JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
15 September 2021 (*)
(Common foreign and security policy – Restrictive measures taken in view of the situation in Libya – Freezing of funds – List of persons, entities and bodies subject to the freezing of funds and economic resources – Restrictions on entry into and transit through the territory of the European Union – List of persons subject to restrictions on entry into and transit through the territory of the European Union – Retention of the applicant’s name on the lists – Obligation to state reasons – Error of assessment – Death of the applicant)
In Case T‑700/19,
Tareg Ghaoud, as heir of Abdel Majid Al-Gaoud residing in Dubai (United Arab Emirates), represented by S. Bafadhel, Barrister,
applicant,
v
Council of the European Union, represented by P. Mahnič and V. Piessevaux, acting as Agents,
defendant,
APPLICATION pursuant to Article 263 TFEU for annulment (i) of Council Implementing Decision (CFSP) 2019/1299 of 31 July 2019 implementing Decision (CFSP) 2015/1333 concerning restrictive measures in view of the situation in Libya (OJ 2019 L 204, p. 44), and of Council Implementing Decision (CFSP) 2020/1137 of 30 July 2020 implementing Decision (CFSP) 2015/1333 concerning restrictive measures in view of the situation in Libya (OJ 2020 L 247, p. 40), in so far as they maintain the name of Mr Abdel Majid Al-Gaoud on the lists in Annexes II and IV to Council Decision (CFSP) 2015/1333 of 31 July 2015 concerning restrictive measures in view of the situation in Libya, and repealing Decision 2011/137/CFSP (OJ 2015 L 206, p. 34), and (ii) of Council Implementing Regulation (EU) 2019/1292 of 31 July 2019 implementing Article 21(2) of Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya (OJ 2019 L 204, p. 1), and of Council Implementing Regulation (EU) 2020/1130 of 30 July 2020 implementing Article 21(2) of Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya (OJ 2020 L 247, p. 14), in so far as they maintain the name of Mr Abdel Majid Al-Gaoud on the list in Annex III to Council Regulation (EU) 2016/44 of 18 January 2016 concerning restrictive measures in view of the situation in Libya and repealing Regulation (EU) No 204/2011 (OJ 2016 L 12, p. 1),
THE GENERAL COURT (Fifth Chamber),
composed of D. Spielmann, President, U. Öberg and O. Spineanu-Matei (Rapporteur), Judges,
Registrar: E. Artemiou, Administrator,
having regard to the written part of the procedure and further to the hearing on 11 January 2021,
having regard to the order of 9 April 2021 reopening the oral part of the procedure, and the parties’ replies to the written questions of the Court,
gives the following
Judgment
Background to the dispute
1        The applicant, Mr Tareg Ghaoud, is the son of Mr Abdel Majid Al-Gaoud, former Minister for Agriculture, Animal and Maritime Resources in the Libyan Government of Mr Muammar Qadhafi.
2        On 26 February 2011, the United Nations Security Council (‘the Security Council’) adopted Resolution 1970 (2011), which introduced restrictive measures against Libya and against persons and entities involved in serious human rights abuses against persons, including by being involved in attacks, in violation of international law, on civilian populations and facilities.
3        Mr Abdel Majid Al-Gaoud was not one of the persons targeted by Resolution 1970 (2011).
4        On 28 February and 2 March 2011, the Council of the European Union adopted Decision 2011/137/CFSP (OJ 2011 L 58, p. 53) and Regulation (EU) No 204/2011 (OJ 2011 L 58, p. 1), both concerning restrictive measures in view of the situation in Libya (together ‘the original 2011 measures’).
5        Article 5(1)(b) of Decision 2011/137 provided that Member States are to take the necessary measures to prevent the entry into, or transit through, their territories of persons not covered by Annex I to that decision involved in or complicit in ordering, controlling, or otherwise directing, the commission of serious human rights abuses against persons in Libya, including by being involved in or complicit in planning, commanding, ordering or conducting attacks, in violation of international law, including aerial bombardments, on civilian populations and facilities, or acting for or on their behalf or at their direction, as listed in Annex II to that decision.
6        Article 6(1)(b) of Decision 2011/137 and Article 5(1) of Regulation No 204/2011, read in conjunction with Article 6(2) of the latter, provided, in essence, that funds, other financial assets and economic resources belonging to, owned, held or controlled, directly or indirectly, by persons and entities not covered by Annex III to that decision or Annex II to that regulation involved in or complicit in ordering, controlling or otherwise directing, the commission of serious human rights abuses against persons in Libya, including by being involved in or complicit in planning, commanding, ordering or conducting attacks, in violation of international law, including aerial bombardments, on civilian populations and facilities, or by individuals or entities acting on their behalf or at their direction, or by entities owned or controlled by them, as listed in Annex IV to that decision and Annex III to that regulation, are to be frozen.
7        Mr Abdel Majid Al-Gaoud was not included on the lists annexed to the original 2011 measures.
8        On 21 March 2011, the Council adopted Implementing Decision 2011/175/CFSP implementing Decision 2011/137 (OJ 2011 L 76, p. 95), and Implementing Regulation No 272/2011 implementing Article 16(2) of Regulation No 204/2011 (OJ 2011 L 76, p. 32) (together, ‘the 2011 listing measures’), by which it entered additional persons and entities on the lists of persons and entities subject to restrictive measures. One such person was Mr Abdel Majid Al-Gaoud, who was listed in Annexes II and IV to Decision 2011/137 and in Annex III to Regulation No 204/2011 with the following identifying information and statement of reasons:
‘Abdelmajid Al-Gaoud. Minister for Agriculture, Animal and Maritime Resources in Colonel Qadhafi’s Government.’
9        On 4 September 2011, Mr Abdel Majid Al-Gaoud was apprehended at his home in Tripoli (Libya) by members of the Tripoli Military Council, a radical group which at the time was led by Mr Abdulhakim Belhaj, and eventually detained in the Al-Hadba complex in Tripoli.
10      On 27 March 2015, the Security Council adopted Resolution 2213 (2015), which provided, inter alia, for certain amendments to the listing criteria. Mr Abdel Majid Al-Gaoud was not one of the persons targeted by that resolution. On 26 May 2015, with a view to implementing that resolution, the Council adopted Decision (CFSP) 2015/818 of 26 May 2015 amending Decision 2011/137 (OJ 2015 L 129, p. 13), and Regulation (EU) 2015/813 of 26 May 2015 amending Regulation No 204/2011 (OJ 2015 L 129, p. 1).
11      The Council subsequently carried out a complete review of the lists of persons and entities set out in the annexes to the original 2011 measures and the 2011 listing measures.
12      That review culminated in the adoption, on 31 July 2015, of Council Decision (CFSP) 2015/1333 concerning restrictive measures in view of the situation in Libya, and repealing Decision 2011/137 (OJ 2015 L 206, p. 34) and, on 18 January 2016, of Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya and repealing Regulation No 204/2011 (OJ 2016 L 12, p. 1) (‘the subsequent listing measures’).
