apparent from paragraph 22 above, was after judgment was delivered in Al Matri v Council, cited in paragraph 14 above (EU:T:2013:275). In any event, as indicated in paragraph 119 above, it is common ground that the judicial investigations in respect of those matters were ongoing when the contested acts were adopted. As stated in paragraph 62 above, the sole purpose of that asset freeze, which is strictly precautionary, is to facilitate the Tunisian authorities’ identification of any misappropriation of State funds that has taken place in the past, and to protect the possibility of the authorities recovering misappropriated funds, not to deter the persons concerned from engaging or continuing to engage in such actions.
121    Lastly, in the eighth place, both in the application and at the hearing, the applicant criticised, in general terms, the lack of detail in the certificates at issue as regards the conduct of which he is accused. Thus, he submits, there is nothing to indicate which of the certificates the Council is relying on in order to justify each of the grounds mentioned in the annexes to the contested acts. There are, moreover, no details of the nature of the office the applicant is alleged to have misused. No indication is given as to how the applicant was complicit in the matters imputed to the former President of the Republic of Tunisia. Further, the certificates at issue mention an advantage to a third party without detailing the nature of that advantage or the identity of the third party in question.
122    In that regard, first, as is apparent from paragraph 22 above, the three categories of conduct on which the Council relied vis-à-vis the applicant correspond to those mentioned in the certificates at issue and are, moreover, mentioned in the annexes to the contested acts in terms virtually identical to those used in the certificates. Contrary to the applicant’s submission, there is therefore no difficulty in identifying the certificate(s) underpinning each of those three categories of conduct.
123    Secondly, it is true that those certificates mention only the criminal classification of the conduct under judicial investigation and, where relevant, the identity and status of the person with whom the applicant is associated as an accomplice in connection with that conduct. By contrast, the certificates do not indicate the specific circumstances on which the Tunisian authorities relied in conducting those investigations and in characterising the conduct under investigation. However, it is evident from paragraph 70 above that the certificates at issue mention those judicial investigations in sufficiently specific and precise terms, so that there can be no doubt as to the nature of the applicant’s involvement in the conduct referred to, which is the subject of those judicial investigations, and the presumed degree of that involvement. Likewise, it is apparent from paragraphs 80 to 117 above that that involvement, to the degree indicated by the certificates at issue, is sufficient to support the conclusion that the applicant meets the criteria laid down in Article 1(1) of the contested decision. Accordingly, the fact that the identity of the third party deriving an advantage from that conduct is not indicated is irrelevant, since the applicant is mentioned there, either as the principal or as his accomplice. Moreover, as the Court has found in paragraphs 69 to 75 above, it is not apparent from the material in the file, in particular the applicant’s observations dated 3 October 2013, that there was anything to lead the Council to carry out any additional investigations, notably to satisfy itself of the validity of the judicial investigations referred to in the certificates at issue. Lastly, the applicant did not dispute, either in the application or at the hearing, the fact that he was in a position to identify the specific nature of the conduct to which each of the certificates at issue relates.
124    Consequently, it follows from all of the foregoing that, in the particular circumstances of this case, the Council did not make any error of law in regarding itself as not being obliged to carry out a further ‘independent’ assessment or additional investigations and being entitled to rely solely on the certificates at issue in concluding that the applicant met the criteria laid down in Article 1(1) of the contested decision. Consequently, for the reasons set out in paragraphs 48 to 123 above, the first plea in law must therefore be rejected.
Second plea in law, alleging an infringement of the rights of the defence and of the right to effective judicial protection
125    In support of his second plea, the applicant essentially submits that, before adopting the contested acts, the Council failed to observe the safeguards laid down in the case-law to ensure respect for his rights of defence and for his right to effective judicial protection. In particular, the Council did not produce sufficient material to justify the adoption of such measures against him. Similarly, before adopting the contested acts, the Council did not notify him of the listing proposal, or grant him the possibility of a hearing.
126    The Council contends, in essence, that those arguments must be rejected.
127    As a preliminary point, it should be borne in mind that it has consistently been held that the Courts of the European Union must ensure, in accordance with the powers conferred on them by the FEU Treaty, the review, in principle the full review, of the lawfulness of all Union acts in the light of the fundamental rights forming an integral part of the EU legal order, which includes, inter alia, respect for the rights of the defence and the right to effective judicial protection (judgments of 3 September 2008 in Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, ECR, EU:C:2008:461, paragraph 326, and Commission and Others v Kadi, cited in paragraph 58 above, EU:C:2013:518, paragraphs 97 and 98).
