JUDGMENT OF THE COURT (Seventh Chamber)
3 December 2020 (*)
(Appeal – Restrictive measures adopted in view of the situation in Egypt – Freezing of funds and economic resources – List of the persons, entities and bodies covered by the freezing of funds and economic resources – Maintenance of the applicants’ names – Decision of an authority of a third State – Obligation of the Council of the European Union to verify that that decision was taken in accordance with the rights of the defence and the right to effective judicial protection – Obligation to state reasons)
In Joined Cases C‑72/19 P and C‑145/19 P,
TWO APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, lodged on 30 January and 20 February 2019 respectively,
Suzanne Saleh Thabet, residing in Cairo (Egypt),
Gamal Mohamed Hosni Elsayed Mubarak, residing in Cairo,
Alaa Mohamed Hosni Elsayed Mubarak, residing in Cairo,
Heddy Mohamed Magdy Hussein Rassekh, residing in Cairo,
Khadiga Mahmoud El Gammal, residing in Cairo,
represented by Lord Anderson QC, B. Kennelly QC, J. Pobjoy, Barrister, and G. Martin, C. Enderby Smith and F. Holmey, Solicitors,
appellants in Case C‑72/19 P,
the other party to the proceedings being:
Council of the European Union, represented initially by J. Kneale and V. Piessevaux, and subsequently by A. Antoniadis and V. Piessevaux, acting as Agents,
defendant,
and
Gamal Mohamed Hosni Elsayed Mubarak, acting in his own name and on behalf of Ms Suzanne Saleh Thabet and Mr Alaa Mohamed Hosni Elsayed Mubarak, all three heirs of Mr Mohamed Hosni Elsayed Mubarak, residing in Cairo, represented by Lord Anderson QC, B. Kennelly QC, J. Pobjoy, Barrister, and G. Martin, C. Enderby Smith and F. Holmey, Solicitors,
appellant in Case C‑145/19 P,
the other party to the proceedings being:
Council of the European Union, represented initially by J. Kneale and V. Piessevaux, and subsequently by M. Balta and V. Piessevaux, acting as Agents,
defendant,
THE COURT (Seventh Chamber),
composed of A. Kumin (Rapporteur), President of the Chamber, A. Arabadjiev, President of the Second Chamber, and T. von Danwitz, Judge,
Advocate General: E. Sharpston,
Registrar: A. Calot Escobar,
having regard to the written procedure,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1        By their appeal in Case C‑72/19 P, Ms Suzanne Saleh Thabet, Mr Gamal Mohamed Hosni Elsayed Mubarak, Mr Alaa Mohamed Hosni Elsayed Mubarak, Ms Heddy Mohamed Magdy Hussein Rassekh and Ms Khadiga Mahmoud El Gammal (‘Ms Suzanne Thabet, Mr Gamal, Mr Alaa Mubarak, Ms Heddy Rassekh and Ms Khadiga El Gammal’ respectively), ask the Court to set aside the judgment of the General Court of the European Union of 22 November 2018, Saleh Thabet and Others v Council (T‑274/16 and T‑275/16, not published, ‘the judgment under appeal in Case C‑72/19 P’, EU:T:2018:826), by which the General Court dismissed their action seeking the annulment of Council Decision (CFSP) 2016/411 of 18 March 2016 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2016 L 74, p. 40), of Council Decision (CFSP) 2017/496 of 21 March 2017 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2017 L 76, p. 22) (together ‘the acts at issue in Case C‑72/19 P’) and of Council Implementing Regulation (EU) 2017/491 of 21 March 2017 implementing Regulation (EU) No 270/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2017 L 76, p. 10), in so far as those acts concern them.