13      Article 8(2) of Decision 2015/1333 provides:
‘Member States shall take the necessary measures to prevent the entry into, or transit through, their territories of persons:
(a)      involved in or complicit in ordering, controlling, or otherwise directing, the commission of serious human rights abuses against persons in Libya, including by being involved or complicit in planning, commanding, ordering or conducting attacks, in violation of international law, including aerial bombardments, on civilian populations and facilities, or persons acting for or on their behalf or at their direction;
(b)      identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi in Libya, or otherwise formerly associated with that regime, and who pose a continued risk to the peace, stability or security of Libya, or the successful completion of its political transition;
(c)      engaged in or providing support for acts that threaten the peace, stability or security of Libya, or obstructing or undermining the successful completion of its political transition, including by:
(i)      planning, directing, or committing acts that violate applicable international human rights law or international humanitarian law, or acts that constitute human rights abuses, in Libya;
(ii)      attacks against any air, land, or sea port in Libya, or against a Libyan State institution or installation, or against any foreign mission in Libya;
(iii)      providing support for armed groups or criminal networks through the illicit exploitation of crude oil or any other natural resources in Libya;
(iv)      threatening or coercing Libyan State financial institutions and the Libyan National Oil Company, or engaging in any action that may lead to or result in the misappropriation of Libyan State funds;
(v)      violating, or assisting in the evasion of, the provisions of the arms embargo in Libya established in [Security Council Resolution] 1970 (2011) and Article 1 of this Decision;
(vi)      acting for or on behalf of or at the direction of listed persons or entities;
(d)      that own or control Libyan State funds misappropriated during the former regime of Muammar Qadhafi in Libya which could be used to threaten the peace, stability or security of Libya, or to obstruct or undermine the successful completion of its political transition,
as listed in Annex II to this Decision.’
14      Article 9(2) of Decision 2015/1333 provides:
‘All funds, other financial assets and economic resources, owned or controlled, directly or indirectly, by persons and entities:
(a)      involved in or complicit in ordering, controlling, or otherwise directing, the commission of serious human rights abuses against persons in Libya, including by being involved in or complicit in planning, commanding, ordering or conducting attacks, in violation of international law, including aerial bombardments, on civilian populations and facilities, or by the Libyan authorities, or by persons and entities that have violated or have assisted in violating the provisions of [Security Council Resolution] 1970 (2011) or of this Decision, or by persons or entities acting for or on their behalf or at their direction, or by entities owned or controlled by them or by persons and entities listed in Annex III to this Decision;
(b)      identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi in Libya, or otherwise formerly associated with that regime, and who pose a continued risk to the peace, stability or security of Libya, or the successful completion of its political transition;
(c)      engaged in or providing support for acts that threaten the peace, stability or security of Libya, or obstructing or undermining the successful completion of its political transition, including by:
(i)      planning, directing, or committing acts that violate applicable international human rights law or international humanitarian law, or acts that constitute human rights abuses, in Libya;
(ii)      attacks against any air, land, or sea port in Libya, or against a Libyan State institution or installation, or against any foreign mission in Libya;
(iii)      providing support for armed groups or criminal networks through the illicit exploitation of crude oil or any other natural resources in Libya;
(iv)      threatening or coercing Libyan State financial institutions and the Libyan National Oil Company, or engaging in any action that may lead to or result in the misappropriation of Libyan State funds;
(v)      violating, or assisting in the evasion of, the provisions of the arms embargo in Libya established in [Security Council Resolution] 1970 (2011) and Article 1 of this Decision;
(vi)      acting for or on behalf of or at the direction of listed persons or entities;
(d)      that own or control Libyan State funds misappropriated during the former regime of Muammar Qadhafi in Libya which could be used to threaten the peace, stability or security of Libya, or to obstruct or undermine the successful completion of its political transition,
as listed in Annex IV, shall be frozen.’
15      Article 5(1) of Regulation 2016/44 provides that ‘all funds and economic resources belonging to, owned, held or controlled by the natural or legal persons, entities and bodies listed in Annexes II and III shall be frozen’. According to Article 6(2) of Regulation 2016/44,
‘Annex III shall consist of natural or legal persons, entities and bodies, not covered by Annex II that:
(a)      are involved in or complicit in ordering, controlling, or otherwise directing the commission of serious human rights abuses against persons in Libya, including by being involved or complicit in planning, commanding, ordering or conducting attacks, including aerial bombardments, in violation of international law on civilian populations or facilities;
(b)      have violated or have assisted in violating the provisions of [Security Council Resolutions] 1970 (2011), … 1973 (2011) or of this Regulation;
(c)      have been identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi in Libya, or otherwise formerly associated with that regime, and pose a continued risk to the peace, stability or security of Libya, or to the successful completion of the Libyan political transition;
(d)      are engaged in or provide support for acts that threaten the peace, stability or security of Libya or obstruct or undermine the successful completion of Libya’s political transition, including by:
(i)      planning, directing, or committing acts in Libya that violate applicable international human rights law or international humanitarian law, or acts that constitute human rights abuses, in Libya;
(ii)      attacks against any air, land or sea port in Libya, or against a Libyan State institution or installation, or against any foreign mission in Libya;
(iii)      providing support for armed groups or criminal networks through the illicit exploitation of crude oil or any other natural resources in Libya;
(iv)      threatening or coercing Libyan State financial institutions and the Libyan National Oil Company, or engaging in any action that may lead to or result in the misappropriation of Libyan State funds;
(v)      violating, or assisting in the evasion of, the provisions of the arms embargo in Libya established in [Security Council Resolution] 1970 (2011) and Article 1 of this Regulation;
(vi)      being persons, entities or bodies acting for or on behalf or at the direction of any of the above, or being entities or bodies owned or controlled by them or by persons, entities or bodies listed in Annex II or III; or
(e)      own or control Libyan State funds misappropriated during the former regime of Muammar Qadhafi in Libya which could be used to threaten the peace, stability or security of Libya, or to obstruct or undermine the successful completion of its political transition.’
16      Mr Abdel Majid Al-Gaoud was included on the lists in Annexes II and IV to Decision 2015/1333 and in Annex III to Regulation 2016/44 (‘the lists at issue’) with the following identifying information and statement of reasons:
‘AL-GAOUD, Abdelmajid. Date of birth: 1943. Minister for Agriculture, Animal and Maritime Resources in Colonel Qadhafi’s Government. Closely associated with the former regime of Muammar Qadhafi.’
17      Mr Abdel Majid Al-Gaoud faced no trial proceedings throughout his six-year detention, and the proceedings against him were formally suspended and he was released on the instructions of the Libyan Government of National Accord on medical grounds in May 2017.
