JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
15 November 2018 (*)
(Common foreign and security policy — Restrictive measures directed against certain persons and entities in view of the situation in Tunisia — Measures taken against persons responsible for misappropriation of State funds and associated persons and entities — Freezing of funds — List of persons, entities and bodies subject to the freezing of funds — Maintenance of the applicant’s name on the list — Insufficient factual basis — Manifest error of assessment — Error of law — Principle of good administration — Reasonable time)
In Case T‑216/17,
Mohamed Marouen Ben Ali Ben Mohamed Mabrouk, residing in Tunis (Tunisia), represented by J.-R. Farthouat, N. Boulay and S. Crosby, lawyers,
applicant,
v
Council of the European Union, represented by V. Piessevaux and J. Kneale, acting as Agents,
defendant,
APPLICATION pursuant to Article 263 TFEU for annulment of Council Decision (CFSP) 2017/153 of 27 January 2017 amending Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2017 L 23, p. 19), and Council Decision (CFSP) 2018/141 of 29 January 2018 amending Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2018 L 25, p. 38), in so far as those decisions concern the applicant,
THE GENERAL COURT (Fifth Chamber),
composed of D. Gratsias (Rapporteur), President, I. Labucka and I. Ulloa Rubio, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute and legal context
1        On 31 January 2011, following political developments in Tunisia during the months of December 2010 and January 2011, the Council of the European Union adopted, on the basis of Article 29 TEU, Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2011 L 28, p. 62).
2        Recitals 1 and 2 of Decision 2011/72 state:
‘(1)      On 31 January 2011, the Council reaffirmed its full solidarity and support with Tunisia and its people in their efforts to establish a stable democracy, the rule of law, democratic pluralism and full respect for human rights and fundamental freedoms.
(2)      The Council further decided to adopt restrictive measures against persons responsible for misappropriation of Tunisian State funds and who are thus depriving the Tunisian people of the benefits of sustainable development of their economy and society and undermining the development of democracy in the country.’
3        Article 1(1) of Decision 2011/72 provides:
‘All funds and economic resources belonging to, owned, held or controlled by persons responsible for misappropriation of Tunisian State funds, and natural or legal persons or entities associated with them, as listed in the Annex, shall be frozen.’
4        Article 2 of Decision 2011/72 provides:
‘1. The Council, acting upon a proposal by a Member State or the High Representative of the Union for Foreign Affairs and Security Policy, shall establish and amend the list in the Annex.
2. The Council shall communicate its decision, including the grounds for the listing, to the person or entity concerned, either directly, if the address is known, or through the publication of a notice, providing such person or entity with an opportunity to present observations.
3. Where observations are submitted, or where substantial new evidence is presented, the Council shall review its decision and inform the person or entity concerned accordingly.’
5        Article 3(1) of Decision 2011/72 reads as follows:
‘The Annex shall include the grounds for listing the persons and entities.’
6        Article 5 of Decision 2011/72, in its original version, provided:
‘This Decision shall apply for a period of 12 months. It shall be kept under constant review. It shall be renewed, or amended as appropriate, if the Council deems that its objectives have not been met.’
7        The list originally annexed to Decision 2011/72 contained only the names of Mr Zine el Abidine Ben Hamda Ben Ali, former President of the Republic of Tunisia, and Ms Leïla Bent Mohammed Trabelsi, his wife.
8        On 4 February 2011, on the basis of Article 2(1) of Decision 2011/72 and Article 31(2) TEU, the Council adopted Implementing Decision 2011/79/CFSP implementing Decision 2011/72 (OJ 2011 L 31, p. 40). Article 1 of that implementing decision provided that the annex to Decision 2011/72 was to be replaced by the text set out in the annex thereto. That annex listed the names of 48 natural persons including, in particular, on the first and second lines, the names of the two persons referred to in paragraph 7 above and, on line 28, the name of the applicant, Mr Mohamed Marouen Ben Ali Ben Mohamed Mabrouk. Line 28 of that annex also stated, in the column entitled ‘Identifying information’: ‘Tunisian, born in Tunis 11 March 1972, son of Jaouida El BEJI, married to Sirine BEN ALI, CEO, residing at 8 rue du Commandant Béjaoui — Carthage — Tunis, holder of NIC No 04766495’; and, in the column entitled ‘Grounds’: ‘Person subject to judicial investigation by the Tunisian authorities in respect of the acquisition of movable and immovable property, the opening of bank accounts and the holding of financial assets in several countries as part of money-laundering operations.’
9        Citing Article 215(2) TFEU and Decision 2011/72, the Council adopted Regulation (EU) No 101/2011 of 4 February 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia (OJ 2011 L 31, p. 1). That regulation reproduces, in essence, the provisions of Decision 2011/72 and the list in Annex I thereto is identical to that of the annex to that decision.
10      Pursuant to Article 5 of Decision 2011/72, the Council renewed that decision for a period of one year by adopting, successively, Decision 2012/50/CFSP, of 27 January 2012 (OJ 2012 L 27, p. 11), Decision 2013/72/CFSP, of 31 January 2013 (OJ 2013 L 32, p. 20), Decision 2014/49/CFSP, of 30 January 2014 (OJ 2014 L 28, p. 38), Decision (CFSP) 2015/157, of 30 January 2015 (OJ 2015 L 26, p. 29), Decision (CFSP) 2016/119, of 28 January 2016 (OJ 2016 L 23, p. 65), Decision (CFSP) 2017/153, of 27 January 2017 (OJ 2017 L 23, p. 19) and Decision (CFSP) 2018/141 of 29 January 2018 (OJ 2018 L 25, p. 38). The applicant’s designation in the list annexed to Decision 2011/72 and, consequently, in the list in Annex I to Regulation No 101/2011 was maintained in those successive renewals.
11      Following the judgments of 28 May 2013, Trabelsi and Others v Council (T‑187/11, EU:T:2013:273); of 28 May 2013, Chiboub v Council (T‑188/11, not published, EU:T:2013:274); and of 28 May 2013, Al Matri v Council (T‑200/11, not published, EU:T:2013:275), the grounds for designating the applicant were amended as follows. ‘Person subject to judicial investigations by the Tunisian authorities for complicity in the misappropriation of public monies by a public office-holder, complicity in the misuse of office by a public office-holder to procure an unjustified advantage for a third party and to cause a loss to the administration, and complicity in exerting wrongful influence over a public office-holder with a view to obtaining directly or indirectly an advantage for another person.’
12      Those grounds were amended again by Decision 2016/119 as follows: ‘Person subject to judicial investigations by the Tunisian authorities for complicity in the misappropriation of public monies by a public office-holder, complicity in the misuse of office by a public office-holder to procure an unjustified advantage for a third party and to cause a loss to the administration, and exerting wrongful influence over a public office-holder with a view to obtaining directly or indirectly an advantage for another person.’
13      Decision 2017/153 amended, first, the spelling of the applicant’s name, indicating ‘Marwan’ instead of ‘Marouen’ and, second, added the following entry to the identifying information concerning him: ‘Holder of French Passport No 11CK51319 expiring on 1.8.2021.’ However, the grounds for his designation remained identical for the adoption of that decision and for the adoption of Decision 2018/141.
14      The same amendments as those referred to in paragraphs 11 to 13 above were introduced to Annex I to Regulation No 101/2011.
15      On 10 April 2015, the applicant brought an action, registered under number T‑175/15, against Decision 2015/157, in so far as that act concerned him. Based on Article 86 of the Rules of Procedure of the General Court, the applicant lodged two statements of modification, the first concerning the Council’s decision of 16 November 2015 rejecting his request seeking the removal of his name from the list annexed to Decision 2011/72, dated 29 May 2015, the second concerning Decision 2016/119. In the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694), the Court dismissed that action. That judgment has not been the subject of an appeal.
Procedure and forms of order sought by the parties
16      By application lodged at the Court Registry on 7 April 2017, the applicant brought the present action.
17      On 7 July 2017, the Council lodged its defence.
18      The reply and the rejoinder were lodged on 24 August and 10 October 2017, respectively.
19      By letter of 17 October 2017, the parties were informed of the close of the written part of the procedure and of the possibility, for them, to request that a hearing be held in accordance with the conditions laid down in Article 106 of the Rules of Procedure. The parties did not make such a request within the period prescribed under those provisions which expired on 20 November 2017.
20      On 5 April 2018, under Article 86 of the Rules of Procedure, the applicant submitted a statement of modification to extend the form of order and the pleas of the application to Decision 2018/141.
