62023TJ0370_RES
Case T‑370/23
(publication by extracts)
Samer Kamal Al-Assad
v
Council of the European Union
Judgment of the General Court (Ninth Chamber) of 4 September 2024
(Common foreign and security policy – Restrictive measures adopted against Syria – Freezing of funds and economic resources – List of persons, entities and bodies subject to the freezing of funds and economic resources – Inclusion of the applicant’s name on the list – Family membership criterion – Plea of illegality – Requirement that any limitation must be provided for by law – Error of assessment – Right to property)
European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures against Syria – Scope of the review – Restricted review for general rules – Criteria for adopting restrictive measures – Assumption that members of the Assad and Makhlouf families support the Syrian regime – Scope – Compliance with the principle of legal certainty requiring clarity, precision and foreseeability of the effects of legal rules
(Council Decision 2013/255/CFSP, as amended by Decision (CFSP) 2015/1836, Arts 27(1) and (2)(a) and (b) and 28(1) and (2); Council Regulations No 36/2012 and 2015/1828, Art. 15(1)(a) and (1a)(b))
(see paragraphs 54-65, 72, 73)
Common foreign and security policy – Restrictive measures against Syria – Freezing of funds of certain persons and entities in view of the situation in Syria – Nature of those measures – No criminal character
(Council Decision 2013/255/CFSP, as amended by Decision (CFSP) 2015/1836, Arts 27(1) to (3) and 28(1) to (3); Council Regulations No 36/2012 and 2015/1828, Art. 15(1)(a), (1a)(b) and (1b))
(see paragraphs 68, 84)
Common foreign and security policy – Restrictive measures against Syria – Breach of principle of proportionality – Breach of principle of non-discrimination – None
(Art. 5(4) TEU; Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836 and (CFSP) 2023/847, Arts 27(1) to (3) and 28(1) to (3); Council Regulations No 36/2012 and 2015/1828, Art. 15(1)(a), (1a)(b) and (1b))
(see paragraphs 81-83, 85-94)
European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures against Syria – Scope of the review – Inclusion of the applicant on the list annexed to the contested decision on account of his membership of the Assad or Makhlouf families – Publicly available documents – Probative value
(Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2013/255/CFSP, as amended by Decision (CFSP) 2023/847, Annex; Council Regulations No 36/2012 and 2023/844)
(see paragraphs 105, 108, 109)
Common foreign and security policy – Specific restrictive measures against certain persons and entities in view of the situation in Syria – Decision 2013/255/CFSP and Regulation No 36/2012 – Assumption that influential businessmen and women engaged in activities in Syria and members of the Assad and Makhlouf families support the Syrian regime – Whether permissible – Conditions
(Council Decision 2013/255/CFSP, as amended by Decision (CFSP) 2015/1836, Arts 27(1) and (2)(a) and (b) and 28(1) and (2); Council Regulations No 36/2012 and 2015/1828, Art. 15(1)(a) and (1a)(b))
(see paragraphs 112-115, 117)
Common foreign and security policy – Specific restrictive measures against certain persons and entities in view of the situation in Syria – Decision 2013/255/CFSP and Regulation No 36/2012 – Assumption that members of the Assad and Makhlouf families support the Syrian regime – Whether permissible – Conditions – Rebuttable presumption – Evidence to the contrary – None
(Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836 and (CFSP) 2023/847, Arts 27(1) to (3) and 28(1) to (3); Council Regulations No 36/2012, 2015/1828, Art. 15(1)(a), (1a)(b) and (1b), and 2023/844)
(see paragraphs 116, 118-126)
Common foreign and security policy – Restrictive measures against Syria – Freezing of the funds of and restrictions on the admission of persons, entities or bodies associated with the Syrian regime – Restrictions on the right to property – Breach of principle of proportionality – None
(Arts 5(4) and 29 TEU; Art. 215 TFEU; Charter of Fundamental Rights of the European Union, Arts 17 and 52(1); Council Decision 2013/255/CFSP, as amended by Decision (CFSP) 2023/847, Annex; Council Regulations No 36/2012 and 2023/844)
(see paragraphs 133-145)
Résumé
By its judgment, the General Court dismisses the action for annulment brought by Mr Samer Kamal Al-Assad against the acts by which, in 2023, the Council of the European Union included his name on the lists of persons subject to restrictive measures in view of the situation in Syria. (
1
)
This case affords the Court the opportunity to rule, for the first time, on the lawfulness of the criterion enabling the Council to adopt restrictive measures against ‘members of the Assad or Makhlouf families’ set out in Article 27(2)(b) and Article 28(2)(b) of Decision 2013/255, (
2
) as amended by Decision 2015/1836 (‘the family membership criterion’). In addition, in 2015, Article 15 of Regulation No 36/2012 (
3
) was supplemented by paragraph 1a(b), which provides for the assets of the members of those families to be frozen.
The name of the applicant – who is a businessman of Syrian nationality – was included on the lists at issue as a member of the Assad family, involved in activities relating to the production of, and trade in, narcotics.
Findings of the Court
As regards, in the first place, the complaint alleging that the family membership criterion breaches the principle of legality and, consequently, infringes the rights to property and to respect for private and family life, the Court notes, first of all, that the right to property and the right to respect for private life are not absolute rights. Under Article 52(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), their exercise may be subject to restrictions provided that the limitations concerned are provided for by law, respect the essence of the fundamental right in question and, subject to the principle of proportionality, are necessary and meet objectives of general interest recognised by the European Union.