18      By letter of 24 September 2018, the representatives of Mr Abdel Majid Al-Gaoud contacted the Council to request a review of his listing and annulment of the travel restrictions to which he was subject. By letter of 19 November 2018, the Council stated that those measures against him were to be maintained.
19      By letters of 28 November 2018 and 11 January 2019, the representatives of Mr Abdel Majid Al-Gaoud again contacted the Council, requesting that it provide, inter alia, the evidential basis which specifically, concretely and individually demonstrated that Mr Abdel Majid Al-Gaoud continued to pose a threat to Libya, and clarification as to the reasons why the Council had considered that the note verbale of the Libyan Government of National Accord of 25 July 2018, which had been sent to it by the Libyan Embassy in Cairo (Egypt) (‘the note verbale of 25 July 2018’), seeking the annulment of the restrictions imposed on Mr Abdel Majid Al-Gaoud, had not demonstrated that a different assessment should be applied to him.
20      By letter of 29 January 2019, the Council reiterated its position and provided Mr Abdel Majid Al-Gaoud with eight supporting documents (‘the letter of 29 January 2019’).
21      By letters of 14 May and 3 July 2019, the representatives of Mr Abdel Majid Al-Gaoud again contacted the Council, which replied by letter of 31 July 2019.
22      On 31 July 2019, the Council adopted Implementing Decision (CFSP) 2019/1299 implementing Decision 2015/1333 (OJ 2019 L 204, p. 44), and Implementing Regulation (EU) 2019/1292 implementing Article 21(2) of Regulation 2016/44 (OJ 2019 L 204, p. 1) (‘the 2019 measures’), by which Mr Abdel Majid Al-Gaoud’s name was maintained on the lists at issue. The statement of reasons for his inclusion on those lists, as it appeared in the subsequent listing measures, was not amended.
23      On the same day, the Council also sent a letter to Mr Abdel Majid Al-Gaoud’s lawyer. In that letter, the Council informed Mr Abdel Majid Al-Gaoud that, for the purposes of the review of the restrictive measures, it had taken account of the observations which Mr Abdel Majid Al-Gaoud had submitted in the previous correspondence, and stated that it did not accept the claims made by him in his observations. The Council drew the attention of Mr Abdel Majid Al-Gaoud to the possibility of submitting further observations.
Events subsequent to the bringing of the present action
24      On 30 July 2020, the Council adopted Implementing Decision (CFSP) 2020/1137 implementing Decision 2015/1333 (OJ 2020 L 247, p. 40), and Implementing Regulation (EU) 2020/1130 implementing Article 21(2) of Regulation 2016/44 (OJ 2020 L 247, p. 14) (together, ‘the 2020 measures’), by which Mr Abdel Majid Al-Gaoud’s name was maintained on the lists at issue. The statement of reasons for his inclusion on those lists, as it appeared in the subsequent listing measures, was not amended.
25      By letter of 31 July 2020, the Council informed Mr Abdel Majid Al-Gaoud that the restrictive measures against him were being maintained. It also stated the time limit for submitting observations prior to a decision being taken regarding the possible retention of his name on the lists at issue.
26      By Council Implementing Decision (CFSP) 2021/672 of 23 April 2021 implementing Decision (CFSP) 2015/1333 (OJ 2021 L 141, p. 21), and by Council Implementing Regulation (EU) 2021/667 of 23 April 2021 implementing Article 21(2) of Regulation (EU) 2016/44 (OJ 2021 L 141, p. 1), Mr Abdel Majid Al-Gaoud’s name was deleted from the lists at issue.
Procedure and forms of order sought
27      Mr Abdel Majid Al-Gaoud brought the present action by application lodged at the Court Registry on 11 October 2019.
28      On 20 December 2019, the Council lodged its defence at the Court Registry.
29      On 24 December 2019, Mr Abdel Majid Al-Gaoud made a request pursuant to Article 85 of the Rules of Procedure of the General Court for an additional item of evidence – a photocopy of his recently renewed passport – to be admitted in support of his claim for annulment.
30      The reply and the rejoinder were lodged at the Court Registry, respectively, by Mr Abdel Majid Al-Gaoud on 28 February 2020, and by the Council on 17 April 2020.
31      By separate document lodged at the Court Registry on 9 September 2020, Mr Abdel Majid Al-Gaoud modified the application, on the basis of Article 86 of the Rules of Procedure, in order to seek annulment of the 2020 measures in addition to the 2019 measures (together, ‘the contested acts’), in so far as they concerned him. The Council replied to the statement of modification by document lodged at the Court Registry on 9 October 2020.
32      On a proposal from the Judge-Rapporteur, the Court decided to open the oral part of the procedure.
33      The parties presented oral argument and replied to the oral questions put by the Court at the hearing on 11 January 2021. Following the hearing, the oral part of the procedure was closed and the case entered the deliberation stage.
34      Mr Abdel Majid Al-Gaoud died on 4 March 2021.
35      By letter of 23 March 2021, Mr Abdel Majid Al-Gaoud’s representative produced his death certificate.
36      By order of 9 April 2021, the Court decided to reopen the oral part of the procedure and invited the representative of Mr Abdel Majid Al-Gaoud, by written questions of 13 April 2021 and 12 May 2021, to inform the Court of the existence of any beneficiaries in order that they might determine their position in relation to any further steps to be taken in the proceedings before the Court, produce a certificate of succession and provide evidence of their representation by a lawyer.
37      On 14 June 2021, the certificate of succession confirming Mr Tareg Ghaoud’s status as heir and evidence that he had appointed the representative of Mr Abdel Majid Al-Gaoud to act for him were added to the case file.
38      On 5 July 2021, the Council submitted observations in which it stated that it had no objection to the continuation of the proceedings. On 7 July 2021, the Court again closed the oral part of the procedure.
39      Following the modification of the application, the applicant, Mr Tareg Ghaoud, claims, in essence, that the Court should:
–        annul the contested acts, in so far as the name of Mr Abdel Majid Al-Gaoud was maintained on the lists at issue;
–        order the Council to pay the costs.
40      Following the submission of observations on the statement of modification, the Council contends, in essence, that the Court should:
–        dismiss the action as unfounded;
–        in the alternative, should the contested acts be annulled in so far as they concern Mr Abdel Majid Al-Gaoud, order that the effects of Implementing Decision 2020/1137 be maintained as regards Mr Abdel Majid Al-Gaoud until the partial annulment of Implementing Regulation 2020/1130 takes effect;
–        order the applicant to pay the costs.
Law
Admissibility of Annexes C.1 to C.4 to the reply and of the arguments set out in paragraphs 4 to 10 of the request for a hearing
41      In its rejoinder, the Council contends that Annexes C.1 to C.4 to the reply are inadmissible. First, they post-date the adoption of the 2019 measures and therefore have no bearing on their legality. Secondly, the applicant did not give any reasons for the late submission of those annexes.