21      On 8 May 2018, in the context of a measure of organisation of procedure, the Court requested the Council to reply to certain questions and to produce certain documents.
22      On 25 May 2018, the Council, first, submitted observations on the statement of modification and, second, replied to the Court’s requests.
23      As there was no request for a hearing by one of the parties to the dispute and acting on a proposal from the Judge-Rapporteur, the General Court (Fifth Chamber) considered that it had sufficient material available to it from the material in the file and decided to give a ruling without an oral part of the procedure, in accordance with Article 106(3) of the Rules of Procedure of the General Court.
24      The applicant claims that the Court should:
–        annul Decisions 2017/153 and 2018/141, in so far as those decisions concern him;
–        order the Council to pay the costs.
25      The Council contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
26      As a preliminary point, it should be recalled that the judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:2014:93), confirmed on appeal by the judgment of 5 March 2015, Ezz and Others v Council, (C‑220/14 P, EU:C:2015:147), held that the general criteria laid down in Article 1(1) of Council Decision 2011/172/CFSP of 21 March 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 63) were to be interpreted broadly (judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 67, confirmed on appeal by the judgment of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraphs 72, 77, 82 and 84).
27      Moreover, it should be recalled that, in the context of restrictive measures adopted by the Council in view of the situation in Tunisia, the same principle of broad interpretation is applicable to Article 1(1) of Decision 2011/72, which is worded similarly to Article 1(1) of Decision 2011/172 (judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 31).
28      In that regard, it is apparent from Article 1(1) of Decision 2011/72 that the purpose of that decision is to freeze the assets of persons responsible for misappropriation of Tunisian State funds and of persons associated with them, as listed in the annex thereto. By hindering the proper functioning of Tunisian public institutions and of the bodies which are dependent of them, those misappropriations ‘are depriving’, according to the wording of recital 2 of that decision, ‘the Tunisian people of the benefits of the sustainable development of their economy and society and undermining the development of democracy in the country’.
29      Moreover, according to the case-law, it is apparent from Article 1(1) of Decision 2011/72, read in the light of recitals 1 and 2 thereof, that the freezing of funds imposed by that provision is not intended to punish any misconduct on the part of the persons concerned or to deter them, by coercion, from engaging in such conduct. The sole purpose of the asset freeze is to assist the Tunisian authorities with establishing any misappropriation of State funds that has taken place and to ensure that it remains possible for those authorities to recover the proceeds of misappropriation. It is therefore of a purely precautionary nature and has no criminal law connotations (see judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 33 and the case-law cited).
30      In particular, in view of the objectives of Decision 2011/72, the concept of persons responsible for misappropriation of Tunisian State funds within the meaning of Article 1(1) of that decision includes not only those persons already found responsible for such acts but also those who are the subject of ongoing judicial investigations to establish such responsibility (see judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 34 and the case-law cited).
31      Thus, in the present case, what the Council must ascertain is, first, whether it is possible to establish, on the basis of the evidence in its possession, that the applicant is the subject of one or more ongoing judicial proceedings in respect of acts that may be characterised as misappropriation of State funds, and, second, whether those proceedings are such that the applicant may be categorised as a person responsible for such misappropriation or a person associated with such an individual within the meaning of Article 1(1) of Decision 2011/72 (see, to that effect, judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 39 and the case-law cited).
32      In particular, in the context of that decision, it is not, in principle, for the Council itself to examine and assess the relevance and accuracy of the evidence relied on in the judicial proceedings concerning the persons listed in the annex to that decision. As stated in paragraph 29 above, by adopting that decision and the subsequent decisions, the Council is not seeking to punish the misappropriation of State funds being investigated by the Tunisian authorities itself, but to ensure that it remains possible for those authorities to establish misappropriation and to recover the proceeds thereof. It is therefore for the competent Tunisian authorities to verify that evidence and to draw the appropriate conclusions. Accordingly, in principle, it is not for the Council or the General Court to ascertain whether such proceedings are well founded but simply to establish whether the decision freezing the funds is justified in the light of the information provided by the Tunisian authorities (see judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 40 and the case-law cited).
33      It is true that the Council cannot adopt, in all circumstances, the findings made by the Tunisian judicial authorities in the documents provided by those authorities. According to case-law, it is for the Council to examine carefully and impartially the evidence that is sent to it by the competent authorities, namely, in this case, the Tunisian authorities, in the light, in particular, of the comments and any exculpatory evidence submitted by the applicant. That obligation also arises from the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’) (see judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 41 and the case-law cited).
34      Nonetheless, according to that same line of case-law, it is for the Council, in discharging its duty of careful and impartial examination, to assess whether it is necessary to seek disclosure of further information or evidence from the competent authorities, in the light of the observations and factual evidence submitted by the applicant. In particular, while it is not for the Council to take the place of the Tunisian judicial authorities in assessing whether the ongoing judicial investigations concerning the applicant are well founded, it is not inconceivable that the Council might be obliged to seek clarification from those authorities with regard to the material on which those investigations are based (see judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 42 and the case-law cited).
35      It is in the light of those considerations that the present action must be examined.
The claim for annulment of Decision 2017/153, in so far as that decision concerns the applicant
36      In support of its claim for annulment of Decision 2017/153, the applicant raises, in essence, four pleas, alleging (i) infringement of the right to be tried within a reasonable time, (ii) lack of factual basis for the decision to renew his designation, (iii) infringement of the right to work and (iv) infringement of the right to property.
The first plea, alleging infringement of the right to be tried within a reasonable time
37      The applicant claims, in essence, that, in view of the criteria established by the case-law of the European Court of Human Rights (‘the ECtHR’), the total duration of the judicial proceedings to which he has been subject in Tunisia since the beginning of 2011 infringes the principle of the right to be tried within a reasonable time. In addition, according to him, the passing of time is liable to confer a criminal effecton the freezing of his assets as a whole, such that the provisions of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’) and of Article 47 of the Charter are applicable. Moreover, he claims that the delay in the judicial proceedings at issue is not attributable to him. In the reply, he adds that the punitive nature of the freezing of his assets without a criminal trial infringes Article 6(2) ECHR and removes the legal basis of that freezing. He also argues that the only adequate remedy for the infringement of his right to be tried within a reasonable time would be the annulment of the decision imposing the freezing of funds at issue. Last, he argues that the freezing of his assets in the European Union and the criminal prosecution to which he is subject in Tunisia are mutually reinforcing.
38      The Council argues, in essence, that the freezing of the applicant’s assets is an autonomous measure, separate from the criminal investigations of the Tunisian authorities and is not punitive in nature.
39      As a preliminary point, it should be recalled that the present plea is based on two distinct premisses. First, the applicant claims that the criminal proceedings to which he has been subject in Tunisia for six years and which have not yet led to a definitive decision infringe, as a result, his right to be tried within a reasonable time. Second, he argues that the freezing of his assets in the European Union has acquired a punitive and thus criminal nature on account of the corresponding duration of that freezing. He infers from those premisses that the freezing of assets itself infringes the right to be tried within a reasonable time, as is enshrined in Article 6 ECHR and in Article 47 of the Charter, such that it is for the EU Court to put an end to it by annulling Decision 2017/153.
40      Those premisses can only be rejected, however.
41      Regarding the alleged infringement of the right to be tried within a reasonable time by the Tunisian authorities, it should be recalled that, in the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694), which pronounced on the action of the applicant referred to in paragraph 15 above, the Court held that it was for the Tunisian courts to determine whether there was any infringement of that right, which right is enshrined in the international agreements to which Tunisia is a party (see judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 63 and the case-law cited).
42      It is true that, in that same judgment, the Court considered that, in the light of the principles underpinning actions of the European Union under the Common Foreign and Security Policy (CFSP) and of the objectives of Decision 2011/72, it could not be ruled out that the Council might be required to carry out the necessary verifications, where there was objective, reliable, specific and consistent evidence such as to raise legitimate questions concerning observance of an applicant’s right to be tried within a reasonable time in the context of the ongoing judicial investigation concerning him, which serves as the basis for the freezing of his assets in the European Union (see judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraphs 64 and 65 and the case-law cited).
43      Nevertheless, the Court noted, in the case, that the applicant’s complaint was based on the incorrect assumption that the infringement of his right to be tried within a reasonable time, in view of the excessive length of the judicial investigation to which he was subject in Tunisia, should have resulted in the closure of that investigation and thus the interruption of the freezing of his assets in the European Union. The Court noted that that assumption found support neither in a reference to Tunisian criminal law nor in the case-law of the ECtHR cited by the applicant. Moreover, the Court noted that, in the light of the requirements for the examination of whether the right to be heard within a reasonable time has been complied with, the Council could not, in any event, be required to end the freezing of the applicant’s assets solely on the basis of his observations without first carrying out checks (see judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraphs 66 to 75 and the case-law cited).
