62015TJ0175
JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
5 October 2017 (
*1
)
(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 — Continued listing of the applicant’s name — Inadequate factual basis — Manifest error of assessment — Error of law — Right to property — Principle of good administration — Obligation to adjudicate within a reasonable time — Presumption of innocence — Request for modification — Confirmatory measure — Inadmissibility)
In Case T‑175/15,
Mohamed Marouen Ben Ali Ben Mohamed Mabrouk, residing in Tunis (Tunisia), represented by J.-R. Farthouat, J.-P. Mignard, N. Boulay, lawyers, and S. Crosby, Solicitor,
applicant,
v
Council of the European Union, represented initially by Á. de Elera-San Miguel Hurtado and G. Étienne, and subsequently by Á. de Elera‑San Miguel Hurtado, acting as Agents,
defendant,
APPLICATION pursuant to Article 263 TFEU for annulment of Council Decision (CFSP) 2015/157 of 30 January 2015 amending Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2015 L 26, p. 29), in so far as it concerns the applicant, the Council’s Decision of 16 November 2015 rejecting the applicant’s request of 29 May 2015 to remove his name from the list in the Annex to Council Decision 2011/72/CFSP of 31 January 2011 concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2011 L 28, p. 62) and Council Decision (CFSP) 2016/119 of 28 January 2016 amending Decision 2011/72 (OJ 2016 L 23, p. 65), in so far as it concerns the applicant,
THE GENERAL COURT (Fifth Chamber),
composed of D. Gratsias (Rapporteur), President, I. Labucka and I. Ulloa Rubio, Judges,
Registrar: M. L. Grzegorczyk, Administrator,
having regard to the written part of the procedure and further to the hearing on 14 December 2016,
gives the following
Judgment
Background to the dispute and factual 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 read as follows:
‘(1)
On 31 January 2011, the Council reaffirmed its full solidarity and support with Tunisia and its people in their efforts to establish a stable democracy, the rule of law, democratic pluralism and full respect for human rights and fundamental freedoms.
(2)
The Council further decided to adopt restrictive measures against persons responsible for misappropriation of Tunisian State funds and who are thus depriving the Tunisian people of the benefits of the sustainable development of their economy and society and undermining the development of democracy in the country.’
3
Article 1(1) and (2) of Decision 2011/72 provides as follows:
‘1.   All funds and economic resources belonging to, owned, held or controlled by persons responsible for misappropriation of Tunisian State funds, and natural or legal persons or entities associated with them, as listed in the Annex, shall be frozen.
2.   No funds or economic resources shall be made available, directly or indirectly, to, or for the benefit of, natural or legal persons or entities listed in the Annex.’
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 to the implementing decision. 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’, as follows: ‘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
The applicant’s initial listing in the Annex to Decision 2011/72, as amended by Implementing Decision 2011/79, was subsequently extended by Council Decision 2012/50/CFSP of 27 January 2012 (OJ 2012 L 27, p. 11), Council Decision 2013/72/CFSP of 31 January 2013 (OJ 2013 L 32, p. 20) and Council Decision 2014/49/CFSP of 30 January 2014 (OJ 2014 L 28, p. 38).
10
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 2014, Al Matri v Council (T‑200/11, not published, EU:T:2013:275), the Council modified the grounds for including the names of the persons listed in the Annex to Decision 2011/72, as amended by Implementing Decision 2011/79. In so far as the applicant is concerned, the grounds for his inclusion were modified by Decision 2014/49 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.’
11
By letter of 12 January 2015, the Council notified the applicant of its intention once again to extend the restrictive measures directed against him and enclosed with that letter an attestation dated 19 December 2014 provided by the Tunisian authorities, relating to ongoing judicial proceedings in Tunisia pertaining to him. By letter of 15 January 2015, the applicant submitted his observations and requested that the Council remove him from the list annexed to Decision 2011/72, as amended by Decision 2014/49, for the reasons set out in that letter.