42      At the hearing, the Council also contended that the arguments set out in paragraphs 4 to 10 of the request for a hearing are inadmissible, in that they constitute a reply to the arguments set out in the rejoinder.
43      The applicant maintains that the documents and arguments referred to in paragraphs 41 and 42 above are admissible.
44      In the first place, it should be noted that the written part of the procedure before the Court comprises an initial exchange of pleadings, in accordance with Articles 76 and 81 of its Rules of Procedure, which may, under Article 83 of those rules, be followed by a second and final exchange of pleadings, where the Court considers it necessary to supplement the contents of the case file.
45      In the present case, it must be held that the arguments set out in paragraphs 4 to 10 of the request for a hearing do not constitute reasons why the applicant would wish to be heard, these being required to be stated in that document, as Article 106 of the Rules of Procedure makes clear. In those paragraphs, the applicant sets out arguments already put forward in his previous written submissions and replies to the observations made in the rejoinder. Therefore, the arguments set out in paragraphs 4 to 10 of the request for a hearing must be rejected.
46      In the second place, it must be borne in mind that, under Article 85(1) of the Rules of Procedure, evidence produced or offered is to be submitted in the first exchange of pleadings. However, according to Article 85(2) of the Rules of Procedure, in reply or rejoinder a party may produce or offer further evidence in support of his or her arguments, provided that the delay in the submission of such evidence is justified.
47      It nevertheless follows from the case-law that evidence in rebuttal and the amplification of previous evidence, submitted in response to evidence in rebuttal put forward by the opposing party in its defence, are not covered by the time-bar rule in Article 85(1) of the Rules of Procedure. That provision concerns fresh evidence and must be read in the light of Article 92(7) of those rules, which expressly provides that evidence may be submitted in rebuttal and previous evidence may be amplified (see, to that effect, judgment of 13 December 2018, Post Bank Iran v Council, T‑559/15, EU:T:2018:948, paragraph 75 and the case-law cited).
48      In the present case, Annex C.1 contains an extract from a website dated 30 September 2019 relating to the recent activities of the European Union Delegation to Libya in connection with the programme for facilitating access to drinking water, which the applicant produces in order to demonstrate that the activities which Mr Abdel Majid Al-Gaoud carried out as a result of the office he held were equivalent to those of that delegation. Annex C.2 contains a report by the United Kingdom Foreign Affairs Committee examining the intervention and the United Kingdom’s future policy options in Libya, dated 6 September 2016, and Annexes C.3 and C.4 relate to profiles of two members of the General People’s Committee from two articles published on a website and dated 18 July 2012 and 22 August 2011. The applicant produces those three annexes in order to demonstrate that the assessment of the international community, alongside that of official actors in Libya, is not a factor that is irrelevant to the Council’s own autonomous political assessment, contrary to the Council’s contention in the defence.
49      As regards Annex C.1, the applicant has failed to explain the delay in its production and has not argued that it was evidence in rebuttal or the amplification of previous evidence already submitted in response to evidence in rebuttal put forward by the Council in the defence. That annex is, therefore, inadmissible.
50      By contrast, the time-bar rule in Article 85(1) of the Rules of Procedure does not apply to Annexes C.2, C.3 and C.4, since these were produced in order to challenge the assertions made in the defence submitted by the Council. Without prejudice to the question of their relevance, which is covered by the substantive examination of the factual and legal context of the present case, those annexes are therefore admissible.
Substance
51      In support of his action, the applicant relies, in essence, on two pleas in law, alleging, first, that the statement of reasons for the contested acts is inadequate and that the Council failed to provide specific and concrete reasons for maintaining Mr Abdel Majid Al-Gaoud’s name on the lists at issue. In his second plea, the applicant claims that the contested acts interfered disproportionately with Mr Abdel Majid Al-Gaoud’s fundamental rights, in particular his right to health and his right to respect for family life.
52      As a preliminary point, a distinction must be drawn between the acts by which Mr Abdel Majid Al-Gaoud was entered on the lists of persons subject to restrictive measures and the subsequent acts the purpose of which was to maintain his name on those lists. The 2011 listing measures and the subsequent listing measures are clearly not the subject of the present action and have not been challenged in sufficient time before the Courts of the European Union. The applicant’s pleas are therefore admissible only in so far as they are intended to secure the annulment of the contested acts, that is, the 2019 measures and, following the modification of the application pursuant to Article 86 of the Rules of Procedure, also the 2020 measures, in so far as they maintain the name of Mr Abdel Majid Al-Gaoud on the lists at issue.
53      In his first plea, the applicant puts forwards arguments alleging, first, that the statement of reasons for the contested acts is inadequate and that the Council failed to state the grounds for listing Mr Abdel Majid Al-Gaoud and for maintaining his name on the lists at issue, and, secondly, that there is no factual basis for maintaining Mr Abdel Majid Al-Gaoud’s name on the lists at issue and that the Council failed to provide any evidence that the measures to which he was subject were justified.
54      It must be observed that the question of the statement of reasons, which concerns an essential procedural requirement, is separate from that of the evidence of the alleged conduct, which concerns the substantive legality of the act in question and involves assessing the truth of the facts set out in that act and the characterisation of those facts as evidence justifying the use of restrictive measures against the person concerned (see judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 60 and the case-law cited).
55      Accordingly, the applicant’s complaints in relation to the statement of reasons for the contested acts and the various complaints concerning the existence of a factual basis for maintaining Mr Abdel Majid Al-Gaoud’s name on the lists at issue will be examined separately.
The first complaint, alleging a failure to state reasons for the contested acts
56      The applicant submits that, contrary to the requirements of Article 13(3) of Decision 2015/1333 and Article 21(3) of Regulation 2016/44, as well as the Council’s guidelines on sanctions, the Council failed to provide clear and unequivocal reasons such as to allow Mr Abdel Majid Al-Gaoud to understand the legal basis for maintaining his listing.
57      The Council contends that the reasons stated are sufficiently specific and concrete, and show that Mr Abdel Majid Al-Gaoud held the office of Minister for Agriculture, Animal and Maritime Resources in the Libyan Government of Mr Qadhafi, which is not disputed, and that he was closely associated with the former regime of Mr Qadhafi in Libya. Furthermore, the Council argues that Mr Abdel Majid Al-Gaoud was in a position to understand the context and the scope of the measures concerning him.
58      It must be recalled that the purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, secondly, to enable those Courts to review the legality of that act (see judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 49 and the case-law cited). Furthermore, the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure (see judgments of 24 September 2014, Kadhaf Al Dam v Council, T‑348/13, not published, EU:T:2014:806, paragraph 63 and the case-law cited, and of 20 September 2016, Alsharghawi v Council, T‑485/15, not published, EU:T:2016:520, paragraph 27 and the case-law cited).