44      In the case at hand, the applicant relies on an assumption similar to the one on which the corresponding complaint in the case that gave rise to the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694) was based, in so far as it considers that the alleged infringement of the right to be heard within a reasonable time by the Tunisian authorities can only result in the annulment of the freezing of his assets in the European Union. In the light of the Court’s considerations recalled in paragraphs 41 to 43 above, such an assumption must be rejected.
45      Furthermore, the applicant’s arguments aimed at establishing the existence of an infringement of the right to be tried within a reasonable time by the Tunisian authorities in the present case cannot be accepted.
46      In that regard, the applicant claims that only the total duration of the judicial proceedings at issue is relevant to assessing the existence of an infringement of the principle of the right to be tried within a reasonable time by the Tunisian authorities. Moreover, he argues that that infringement should, in the case at hand, be found, in view, in particular, of legal writings and of the case-law of the ECtHR, from which it must be inferred that criminal proceedings involving comparable acts cannot exceed a total duration of five years and is, in any event, vitiated by such an infringement beyond seven years. Those assertions are wrong, however.
47      It should be recalled that, as the Court has found, in the light of the case-law of the ECHR, observance of a person’s right to be tried within a reasonable time, as enshrined in international law, must be examined in the light of the particular circumstances of the case, which call for an overall assessment on the basis, in particular, of criteria relating to the complexity of the case, the conduct of the applicant and the conduct of the relevant authorities. Similar considerations govern the examination, by the courts within the European Union, of observance of the principle of the right to be tried within a reasonable time, as enshrined in Article 47 of the Charter (see judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 71 and the case-law cited).
48      Consequently, the fact that, in a number of judgments, the ECtHR has found the existence of an infringement of the principle of the right to be tried within a reasonable time in situations where the criminal proceedings at issue had exceeded a certain duration or, on the contrary, has found there to be no such infringement below that duration is not, in itself, significant, since, in each of the judgments in question, that court ruled in the light of the particular circumstances of the case at hand.
49      In particular, so far as concerns the judgment of the ECtHR of 6 January 2004, Rouille v. France (CE:ECHR:2004:0106JUD005026899), cited by the applicant, it must be noted that the ECtHR found an infringement of the principle of the right to be tried within a reasonable time on account of the duration of the investigation in view, inter alia, of the complexity of the case and of the attributability to the authorities of a certain number of periods of inactivity during that investigation. Moreover, the fact that the case in question concerned a certain number of misappropriations of funds involving a large number of victims does not suffice, contrary to what the applicant suggests, for its complexity to be able to be compared with that of the case concerned by the judicial investigation to which he is subject in Tunisia. In that regard, it is appropriate to note that, according to the directions of the abovementioned judgment of the ECtHR, only one person was implicated in the case in question and the handling of him did not involve the implementation of international judicial cooperation. Those elements suffice to differentiate that case from the one involving the applicant and that concerns, as the Court found, a great many other implicated persons and has an international dimension, leading inter alia to a large number of measures of investigation such as international letters rogatory (judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraphs 222 and 223).
50      Consequently, the applicant is wrong to argue that the elements he has invoked, namely, the duration of the investigation of the case involving him and the circumstance that no delay is attributable to him, are sufficient to conclude that the principle of the reasonable period of time has been infringed by the Tunisian authorities (see, to that effect and by analogy, judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 72).
51      Moreover, as the Court found, the Council, in the action of the applicant referred to in paragraph 15 above, had produced documents provided by the Tunisian authorities to support his position that there were no undue delays in the judicial proceedings in Tunisia (judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 221).
52      In that regard, the Court noted that those documents showed that procedural steps were in fact being taken in the investigation of the case involving the applicant and that the case was complex, due to the large number of persons concerned and the necessary measures of investigation, such as international letters rogatory, which complexity was likely to have an effect on the length of the proceedings. The Court concluded that there was nothing to suggest in the documents before it that the Council had made an error of assessment concerning observance by the Tunisian authorities of the requirement to conclude proceedings within a reasonable time (judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraphs 222 and 223).
53      It is true that those considerations were made in view, inter alia, of the length of the judicial investigation in Tunisia, which lasted until the date of the adoption of Decision 2016/119, and not in view of the period of time until the date of the adoption of Decision 2017/153.
54      That being the case, as the documents the applicant himself submitted to the file attest, he was questioned in the context of a hearing held on 27 September 2016 by the investigating magistrate in charge of the judicial investigation at issue, following the French authorities’ sending, on 23 May 2016, of the procedural steps taken by them in the context of letters rogatory, in response to the requests of the Tunisian authorities of 19 January 2011 and 10 January 2012. Those documents tend to confirm the impact of the international letters rogatory on the length of the investigation in the judicial investigation into the applicant as well as the fact that procedural steps were indeed being taken in that investigation, including the part of it specifically concerning the applicant. Moreover, it follows from the letter of 30 January 2017, annexed to the application, that the Council was informed of the hearing of 27 September 2016 before the adoption of Decision 2017/153 and that it took that new procedural development into account as an element relevant to assessing whether or not the duration of the judicial investigation to which the applicant was subject in Tunisia was reasonable.
55      In any event, it is clear from the foregoing that the Council had carried out a thorough check as to the status of the investigation in Tunisia, before adopting Decision 2016/119, immediately prior to Decision 2017/153, and that it continued, with a view to the adoption of that latter decision, to ensure observance of the principle that proceedings should be concluded within a reasonable time, on the basis of the elements brought to its attention. In addition, for the reasons set out in paragraphs 41 to 43 above, even if those proceedings were vitiated by unjustified delays, those delays do not necessarily oblige the Council to bring to an end the freezing of the applicant’s assets (judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 224).
56      Therefore, the applicant is wrong, in context of the present plea, to invoke the alleged breach, by the Tunisian authorities, of the reasonable time rule.
57      Turning now to the claim that, on account of its duration, the freezing of the applicant’s assets in the European Union has acquired a punitive and criminal character, it should be recalled that, as has been set out in paragraph 29 above, the freezing of the applicant’s assets is of a purely precautionary nature and has no criminal law connotations. Moreover, it should also be recalled that, in the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694), the Court rejected the fourth plea of the application, based essentially on the criminal law nature of the renewal of the freezing of the applicant’s assets in the European Union. Thus, first, the Court held that the Council could not be criticised for not having ensured him the benefit of specific safeguards equivalent to those available in criminal proceedings. Second, the Court held that, regardless of its effects, that asset freeze was an independent measure adopted under the CFSP, not a measure designed to respond to a request by the Tunisian authorities for legal assistance, and that the Council did not have, in the case at hand, the same powers as those of a national judicial authority, with the result that the asset freeze at issue was not comparable to a measure of legal assistance adopted in the context of international cooperation in criminal law (see judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraphs 140, 146 and 147 and the case-law cited).
58      In the case at hand, while the applicant seems no longer to be challenging — like in the case that gave rise to the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694) — the finding that the freezing of his assets has, in principle, a precautionary purpose, he argues that, on account of its duration, it is now producing effects equivalent to those of a criminal penalty and that, therefore, its nature is no longer distinguishable from that of such a measure.
59      However, that argument is not such as to call into question the relevance to the present case of the considerations recalled in paragraph 57 above.
60      First of all, as the Council has noted, the Court of Justice has held that, notwithstanding their preventive nature, the restrictive measures at issue have, as regards those rights and freedoms, a substantial negative impact related, first, to the serious disruption of the working and family life of the person concerned due to the restrictions on the exercise of his right to property which stem from their general scope combined, as the case may be, with the actual duration of their application, and, on the other, the public opprobrium and suspicion of that person which those measures provoke (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518 and the case-law cited).
61      It is true that, according to that case-law, the length of the period during which restrictive measures are applied is one of the factors which the EU Courts must take into account when examining whether the measures are proportional (see, to that effect, judgment of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 172). However, it also follows from that case-law that the effects of those measures on the freedoms and rights of the person concerned, as considerable as they may be, particularly because of the duration referred to, do not alone result in the measures at issue being deprived of their precautionary character and their being conferred a punitive or criminal character.