2        By his appeal in Case C‑145/19 P, Mr Gamal Mubarak asks the Court to set aside the judgment of the General Court of the European Union of 12 December 2018, Mubarak v Council (T‑358/17, not published, ‘the judgment under appeal in Case C‑145/19 P’, EU:T:2018:905), by which the General Court dismissed the action of Mr Mohamed Hosni Elsayed Mubarak (‘Mr Hosni Mubarak’) seeking the annulment of Decision 2017/496, of Implementing Regulation 2017/491, of Council Decision (CFSP) 2018/466 of 21 March 2018 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2018 L 781, p. 3), and of Council Implementing Regulation (EU) 2018/465 of 21 March 2018 implementing Regulation (EU) No 270/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2018 L 781, p. 1) (together ‘the acts at issue in Case C‑145/19 P’) in so far as those acts concern Mr Hosni Mubarak.
Legal context and background to the dispute
3        On 21 March 2011, the Council of the European Union adopted Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p 63).
4        In accordance with Article 1(1) of that decision:
‘All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for misappropriation of Egyptian State funds, and natural or legal persons, entities or bodies associated with them, as listed in the annex, shall be frozen.’
5        Also on 21 March 2011, the Council adopted Regulation (EU) No 270/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 4).
6        Under Article 2(1) of that regulation:
‘All funds and economic resources belonging to, or owned, held or controlled by, persons who, as referred to in Article 1(1) of Decision 2011/172/CFSP, have been identified as being responsible for the misappropriation of Egyptian State funds, and natural or legal persons, entities and bodies associated with them, as listed in Annex I, shall be frozen.’
7        Article 3(1) of that regulation provides:
‘Annex I shall include the grounds for listing of listed natural or legal persons, entities and bodies concerned.’
8        The lists set out, respectively, in the annex to Decision 2011/172 and Annex I to Regulation No 270/2011 (‘the lists at issue’) included the names, in particular, of Mr Hosni Mubarak, described as being a ‘former President of the Arab Republic of Egypt’, Ms Suzanne Thabet, his wife, Mr Alaa Mubarak, the elder son of Mr Hosni Mubarak, Ms [Heddy Rassekh], his wife, Mr Gamal Mubarak, the younger son of Mr Hosni Mubarak, and Ms Khadiga El Gammal, his wife. The grounds for their inclusion on those lists were identical and were worded as follows:
‘Person subject to judicial proceedings by the Egyptian authorities in respect of the misappropriation of State Funds on the basis of the United Nations Convention against corruption.’
9        Subsequently, the names of those natural persons were maintained on the lists at issue by the decisions which successively amended Decision 2011/172, in particular by Decisions 2016/411, 2017/496 and 2018/466, and by the implementing regulations which successively amended Regulation No 270/2011, in particular by Implementing Regulations 2017/491 and 2018/465.
10      However, with effect from the adoption of Decision 2017/496 and Implementing Regulation 2017/491, the reason for the listing became the following:
‘Person subject to judicial proceedings or an asset recovery process by the Egyptian authorities following a final court ruling in respect of the misappropriation of State Funds on the basis of the United Nations Convention against corruption.’
The proceedings before the General Court and the judgments under appeal
Case C‑72/19 P
11      By applications lodged at the General Court Registry on 27 May 2016, Ms Saleh Thabet, of the one part (Case T‑274/16), and Mr Gamal Mubarak, Mr Alaa Mubarak, Ms Heddy Rassekh and Ms Khadiga El Gammal, of the other part (Case T-275/16), brought an action seeking the annulment of Decision 2016/411 in so far as it concerned them, advancing six pleas in law, first, raising a plea of illegality alleging a lack of legal basis and infringement of the principle of proportionality; second, alleging infringement of Article 6 TEU, read in conjunction with Articles 2 and 3 TEU, and of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’), in that the Council took the view that the judicial proceedings in Egypt involving them were conducted in accordance with fundamental rights; third, alleging infringement of the general criteria of Article 1(1) of Decision 2011/172 and of Article 2(1) of Regulation No 270/2011; fourth, alleging infringement of the obligation to state reasons; fifth, alleging infringement of the rights of the defence, the right to sound administration and the right to effective judicial protection; and, sixth, alleging infringement of the right to property and damage to their reputations.
12      By documents lodged at the Registry of the General Court on 31 May 2017 the applicants requested leave to amend their applications, in order also to have Decision 2017/496 and Implementing Regulation 2017/491 annulled, in so far as those acts concerned them.