59      In particular, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him or her to understand the scope of the measure concerning him or her (see judgments of 24 September 2014, Kadhaf Al Dam v Council, T‑348/13, not published, EU:T:2014:806, paragraph 67 and the case-law cited, and of 20 September 2016, Alsharghawi v Council, T‑485/15, not published, EU:T:2016:520, paragraph 31).
60      In the present case, it must be noted that the contested acts set out, first, the reason why the Council maintained Mr Abdel Majid Al-Gaoud’s name on the lists at issue in July 2019 and in July 2020, which corresponds to the justification that had been put forward for including his name on the lists annexed to the 2011 listing measures, that is to say, the fact that he was Minister for Agriculture, Animal and Maritime Resources in the government of Mr Qadhafi. The contested acts set out, secondly, the reason why the Council maintained Mr Abdel Majid Al-Gaoud’s name on the lists at issue annexed to the subsequent listing measures, that is to say, the fact that he had been Minister and closely associated with the former regime of Mr Qadhafi.
61      Moreover, the Council provided Mr Abdel Majid Al-Gaoud with information in the exchange of correspondence with his representatives, from which it is apparent that the Council regarded him as threat, because of his earlier involvement or association with the former regime, to the peace, stability or security of Libya or the successful completion of its political transition at the time of the adoption of the contested acts.
62      It follows that Mr Abdel Majid Al-Gaoud could not have been unaware of the fact that his name had been maintained on the lists at issue because the Council considered him to have been closely associated with the former regime of Mr Qadhafi on account of his position as former Minister of Mr Qadhafi’s government, or that the Council considered those measures to be necessary because of the situation in Libya. The information set out in the contested acts, together with the information provided in the letters from the Council of 19 November 2018, 29 January 2019 and 31 July 2019 (see paragraphs 18, 20 and 21 above), was therefore sufficiently precise, in accordance with the case-law cited in paragraphs 58 and 59 above, to enable Mr Abdel Majid Al-Gaoud to prepare to challenge those measures, which he was properly able to do in the present case.
63      The applicant’s complaint alleging a failure to state reasons for the contested acts must therefore be rejected.
The second complaint, alleging that there was no factual basis for maintaining Mr Abdel Majid Al-Gaoud’s name on the lists at issue
64      In the first place, the applicant argues that, by relying on the fact that Mr Abdel Majid Al-Gaoud was ‘Minister for Agriculture, Animal and Maritime Resources in the Government of Muammar Qadhafi’ and that he was ‘closely associated with the former regime of Muammar Qadhafi’, the Council does not meet any of the designation criteria set out in Decision 2015/1333 or in Regulation 2016/44. The applicant stresses that, while Mr Abdel Majid Al-Gaoud did hold political office at the time of the 2011 listing measures, this was limited to agricultural affairs and was based on his role as Secretary of the Great Man-Made River Authority, a civil engineering project designed to supply water for agricultural, municipal and industrial purposes from fossil water transported across Libya. He also states that Mr Abdel Majid Al-Gaoud did not at any point hold military or security office within the Libyan Government headed by Mr Qadhafi, and that Mr Abdel Majid Al-Gaoud has never been subject to UN-imposed sanctions.
65      In the second place, the applicant submits that it is not enough for the Council to establish that a person was formerly associated with the regime of Mr Qadhafi to justify maintaining his or her name on the lists at issue; rather, it must additionally establish that, at the time of its review, the person concerned posed a continued risk to the peace, stability or security of Libya, or to the successful completion of its political transition. It therefore remains incumbent on the Council to state the individual, specific, and concrete reasons as regards Mr Abdel Majid Al-Gaoud’s role and how that posed a risk, including in the light of his arbitrary and prolonged detention (see paragraphs 9 and 17 above), and of the considerable shift in the situation in Libya.
66      In the third place, the applicant submits that the Council wrongly relies on the case-law deriving from the judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520), when it asserts that the Court supported its assessment that all former Ministers of the government of Mr Qadhafi continue to pose a threat in Libya. The applicant submits, first, that Mr Bashir Saleh Bashir Alsharghawi, applicant in the case that gave rise to the judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520), was the former Chief of Staff of Mr Qadhafi’s cabinet and the Court had considered that, as the person occupying the most senior role in Mr Qadhafi’s cabinet, Mr Alsharghawi was likely to fuel the exacerbation of divisions in Libyan society, especially in the light of his acknowledgement that, despite his withdrawal from Libyan political life, he was being consulted by forces present in Libya precisely because of the very senior positions he had previously occupied and his expertise on Libya. Mr Abdel Majid Al-Gaoud, on the other hand, occupied a non-military and non-security position in Mr Qadhafi’s former cabinet, and is not a divisive figure in the current situation in Libya. Secondly, in 2015 and 2016, which was when Mr Alsharghawi stated that he had been contacted for consultation by forces present in Libya, the applicant recalls that Mr Abdel Majid Al-Gaoud was detained at the Al-Hadba complex in Tripoli. Thirdly, the applicant submits that Mr Abdel Majid Al-Gaoud had not occupied a political role since his resignation from office in 2011 and that, because of his advanced age and serious ill health, he would have been incapable of posing any threat, especially since he had resided peaceably in Egypt since his release in 2017, and there was no evidence or allegation of any involvement in the internal affairs of Libya.
67      In the fourth place, according to the applicant, the Council used the same language in its letters of 19 November 2018, 29 January 2019 and 31 July 2019 (see paragraphs 18, 20 and 23 above), which showed that the Council did not conduct an independent and current review of the legality of maintaining Mr Abdel Majid Al-Gaoud on the lists at issue.
68      In the fifth place, the applicant also claims that the contested acts are manifestly unfounded. He submits that the evidence produced by the Council is not sufficient to support the factual correctness of the grounds for including Mr Abdel Majid Al-Gaoud on the lists at issue. The documents which the Council annexed to the letter of 29 January 2019 (see paragraph 20 above) were all sourced from online searches conducted after Mr Abdel Majid Al-Gaoud’s inclusion on the lists at issue, and established only that he held public office; they did not establish any link between the measures adopted against him and the objectives pursued by the sanctions, or clarify the grounds for including him on the lists at issue. Although the Council sought to reverse the burden of proof, shifting it onto the applicant, the establishment of an allegedly close association between Mr Abdel Majid Al-Gaoud and the regime was based on no more than presumption and unknown sources. Conversely, the note verbale of 25 July 2018 addressed to the Council (see paragraph 19 above), which the Council did not actually take into consideration, was evidently relevant to the current time period and had probative value sufficient to prove that Mr Abdel Majid Al-Gaoud did not constitute a threat to the situation in Libya.