128    The first of those rights, which is affirmed in Article 41(2) of the Charter of Fundamental Rights, includes the right to be heard and the right to have access to the file, subject to legitimate interests in maintaining confidentiality. The second of those rights, which is affirmed in Article 47 of the Charter of Fundamental Rights, requires that the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based, either by reading the decision itself or by requesting and obtaining disclosure of those reasons, without prejudice to the power of the court having jurisdiction to require the authority concerned to disclose that information, so as to make it possible for him to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his applying to the court having jurisdiction, and in order to put the latter fully in a position to review the lawfulness of the decision in question (see judgment in Commission and Others v Kadi, cited in paragraph 58 above, EU:C:2013:518, paragraphs 99 and 100 and the case-law cited).
129    In particular, in proceedings relating to the adoption of the decision to enter or maintain the entry of the name of an individual on a list of persons and entities whose assets are to be frozen, respect for the rights of the defence requires that the competent EU 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 is in a position to defend his rights in the best possible conditions and to 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 EU authority must ensure that that individual is placed in a position in which he may effectively make known his views on the grounds advanced against him. 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 in Commission and Others v Kadi, cited in paragraph 58 above, EU:C:2013:518, paragraphs 111 to 113 and the case-law cited). By contrast, where that decision merely extends the continued listing of the individual concerned without amending the grounds justifying that continued listing, the Council cannot be required to respect that dual procedural obligation (see, to that effect, judgment of 18 June 2015 in Ipatau v Council, C‑535/14 P, ECR, EU:C:2015:407, paragraphs 26 and 27).
130    Article 52(1) of the Charter of Fundamental Rights nevertheless allows limitations on the exercise of the rights enshrined in the Charter, subject to the conditions that the limitation concerned respects the essence of the fundamental right in question and, subject to the principle of proportionality, that it is necessary and genuinely meets objectives of general interest recognised by the European Union. Further, the question 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 in Commission and Others v Kadi, cited in paragraph 58 above, EU:C:2013:518, paragraphs 101 and 102).
131    In the present case, it should be borne in mind, first of all, that, as indicated in paragraphs 21 and 22 above, the Council informed the applicant, in its letter of 8 July 2013, that it intended to maintain the applicant’s name on the list annexed to Decision 2011/72, stating the new grounds for that listing and enclosing with that letter the certificates from the Tunisian authorities on which those grounds were based. The applicant acknowledges in the application that he received that letter. As is apparent from paragraphs 23 and 26 above, the grounds on which the applicant’s name was maintained on the list annexed to the contested acts remained strictly identical to those which the Council had previously disclosed to him in its letter of 8 July 2013 referred to above.
132    It must be held in that regard that, by disclosing to the applicant the precise reasons why it envisaged maintaining the applicant’s name on the list annexed to the contested acts before it adopted Implementing Decision 2013/409 and Implementing Regulation No 735/2013, as well as the certificates from the Tunisian authorities on which it relied, the Council satisfied the obligations arising from the case-law referred to in paragraphs 128 and 129 above and enabled the applicant to exercise his rights of defence meaningfully prior to the adoption of those acts.
133    First, contrary to what is maintained by the applicant, the fact that the Council did not disclose, in its letter of 8 July 2013, the listing proposal which had to be put to the vote of the Member States has no bearing on the question of respect for his rights of defence, since it disclosed to him the precise wording of the reasons for including his name on that list. Only that part of the list was of use to the applicant for the purpose of exercising his rights of defence. Furthermore, as is apparent from paragraphs 21 and 54 above, that wording is sufficiently clear and precise. It includes the nature and the stage of the proceedings to which the applicant is subject in Tunisia, a description of the various offences in respect of which he is subject to those proceedings, and the identity of the person with whom he is associated in that regard. Contrary to what is suggested by the applicant, the Council was not obliged, moreover, to include in the actual wording of those reasons the information and evidence on which it had relied, in so far as it had disclosed such information and evidence to the applicant prior to the adoption of the contested acts.