13      By the judgment under appeal in Case C‑72/19 P, the General Court joined Cases T‑274/16 and T‑275/16 and dismissed the actions.
14      After rejecting as inadmissible the claims seeking the annulment of Implementing Regulation 2017/491, the General Court rejected all the pleas raised in support of the claims seeking the annulment of Decisions 2016/411 and 2017/496 and, consequently, rejected those claims as unfounded.
Case C‑145/19 P
15      By application lodged at the General Court Registry on 31 May 2017, Mr Hosni Mubarak brought an action seeking the annulment of Decision 2017/496 and Implementing Regulation 2017/491 in so far as those acts concerned him, advancing five pleas in law, first, raising a plea of illegality alleging a lack of legal basis and infringement of the principle of proportionality; second, alleging infringement of Article 6 TEU, read in conjunction with Articles 2 and 3 TEU, and of Articles 47 and 48 of the Charter, in so far as the Council took the view that the judicial proceedings in Egypt involving him were conducted in accordance with fundamental rights; third, alleging infringement of the general criteria of Article 1(1) of Decision 2011/172 and Article 2(1) of Regulation No 270/2011; fourth, alleging infringement of the rights of the defence, the right to sound administration and the right to effective judicial protection; and fifth, alleging infringement of the right to property and damage to his reputation.
16      By document lodged at the Registry of the General Court on 31 May 2018, Mr Hosni Mubarak requested leave to amend his application in order also to have Decision 2018/466 and Implementing Regulation 2018/465 annulled, in so far as those acts concerned him.
17      By the judgment under appeal in Case C‑145/19 P, the General Court rejected each of those pleas and dismissed the action.
Procedure before the Court of Justice and forms of order sought
18      By applications lodged at the Registry of the Court of Justice on 30 January and 20 February 2019, the appellants in Case C‑72/19 P and Mr Hosni Mubarak brought their respective appeals in Cases C‑72/19 P and C‑145/19 P.
19      Mr Hosni Mubarak died on 25 February 2020.
20      By letter lodged at the Registry of the Court on 17 April 2020, Mr Hosni Mubarak’s representative produced to the Court a certificate attesting to the death of Mr Hosni Mubarak and stated that Mr Gamal Mubarak, also one of the appellants in Case C‑72/19 P, intended, as the successor to Mr Hosni Mubarak, to pursue the proceedings in Case C‑145/19 P in his own name and in the names of Ms Saleh Thabet and Mr Alaa Mubarak, who were also successors to Mr Hosni Mubarak, as evidenced by the document signed by each of those successors and annexed to that letter. That representative nevertheless stated that the Egyptian family courts had not yet issued the certificate of succession designating Mr Hosni Mubarak’s legal successors.
21      By decision of the President of the Court of 27 April 2020, adopted under Article 55(1)(b) of the Rules of Procedure of the Court of Justice, the proceedings in Case C‑145/19 P were stayed until the appointment of Mr Hosni Mubarak’s legal successors.
22      By letter lodged at the Registry of the Court on 30 April 2020, the late Mr Hosni Mubarak’s representative forwarded the certificate of succession issued by the Egyptian family courts. That certificate stated that Ms Saleh Thabet, Mr Alaa Mubarak and Mr Gamal Mubarak were the only heirs of Mr Hosni Mubarak.
23      By letter of 8 May 2020, the Registry of the Court informed the parties in Case C‑145/19 P that the proceedings had been resumed and requested them to submit their observations on the possible joinder of that case with Case C‑72/19 P, by virtue of Article 54(2) of the Rules of Procedure of the Court of Justice. The parties stated that they did not object to that joinder.
24      By decision of the President of the Second Chamber of 1 July 2020, acting at that time as President of the Seventh Chamber, Cases C‑72/19 P and C‑145/19 P were joined for the purposes of the judgment.
25      By their appeal in Case C‑72/19 P, the appellants in that case claim that the Court should:
–        set aside the judgment under appeal in Case C‑72/19 P;
–        itself give final judgment in this case, annulling the acts at issue in Case C‑72/19 P, in so far as they concern them;
–        in the alternative, remit the case to the General Court for judgment, in line with the legal assessment of the Court of Justice; and
–        order the Council to pay the costs relating to the present appeal and the actions for annulment.