69      The Council contends, in the first place, that the fact of posing a continued risk to the peace, stability or security of Libya or the successful completion of its political transition is not a separate criterion for which indications other than those related to association with the former regime of Mr Qadhafi would need to be provided. On the contrary, the fact that Mr Abdel Majid Al-Gaoud, like other persons in a similar position, posed a continued risk at the time of the adoption of the contested acts, whether to the peace, stability or security of Libya or to the successful completion of its political transition, arose precisely from his earlier involvement or association with the former regime. That criterion therefore requires no further indications of involvement in the current state of affairs.
70      In the second place, the assessment that, as a former member of the government of Mr Qadhafi, Mr Abdel Majid Al-Gaoud posed a continued risk to the peace, stability or security of Libya, or the successful completion of its political transition, was a political assessment by the Council. Accordingly, the Council recalls that it is for an applicant who challenges its political assessment to provide evidence that may call in question the Council’s claims and documents substantiating them. Moreover, when association with a governing regime constitutes a ground for including a person’s name on the list, there is no need for it also to be shown that the person directly engages in activities which pose threats to the peace, stability or security of the country in question.
71      In the third place, the Council states that the applicant relies largely on material which was not brought to its attention before the dates on which the contested acts were adopted. In any event, the information provided is irrelevant. As regards the note verbale of 25 July 2018 (see paragraph 19 above), the Council contends that this refers only to the alleged absence of a risk to national security in Libya. It makes no reference to the possible risk to the successful completion of Libya’s political transition, which is an ‘additional, alternative criterion’ under the contested acts on the basis of which Mr Abdel Majid Al-Gaoud was maintained on the list, when it is a matter of common knowledge that the political transition in Libya is far from complete.
72      In the fourth place, the evidence put forward by the Council in its letter of 29 January 2019 (see paragraph 20 above) comes from different well-known and clearly indicated sources. Those documents were available to the Council before the adoption of the contested acts. According to the Council, each source of digital information, which is publicly available, provides different information, and all of those sources agree, in essence, as to the description of Mr Abdel Majid Al-Gaoud as being closely associated with the former regime of Mr Qadhafi. Furthermore, the material was published on different dates over a long period of time, some of it long before he assumed his last position as Minister for Agriculture, Animal and Maritime Resources, which is important and relevant as it demonstrates that already at that time he was regarded as being associated with the regime of Mr Qadhafi and continued to be associated with it, without any interruption, until the fall of the regime. Moreover, the applicant merely calls in question the probative value of the documents in question, without contesting the accuracy of the information contained in them.
73      In his reply, the applicant submits, inter alia, that it is evident from his submissions that the Council relies on the acts of other individuals in 2011 to justify the application of the restrictive measures against Mr Abdel Majid Al-Gaoud. As regards the Council’s assertion that it is not for the Court to call in question the Council’s political assessment of the situation in Libya, the applicant submits that the Council has previously failed to rely on this argument or ‘explicitly [to] refer to [it] in prior correspondence’ with Mr Abdel Majid Al-Gaoud. Moreover, that argument is not in accordance with the principle that sanctions should not be punitive in nature. The Council cannot ignore the political context concerning the situation in Libya or entirely ignore the assessments of the international community, the Libyan authorities, or other actors of the European Union.
74      In its rejoinder, first, the Council adds that the applicant does not deny that Mr Abdel Majid Al-Gaoud occupied various positions within Mr Qadhafi’s government and that the date of the internet searches, annexed to its letter of 29 January 2019 (see paragraph 20 above), cannot demonstrate that the Council did not know what role Mr Abdel Majid Al-Gaoud played in 2011 or 2015. At most, it could demonstrate that the Council did not rely on this information at the time of the initial listing of Mr Abdel Majid Al-Gaoud or that the Council does not consider it necessary to demonstrate in the present case that it had sufficient evidence to justify Mr Abdel Majid Al-Gaoud’s initial listing. No other inference can reasonably be drawn from those submissions of the applicant as regards the legality of the contested acts. The Council also contends that the reasons why Mr Abdel Majid Al-Gaoud failed to contest the earlier listing decisions concerning him are also irrelevant.
75      Secondly, the Council submits that where association with the governing regime (or former regime) constitutes a listing criterion, the scope and intensity of the General Court’s judicial review is limited. Such a listing criterion constitutes pre-eminently a foreign policy choice by the Council and is as such subject only to the test of manifest inappropriateness. According to the Council, being ‘otherwise formerly associated with the former regime of Muammar Qadhafi’ was sufficient for the restrictive measures in question to be applied to Mr Abdel Majid Al-Gaoud, and the applicant has failed to demonstrate that making such a link would be manifestly inappropriate and thus capable of affecting the legality of the particular policy choice made by the Council in view of the broad margin of discretion which it enjoys in the field of the common foreign and security policy. Moreover, the contested acts are entirely unrelated to the detention of Mr Abdel Majid Al-Gaoud by the Libyan authorities, or to concerns by the international community regarding the conditions of his detention that were addressed to the Libyan authorities.
76      According to the case-law, in order to define the extent of the Council’s discretion and the intensity of the judicial review on the exercise of that power, a distinction must be drawn between, first, the general rules establishing the legal requirements surrounding the adoption of restrictive measures and, secondly, the adoption, on the basis of an individual examination, of decisions freezing funds and restricting movement pursuant to those legal requirements, in respect of specific persons and entities (see, to that effect, judgments of 12 June 2013, HTTS v Council, T‑128/12 and T‑182/12, not published, EU:T:2013:312, paragraph 45, and of 6 September 2013, Bateni v Council, T‑42/12 and T‑181/12, not published, EU:T:2013:409, paragraph 42).
77      As regards the general and abstract definition of the legal criteria and procedures for the adoption of restrictive measures, the Council has a broad discretion (judgment of 21 April 2015, Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 41). Consequently, the rules of general application defining those criteria and procedures are subject to a limited judicial review, restricted to checking that the rules governing procedure and the statement of reasons have been complied with, that the facts are materially accurate, and that there has been no manifest error of assessment of the facts or misuse of power. That limited review applies, especially, to the assessment of the considerations of appropriateness on which the restrictive measures are based (see, to that effect, judgment of 9 July 2009, Melli Bank v Council, T‑246/08 and T‑332/08, EU:T:2009:266, paragraph 45).
78      However, generally, the Courts of the European Union must, in accordance with the powers conferred on them by the FEU Treaty, ensure the review, in principle the full review, of the lawfulness of all EU acts in the light of the fundamental rights forming an integral part of the EU legal order. That obligation is expressly laid down by the second paragraph of Article 275 TFEU (see judgments of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 58 and the case-law cited, and of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 65 and the case-law cited).
79      The European Union is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the FEU Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions (see, to that effect, judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 281 and the case-law cited).
80      The effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires in particular that the Courts of the European Union ensure that the decision by which restrictive measures were adopted or maintained, which affects the person or entity concerned individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119).