134    Secondly, it is evident from paragraphs 79 to 122 above that the certificates which the Council enclosed with its letter of 8 July 2013 are sufficiently detailed to enable the applicant to comment on them and possibly to challenge the content. Furthermore, as noted in paragraph 122 above, contrary to the applicant’s submission, it is perfectly possible to identify the certificates on which the Council relied in respect of each of the three reasons given for including the applicant’s name in the annexes to the contested acts. Thus, having regard to the reasons given by the Council, the Council was not obliged to provide the applicant with information other than the abovementioned certificates in order to enable the applicant to put forward a proper defence. The question whether those reasons were sufficient to justify the applicant’s listing in the annexes to the contested acts is a separate question which has already been answered in the context of the examination of the first plea.
135    In addition, the Council informed the applicant in a sufficiently timely fashion so as to enable the applicant, if appropriate, to send the Council his observations or to request to be heard before the adoption of Implementing Decision 2013/409 and Implementing Regulation No 735/2013 on 30 July 2013. It is clear from the documents in the file that the abovementioned letter of 8 July 2013 was received by the applicant’s lawyer on 12 July 2013. The fact that the applicant’s observations were submitted only after that adoption and a few days before the present action was brought is therefore, as the Council essentially observes, attributable solely to the applicant and not to the Council. Furthermore, it is not apparent from the material in the file that the applicant made any request to the Council for a hearing. Admittedly, in the case of a subsequent decision to freeze funds by which that freezing of funds is maintained in respect of a person or entity to whom an earlier decision already applies, the adoption of such a decision must, in principle, be preceded inter alia by the person or entity concerned being allowed an opportunity of being heard (judgment of 21 December 2011 in France v People’s Mojahedin Organization of Iran, C‑27/09 P, ECR, EU:C:2011:853, paragraph 62). However, the institutions are not required to conduct such a hearing of their own motion (see, to that effect, judgment in Ezz and Others v Council, cited in paragraph 32 above, EU:T:2014:93, paragraph 183). In the present case, although, in its letter of 8 July 2013, the Council did not expressly invite the applicant to make oral representations, it nevertheless gave the applicant sufficient time before the adoption of the abovementioned decision and regulation to submit a request to that effect, as has already been noted above.
136    It should be added that the successive amendments made to the contested decision by Decisions 2014/49 and 2015/157 and, to the contested regulation, by Implementing Regulation No 81/2014, merely had the effect, as regards the applicant, of extending the maintenance of his name on the list in the annexes to those acts. By contrast, as noted in paragraph 131 above, those amendments did not concern the reasons for the inclusion of the applicant’s name on that list, and therefore, in accordance with the case-law referred to in paragraph 129 above, the Council was not required, prior to the adoption of those amending acts, to comply with the procedural obligations referred to in that paragraph. In those circumstances, since the Council, moreover, gave a detailed response to the applicant’s observations of 3 October 2013 before adopting the abovementioned amending acts, both in its letter of 18 December 2013 and in its defence in the present action, no infringement of the rights of the defence with regard to the adoption of those amending acts can be identified.
137    Next, as regards the applicant’s right to effective judicial protection, it must be noted, in the first place, that, as has been found in paragraphs 132 to 135 above, the applicant was able to acquaint himself with the reasons for the contested acts, and with the facts underpinning those reasons. In the second place, as is apparent in particular from paragraph 134 above, by sending the applicant the certificates from the Tunisian authorities relating to the judicial investigations concerning him, the Council enabled the Courts of the European Union to carry out an effective judicial review of the grounds for the inclusion of the applicant’s name on the list annexed to the contested acts, and in particular to verify whether there was a sufficiently solid factual basis for them within the meaning of the case-law referred to in paragraph 49 above.
138    Contrary to what is claimed by the applicant, the effectiveness of that judicial review was not undermined by the fact that the Council did not enquire about the estimated quantum of assets that might have to be returned by the applicant if the judicial investigations relating to him were to result in a prosecution, or about the quantum of his assets that were already frozen in Tunisia.