12
On 30 January 2015, the Council adopted Decision (CFSP) 2015/157 amending Decision 2011/72 (OJ 2015 L 26, p. 29). Article 1(1) of that decision provides that the text of Article 5 of Decision 2011/72 is to be replaced by the following: ‘This Decision shall apply until 31 January 2016. It shall be kept under constant review. It may be renewed or amended, as appropriate, if the Council deems that its objectives have not been met.’ The applicant’s name and the grounds for his inclusion on the list annexed to Decision 2011/72, as amended by Decision 2014/49, were maintained.
13
By letter of 4 February 2015, the Council responded to the applicant’s observations dated 15 January 2015. In essence, it indicated that, for the reasons stated, it considered that the restrictive measures directed against him should remain in force and enclosed with that letter a copy of Decision 2015/157. However, it stated that, in the light of the applicant’s observations concerning the status of the ongoing judicial investigation concerning him in Tunisia, it would carry out a further review of those restrictive measures before 31 July 2015.
14
The applicant submitted observations on 18 February, 29 May and 7 September 2015. By letter of 16 November 2015, the Council responded to those observations. In the first place, the Council rejected the request made by the applicant in his letter of 18 February 2015 for access to the file concerning him, stating that the attestation referred to in paragraph 11 above formed the basis of its decision to extend the restrictive measures directed against the applicant and that it did not possess any other documents. In the second place, the Council stated that it was enclosing with its letter extracts from two documents dated 11 May 2015, provided by the Tunisian authorities, relating to judicial proceedings against the applicant. In the third place, after addressing the arguments raised by the applicant in his observations of 29 May 2015 and rejecting his request for a hearing, the Council indicated that the restrictive measures directed against him were to be maintained.
15
On 30 November 2015, the applicant submitted further observations, to which the Council replied by letter of 18 December 2015. The Council stated, in its conclusion to that letter, its intention to renew the restrictive measures directed against the applicant and to amend the ground for his designation 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.’ On 5 January 2016, the applicant submitted further observations in response to that letter.
16
On 28 January 2016, the Council adopted Decision (CFSP) 2016/119 amending Decision 2011/72 (OJ 2016 L 23, p. 65), which, under Article 1(1) thereof, extended Decision 2011/72 until 31 January 2017. Under Article 1(2) thereof, the annex to that decision replaces the Annex to Decision 2011/72. The applicant’s name appears on line 28 of the new annex. The wording of the grounds for the applicant’s listing is identical to that communicated to him by the Council in its letter of 18 December 2015. As the Council indicated to the applicant in its letter of 29 January 2016, the new wording is based on an attestation provided by the Tunisian authorities dated 20 October 2015, which was enclosed with that letter.
Procedure and forms of order sought
17
By application lodged at the Court Registry on 10 April 2015, the applicant brought the present action.
18
The Council lodged its defence on 2 July 2015.
19
The reply and the rejoinder were lodged on 14 September 2015 and 8 January 2016, respectively.
20
On 25 January 2016, on the basis of Article 86 of the Rules of Procedure of the General Court, the applicant submitted an initial statement of modification, seeking to extend the form of order sought in the application to the Council’s decision of 16 November 2015, by which the latter rejected his request of 29 May 2015 for the removal of his name from the Annex to Decision 2011/72. On 4 April 2016, the applicant lodged a second statement of modification, seeking an extension of the form of order sought in the application to Decision 2016/119.
21
On 30 March 2016, the Council submitted its observations on the initial statement of modification and, on 4 May 2016, its observations on the second statement.
22
Following a change in the composition of the Chambers of the General Court, the case was reassigned to the Fifth Chamber, by decision of 3 October 2016.
23
On a proposal from the Judge-Rapporteur, the Court decided to open the oral part of the procedure.
24
The parties presented oral argument and gave their replies to the questions asked by the Court at the hearing on 14 December 2016.
25
The applicant claims that the Court should:
–
annul Decision 2015/157, in so far as it concerns the applicant, the Council’s decision of 16 November 2015, by which the Council rejected the applicant’s request of 29 May 2015 to remove him from the Annex to Decision 2011/72, and Decision 2016/119, in so far as that decision concerns the applicant;
–
order the Council to pay the costs.