26      By his appeal in Case C‑145/19 P, the appellant in that case claims that the Court should:
–        set aside the judgment under appeal in Case C‑145/19 P;
–        itself give final judgment in the matter, annulling the acts at issue in Case C‑145/19 P, in so far as they concerned Mr Hosni Mubarak;
–        in the alternative, remit the case to the General Court for judgment, in line with the legal assessment of the Court of Justice; and
–        order the Council to pay the costs relating to the present appeal and the action for annulment.
27      In its responses in Cases C‑72/19 P and C‑145/19 P, the Council contends that the Court should:
–        dismiss the appeals in those cases;
–        order the appellants to pay the costs.
The appeal in Case C‑72/19 P
28      The appellants raise six grounds in support of their appeal. By their first ground of appeal, which is divided into four parts, they allege that the General Court made an error of assessment in finding that the Council was not required to ensure that the Egyptian authorities had acted in accordance with their fundamental rights. By their second ground of appeal, they allege that the General Court erred in finding that the Council was not required to verify that the judicial proceedings and investigations involving the appellants concerned acts that are such as to undermine the rule of law in Egypt. By the third to sixth grounds of appeal, they allege that the General Court vitiated the judgment under appeal in Case C‑72/19 P by a number of errors of law in holding that the Council had not committed a manifest error of assessment in relying on Cases No 10427 (allegations relating to Al Watany Bank), No 8897 (renovation of a private dwelling), No 756 (allegations relating to the gifts from the Al-Ahram newspaper), No 53 (allegations relating to the gifts from the newspaper Dar El Tahrir) and No 44 (allegation of money laundering).
29      Moreover, and as is expressly stated in paragraph 1 of the appeal, the appellants must be deemed to be seeking to have the judgment under appeal set aside in Case C‑72/19 P only in so far as, by that judgment, the General Court rejected their claims for annulment of the acts at issue in that case. As to the remainder, the appellants have not raised any ground of appeal or argument against the rejection as inadmissible by the General Court of the claims for annulment of Implementing Regulation 2017/491, made in their pleadings amending the form of order sought in Cases T‑274/16 and T‑275/16.
Arguments of the parties
30      By the first part of the first ground of appeal, the appellants submit that the General Court made a manifest error of law as regards the burden of proof in finding, in paragraphs 99, 100, 114, 126, 128, 131, 137, 315, 316, 328, 329 and 366 of the judgment under appeal in Case C‑72/19 P, that, since they had not put forward objective, reliable, specific and consistent evidence such as to raise legitimate questions concerning the observance of their fundamental rights by the Egyptian authorities, the Council was not required to carry out further checks in that regard with those authorities.
31      The Council is of the view that the first part of the first ground of appeal is unfounded. It points out that, in accordance with the settled case-law of the Court of Justice, it is not for the General Court to verify whether or not the investigations or procedures concerning the appellants in Egypt were well founded, but only to verify whether that was the case as regards the decisions to adopt restrictive measures in the light of the evidence on which those decisions were based (see, to that effect, judgments of 19 October 2017, Yanukovych v Council, C‑599/16 P, not published, EU:C:2017:785, paragraph 69, and of 19 October 2017, Yanukovych v Council, C‑598/16 P, not published, EU:C:2017:786, paragraph 72). Moreover, in a situation where, as in the present case, a person covered by a restrictive measure has not put forward any evidence capable of demonstrating that his particular situation was affected by the alleged problems in the judicial system of the third State concerned, the Council is not bound to require additional verification on the part of the third State concerned as to the facts alleged against that person (see, to that effect, judgment of 19 October 2017, Yanukovych v Council, C‑598/16 P, not published, EU:C:2017:786, paragraph 64). Lastly, where such a person relies on general information relating to the human rights situation in a third State, in order to demonstrate that the General Court erred in law in finding that the Council had discharged its burden of proof as regards the conformity of the relevant decision of the third State concerned with that person’s fundamental rights, it is for that person to provide concrete evidence of the effect of that general situation on his particular situation (see, to that effect, judgment of 19 October 2017, Yanukovych v Council, C‑598/16 P, not published, EU:C:2017:786, paragraph 75.