62      In that regard, it should be noted that it is insufficient that a measure adopted against a particular person or entity produce unfavourable effects on the personal situation or rights and freedoms of that person or entity — comparable, in some ways, to those of a penalty — for that measure itself to constitute a penalty. The classification as a penalty implies that an objective element, lying, inter alia, in the effects of the measure, is associated with a subjective element, lying in the goal of that measure, which must be to penalise the conduct of the person or entity at issue (see, to that effect, judgment of 21 June 1984, Lux v Court of Auditors, 69/83, EU:C:1984:225, paragraph 31).
63      Consequently, in the case at hand, since the freezing of the applicant’s assets has, in principle a precautionary purpose — which the applicant does not dispute — it is for him to prove that the period of application of that measure nevertheless reveals an intention to penalise him.
64      In other words, in accordance with the case-law, it is for the applicant to prove, on the basis of objective, relevant and consistent factors, that the freezing of his assets has been maintained until now with the exclusive purpose, or at any rate the main purpose, of achieving an end other than the precautionary purpose pleaded and that the maintenance of that measure is thus vitiated by a misuse of powers (see, to that effect, judgments of 21 June 1984, Lux v Court of Auditors, 69/83, EU:C:1984:225, paragraph 30, and of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraph 220).
65      The only argument made by the applicant which might be interpreted as seeking to support the existence of such a misuse of powers consists in the assertion, essentially, that the Tunisian authorities are using the maintenance of the freezing of his assets in the European Union as a roundabout means of penalising him, without proceeding to a trial, the Council thus acting as the ‘long arm’ of the Tunisian prosecution authorities.
66      In that regard, it should be noted that, in the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694), the Court rejected a similar argument. In the statement of modification, to prove that there was an infringement of the principle of the right to be tried within a reasonable time, the applicant argued that the maintenance of the restrictive measures was based on ‘circular logic’; in other words, that it was in the Tunisian authorities’ interests not to accelerate the criminal proceedings concerning him, so as to have a ‘maximum punitive effect’ on the freezing of his assets in the European Union, whereas the Council could justify the length of the asset freeze by referring to the length of the criminal proceedings in Tunisia. In that regard, the Court noted that the applicant had failed to produce any evidence pointing to the existence of such an intention on the part of the Tunisian authorities to behave deliberately in a dilatory fashion in the handling of the judicial investigation concerning him with a view to maintaining the extension of the freezing of his assets in the European Union for punitive reasons or to the existence of collusion in any such abuse on the part of the Council (judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 226).
67      Similarly, it must be noted that a misuse of powers has not been proved in this case, the applicant not having produced, in the present action, objective, relevant and consistent evidence supporting the claim of an exploitation of the freezing of his assets by the Tunisian authorities so as to penalise him in a roundabout manner.
68      Neither the fact that the maintenance of the freezing of the applicant’s assets is based on the existence of a judicial investigation underway in Tunisia nor the fact that that investigation has still not been closed after six years — which the applicant invokes in this case — can constitute such evidence. First, as has been recalled in paragraph 57 above, the freezing of the applicant’s assets is an independent measure adopted by the Council under the CFSP, and is not aimed at addressing a request for judicial assistance from the Tunisian authorities. Second, even if the investigation under the judicial investigation in Tunisia did undergo delays, its length alone cannot amount to delaying tactics on the part of the Tunisian authorities. Moreover, as has been observed in paragraph 55 above, the Council had carried out a thorough check as to the status of the investigation in Tunisia before adopting Decision 2016/119, immediately prior to Decision 2017/153, and it continued, with a view to the adoption of that latter decision, to ensure observance of the principle that proceedings should be concluded within a reasonable time, on the basis of the elements brought to its attention. That conduct is, in any event, such as to undermine the thesis underpinning the applicant’s argument that the Council merely implemented passively, in renewing the freezing of his assets in the European Union, the alleged punitive objectives of the Tunisian authorities.
69      Therefore, in the absence of any indication suggesting that the renewal of the freezing of the applicant’s assets has the improper objective of penalising his conduct, that measure cannot be regarded as a penalty or_a fortiori, as a criminal penalty, regardless of its effects on the applicant’s personal situation and on his rights and freedoms.
70      In any event, for the reasons set out in paragraphs 57, 60 and 61 above, the effects of the freezing of the applicant’s assets on his personal situation and on his rights and freedoms cannot be compared to those of a criminal penalty.
71      In addition, it should be recalled that the freezing of the applicant’s assets is subject to certain limits. That measure, in addition to being temporary and reversible, is subject to a number of derogations under Article 1(3) to (5) of Decision 2011/72. By virtue of those provisions, first, funds may be released by the competent authority of a Member State to meet specific needs and, second, the applicant is not deprived of income deriving from his bank accounts or payments due under contracts, agreements or obligations that were concluded before those assets were frozen (see, to that effect, judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 226).
72      Those considerations are not called into question by the applicant’s reference to paragraph 150 of the judgment of 30 September 2010, Kadi v Commission (T‑85/09, EU:T:2010:418). First, as the Council has noted, that paragraph constitutes a superfluous ground, which is confirmed by the statement in paragraph 151 of the same judgment, according to which ‘a discussion of [the] question [addressed in paragraph 150] is outside the scope of these proceedings as it is defined by the pleas set out in the application’. Second, as the Council has also noted, the considerations set out in that paragraph were not confirmed by the Court of Justice in the appeal against that judgment. As has been observed in paragraph 61 above, although Court of Justice regarded the period of application of the restrictive measures as capable of having an impact on the proportionality of those measures, it did not regard that parameter as being capable of calling into question their precautionary nature and conferring a criminal character on them.
73      In conclusion, it follows from all the foregoing that the premisses on which the applicant bases his claim that the freezing of his assets infringes the principle of the right to be tried within a reasonable time, as is protected by Article 6 of the ECHR and Article 47 of the Charter, are incorrect. That claim itself can therefore only be rejected.
74      In any event, it should be recalled that, in the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694), the General Court considered that the applicant’s argument — according to which the freezing of his assets, which was based on a judicial investigation the length of which infringed the principle of the right to be tried within a reasonable time, was itself contrary to that principle — could not be examined in the light of Article 47 of the Charter. The Court recalled that that article’s provisions applied only to the applicant’s right to effective judicial protection guaranteed by the EU Courts, in the present case by this Court, and not to the observance of that right in a judicial investigation underway in a third country (see judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraphs 88 to 93 and the case-law cited).
75      Furthermore, the Court held that, even if the applicant’s argument were to be interpreted as alleging infringement, by the Council, of his right to have his situation handled within a reasonable time, enshrined in Article 41(1) of the Charter, it should, in any event, be rejected, since it was based on the incorrect premiss that the allegedly excessive length of the judicial proceedings in Tunisia vitiated the asset freeze with irregularity (see judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 96).
76      Those considerations apply in the present case.
77      Accordingly, it follows from all the foregoing that the first plea must be rejected.
The second plea, alleging, in essence, lack of factual basis for the decision to renew the designation of the applicant
78      The applicant claims the location of his assets in France as well as their legitimacy was established during his first interrogation on 21 February 2012 and subsequently confirmed by the reply of the French authorities, on 23 May 2016, to the letters rogatory issued by Tunisia and by the explanations he gave to the investigating magistrate of the Tribunal de première instance de Tunis (Court of First Instance, Tunis, Tunisia) on 27 September 2016. The applicant complains that the Council (i) disregarded that evidence by continuing to assume that there were grounds for considering his assets to result from ‘serious crimes of embezzlement of public funds’, (ii) assuming it did examine that evidence, committed an error of assessment, and (iii) renewed a measure, in this case the freezing of his assets in the European Union, which was devoid of purpose, there being no misappropriated funds to recover. In the reply, the applicant invokes, moreover, a document dated 24 July 2017 issued by the Swiss judicial authorities announcing the upcoming abandonment of the proceedings relating to the request for mutual assistance of the Tunisian authorities. According to the applicant, that set of documents demonstrates that the judicial proceedings to which he is subject in Tunisia should lead to his acquittal. Last, he argues, in essence, that purely political reasons explain why there has been no end, first, to those judicial proceedings and, second, to the freezing of his assets in the European Union.
79      The Council retorts, in essence, that the information relied on by the applicant does not call into question the renewal of his designation on the list annexed to Decision 2011/72.
80      As a preliminary point, it should be noted that the premiss underpinning the present plea, namely that the applicant’s assets in the European Union are frozen because they are unlawful, is incorrect.