81      To that end, it is for the Courts of the European Union, in order to carry out that examination, to request the competent EU authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination (see judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 120 and the case-law cited). By contrast, it is for that 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. For that purpose, it is necessary that the information or evidence produced should support the reasons relied on against the person concerned (judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 121 and 122).
82      It is in the light of those principles of case-law that the Court must establish whether the retention of Mr Abdel Majid Al-Gaoud’s name on the lists at issue has a sufficiently solid factual basis.
83      In the present case, the choice of criteria for inclusion on the lists at issue and the listing of Mr Abdel Majid Al-Gaoud as meeting those criteria, in that he was considered to be closely associated with the former regime of Mr Qadhafi because of his role as former Minister of Mr Qadhafi’s government, come within the Council’s political assessment, the legality of which can in any event no longer be called in question, as Mr Abdel Majid Al-Gaoud did not challenge the 2011 listing measures and the subsequent listing measures in sufficient time before the Courts of the European Union, as has been established in paragraph 52 above.
84      However, the subsequent listing measures on the basis of which the contested acts were adopted, like the 2011 listing measures, provide in Article 17(2) and Article 21(6), respectively, for the restrictive measures to be periodically reviewed to enable the Council to take account of any changes in circumstances concerning the individual situation of the persons targeted by those measures. The contested acts represent the outcome of that periodic review.
85      The Council cannot assume merely from the fact that Mr Abdel Majid Al-Gaoud was Minister in several Ministries of Mr Qadhafi’s government at the time when the acts that led to sanctions being imposed on that regime were carried out that he could potentially have been held responsible for the actions of that regime after its downfall, or even eight to nine years after the 2011 listing measures, that is, at the time of the adoption of the contested acts, to the extent that he would still be regarded as a threat to the peace, stability or security of Libya. That would have led to Mr Abdel Majid Al-Gaoud’s situation being frozen (see, to that effect, judgment of 3 July 2014, Alchaar v Council, T‑203/12, not published, EU:T:2014:602, paragraph 155) and the periodic review provided for in particular by the subsequent listing measures being deprived of any practical effect.
86      Therefore, it is necessary to examine whether the decision to maintain the restrictive measures against Mr Abdel Majid Al-Gaoud pursuant to the contested acts, inasmuch as he held the office of Minister in Mr Qadhafi’s government and was thus closely associated with that regime, has a sufficiently solid factual basis.
87      It should be noted that, according to recitals 1 to 5 of Decision 2011/137, the original 2011 measures had been adopted ‘in view of the seriousness of the situation in Libya’, ‘for an immediate end to the use of force and for steps to address the legitimate demands of the population’ and because the European Union considered it ‘necessary to impose additional restrictive measures’ alongside those imposed by the Security Council. The subsequent listing measures were adopted with the aim of consolidating into new legal instruments the restrictive measures imposed by the original 2011 measures, as amended and implemented by several subsequent acts, ‘in view of the specific threat to international peace and security in the region posed by the situation in Libya’ (see recital 4 of Regulation 2016/44).
88      It should also be noted that, in its letter of 19 November 2018 (see paragraph 18 above), the Council indicated that Mr Abdel Majid Al-Gaoud continued to pose a threat to the peace, stability or security of Libya and to the successful completion of its political transition because of his former position and his consequent close association with the regime of Mr Qadhafi.
89      In its letter dated 29 January 2019 (see paragraph 20 above), the Council reaffirmed that Mr Abdel Majid Al-Gaoud continued to pose a threat on account of his former position. As regards the evidence, the Council provided Mr Abdel Majid Al-Gaoud with a working paper containing eight annexes, a copy of the note verbale of 25 July 2018 (see paragraph 19 above) and the reply which it had sent to the Libyan Embassy in Cairo.
90      First, the annexes to the working paper date from 1977 (evidence items 4 and 5), 1981 (evidence item 7), 2010 (evidence item 1), 2011 (evidence item 3), 2016 (evidence item 6) and 2017 (evidence items 2 and 8) and were sourced from searches conducted on websites in 2018. Secondly, those documents are capable at most of demonstrating that Mr Abdel Majid Al-Gaoud did indeed occupy various high-ranking positions, which, moreover, the applicant does not dispute, starting with that of Secretary for Land Reclamation and Development in 1977, then Minister for Atomic Energy and Chairman of the National Committee of Atomic Energy in 1981, followed by Secretary of the General People’s Committee from 1994 to 1997, and finally Minister for Agriculture, Animal and Maritime Resources in Mr Qadhafi’s government, where he remained until the fall of the regime. Thirdly, the note verbale of the Government of National Accord of 25 July 2018 which had been sent by the Libyan Embassy in Cairo (see paragraph 19 above) reports (i) that there have been considerable changes in the political, security and economic landscape of Libya and progress towards national reconciliation and (ii) that the Government of National Accord did not consider Mr Abdel Majid Al-Gaoud to be a current risk to the ongoing situation in the country following his release on medical grounds. Consequently, it cannot be concluded, as the Council claims, (see paragraph 71 above), that that note verbale refers only to the alleged lack of risk to national security in Libya without addressing the possible risk posed by Mr Abdel Majid Al-Gaoud to the successful completion of Libya’s political transition. On the contrary, it is apparent from the content of that note verbale that the Government of National Accord does not draw a distinction and does not regard Mr Abdel Majid Al-Gaoud as posing a threat, because of his earlier involvement or association with the former regime, to the peace, stability or security of Libya, or to the successful completion of the country’s political transition at the time of the adoption of the contested acts. Moreover, the Council replied to that note by confirming only that there were sufficient reasons for maintaining Mr Abdel Majid Al-Gaoud’s name on the lists at issue, without commenting on the considerations set out in it.
91      In its letter of 31 July 2019 (see paragraph 21 above), the Council reiterated its view that Mr Abdel Majid Al-Gaoud continued to pose a threat because of his former position, indicating that, as a result of the judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520), it was for Mr Abdel Majid Al-Gaoud to produce evidence in rebuttal, and that the observations provided did not demonstrate that a different assessment should be applied to his situation.
92      However, the Council’s argument based on the judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520), and at the end of which, according to the Council, the General Court supported its assessment that all former Ministers of the government of Mr Qadhafi continued to pose a threat in Libya, must be rejected. It is apparent from that judgment that the evidence produced by the applicant in that case was not capable of calling in question the material accuracy of the facts as these had been presented by the Council. In particular, the applicant had acknowledged that, despite his withdrawal from Libyan political life, he was still being consulted by forces present in Libya precisely because of the very senior positions he had previously occupied and his expertise on Libya (judgment of 20 September 2016, Alsharghawi v Council, T‑485/15, not published, EU:T:2016:520, paragraphs 108 and 109).