26
The Council contends that the Court should:
–
dismiss the application in its entirety;
–
order the applicant to pay the costs.
Law
The claims seeking annulment of Decision 2015/157
27
In support of the application, the applicant formally raises six pleas in law. By the first plea, alleging, in essence, an error of law, the applicant submits that the ongoing judicial investigation concerning him in Tunisia does not provide a sufficient factual basis for the continued listing of his name in the Annex to Decision 2011/72. The first plea comprises two parts, alleging, first, failure by the Council to take account of favourable developments in the various judicial proceedings relating to the applicant in Tunisia and, second, failure by that institution to take account of the infringement of the principle that proceedings should be concluded within a reasonable time in the context of the judicial investigation referred to above. The second plea alleges infringement of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), on the ground that the Council itself infringed the principle that proceedings should be concluded within a reasonable time. By the third plea, the applicant contends that Decision 2015/157 is devoid of purpose. The first part of that plea alleges manifest errors of assessment as regards the development of the democratic process in Tunisia and the need for restrictive measures in respect of nationals of that third country responsible for misappropriation of State funds. In the alternative, the applicant alleges failure to state adequate reasons. The second part of the third plea alleges an error of law, in that the Council considered that the evidence produced by the Tunisian authorities established that the applicant was being prosecuted. The fourth plea contains two parts, alleging, first, infringement of Article 48 of the Charter, and, second, infringement of Article 41(1) of the Charter. By the first part of the fourth plea, the applicant alleges infringement of the presumption of innocence as a result of a press release produced by the Council on 31 January 2011. By the second part of that plea, the applicant alleges infringement of the principle of good administration, in particular of the right to have his affairs handled impartially. In the alternative, in the event that the above pleas are rejected, the applicant raises a fifth plea, alleging a ‘manifest error of assessment’ relating to the failure by the Council to give sufficient consideration to the ‘criminal law element’ of Decision 2015/157. The sixth plea alleges infringement of the right to property and of Article 17 of the Charter.
28
As a preliminary point, it should be noted that the second part of the third plea, which concerns an alleged error by the Council in its assessment as to the adequacy of the evidence provided by the Tunisian authorities, is in fact linked to the first plea. It must therefore be regarded as forming the third part of that plea. Similarly, all of the fourth plea is in fact linked to the second plea, as it concerns alleged infringements of the applicant’s basic rights, vitiating the procedure which led to the adoption of Decision 2015/157. The second plea must therefore be regarded as comprising three parts, alleging infringement by the Council of Articles 47, 48 and 41(1), respectively, of the Charter. Lastly, it is clear from the forgoing that the fifth and sixth pleas are to be regarded as forming, respectively, the fourth and fifth pleas.
The first plea, alleging an error in law in that the Council was wrong to consider that the ongoing judicial investigation concerning the applicant in Tunisia constituted a sufficient factual basis
29
By the first plea, the applicant submits, in essence, that at the time Decision 2015/157 was adopted, the ongoing judicial investigation concerning him in Tunisia could no longer serve as a basis for maintaining the restrictive measures adopted by the Council in his regard. According to the applicant, that institution erred in law by failing to take account of the evidence which the applicant had brought to its attention on this matter. As stated in the introduction to this plea, the applicant accepts that, on the basis of paragraphs 77 to 84 of the judgment of 5 March 2015, Ezz and Others v Council (C‑220/14 P, EU:C:2014:147) the Council is entitled to adopt restrictive measures under the Common Foreign and Security Policy (CFSP) if there are ongoing judicial proceedings for misappropriation of State funds. However, the applicant argues that the development of those proceedings and the fact that that may constitute an abuse are relevant for the purpose of determining whether the maintenance of the measures in question is lawful.
30
In that regard, it should be noted, first, that the judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:2014:93), confirmed on appeal by 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 judgment of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraphs 72, 77, 82 and 84).