Findings of the Court
32      In accordance with the case-law of the Court, in a review of restrictive measures, the Courts of the European Union must ensure the review, in principle a 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 include, in particular, observance of the rights of the defence and the right to effective judicial protection (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraphs 20 and 21 and the case-law cited, and judgment of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 22).
33      The effectiveness of the judicial review guaranteed by Article 47 of the Charter requires, as the General Court correctly pointed out in paragraph 112 of the judgment under appeal in Case C‑72/19 P, that, as part of the review of the lawfulness of the grounds which are the basis of the decision to include or to maintain a person’s name on the lists of persons subject to restrictive measures, the EU Courts are to ensure that that decision, which affects that person 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, are substantiated (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119; of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 42; of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 22; and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 23).
34      In the present case, as the General Court noted in paragraphs 24, 143 and 337 of the judgment under appeal in Case C‑72/19 P, the restrictive measures against the appellants were maintained by the acts at issue in Case C‑72/19 P on the basis of the listing criterion set out in Article 1(1) of Decision 2011/172. That criterion provides for the freezing of the funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for misappropriation of Egyptian State funds, and natural or legal persons, entities or bodies associated with them.
35      In that regard, it is clear from paragraphs 163, 166, 242, 244, 256, 339, 392 and 410 of the judgment under appeal in Case C‑72/19 P that, in order to maintain the restrictive measures to which the appellants were subject, the Council took as its basis the existence of judicial proceedings against them in Egypt for misappropriation of State funds. More specifically, the Council relied on a set of documents sent to it by the Egyptian authorities, which it then sent to those appellants, that is to say, asset freezing orders (referred to in the letters from the Council sent to them on 12 and 25 February 2016, 21 March 2016, 27 January 2017, 6 and 22 February 2017 and 22 March 2017), letters from the Egyptian Prosecutor General’s Office of 2 January, 22 February and 5 December 2016 and 6 February 2017, and a memorandum from the National Committee for the recovery of assets abroad.
36      It follows that the maintenance, by the acts at issue in Case C‑72/19 P, of the restrictive measures taken against the appellants is based on the decision of an authority of a third State, which was competent to make it, to initiate and conduct criminal investigation procedures concerning an offence of misappropriation of public funds.
37      It is for the Council, before acting on the basis of a decision of an authority of a third State with a view to adopting or maintaining restrictive measures, to verify whether that decision was adopted in accordance with the rights of the defence and the right to effective judicial protection (judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 24; of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 26; and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 27).
38      In accordance with settled case-law, the Council is obliged, when adopting restrictive measures, to act in accordance with the fundamental rights that form an integral part of the EU legal order, which include, as has been pointed out in paragraph 32 of the present judgment, observance of the rights of the defence and the right to effective judicial protection (see, to that effect, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 97 and 98; of 26 July 2017, Council v LTTE, C‑599/18 P, EU:C:2017:583, paragraph 25; of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 27; and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 28).
39      In that regard, the requirement for the Council to verify that the decisions of third States on which it bases the entry of a person or entity on a list of persons or entities whose assets are to be frozen have been taken in accordance with those rights is designed to ensure that they are included on that list only on a sufficiently solid factual basis and, thus, to protect the persons or entities concerned (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/18 P, EU:C:2017:583, paragraph 26; judgments of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 28, and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 29).
40      The Council cannot conclude that a listing decision is taken on a sufficiently solid factual basis before having itself verified that the rights of the defence and the right to effective judicial protection were observed at the time of the adoption of the decision by the third State in question on which it intends to base the adoption of restrictive measures (judgments of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 34, and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 35).