81      As follows from the reasons for designating the applicant in the annex to Decision 2011/72, the freezing of his funds is justified by the fact that he is subject to ongoing judicial proceedings related to acts that can be classified as misappropriation of State funds, which the applicant does not dispute. Moreover, as the Council has argued, it is the entirety of his assets in the European Union that are frozen under the provisions of Article 1(1) of Decision 2011/72, irrespective of whether or not they are unlawful. As has been repeatedly recalled, that measure is precautionary in nature and purports to assist the Tunisian authorities with establishing any misappropriation of State funds and to ensure that it remains possible for those authorities to recover the proceeds of that misappropriation. However, that measure does not prejudice the outcome of the judicial proceedings to which the applicant is subject in Tunisia and, as the case may be, the determination, by the Tunisian criminal courts, of the lawful nature of the applicant’s assets in the European Union. Therefore, its purpose is not, as the Court has already found, to facilitate the establishment of the offence of holding illicit funds outside Tunisia and, more specifically, within the European Union (judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 57).
82      The considerations of the Council in the letter of 30 January 2017, which it sent to the applicant to set out the reasons for the renewal of his designation on the list annexed to Decision 2011/72, do not call that analysis into question. Indeed, contrary to what the applicant claims, the mention of ‘serious crimes of embezzlement of public funds’ in the second paragraph of that letter does not refer to the illicit origin of his assets in the European Union. Thus, in that paragraph, the Council considered that ‘investigations into serious crimes of embezzlement of public funds, with related judicial assistance proceedings underway in several other countries, can indeed last longer than other investigations’. Consequently, as the Council has rightly argued, it did not take a position, in that letter, on the legality of the assets held by applicant in the European Union.
83      Therefore, even if the documents relied on by the applicant constituted evidence such as to support the fact that, at this stage, his assets in France must be regarded as lawful, that circumstance alone would not, in any event, call into question the legality of the renewal of the freezing of the his assets.
84      In addition, it is apparent from the material in the file that, as the Council has noted, those documents are not such as to raise legitimate questions concerning the sufficiency of the factual basis underpinning the freezing of the applicant’s assets in the European Union.
85      First, it must be noted that the extract from the procedure on letters rogatory drafted by the French authorities and sent to the Tunisian authorities on 23 May 2016, which specifically concerns the applicant, simply lists the various assets held by the applicant in France and states the known provenance of those assets, as could be determined by the police investigation conducted by the French authorities. However, that document does not pronounce on the legality of those assets or contain any element such as to constitute an indication as to that legality.
86      Furthermore, it should be noted that the extract from the procedure on letters rogatory at issue is capable of substantiating the fact that the applicant’s estates abroad are not, contrary to what he implies, limited to the French territory. Indeed, it makes clear that the applicant also holds assets in at least one other Member State and in two third countries other than Tunisia. Consequently, it tends to undermine the applicant’s assumption that the lawfulness of his estates abroad should be assessed solely in terms of the assets he holds in France. Moreover, it will be for the Tunisian judicial authorities to rule on that issue, once they have adjudicated on the applicant’s liability with respect to the acts of misappropriation of State funds at issue in the judicial proceedings to which he is subject and, as the case may be, they will be able to determine, in an exhaustive manner, the flow of any funds misappropriated abroad. Thus, the freezing of the applicant’s assets in the European Union retains a purpose, not only to avoid the transfer of any funds misappropriated to countries not cooperating with Tunisia, but also to prevent such assets from supplementing, as the case may be, the applicant’s estates within the European Union and, thus, from no longer being distinguishable from the assets he holds there lawfully (see, to that effect, and by analogy, judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraphs 66, 67 and 232).
87      Second, the minutes of the interrogation carried out by the investigating magistrate of the Court of First Instance, Tunis, on 27 September 2016, which records the statements made by the applicant in response to that magistrate’s requests for clarification, following the French authorities’ sending of the letters rogatory mentioned in paragraph 82 above, cannot be taken into account by the Council. First, the mere fact that, during that interrogation, the applicant argued that his assets held in France were lawful and that he requested that the offences with which he was charged be dropped clearly cannot constitute, by itself, an element such as to raise legitimate questions concerning the basis of the judicial proceedings at issue. Second, it is for the investigating magistrate in question to draw the consequences from those statements as to whether or not to pursue those judicial proceedings.
88      Third, the document of 24 July 2017, issued by the public prosecution service of the Swiss Confederation, referred to in paragraph 75 above, is, in any event, a document postdating the adoption of Decision 2017/153. Moreover, the applicant does not claim that it contains information known to the Council before that date. Consequently, the lawfulness of the renewal of the applicant’s designation on the list annexed to Decision 2011/72, in the framework of Decision 2017/153, cannot be assessed in the light of that document.
89      Regarding the applicant’s argument that purely political reasons explain why there has been no end, first, to the judicial proceedings to which he is subject in Tunisia and, second, to the freezing of his assets in the European Union, it amounts to a plea alleging misuse of powers similar to the one examined in paragraphs 65 to 69 above. That complaint must therefore be rejected for the same reasons as those set out in those paragraphs.
90      It is appropriate to add that, as the Court found, the Council is competent to adopt and extend the restrictive measures imposed under Decision 2011/72, on the basis of Article 29 TEU, which itself forms part of a more general EU policy of support for the Tunisian authorities, intended to promote both the economic and the political stability of the Tunisian Republic and thereby satisfying the objectives of the CFSP (see, to that effect, judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraphs 127 and 128). Consequently, the applicant clearly cannot rely on the circumstance that those measures meet such objectives to argue that the renewal of the freezing of his assets is for purely political reasons, to the detriment of his fundamental rights and rights of defence.
91      It follows from all the foregoing that the Council cannot be criticised for having disregarded the evidence referred to in paragraph 78 above, for having committed an error of assessment or for having renewed a measure which was devoid of purpose. The second plea must therefore be rejected.
The third plea, alleging infringement of the right to work
92      Under the third plea, the applicant claims that his right to work in the European Union, which he enjoys by virtue of his French nationality, is being disproportionately interfered with on account of the freezing of his assets. According to the applicant, that measure prohibits him from receiving income from work he may wish to perform in the future. That prohibition is disproportionate since, first, it is the result of his assets having been frozen for an excessively long duration and, second, that income could not constitute assets misappropriated in Tunisia, especially as no similar restrictions apply to his assets in Tunisia. Moreover, the Council did not prove the urgent need justifying that measure’s wide scope. The applicant adds that it is unlikely for him to be recruited in the European Union or to find clients owing to the illegality of making funds available for his benefit and the practical difficulties of applying the derogations provided for under Article 1(3)(a) of Decision 2011/72. The renewal of the freezing of his assets thus infringes Article 15 of the Charter.
93      The Council claims, in essence, that the freezing of the applicant’s assets has not caused disproportionate harm to his right to work.
94      As a preliminary point, in order to assess the merits of the present plea, it is necessary to take account of the fact that, as the applicant has expressly stated, the infringement of his right to work alleged under that plea relates only to the receipt of income from work he may wish to perform in the future.
95      In that regard, it should be recalled that, under Article 15(1) of the Charter, everyone has the right to engage in work and to pursue a freely chosen or accepted occupation. Under Article 15(2) of the Charter, every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State.
96      In the first place, it should be noted that the applicant has not proved that the exercise of his right to work in the Union, as is enshrined in Article 15 of the Charter, is affected by the freezing of his assets in the European Union.
97      First, as the Council rightly notes, that measure is only capable, as the case may be, of affecting the applicant’s ability freely to receive income from his professional activity, but not prevent him, as such, from being employed or from exercising a professional activity in the European Union. It follows from the wording of Article 1(1) and (2) of Decision 2011/72, interpreted in the light of Article 1 of Regulation No 101/2011, that those provisions are limited to preventing any move of funds held by the persons concerned within the European Union or any use of the economic resources they possess as well as prohibiting the making available of capital or of economic resources to or for the benefit of those persons within the territory of the European Union. However, those provisions contain no limitation on the entry of those persons into EU territory and, where appropriate, on their rights to move and reside within it as well as to pursue a professional activity.
98      That finding is not called into question by the applicant’s arguments which, to demonstrate that those measures limit his right to work, merely contend that he will not be able to be paid remuneration or fees by a potential employer or client, such that he is unlikely to be recruited or to find persons willing to use his services.
99      While that argument highlights the limitations on the applicant’s right to receive an income from his professional activity, the link between those limitations and the applicant’s chances of being recruited within the European Union or of building a client base there is unclear.