139    In that regard, as is apparent in particular from paragraphs 61 to 64 above, it was not the purpose of the contested acts to seize or confiscate the proceeds of an offence identified by a final judicial decision of the Tunisian authorities, under an order made pursuant to a request for mutual legal assistance by those authorities. As stated in paragraph 62 above, the freezing of assets at issue is strictly precautionary, and so its legality cannot be subject to determination of the amount which the persons concerned might have to return to the Tunisian authorities or which has already been returned to them. Moreover, where the person concerned, like the applicant, is merely subject to an ongoing judicial investigation, and therefore there has not yet been any judicial decision as to the amounts deriving from the misappropriation of Tunisian State funds that might be included in the assets he holds, no such determination can, by definition, have taken place (see, to that effect and by analogy, judgment in Ezz and Others v Council, cited in paragraph 32 above, EU:T:2014:93, paragraph 208).
140    Accordingly, in order for the Court to be able to carry out its judicial review in the present case, all that was required to be provided was sufficient proof that the applicant was subject to a judicial investigation for complicity in the misappropriation of State funds and the misuse of office with a view to procuring an unfair advantage for a third party and causing harm to the administration committed by the former President of the Republic of Tunisia. That was the case in this instance, as is evident from paragraphs 55 to 122 above.
141    It follows from all of the foregoing that the second plea in law must be rejected.
Third plea in law, alleging infringement of the obligation to state reasons
142    In support of his third plea, the applicant submits, in essence, that the reasons given by the Council for including his name on the list annexed to the contested acts do not ‘demonstrate’ sufficiently clearly and unequivocally that he meets the listing criteria. Thus, those reasons do not make clear how they relate to the general criteria laid down in Article 1(1) of the contested decision and Article 2(1) of the contested regulation, the relationship with the certificates provided in support of those reasons, and the precise and specific nature of the conduct attributed to the applicant. The Council contends that those arguments must be rejected.
143    As a preliminary point, it must be borne in mind that the obligation to state reasons established by Article 296 TFEU is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect. It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a plea alleging an inadequate statement of reasons or a lack of such a statement (see judgment in Ipatau v Council, cited in paragraph 129 above, EU:C:2015:407, paragraph 37 and the case-law cited).
144    Furthermore, it has consistently been held that the statement of reasons required by Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights must be appropriate to the contested measure and to the context in which it was adopted. It must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the person concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case (see judgment in Ezz and Others v Council, cited in paragraph 32 above, EU:T:2014:93, paragraph 107 and the case-law cited).
145    It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. Thus, first, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to the person concerned and which enables him to understand the scope of the measure concerning him. Secondly, the degree of precision of the statement of the reasons for a measure must be weighed against practical realities and the time and technical facilities available for taking the measure (see judgment in Ezz and Others v Council, cited in paragraph 32 above, EU:T:2014:93, paragraph 108 and the case-law cited).
146    In particular, the statement of reasons for a measure freezing assets cannot, as a rule, consist merely of a general, stereotypical formulation. Subject to the reservations set out in paragraph 145 above, such a measure must, on the contrary, indicate the actual and specific reasons why the Council considers that the relevant rules are applicable to the party concerned (see judgment in Ezz and Others v Council, cited in paragraph 32 above, EU:T:2014:93, paragraph 109 and the case-law cited).
147    In the first place, it should be pointed out at the outset that, in accordance with the case-law referred to in paragraphs 143 and 144 above, the grounds for the inclusion of the applicant’s name on the list annexed to the contested acts, which are set out in that list, are not, contrary to what the applicant appears to be suggesting, required to ‘demonstrate’ that that listing is well founded in order to satisfy the requirement to state reasons laid down in Article 296 TFEU. It is sufficient in that regard that, taking into account all the specific circumstances of the case, the reasons why the Council considers the applicant to be one of the persons responsible for the misappropriation of Tunisian State funds or associated with such persons within the meaning of the contested acts are sufficiently clear and unequivocal. Whether those reasons are compelling or not is not important in that respect.