Next, the Court recalls that the principle of legality, established by the words ‘provided for by law’ in Article 52(1) of the Charter, means that any limitation on the rights and freedoms enshrined in the Charter must have a legal basis which itself defines, clearly and precisely, the scope of the limitation on their exercise. However, that requirement does not preclude, on the one hand, the limitation in question from being formulated in terms which are sufficiently open to be able to adapt to different scenarios and keep pace with changing circumstances and, on the other hand, the Court of Justice of the European Union from, where appropriate, specifying, by means of interpretation, the actual scope of the limitation in the light of the very wording of the EU legislation in question as well as its general scheme and the objectives it pursues.
In the present case, the Court takes the view that the family membership criterion does not allow the Council to impose restrictive measures on all persons with the surname Assad, whether or not they are associated with that family, which is currently in power in Syria.
First, all decisions to include a person on the lists at issue are to be made on an individual and case-by-case basis taking into account the proportionality of the measure. (
4
) Secondly, the family membership criterion forms part of a legal framework that is clearly delineated by the objectives pursued, (
5
) in particular, by the basic legislation. (
6
)
In addition, the scope of the family membership criterion, although worded in open terms, is circumscribed by recital 7 of Decision 2015/1836 and is therefore capable of targeting only a clearly identifiable circle of persons, namely those associated with the Assad family currently in power in Syria. It follows that persons with the surname Assad fall within the scope of the family membership criterion only if they have family ties to the Assad family currently governing Syria. Furthermore, persons with family ties to the Assad family in power in Syria may have their names included on the lists at issue on the basis of the family membership criterion, even if they do not have the surname Assad.
Finally, as regards the applicant’s argument concerning non-observance of the principle of personal responsibility, the Court states that it does indeed follow from the case-law that, in accordance with the principle that penalties must be specific to the offender, a natural or legal person may be penalised only for acts imputed to that person individually. However, by their precautionary nature and their preventive purpose, restrictive measures can be distinguished from criminal or administrative penalties. Specifically, the objective pursued by the restrictive measures adopted in view of the situation in Syria is not to penalise the persons or entities which they target, but to exert pressure, through those measures, on the Syrian regime in order to have it bring an end to the policy of violent repression against the civilian population in Syria. Furthermore, all listing decisions are to be made on an individual basis, with the result that there can be no automatic listing on the basis of the family membership criterion. Therefore, the applicant cannot invoke the principle of personal responsibility in order to challenge the lawfulness of that criterion.
Taking the view, therefore, that the family membership criterion, read in conjunction with the objective of applying pressure on the Syrian regime in order to force it to put an end to its policy of repression, defines, in an objective and sufficiently precise manner, a limited category of persons liable to be subject to restrictive measures, the Court concludes that that criterion establishes a clear and precise provision which meets the requirements flowing from the principle of legality.
In the second place, the Court rejects the complaint alleging breach of the principle of non-discrimination. As a preliminary point, the Court recalls that the principle of equal treatment, of which the principle of non-discrimination is a particular expression, prohibits comparable situations from being treated differently or different situations from being treated in the same way, unless such difference in treatment is objectively justified.
A difference in treatment is justified if it is based on an objective and reasonable criterion and is proportionate to the aim pursued by the treatment.
The Court notes, however, that in the field of restrictive measures, the Council has a broad discretion as regards the definition and adoption of the listing criteria. Therefore, the legality of restrictive measures is not dependent on their being found to have immediate effects; all that is required is that they are not manifestly inappropriate in regard to the objective that the competent institution seeks to pursue.
In the present case, the Court finds, first of all, that, contrary to the applicant’s claims, the restrictive measures adopted on the basis of the family membership criterion do not constitute a criminal penalty. In addition, they pursue an objective of general interest recognised by the European Union. Consequently, the freezing of the funds and other economic resources, and the prohibition of entry into the territory of the European Union, of persons identified as being involved in supporting the Syrian regime cannot, in themselves, be regarded as inappropriate.
Next, the Court states that the applicant does not specify how or in relation to whom the application of the family membership criterion is discriminatory. Nor does he provide specific examples of other persons who are in a situation comparable to his own and who are treated differently. Accordingly, the Court is not in a position to ascertain whether his claims are well founded in fact.
Finally, the Court rejects the applicant’s argument that the family membership criterion leads to a result which is disproportionate to the objective pursued by the restrictive measures, since, as the Syrian President’s second cousin, it is impossible for him to rebut the presumption that he has ties to the Syrian regime. It is apparent from the contested acts that any person, notwithstanding the capacity or status by virtue of which his or her name was included on the lists at issue, may adduce evidence to challenge the inclusion or retention of his or her name on those lists.
In the light of all the foregoing, the Court rejects the plea of illegality in its entirety.
(
1
)	Council Implementing Decision (CFSP) 2023/847 of 24 April 2023 implementing Decision 2013/255/CFSP concerning restrictive measures in view of the situation in Syria (OJ 2023 L 109 I, p. 26) and Council Implementing Regulation (EU) 2023/844 of 24 April 2023 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2023 L 109 I, p. 1).
(
2
)	Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (OJ 2013 L 147, p. 14), as amended by Council Decision (CFSP) 2015/1836 of 12 October 2015 (OJ 2015 L 266, p. 75).
(
3
)	Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation (EU) No 442/2011 (OJ 2012 L 16, p. 1), as amended by Council Regulation (EU) 2015/1828 of 12 October 2015 (OJ 2015 L 266, p. 1).
(
4
)	See Article 27(4) and Article 28(4) of Decision 2013/255, as amended by Decision 2015/1836.
(
5
)	It is apparent from recital 7 of Decision 2015/1836 that the power of the current Syrian regime ‘is concentrated in influential members of the Assad and Makhlouf families’ and that the Council therefore imposed restrictive measures on certain members of those families ‘both to directly influence the regime through members of those families to change its policies of repression, as well as to avoid the risk of circumvention of restrictive measures through family members’.
(
6
)	Regulation No 36/2012 and Decision 2013/255.