100    Second, the applicant does not dispute that, as the Council argues, for the period in which the freezing of his assets in European Union was applied, he continued to reside and exercise his professional activities in Tunisia, a third country of which he is a citizen and where, according to his own statements, he is no longer subject to any restrictive measures. In addition, despite the applicant’s argument that he also holds French citizenship, he by no means maintains that he has intended or intends, in the near future, to exercise the rights conferred on him by Article 15(1) and (2) of the Charter by exercising a professional activity within the territory of the European Union. Consequently, even if the freezing of his assets within the European Union were, in principle, liable to limit the rights he derives from those provisions of the Charter, the applicant fails to demonstrate its tangible impact on the exercise of those rights (see, to that effect and by analogy, judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraphs 223 to 226).
101    In the second place and in any event, it should be pointed out that the limitations on the applicant’s right to work, assuming they were proved, are not contrary to Article 15 of the Charter.
102    In that connection, it might be recalled that Article 52(1) of the Charter accepts that limitations may be made to the exercise of the rights and freedoms recognised by the Charter, as long as the limitations are provided for by law, respect the essence of those rights and freedoms and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
103    As regards, in particular, the rights and freedoms enshrined in Article 15 of the Charter, according to settled case-law, the freedom to pursue a trade or profession and the right to property are not absolute rights but must be considered in relation to its social function. Consequently, restrictions may be imposed on the exercise of that freedom and that right, provided that those restrictions in fact correspond to objectives of general interest pursued by the European Union and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights (see, to that effect, judgment of 5 July 2017, Fries, C‑190/16, EU:C:2017:513, paragraph 73 and the case-law cited).
104    In the case at hand, it should be recalled that the applicant does not dispute that the first and second of the requisite conditions for authorising a limitation of his right to work are fulfilled, namely, first, the fact that that limitation has a legal basis and, second, the fact that it corresponds to an objective of general interest. Thus, as he himself states in the reply, the applicant intends to contest only the necessity and the proportionality of that limitation. However, none of the arguments he puts forward in that regard is convincing.
105    First, the circumstance that any income from his work in France could not originate from the misappropriations of public funds covered by the judicial investigation justifying the renewal of the freezing of his assets is irrelevant. As has been set out in paragraphs 81 and 82 above, the applicant’s assets in the European Union are not frozen because they are the product of an illicit activity, but only as a precautionary measure. Moreover, as has been recalled in paragraph 86 above, that asset freeze is aimed, inter alia, at preventing any assets originating from the misappropriation of funds from no longer being distinguishable from assets held lawfully. Consequently, the necessity and the proportionality of that measure are not affected by the fact that it is liable to be applied to any income of the applicant originating from a professional activity exercised in the European Union.
106    Second, the applicant argues that the temporary and reversible nature of the freezing of his assets does not allow the proportionality of that measure to be preserved, since it is being applied for an excessively long period.
107    In that regard, it follows from paragraphs 29 to 31 above that, in view of its object, the freezing of the applicant’s assets is to be maintained as long as the judicial investigation to which he is subject in Tunisia is underway. Thus, in paragraphs 41 to 44 above, the Court has found that the applicant’s thesis that the alleged infringement of the principle of the right to be tried within a reasonable time by the Tunisian authorities could lead only to the annulment of the freezing of his assets in the European Union had to be rejected. Furthermore, the Court has found in paragraph 50 above that the applicant did not produce sufficient evidence to conclude that the principle of the right to be tried within a reasonable time was infringed by the Tunisian authorities. In addition, it has found in paragraph 55 above that the Council carried out a thorough check as to the status of the investigation in Tunisia and that it continued to monitor developments in that investigation and, in paragraphs 67 to 69 above, that no misuse of powers could be inferred from the duration of the freezing of his assets in the European Union.
108    In those circumstances, the applicant was wrong to argue that the freezing of his assets has been applied for an excessively long duration and that that circumstance calls into question the proportionality of that measure. In particular, the duration of that measure’s application does not call into question the fact that, as has been recalled in paragraph 71 above, it is temporary and reversible in nature and is subject to appropriate derogations with a view to satisfying the applicant’s fundamental needs.
109    Third, the circumstance that the applicant is not subject to any restriction as regards the use of his assets in Tunisia cannot have any impact on the proportionality of the freezing of his assets in the European Union. As has been repeatedly recalled, the Council may lawfully maintain the freezing of the applicant’s assets in the European Union on the basis of the existence of judicial proceedings in Tunisia linked to acts of misappropriation of State funds. The question of whether or not those judicial proceedings are accompanied by precautionary measures adopted by the Tunisian judicial authorities themselves is irrelevant, given that it has been established that those proceedings are still underway. Thus, in so far as the Council cannot be required to put an end to the asset freeze in question on the ground that the applicant’s assets in Tunisia are no longer subject to any restriction, maintaining that measure cannot be disproportionate for that reason.
110    Fourth, assuming that the applicant intended to challenge the disproportionate nature of the EU-wide freeze of all his assets, it should be noted, first of all, that, given the importance of the ultimate objectives of the measures at issue, which are the economic and the political stability of Tunisia, the disadvantages caused by the freezing of the applicant’s assets throughout the European Union do not appear to be manifestly disproportionate. Furthermore, it should be noted that, in view of the precautionary nature of the measure at issue and of the impossibility, for the Council, of determining the amounts that may have to be returned to the Tunisian authorities, a measure less onerous than the EU-wide freeze of all the applicant’s assets would not be appropriate (see judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraphs 160 and 161).
111    Fifth, the applicant does not demonstrate that the freezing of his assets in the European Union entails disproportionate restrictions in terms of his ability to have income from a professional activity. It is indeed true that Article 1(2) of Decision 2011/72 provides that no funds or economic resources are to be made available, directly or indirectly, to, or for the benefit of, natural or legal persons or entities listed in the annex. However, Article 6(2) of Regulation No 101/2011, which regulation aims to ensure the uniform application of that decision in the European Union, provides that that prohibition, as reproduced in Article 2(2) of that regulation, is not to prevent financial or credit institutions in the Union from crediting frozen accounts where they receive funds transferred to the account of those persons, entities or bodies, provided that any additions to such accounts will also be frozen. It thus follows from those provisions that the freezing of the applicant’s assets in no way precludes the transfer, to the accounts he holds in the European Union, of funds, including, as the case may be, any income obtained from his professional activity, and without it being necessary to apply the derogations provided for in Article 1(3)(a) of Decision 2011/72. Accordingly, the applicant is wrong to argue that it will be impossible for him to be paid, except in case such a derogation is applied, and, a fortiori, that he is unlikely to be recruited or to find clients.
112    Last, sixth, for the reasons already set out in paragraphs 57 to 72 above, the freezing of the applicant’s assets in the European Union does not constitute a criminal penalty.
113    It follows from the foregoing that, assuming that the freezing of the applicant’s assets has the effect of limiting his right to work, those limitations do not, in any event, impair the substance of that right.
114    The third plea must therefore be rejected.
The fourth plea, alleging infringement of the right to property
115    The applicant claims, in essence, that, to the extent that the freezing of his assets is based on criminal proceedings which infringe the principle of the right to be tried within a reasonable time, enshrined in Article 6 of the ECHR and in Article 47 of the Charter, the resulting interference with his right to property is necessarily disproportionate. In addition, the duration of the maintenance of that measure has a confiscatory dimension which impairs the very essence of the right to property. Last, in view of the necessity of observing the principle of the right to be tried within a reasonable time, the Court’s reasoning in paragraphs 245 and 247 of the judgment of 14 April 2016, Ben Ali v Council (T‑200/14, not published, EU:T:2016:216), concerning the impossibility of applying a less severe measure, is not applicable in the present case.
116    The Council retorts that the limitation of the applicant’s right to property resulting from the freezing of his assets is not contrary to Article 1 of the First Protocol to the ECHR or Article 17 of the Charter and that that measure is not punitive in nature and does not, in any event, fall within the scope of Article 6 ECHR or Article 47 of the Charter.
117    In that regard, first of all, it should be recalled that the conditions under which limitations may be imposed on the exercise of the rights enshrined in the Charter, recalled in paragraphs 102 and 103 above, are applicable to the right to property, which is enshrined in Article 17 thereof.
118    Next, it is sufficient to recall that, as has been found in paragraphs 107 and 108 above, the freezing of the applicant’s assets does not constitute a criminal penalty and has not been applied for an excessively long duration owing to the fact that it is based on the judicial proceedings to which he is subject in Tunisia, such that it cannot infringe the principle of the right to be tried within a reasonable time, enshrined in Article 6 ECHR and in Article 47 of the Charter. It is therefore not disproportionate for that reason alone.