41      Lastly, and while the decision to maintain, by the acts at issue in Case C‑72/19 P, the freezing of the appellants’ assets affects them individually, it must be added that, in accordance with the case-law cited in paragraph 33 of the present judgment, the EU Court must be satisfied, in the context of its review of the lawfulness of the grounds on which such a decision is based, that, at the very least, one of those grounds is sufficiently detailed and specific, that it is substantiated and that it constitutes in itself sufficient basis to support that decision (see, to that effect, judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 72; judgments of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 38, and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 39).
42      Thus, although it is true that the listing criterion referred to in paragraph 34 of the present judgment allows the Council to base restrictive measures on a decision of a third State, such as those referred to in the letters and memorandum of the Egyptian authorities referred to in paragraph 35 of this judgment, the fact remains that the obligation, on that institution, to observe the rights of the defence and the right to effective judicial protection means that it must satisfy itself that those rights were observed by the authorities of the third State which adopted that decision (see, to that effect, judgments of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 35, and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 36).
43      Consequently, as is clear from the case-law cited in the preceding paragraph, it was for the General Court to review whether the Council had itself verified that the rights of the defence and the right to effective judicial protection had been observed by the Egyptian authorities when those authorities adopted the decisions which that institution took as its basis in order to maintain the restrictive measures.
44      In the present case, the mere reference by the Council to letters and a memorandum from the Egyptian authorities, in which those authorities set out the manner in which the applicants’ fundamental rights had been observed and gave assurances in that regard, while it did not dispute that it did not itself verify whether those rights had been observed and even stated that further checks on its part were not necessary in that respect, cannot suffice for the view to be taken that the decision by the Council to maintain the appellants on the lists at issue rests on a sufficiently solid factual basis, within the meaning of the case-law cited in paragraphs 33, 39 and 40 of this judgment.
45      That conclusion cannot be called into question by the Council’s argument that the appellants have not put forward any evidence capable of demonstrating that their particular situation had been affected by the alleged problems of the Egyptian judicial system. Indeed, in accordance with the settled 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 (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 121; of 28 November 2013, Council v Fulmen and Mahmoudian, C-280/12 P, EU:C:2013:775, paragraph 66); of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 39; and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 40).
46      Moreover, the Court has stated that, in the light of the settled case-law cited in paragraphs 38, 39 and 45 above, it cannot be inferred from the judgments of 19 October 2017, Yanukovych v Council (C‑598/16 P, not published, EU:C:2017:786), and of 19 October 2017, Yanukovych v Council (C‑599/16 P, not published, EU:C:2017:785), to which the Council referred, that the Council is not required to verify that the decision of a third State on which it intends to base the adoption or maintenance of restrictive measures has been taken in accordance with the rights of the defence and the right to effective judicial protection (see, to that effect, judgments of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 40, and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 41).
47      It follows from the foregoing that the General Court erred in law in finding, in paragraphs 126, 128, 131, 315, 316, 319, 328, 329 and 366 of the judgment under appeal in Case C‑72/19 P, that the Council was not required, before relying on the decisions of the Egyptian authorities in order to maintain the restrictive measures to which the appellants were subject, to verify that those decisions had been adopted in accordance with the rights of the defence and the right to effective judicial protection, since the appellants had not produced objective, reliable, specific and consistent evidence such as to raise legitimate questions concerning the observance of those rights.
48      It follows that the first part of the first ground of appeal must be upheld.
49      In the light of the foregoing considerations, the judgment under appeal in Case C‑72/19 P must be set aside in so far as, by that judgment, the General Court rejected the forms of order sought in Cases T‑274/16 and T‑275/16 seeking the annulment of the acts at issue in Case C‑72/19 P, without it being necessary to rule on the other parts of that first ground of appeal or on the other grounds of appeal.
The appeal in Case C‑145/19 P
50      The appellant raises four grounds in support of his appeal. By his first ground of appeal, which is divided into three parts, he alleges that the General Court made an error of assessment in finding that the Council was not required to satisfy itself that the Egyptian authorities had acted in accordance with Mr Hosni Mubarak’s fundamental rights. By his second ground of appeal, he alleges that the General Court erred in finding that the Council was not required to verify that the judicial proceedings and investigations involving Mr Hosni Mubarak concerned facts that are such as to undermine the rule of law in Egypt. By his third and fourth grounds of appeal, he alleges that the General Court wrongly held that the Council had not committed a manifest error of assessment in relying on Cases No 8897 (renovation of a private home), No 756 (allegations relating to the gifts from the Al-Ahram newspaper) and No 53 (allegations relating to gifts from the newspaper Dar El Tahrir).