31
Moreover, it should be observed that, in a number of judgments in cases seeking the annulment of restrictive measures adopted by the Council in view of the situation in Tunisia, the General Court applied the same principle of broad interpretation to Article 1(1) of Decision 2011/72, which is worded in almost identical terms to Article 1(1) of Decision 2011/172 (judgments of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraph 114; of 30 June 2016, CW v Council, T‑224/14, not published, EU:T:2016:375, paragraph 91; of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 85; and of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 71).
32
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’.
33
Moreover, according to 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 (judgments of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraphs 81 and 82, and of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraphs 62 and 64; see also, to that effect and by analogy, judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraphs 77, 78 and 206).
34
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 must include 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 (judgments of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraph 124; of 30 June 2016, CW v Council, T‑224/14, not published, EU:T:2016:375, paragraph 100; of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 86; and of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 80).
35
It is therefore on the basis of that interpretation of Article 1(1) of Decision 2011/72, which has not in fact been called into question by the applicant (see paragraph 29 above), that the various parts of the first plea must be examined. It should also be noted that, notwithstanding certain variations in the terminology used in the application, the first plea must be regarded as alleging an error in the legal characterisation of the evidence forming the factual basis of the restrictive measures at issue, not a claim that there is no legal basis for those measures.
– The first part of the first plea, alleging failure by the Council to take account of favourable developments in the various judicial proceedings relating to the applicant in Tunisia
36
In the first part of the first plea, the applicant submits, in essence, that judicial developments in his favour mean that is it unlikely that he will be put on trial in Tunisia. The applicant puts forward three factors in support of that argument. In the first place, he relies on the judgment of the Tunisian Cour de cassation (Court of Cassation) of 1 July 2014, which ruled that the assets he inherited from his father included, for the purpose of Tunisian Decree Law No 2011-47 of 31 May 2011, the income from those assets and from the reinvestment thereof. According to the applicant, that judgment establishes that his Tunisian assets are lawful. In the second place, the applicant relies on three decisions by Tunisian courts, dated 28 May 2013, 21 August 2014 and 17 December 2014 respectively, which lifted the ban on leaving Tunisia that had been imposed on him. In the third place, the applicant maintains that he is not charged with holding illicit assets outside Tunisia. In the reply, he adds that the Council was under an obligation to satisfy itself that there was a reasonable prospect of a trial and, if there was not, to drop the restrictive measures at issue, failing which it would become party to an abuse of process on the part of the Tunisian authorities, consisting, according to the applicant, in prolonging indefinitely the judicial procedures concerning him.
37
In the defence, the Council replies, first of all, that the judgment of the Tunisian Cour de cassation (Court of Cassation) of 1 July 2014 does not establish, contrary to the applicant’s contentions, that all the assets held by him in Tunisia are lawful. Next, the Council contends that the applicant’s arguments relating to, first, the lifting of the ban prohibiting him from travelling abroad and, second, the lack of any connection between the charges against the applicant and the assets held by him outside Tunisia are irrelevant. Thus, according to the Council, the applicant equates, incorrectly, the restrictive measures at issue with acts of judicial assistance.
38
It is clear, in the light of the case-law cited in paragraphs 33 and 34 above, that the applicant’s arguments in the first part of the first plea must be rejected.
39
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, judgments of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraph 156, and of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 65).
40
Accordingly, in the context of Decision 2011/72, 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 33 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 (see, to that effect, judgments of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraph 158, and of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 66). 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, to that effect and by analogy, judgment of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraph 77).
41
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 was for the Council to examine carefully and impartially the evidence that had been 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 (see, to that effect and by analogy, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 99 and 114; of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraphs 158 and 159; and of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraphs 58 and 67).
42
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, to that effect and by analogy, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 115, and of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 68).