119    Moreover, regarding the argument based on the confiscatory nature of that asset freeze, it is sufficient to recall that, as has already been found in paragraphs 108 and 111 above, the scope of that measure is limited by its temporary and reversible nature as well as by the modalities of its application and of derogation from it. In addition, it is appropriate to note that, although that measure largely impedes the use by the applicant of his assets in the European Union, it does not change the ownership of them. It thus cannot be equated with confiscation, even in view of the duration of its application.
120    Last, it should be recalled that, in paragraphs 245 and 247 of the judgment of 14 April 2016, Ben Ali v Council (T‑200/14, not published, EU:T:2016:216), the Court considered, first, that, given the importance of the ultimate objectives of the measure at issue, the negative consequences of its application are not, prima facie, manifestly disproportionate and, second, that was not apparent from any element of the file that the Council could envisage measures that are less onerous than but equally appropriate as those that were at issue in that case. In the light of the considerations set out in paragraphs 106 to 112, 118 and 119 above, it must be stated that, contrary to what the applicant argues, that reasoning is applicable in this case.
121    It follows from all the foregoing that the fourth plea must be rejected.
122    Consequently, since none of the pleas put forward in support of the claim for annulment of Decision 2017/153, in so far as it concerns the applicant, is well founded, that claim must be rejected.
The claim for annulment of Decision 2018/141, in so far as that decision concerns the applicant
123    In support of the form of order sought in the statement of modification, the applicant relies on the pleas and arguments relied on in the application. In addition, the applicant relies on a ruling of the Federal Prosecution Service of the Swiss Confederation (‘the Swiss Federal Prosecution Service’) of 11 December 2017 to abandon criminal proceedings against the applicant (‘the Swiss ruling’) in support of a complaint relating, in essence, to the second plea of the application.
124    The applicant claims that the Council committed an error of assessment and infringed the right to good administration, in that it considered, wrongly, that the Swiss ruling did not call into question the elements on which it relied to renew its designation and in that it did not make further enquiries. In that regard, in the first place, the applicant argues that that ruling, although concerning proceedings related to acts of money laundering, is based on the finding that there was no link between the funds it holds in Switzerland and any criminal activity in Tunisia, including misappropriations of public funds. In the second place, he argues that in the light of the case-law (judgment of 21 February 2018, Klyuyev v Council, T‑731/15, EU:T:2018:90), the Council is obliged to seek clarification with regard to the material on which ongoing judicial proceedings in a third country are based, although it is not for it to take the place of the authorities of that country. In the light of that case-law, the Swiss ruling makes that obligation to carry out checks imperative, the underlying evidence being the result of a full examination by a prosecution service in which the Tunisian authorities took an active part but were unable to substantiate their request that the applicant’s assets remain frozen. In the third place, the applicant claims that his arguments are not undermined by the fact that the Swiss ruling emanates from the public prosecution service of a third State, considering that the latter is a member of the Council of Europe and recognises the jurisdiction of the ECtHR. Moreover, he argues that, while the Tunisian authorities have brought an appeal against that ruling, there is no reason to suppose that they will be able to demonstrate that the Swiss Federal Prosecution Service erred in finding that there was no link between the funds held by himself and his brothers in Switzerland and any criminal activity in Tunisia. The applicant concludes that the Council was wrong to dismiss summarily the observations it made on the basis of the Swiss ruling.
125    The Council, for its part, contends that the Swiss ruling is not relevant to assessing the well-foundedness of the grounds on which the applicant continues to be designated in the annex to Decision 2011/72 and that, consequently, it does not raise any concerns as to the sufficiency or consistency of the evidence on which the applicant’s designation is based, which would warrant, in view of the case-law, its undertaking of further investigations. Furthermore, it asserts that, according to the information sent by the Swiss authorities, the Swiss ruling may be appealed by the Tunisian authorities and that the applicant remains listed under the administrative asset freeze enacted by those Swiss authorities.
126    In that regard, first, concerning the pleas and arguments put forward in the application, it must be pointed out that the applicant has provided no explanation justifying their being subject to a specific examination in the statement of modification, separate from that carried out in paragraphs 37 to 121 above. Accordingly, for the reasons given in those paragraphs, those pleas and arguments must be rejected.
127    Second, regarding the new complaint based on the Swiss ruling, it has been recalled in paragraphs 33 and 34 above that it was not inconceivable that the Council might be obliged to seek clarification on the material on which the judicial investigations to which the applicant was subject in Tunisia was based, in the light of the comments and any exculpatory evidence he submitted.
128    In the case at hand, the applicant considers that the Swiss ruling constitutes such exculpatory evidence proving that the Council satisfies such an obligation, in so far as, in particular, that ruling is based on the finding that there is no link between the funds he holds in Switzerland and any criminal activity in Tunisia.
129    As a preliminary point, it should be noted that, contrary to what the Council contends, the fact that the Swiss ruling pertains to ongoing judicial proceedings for acts of participation in a criminal organisation and money laundering, on the basis of the Swiss Penal Code, does not necessarily mean that that ruling is irrelevant to assessing whether clarification should be requested from the Tunisian authorities with regard to the basis of the judicial investigation underpinning the freezing of the applicant’s assets in the European Union.
130    First of all, it cannot be ruled out that the judicial proceedings which the Swiss ruling is intended to resolve have a link with the judicial proceedings to which the applicant is subject in Tunisia for acts classifiable as misappropriation of State funds and which constitutes the factual basis of the freezing of his assets in the European Union. Thus, there is nothing to rule out the possibility that the acts of money laundering and participation in a criminal organisation concerned by the judicial proceedings in Switzerland might have been aimed at concealing the proceeds of the misappropriations of public funds covered by the investigations of the Tunisian authorities.
131    Next, it follows from the content of the Swiss ruling that the factual context in which the judicial proceedings in Switzerland were initiated in respect of the applicant displays certain similarities with the factual context in which Decision 2011/72 was adopted. Thus, it is apparent from that ruling that those criminal proceedings were initiated on 31 January 2011, following the opening of a number of investigations by the Tunisian authorities into the former President of the Tunisian Republic and many of his associates, with a view to determining whether the process whereby those various persons were enriched, while that leader was in power, was not criminal. Moreover, it also follows from that ruling that those proceedings were extended on 7 September 2011 to the applicant owing to information indicating his intention to ‘secure his family’s assets’, in a clandestine manner, in a third country other than Switzerland. In addition, the judicial investigation underpinning the freezing of the applicant’s assets in the European Union is mentioned in the Swiss ruling in respect of the judicial proceedings that concern or have concerned the applicant and constitutes an element of assessment which the Swiss Federal Prosecution Service took into account in determining the outcome of the criminal proceedings at issue in the Swiss ruling.
132    Last, the findings and considerations set out in the Swiss ruling must be regarded as reliable, since they constitute the grounds of a decision taken as a result of judicial proceedings, emanating, moreover, from a judicial body of a Member State of the Council of Europe (see, to that effect and by analogy, judgment of 11 July 2018, Klyuyev v Council, T‑240/16, not published, EU:T:2018:433, paragraph 137).
133    Furthermore, as the applicant has noted, the Court has held, in the context of a dispute relating to the restrictive measures adopted in view of the situation in Ukraine, that, if the Council was aware that the prosecutor’s office of a Member State of the European Union raises serious doubts, as had been the case there, with regard to whether the evidence in support of the investigation by the Ukrainian authorities which provided the basis for the Council’s decision to maintain the applicant’s name on the list was sufficiently substantiated, it was required to make further enquiries of those authorities or, at the very least, seek clarification from them (judgment of 21 February 2018, Klyuyev v Council, T‑731/15, EU:T:2018:90, paragraph 248). That reasoning is applicable mutatis mutandis to the case at hand.
134    Accordingly, to the extent that the applicant submitted to the Council, in annex to its letter of 27 December 2017, the Swiss ruling as exculpatory evidence, it was for that institution to examine carefully and impartially whether, notwithstanding the object of the judicial proceedings at issue in that ruling, unlike that of the judicial investigation underpinning the freezing of the applicant’s assets in the European Union, the content of that ruling was not such, as the applicant has maintained, as to raise legitimate questions concerning the basis of that judicial investigation and warrant further investigations.
135    That being the case, it must be stated that the Council did not breach its obligation to carry out a careful and impartial examination of the Swiss ruling in considering that that document was not such as to raise legitimate questions.
136    It should be noted that none of the findings or considerations on which the Swiss ruling is based may be interpreted as being such as to raise serious doubts regarding the basis of the judicial investigation in the light of which the Council renewed the freezing of the applicant’s assets in the European Union.