93      In the present case, Mr Abdel Majid Al-Gaoud was regarded by the Council as being associated with the former regime of Mr Qadhafi because of the position he held before the fall of Mr Qadhafi’s regime and, in that respect, his situation does indeed bear a similarity to that of the applicant in the case giving rise to the judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520). However, while the position which Mr Abdel Majid Al-Gaoud occupied may have warranted his inclusion in the original listing measures and in the subsequent listing measures, the legality of which cannot, moreover, be called in question, the Council should, when reviewing the continuation of his listing, have taken into account the fact that his situation differed from that of Mr Qadhafi’s former chief of staff.
94      In that regard, it is apparent from the case file that the situation of Mr Abdel Majid Al-Gaoud had changed after the fall of the regime, or since the 2011 listing measures and subsequent listing measures. While Mr Alsharghawi was still being consulted at the time of the subsequent listing measures by forces present in Libya, precisely because of the very senior positions he had previously occupied and his expertise on Libya, Mr Abdel Majid Al-Gaoud was in detention from September 2011 until his release on health grounds in 2017, without any judicial determination having been made in his case. Moreover, Mr Abdel Majid Al-Gaoud had not had any involvement in Libyan political life since 2011.
95      As to the Council’s submissions in reliance on the judgments of 9 July 2020, Haswani v Council (C‑241/19 P, EU:C:2020:545, paragraphs 70 and 71), and of 4 April 2019, Sharif v Council (T‑5/17, EU:T:2019:216, paragraphs 55 to 57 (not published)), it should be borne in mind that persons having a certain position or particular status are not to be included or retained on the list of persons and entities subject to restrictive measures if there is sufficient information to indicate that they are not, or are no longer, associated with the regime to which those measures relate or that they do not exercise any influence over it (judgment of 9 July 2020, Haswani v Council, C‑241/19 P, EU:C:2020:545, paragraph 73).
96      As has been noted in paragraph 94 above, the situation of Mr Abdel Majid Al-Gaoud changed significantly after he ceased to be a Minister in 2011, on account of his prolonged detention for six years (see paragraphs 9 and 17 above), that is, from 2011 to 2017, his subsequent release without any judicial determination having been made in his case and the deterioration in his state of health after his release. It should be noted in that respect that, in its Opinion, adopted on 15 June 2016, the Working Group on Arbitrary Detention of the United Nations Human Rights Council (document A/HRC/WGAD/2016/4) confirmed the arbitrary nature of the detention of Mr Abdel Majid Al-Gaoud and called on the Libyan Government to release him. The Council therefore erred in concluding, notwithstanding these matters and the information contained in the note verbale of 25 July 2018 addressed to it (see paragraph 19 above), that Mr Abdel Majid Al-Gaoud continued to be associated with the regime targeted by the contested restrictive measures. At the hearing, the Council indicated, first, that it had not assumed from the position held by Mr Abdel Majid Al-Gaoud that he continued to pose a threat to the peace, stability or security of Libya or to be an impediment to the successful completion of its political transition, and, secondly, that checks were necessary, at the time of its annual review of the measures in question, in order to maintain Mr Abdel Majid Al-Gaoud’s name on the lists at issue. The Council nevertheless indicated that, as a former member of the government of Mr Qadhafi, Mr Abdel Majid Al-Gaoud posed a continued risk to the peace, stability or security of Libya or the successful completion of its political transition, and that it was for the applicant to prove that the position held by Mr Abdel Majid Al-Gaoud was not sufficient for his name to be maintained on the lists at issue, thereby reversing the burden of proof to which the Council was subject in deciding whether his name should be maintained.
97      While the Council has a broad discretion in the field of the common foreign and security policy to examine the ongoing situation in Libya and to make the choices it deems appropriate, it must be held that the decision to maintain the restrictive measures against Mr Abdel Majid Al-Gaoud pursuant to the contested acts solely on account of his status as former Minister of the government of Mr Qadhafi, in which he remained until the fall of the regime, and therefore as being closely associated with the regime established by Mr Qadhafi does not have a sufficiently solid factual basis. The Council merely reiterated the justification for including Mr Abdel Majid Al-Gaoud on the lists at issue, without properly refuting, in its review of that listing, the information and changes relied on in relation to his factual and personal situation.
98      In the light of all the foregoing considerations, the applicant’s complaints that the contested acts have no factual basis that would justify maintaining Mr Abdel Majid Al-Gaoud’s name on the lists at issue are well founded.
99      The first plea in law must therefore be upheld and, consequently, the contested acts must be annulled in so far as they concern Mr Abdel Majid Al-Gaoud, without it being necessary to examine the other pleas in law and arguments raised by the applicant in support of his application for annulment.
The temporal effects of the annulment of the contested acts
100    The Council claims, in the alternative (see paragraph 40, second indent, above), in essence, that the effects of Implementing Decision 2020/1137 should be maintained until the expiry of the period allowed for bringing an appeal and, in the event that an appeal is brought, until the decision determining that appeal.
101    The applicant opposes the Council’s request.
102    Since Implementing Decision (CFSP) 2021/672 and Implementing Regulation (EU) 2021/667 (see paragraph 26 above) deleted Mr Abdel Majid Al-Gaoud’s name from the lists at issue following his death, it is not necessary to rule on the question of maintaining the effects of Implementing Decision 2020/1137 in so far as it relates to him.
Costs
103    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1.      Annuls Council Implementing Decision (CFSP) 2019/1299 of 31 July 2019 implementing Decision (CFSP) 2015/1333 concerning restrictive measures in view of the situation in Libya, and Council Implementing Decision (CFSP) 2020/1137 of 30 July 2020 implementing Decision (CFSP) 2015/1333 concerning restrictive measures in view of the situation in Libya, in so far as they maintain the name of Mr Abdel Majid Al-Gaoud on the lists in Annexes II and IV to Council Decision (CFSP) 2015/1333 of 31 July 2015 concerning restrictive measures in view of the situation in Libya and repealing Decision 2011/137/CFSP;
2.      Annuls Council Implementing Regulation (EU) 2019/1292 of 31 July 2019 implementing Article 21(2) of Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya, and Council Implementing Regulation (EU) 2020/1130 of 30 July 2020 implementing Article 21(2) of Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya, in so far as they maintain the name of Mr Abdel Majid Al-Gaoud on the list in Annex III to Council Regulation (EU) 2016/44 of 18 January 2016 concerning restrictive measures in view of the situation in Libya and repealing Regulation (EU) No 204/2011;
3.      Orders the Council of the European Union to bear its own costs and to pay those incurred by Mr Tareg Ghaoud, as heir of Mr Abdel Majid Al-Gaoud.
Spielmann
Öberg
Spineanu-Matei
Delivered in open court in Luxembourg on 15 September 2021.
E. Coulon
S. Papasavvas
Registrar
President
*      Language of the case: English.