148    In the second place, contrary to what is maintained by the applicant, it is irrelevant that the Council did not specify in those grounds whether, in its view, the conduct imputed to the applicant was such that he was included among the persons responsible for misappropriating State funds or whether it was such that he was included among those associated with such persons. As is apparent, in particular, from paragraphs 79 and 109 above, Article 1(1) of the contested decision includes within the scope of that decision persons responsible for such actions and also persons associated with them, and there is no difference in the treatment of those two categories. Consequently, as has already been noted in paragraph 109 above, both categories of persons are equally subject to the freezing of assets imposed by that provision, and the conditions under which that freeze applies, which are laid down in Article 1(2) to (5) of the contested decision, apply to them uniformly. In those circumstances, it is sufficient for the grounds at issue to show that the actions which have resulted in the applicant being subject to judicial investigation which are mentioned therein have caused the Council to conclude that he could be included both among the persons responsible for misappropriating State funds and among those associated with such persons, within the meaning of Article 1(1) of the contested decision and Article 2(1) of the contested regulation.
149    In that regard, as has been pointed out in paragraphs 54 and 79 above, it is clear from the grounds at issue that the Council found that the fact that the applicant was subject to judicial investigations in respect of three separate categories of offence was sufficient for him to be considered a person responsible for misappropriation of Tunisian State funds or, at the very least, a person associated with such a person. Moreover, as stated in paragraphs 106 to 109 above, the fact that, with regard to two of those categories, the applicant is named as an accomplice of the former President of the Republic of Tunisia enabled the applicant to be regarded both as being responsible for the conduct in question and as being associated with such a person.
150    In the third place, contrary to what is claimed by the applicant, as noted in paragraph 122 above, the link in the grounds at issue between each of the categories of conduct in respect of which the applicant is subject to judicial investigation and the certificates which the Council enclosed when communicating those grounds to the applicant is clearly identifiable.
151    In addition, the fact, relied on by the applicant, that those grounds do not mention the exact and specific nature of the conduct in respect of which he is subject to judicial investigation is not decisive as regards the assessment of their adequacy. First of all, in accordance with the case-law referred to in paragraph 143 above, the question of the possible inadequacy of that factual basis, which relates to the question whether the statement of reasons is well founded, and not to compliance with the obligation to state reasons, cannot be examined in the context of the present plea and has, moreover, already been examined in the context of the first plea (paragraphs 54 to 122 above). Next, as noted in paragraph 122 above, having regard to the criteria laid down by Article 1(1) of the contested decision, which refer to persons responsible for misappropriation of State funds and persons or entities associated with them, it is sufficient, for the purpose of assessing the adequacy of those grounds in relation to those criteria, that they mention the criminal classification of the conduct imputed to the applicant and the nature of the proceedings to which he is subject.
152    It follows from all of the foregoing that the third plea in law must be rejected.
Fourth plea in law, alleging infringement of the right to property and of the freedom to conduct a business
153    In support of his fourth plea, the applicant submits, in essence, that the measures at issue are an unjustified and disproportionate restriction on his right to property and his freedom to conduct a business. The Council contends that those arguments must be rejected.
154    It should, first of all, be borne in mind in that regard that, according to the case-law, the EU legislature must be allowed a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. Consequently, the legality of a measure adopted in those fields can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see judgment in Council v Manufacturing Support & Procurement Kala Naft, cited in paragraph 48 above, EU:C:2013:776, paragraph 120 and the case-law cited). In the field of restrictive measures, the Council must be allowed a broad discretion, not only, as indicated by the case-law referred to in paragraph 48 above, in establishing the general criteria defining the category of persons that could be made subject to such measures, but also in determining the nature and scope of those measures.
155    Furthermore, it must also be noted that the right to property and the freedom to conduct a business are fundamental rights which are not, however, absolute, and whose exercise may be subject to restrictions justified by objectives of general interest pursued by the European Union (see judgment in Council v Manufacturing Support & Procurement Kala Naft, cited in paragraph 48 above, EU:C:2013:776, paragraph 121 and the case-law cited).
156    Consequently, restrictions may be imposed on the exercise of the freedom to pursue a trade or profession, as on the exercise of the right to property, in particular in the context of a Council decision or regulation imposing restrictive measures, subject to the twofold condition that the restrictions do in fact correspond to objectives of general interest and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed (see judgment in Council v Manufacturing Support & Procurement Kala Naft, cited in paragraph 48 above, EU:C:2013:776, paragraph 122 and the case-law cited).
157    In the present case, it should be noted that the applicant does not dispute the fact that the asset-freezing measures to which he is subject meet the requirements of objectives of general interest, but merely challenges the disproportionate nature of those measures.