51      It is appropriate to examine the first part of the first ground of appeal.
Arguments of the parties
52      By the first part of the first ground of appeal, the appellant complains that the General Court committed a manifest error of law with regard to the burden of proof in finding, in paragraphs 68, 69, 77, 81, 85, 95 and 97 of the judgment under appeal in Case C‑145/19 P, that, since Mr Hosni Mubarak did not put forward objective, reliable, specific and consistent evidence such as to raise legitimate questions concerning the observance of his fundamental rights by the Egyptian authorities, the Council was not required to carry out that additional verification.
53      In response, the Council advances arguments similar to those which it put forward in the appeal in Case C‑72/19 P, as set out in paragraph 31 of the present judgment, and submits that the first part of the first ground of appeal must be rejected as unfounded.
Findings of the Court
54      In support of the first part of the first ground of appeal, the appellant repeats, in similar terms, the arguments put forward by the appellants in Case C‑72/19 P in the context of the first part of the first ground of appeal in that case.
55      In the present case, as the General Court noted in paragraphs 22, 36 and 101 of the judgment under appeal in Case C‑145/19 P, the restrictive measures taken against Mr Hosni Mubarak were maintained by the acts at issue in Case C‑145/19 P on the basis of the listing criterion set out in Article 1(1) of Decision 2011/172. That criterion provides, inter alia, for the freezing of funds and economic resources belonging to persons who have been identified as responsible for misappropriation of Egyptian State funds.
56      In that regard, it is apparent from paragraphs 15, 17, 56, 147, 156 and 160 of the judgment under appeal in Case C‑145/19 P that, in order to adopt those restrictive measures, the Council took as its basis the existence of judicial proceedings in Egypt against Mr Hosni Mubarak for misappropriation of State funds. More specifically, the Council relied on a set of documents sent to it by the Egyptian authorities, which it then sent to the person concerned, namely asset freezing orders (referred to in the letters from the Council sent to him on 9 February 2017, 22 March 2017 and 21 March 2018), and on the memoranda of the Egyptian authorities of 12 March 2015, 5 December 2016, 29 August 2017 and 20 February 2018.
57      It follows that the maintenance, by the acts at issue in Case C‑145/19 P, of the restrictive measures taken against Mr Hosni Mubarak is based on the decision of an authority of a third State, which was competent to make it, to initiate and conduct criminal investigation procedures concerning an offence of misappropriation of public funds.
58      While it is true that the listing criterion referred to in paragraph 55 of this judgment allows the Council to base restrictive measures on the decision of a third State, such as that referred to in the memoranda of the Egyptian authorities sent to the Council, referred to in paragraph 56 of this judgment, it follows from the case-law cited in paragraph 42 above that it was for the General Court to verify that the Council had itself ascertained that Mr Hosni Mubarak’s rights of the defence and right to effective judicial protection had been observed by the Egyptian authorities when adopting the decisions which the Council took as its basis to maintain the restrictive measures.
59      In the present case, the mere reference by the Council to memoranda from the Egyptian authorities in which they explained the manner in which Mr Hosni Mubarak’s fundamental rights had been observed and gave assurances in that regard, while the Council did not dispute that it did not itself verify observance of those rights and even stated that further checks on its part were not necessary in that respect, cannot suffice for the view to be taken that the Council’s decision to maintain Mr Hosni Mubarak on the lists at issue rests on a sufficiently solid factual basis, within the meaning of the case-law cited in paragraphs 33, 39 and 40 of the present judgment.