137    In the first place, it should be noted that none of the grounds of the Swiss ruling specifically expresses serious doubts as to the basis of the judicial investigation to which the applicant is subject in Tunisia. On the subject of that investigation, it is only mentioned in that ruling that the applicant is still the subject of it and that, according to the information that he himself provided, the disjunction of his case from that investigation ordered by the judgment of the Court of Appeal, Tunis of 25 February 2015 has not yet been implemented.
138    In the second place, the findings on which the Swiss ruling is based have a more limited scope than the applicant claims. In that regard, as follows from the wording of that ruling, the Swiss Federal Prosecution Service ruled only on the question, first, of the link between the assets of the applicant and of his brothers in Switzerland and any criminal or illicit activity, particularly in Tunisia, and the question, second, of the existence of evidence enabling the applicant’s affiliation with a criminal organisation to be identified. In addition, as the Council has noted, the judicial proceedings which the Swiss ruling is intended to resolve were extended to the applicant on the basis of the provisions of the Swiss Penal Code concerning the respective offences of money laundering and participation in a criminal organisation or support thereof.
139    However, such conclusions do not prejudge the sufficiency of the basis of the judicial investigation to which the applicant is subject in Tunisia for acts of complicity in the misappropriation of State funds, complicity in the misuse of office and exertion of wrongful influence.
140    First, those conclusions relate to the origin of the applicant’s funds in Switzerland and not the origin of his funds in the European Union. Furthermore and in any event, as follows from the considerations set out in paragraphs 81 to 83 above, the illicit nature or otherwise of the applicant’s assets, in the European Union or in a third country, does not prejudge the outcome of the investigation at issue in Tunisia and does not call into question, in view of its object, the merits of the decision to maintain the freezing of his assets in the European Union.
141    Second, the absence of evidence relating to the applicant’s affiliation with a criminal organisation is not decisive, in so far as it is unclear that the classification of the offences which are the subject of the judicial investigation of the Tunisian authorities depends on such an affiliation. Moreover, it must be noted that, according to the Swiss ruling, the concept of criminal organisation within the meaning of the Swiss Penal Code implies the existence of a structured group of at least three persons. In the absence of any evidence to the contrary put forward by the applicant, however, it does not appear that the lack of indications showing his affiliation with such a structured group could exclude, at the outset, his participation, as an accomplice, in offences committed by a public official and classifiable as misappropriation of public funds, such as those that are the subject of the judicial investigation of the Tunisian authorities.
142    In the third place, while it follows from the grounds of the Swiss ruling that the Swiss Federal Prosecution Service took into account the existence of the judicial investigation of the Tunisian authorities, the relevance the latter has for the judicial proceedings that that ruling is intended to resolve cannot be compared with the relevance it has for the maintenance of the freezing of the applicant’s assets in the European Union ordered by the Council.
143    First, it should be noted that the judicial investigation to which the applicant is subject in Tunisia and on which the Council relies to renew the freezing of his assets in the European Union is not the cause of the initiation of the judicial proceedings to which the Swiss ruling pertains.
144    Thus, as the grounds of the Swiss ruling show, the judicial proceedings prompting it were initiated and successively extended to a number of members of the entourage of the former President of the Tunisian Republic in response to communications from the competent Swiss services for the reporting of money laundering and, in particular as regards the applicant, owing to information revealing a suspicious intent to transfer funds outside Switzerland. Moreover, the judicial investigation on which the Council relies is, in the context of the Swiss judicial proceedings, merely one piece of information among others which were sent to the Swiss Federal Prosecution Service by the Tunisian authorities in response to requests for mutual legal assistance it had made to them.
145    Second, as has been recalled in paragraphs 29 and 30 above, in view of the object of the asset freeze ordered under Decision 2011/72, it is sufficient that a person be subject to ongoing judicial investigations aimed at determining his or her responsibility for acts of misappropriation of Tunisian State funds in order for he or she to be designated in the annex to that decision. Thus, in order to continue to justify the maintenance of the freezing of the applicant’s assets, it is not necessary that his responsibility already be established.
146    However, it follows from the Swiss ruling that the pursuit of criminal proceedings which that ruling intends to abandon depends on concrete and sufficient evidence enabling a link to be demonstrated between the economic resources held by the applicant and his brothers and a criminal offence, which implies, in particular, that the existence of such an offence may be regarded as established. Such a requirement cannot be satisfied, clearly, by ongoing judicial investigations that have not yet led to the applicant’s conviction.
147    Moreover, it also follows from the grounds of the Swiss ruling that it is based, essentially, on the finding that the funds held by the applicant and his brothers in Switzerland derive from the private activities of the group of companies owned by those persons in Tunisia and that the only judicial proceedings concerning those activities have been concluded. The Swiss Federal Prosecution Service thereby refers to judicial proceedings which led to the action being declared time-barred in respect of the applicant by the Tunisian courts and which are separate from the judicial investigation underpinning the maintenance of the freezing of his assets in the European Union. Furthermore, the applicant has not provided any element suggesting that the conclusion of those judicial proceedings was such as to call into question the basis of that investigation which, according to the information held by the Council at the time Decision 2018/141 was adopted, was still ongoing (see, to that effect and by analogy, judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraphs 55 and 56).
148    It follows from all the foregoing that the Swiss ruling does not contain elements such as to raise legitimate questions concerning the basis of the judicial investigation to which the applicant is subject in Tunisia and in the light of which his assets have been frozen in the European Union. That document therefore did not warrant that the Council undertake further investigations in that regard.
149    The fact, invoked by the applicant, that the Swiss Federal Prosecution Service relied, in the Swiss ruling, on the circumstance that no concrete element could link the funds paid into the accounts of the applicant and of his brothers with any criminal activity carried out in Tunisia does not call that conclusion into question. Thus, as has been found in paragraph 138 above, the scope of that conclusion is limited to the link between the assets held by those persons in Switzerland and offences committed in Tunisia. Moreover, as follows from paragraphs 145 to 147 above, that conclusion is based, inter alia, on evidence at the disposal of that judicial authority and which noted the absence, at that stage, of convictions for those persons in Tunisia in connection with their economic activities. That conclusion thus does not prejudge the outcome of the judicial investigation underpinning the freezing of the applicant’s assets in the European Union and which concerns the determination of his criminal responsibility.
150    Similarly, the fact that the Tunisian authorities were parties to the judicial proceedings abandoned by the Swiss ruling and that they were not in a position to produce evidence justifying the pursuit of the criminal proceedings in Switzerland is of no relevance. First, as has already been found in paragraphs 143 and 144 above, those criminal proceedings are not behind the judicial investigation conducted by the Tunisian authorities. Moreover, in view of the considerations set out in paragraph 146 above, assuming that the Tunisian authorities relied on that investigation in order to request that those criminal proceedings be pursued, it does not appear that that investigation, still ongoing, could alone suffice to substantiate their request. However, as has been repeatedly recalled, the maintenance of the freezing of the applicant’s assets in the European Union may be based on that investigation. Second, it is not for the Council to draw conclusions regarding the basis of the investigations conducted by the Tunisian judicial authorities based on the alleged procedural conduct of representatives of the Tunisian Republic in ongoing criminal proceedings in Switzerland. Furthermore, according to statements of the applicant himself, the Tunisian authorities have brought an appeal against the Swiss ruling.
151    Last, paragraph 256 of the judgment of 21 February 2018, Klyuyev v Council (T‑731/15, EU:T:2018:90), which the applicant cites, cannot be transposed to the present case. In that paragraph of that judgment, the Court found that the Council had committed a manifest error of assessment in considering that it was not required to take into account the evidence produced by the applicant and the arguments developed by him or to make further enquiries of the Ukrainian authorities, despite the fact that that evidence and those arguments were such as to give rise to legitimate doubts regarding the reliability of the information provided. Irrespective of the differences in context between the case that gave rise to that judgment and the present case, however, it is sufficient to note that, in the present case, the Court has concluded in paragraph 148 above that the Swiss ruling was not such as to raise legitimate questions.
152    It follows from all the foregoing that the form of order sought in the statement of modification, in support of the claim for annulment of Decision 2018/141, in so far as it concerns the applicant, must be dismissed, as must, therefore, the action in its entirety.
Costs
153    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.
154    Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Council.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Mr Mohamed Marouen Ben Ali Ben Mohamed Mabrouk to bear his own costs and to pay those incurred by the Council of the European Union.
Gratsias
Labucka
Ulloa Rubio
Delivered in open court in Luxembourg on 15 November 2018.
E. Coulon
D. Gratsias
Registrar
President
*      Language of the case: English.