158    In the first place, in support of that complaint, the applicant maintains that the measures taken against him are not accompanied by appropriate reasons and procedural safeguards. It must be held in that regard that the fact that the asset-freezing measures taken pursuant to the contested decision and regulation may not have been accompanied by the appropriate procedural safeguards and statement of reasons is irrelevant in any event when examining whether or not those measures were proportionate. Moreover, as the Court has held in paragraphs 131 to 140 above in its examination of the second plea, and in paragraphs 147 to 151 above in its examination of the third plea, the applicant errs in claiming that the measures at issue were applied without the appropriate procedural safeguards and statement of reasons.
159    In the second place, the applicant submits that, in so far as they freeze his assets across the entire European Union, the measures at issue are not proportionate to the objective pursued, namely the return to the Tunisian authorities of the funds presumed to have been misappropriated. Furthermore, although the measures at issue have that objective, it is not specifically alleged that he himself is in possession of misappropriated funds.
160    It must be noted first of all in that regard that, in the light of the importance of the ultimate objectives of the measures at issue, which are, as recalled in paragraph 60 above, the economic and political stability of Tunisia, the disadvantages caused by the freezing of the applicant’s assets throughout the European Union do not appear to be manifestly inordinate (see, to that effect and by analogy, judgment of 14 October 2009 in Bank Melli Iran v Council, T‑390/08, ECR, EU:T:2009:401, paragraph 71).
161    Next, as regards the purpose of that asset freeze, it must be borne in mind, as stated in paragraphs 61 and 62 above, that it is strictly precautionary. In particular, if only part of the applicant’s assets in the European Union were to be frozen, it would not be possible to prevent funds that may have been misappropriated from being transferred to assets not subject to that measure. Furthermore, as stated in paragraph 139 above, since the applicant is subject to an ongoing investigation, it is impossible for the Council to determine the amounts that are likely to have to be returned or which have already been returned to the Tunisian authorities. In those circumstances, the freezing of the applicant’s assets throughout the European Union is not disproportionate.
162    Similarly, for the reasons set out in paragraph 113 above, the fact that it is not alleged that the applicant is himself in possession of misappropriated funds is not decisive.
163    Moreover, the freezing of assets at issue is subject to certain limits. First, it should be noted that, under Article 5 of the contested decision, that freezing of assets is limited in time and may be brought to an end at any moment. Consequently, as has been pointed out in paragraph 90 above, that freezing of assets is, by nature, temporary and reversible. Secondly, under Article 1(3) and (4) of the contested decision, it is possible to derogate from it in order to cover the basic needs, legal costs or the ‘extraordinary expenses’ of the persons concerned, as well as debts arising from an administrative or judicial decision. In addition, under Article 1(5) of the contested decision, the applicant is not to be deprived of the income arising from earnings on his accounts or payments under contracts, agreements or obligations concluded prior to the freezing of assets, which may be added to frozen accounts. Accordingly, the freezing of assets at issue does not infringe the essence of the applicant’s right to property or freedom to conduct a business (see, to that effect, judgments in Ezz and Others v Council, cited in paragraph 32 above, EU:C:2015:147, paragraph 113, and Ezz and Others v Council, cited in paragraph 32 above, EU:T:2014:93, paragraph 209).
164    In the third place, the applicant relies on the fact that the conduct justifying the freezing of assets in his case pre-dated the original listing of his name in the annexes to the contested acts. For the same reasons as those set out in paragraphs 119 and 120 above, that argument must be rejected.
165    In the fourth place, the applicant submits, in essence, that the measures at issue cause damage to his personal and professional reputation by presenting him as having stolen Tunisian State assets and thus as an enemy of the Tunisian people. In particular, he appears to conclude that the Council is not following its own guidelines and the recommendations of the European Data Protection Supervisor in setting out in the grounds for the contested acts information about his alleged offences.
166    This argument cannot be accepted.
167    First, it should be noted that damage caused to the reputation of a person subject to restrictive measures as a result of the reasons given to justify those measures cannot, by itself, amount to a disproportionate interference with that person’s right to property and freedom to conduct a business. Thus, in the absence of details of the link between the damage which the applicant claims has been caused to his reputation and the abovementioned interference with fundamental rights to which this plea relates, that argument is ineffective.