60      It follows from the foregoing that, in the light of the case-law set out in paragraphs 32, 33, 37 to 42, 45 and 46 of the present judgment, the General Court erred in law in finding, in paragraphs 68, 69, 77, 81, 85, 95 and 97 of the judgment under appeal in Case C‑145/19 P, that the Council was not required, before relying on the decisions of the Egyptian authorities to maintain the restrictive measures to which Mr Hosni Mubarak was subject, to verify that those decisions had been adopted in observance of the rights of the defence and the right to effective judicial protection, since Mr Hosni Mubarak had not put forward objective, reliable, specific and consistent evidence such as to raise legitimate questions concerning the observance of those rights.
61      It follows that the first part of the first ground of appeal must be upheld.
62      Having regard to the foregoing considerations, it is appropriate to set aside the judgment under appeal in Case C‑145/19 P, without it being necessary to rule on the other parts of the first ground of appeal or on the other grounds of appeal.
The action before the General Court
63      In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the Court of Justice quashes the decision of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits.
64      In the present case, the Court has the necessary information to give final judgment in the actions for annulment in Joined Cases T‑274/16 and T‑275/16, in so far as, by those actions, the appellants in Case C‑72/19 P sought annulment of the acts at issue in Case C‑72/19 P and in the action for annulment in Case T‑358/17, by which Mr Hosni Mubarak sought annulment of the acts at issue in Case C‑145/19 P.
65      In that regard, as is apparent from paragraphs 44 and 59 of the present judgment, the Council did not fulfil its obligation to verify that the Egyptian authorities acted in accordance with the rights of the defence and the right to judicial protection of the appellants in Cases C‑72/19 P and C‑145/19 P before relying on the decisions of those authorities in order to adopt the restrictive measures against those appellants.
66      In those circumstances, on the grounds set out in paragraphs 34 to 43, 45 to 47, 55 to 58 and 60 of the present judgment, the second pleas in law in each of the actions in Joined Cases T‑274/16 and T‑275/16 and in Case T‑358/17 must be upheld, without it being necessary to examine the other pleas in those actions, and, consequently, the acts at issue in Case C‑72/19 P, in so far as they concern the appellants in that case, and the acts at issue in Case C‑145/19 P, in so far as they concern Mr Hosni Mubarak, must be annulled.
Costs
67      Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs.
68      Under Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
69      Since the appellants in Joined Cases C‑72/19 P and C‑145/19 P have applied for an order that the Council pay the costs and the Council has been unsuccessful, the Council must be ordered to bear its own costs and to pay those incurred by those appellants relating both to the proceedings before the General Court and to the present appeals.
On those grounds, the Court (Seventh Chamber) hereby:
1.      Sets aside the judgment of the General Court of the European Union of 22 November 2018, Saleh Thabet and Others v Council (T‑274/16 and T‑275/16, not published, EU:T:2018:826), in so far as, by that judgment, the General Court dismissed the actions seeking the annulment of Council Decision (CFSP) 2016/411 of 18 March 2016 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt and of Council Decision (CFSP) 2017/496 of 21 March 2017 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt;
2.      Sets aside the judgment of the General Court of the European Union of 12 December 2018, Mubarak v Council (T‑358/17, not published, EU:T:2018:905);
3.      Annuls Decisions 2016/411 and 2017/496, in so far as they concern Ms Suzanne Saleh Thabet, Mr Gamal Mohamed Hosni Elsayed Mubarak, Mr Alaa Mohamed Hosni Elsayed Mubarak, Ms Heddy Mohamed Magdy Hussein Rassekh and Ms Khadiga Mahmoud El Gammal;
4.      Annuls Decision 2017/496, Council Implementing Regulation (EU) 2017/491 of 21 March 2017 implementing Regulation (EU) No 270/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt, Council Decision (CFSP) 2018/466 of 21 March 2018 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt, and Council Implementing Regulation (EU) 2018/465 of 21 March 2018 implementing Regulation (EU) No 270/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt, in so far as those acts concern Mr Mohamed Hosni Elsayed Mubarak;
5.      Orders the Council of the European Union to pay the costs incurred both in the proceedings at first instance and in the present appeals.
Kumin
Arabadjiev
von Danwitz
Delivered in open court in Luxembourg on 3 December 2020.
A. Calot Escobar
A. Kumin
Registrar
President of the Seventh Chamber
*      Language of the case: English.