168    Secondly, and in any event, it must be borne in mind that, according to settled case-law, like the right to property and the freedom to conduct a business, the right to the protection of one’s reputation is not an absolute right and its exercise may be subject to restrictions justified by objectives of general interest pursued by the European Union. The importance of the aims pursued by the restrictive measures at issue is such as to justify negative consequences, even of a substantial nature, for the reputation of the persons or entities concerned (see, to that effect, judgment of 25 March 2015 in Central Bank of Iran v Council, T‑563/12, ECR, EU:T:2015:187, paragraph 115 and the case-law cited).
169    In the present case, it must be noted, first of all, that the grounds given to justify the entry of the applicant’s name on the list annexed to the contested acts, which are stated in that list, have an adequate factual basis, as the Court has held in paragraphs 54 to 122 above. Thus, it has been established that, as mentioned in those grounds, the applicant is subject to judicial investigations for the conduct mentioned therein, and it is not apparent from the documents in the file that the validity of those investigations might be called into question. Furthermore, it has been established that it can be inferred from the matters to which those judicial investigations relate that the applicant satisfies the criterion laid down in Article 1(1) of the contested decision.
170    Next, as is apparent in particular from paragraphs 70 and 151 above, those grounds limit the reference to the details of the conduct in respect of which the applicant is subject to judicial investigation by the Tunisian authorities to those elements that are strictly necessary in order to satisfy the obligation to state reasons. Those grounds do not mention the specific circumstances of the conduct under investigation and merely mention the Tunisian authorities’ criminal classification of that conduct. In addition, the Council took care, in those grounds, to specify that the applicant was at that stage subject only to judicial investigation by the Tunisian authorities, and it is thus clear from those grounds that the applicant’s culpability has not yet been formally established.
171    Lastly, the matters mentioned in those grounds do not fall within the scope of the applicant’s private life, since they refer to investigations concerning offences associated with the exercise of public office by the former President of the Republic of Tunisia. Moreover, the applicant is a public figure. As he himself points out, he is a politician and an important businessman. Consequently, the entry of his name on the list annexed to the contested acts, which includes persons identified as being responsible for misappropriation of Tunisian State funds or as being associated with such persons, and the grounds for that listing set out therein, are of an interest to the public against which the resulting damage to the applicant’s reputation must be weighed.
172    Therefore, it follows from paragraphs 169 to 171 above that such damage is in any event not disproportionate.
173    In the fifth and final place, the applicant submits that interference with his right to property and freedom to conduct a business cannot be justified by the Council on the basis that the measures at issue are preventative, not punitive, because, in its note verbale dated 25 January 2011, addressed to the Tunisian authorities, the EU Delegation to Tunisia had asked those authorities for a list of persons it wished to punish. In that regard, for the reasons set out in paragraph 63 above, the terms of that note verbale are not such as to call into question the precautionary nature of the measures at issue.
174    It follows from all of the foregoing that the fourth plea in law must be rejected, and the whole action therefore dismissed.
Costs
175    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
176    In the present case, since the applicant has been unsuccessful, he must be ordered to pay the costs.
On those grounds,
THE COURT (Eighth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Mr Fahed Mohamed Sakher Al Matri to bear his own costs and to pay those incurred by the Council of the European Union.
Gratsias
Kancheva
Wetter
Delivered in open court in Luxembourg on 30 June 2016.
[Signatures]
Table of contents
Background to the dispute
Procedure and forms of order sought
Law
Admissibility of the applicant’s requests to modify the form of order sought and the pleas of the action
Substance
First plea in law, alleging that the Council wrongly considered that the criteria for including the applicant’s name on the list annexed to the contested acts were satisfied
– Preliminary observations
– The Council’s obligations to examine and to verify the evidence with regard to the material accuracy of the content of the certificates at issue
– The appropriateness of the information given in the certificates at issue having regard to the criterion laid down in Article 1(1) of the contested decision
Second plea in law, alleging an infringement of the rights of the defence and of the right to effective judicial protection
Third plea in law, alleging infringement of the obligation to state reasons
Fourth plea in law, alleging infringement of the right to property and of the freedom to conduct a business
Costs
* Language of the case: English.