43
In the present case, it should be recalled that, as indicated in paragraph 11 above, in order to extend the listing of the applicant in the Annex to Decision 2011/72, the Council relied on an attestation provided by the Tunisian authorities, dated 19 December 2014, relating to the ongoing judicial investigation concerning the applicant. That attestation, which is annexed to the application, was provided by the Tribunal de première instance de Tunis (Court of First Instance, Tunis, Tunisia) and is signed by the Registrar of the principal investigating magistrate (Office No 1). The attestation states that ‘the case in question (registered as Case No 19592/1), brought against Zine El Abidine Ben Haj Hamda Ben Haj Hassen Ben Ali and others, is currently being investigated and concerns the aforesaid Mohamed Marouen Ben Ali Ben Mohamed Mabrouk, who is being prosecuted for, inter alia, 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’.
44
The applicant does not dispute that that attestation is sufficient to establish that he is the subject of an ongoing judicial investigation in Tunisia to determine whether he was involved in acts that may be categorised as misappropriation of State funds. The exculpatory evidence produced by the applicant is simply intended to establish, as he acknowledges himself, that there is no reasonable prospect, as far as he is concerned, of a trial at the end of the investigation. In other words, the applicant appears to take the view that, as the investigation proceeds, the evidence against him will become weaker or even disappear. On the other hand, he does not in any way claim to have evidence proving that the Tunisian judicial authorities have closed the investigation on the basis that there are no grounds for committing him to trial for the acts being investigated.
45
Contrary to what the applicant claims, as the judicial investigation has not come to an end, the existence of judicial developments suggesting that the evidence against him has become weaker, even if established, cannot oblige the Council, once it has knowledge of that evidence, to remove him from the list annexed to Decision 2011/72.
46
Indeed, as indicated in paragraph 40 above, it is not for the Council but for the competent Tunisian authorities to verify the evidence on which that judicial investigation is based and to draw the appropriate conclusions as to the outcome of the investigation. If that were not the case, there could be situations in which the Council would draw premature conclusions as regards the merits of the investigation which might differ from those drawn by the Tunisian authorities themselves. Such a situation could have the paradoxical result that, when the person concerned is tried and, as the case may be, found guilty of misappropriation of State funds by those authorities, that person’s assets in the European Union would no longer be frozen, thus precluding the possibility of recovering the proceeds of the misappropriation with which that person is charged. Obviously, the effectiveness of Decision 2011/72 would not be guaranteed (see, to that effect and by analogy, judgments of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraph 124, and of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 86).
47
Moreover, according to case-law, while it is the task of the competent EU authority to establish, in the event of a challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, namely that those reasons are not well founded, it is necessary, in order to assess the nature, form and degree of the proof that the Council may be required to provide, to take account of the specific nature and scope of the restrictive measures and of their objective (see, to that effect, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 121; of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraphs 74 to 85; and of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraphs 50 and 74).
48
In the present case, as the Council has adduced evidence of the existence of an ongoing judicial investigation concerning the applicant, the reliability of which is not in dispute, it is for the applicant to indicate the concrete evidence on which he relies in order to challenge the validity of that investigation (see, to that effect and by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 74). Admittedly, as the applicant states in the reply, the obligation the Council is under to carry out checks may be justified by the need, for the Council, to avoid colluding in conduct on the part of the Tunisian authorities that may be abusive, consisting in leaving the investigation open indefinitely in the absence of any inculpatory evidence concerning the applicant. However, that is not the case where there is no concrete evidence such as to give rise, on the part of the Council, to legitimate questions as to why the investigation has not been closed.
49
Contrary to the applicant’s assertions, the exculpatory evidence produced by him is not such as to give rise to legitimate questions regarding the prospect of a judgment at the end of the judicial investigation concerning him or the reasons why the investigation has not been closed.
50
In the first place, the applicant has failed to provide any evidence that makes it possible to understand how the judgment of the Tunisian Cour de cassation (Court of Cassation) of 1 July 2014 could have any effect on the assessment of his involvement in the criminal offences to which the judicial investigation concerning him relates.
51
In that regard, according to the information given by the applicant’s lawyer in his letter of 2 September 2014, annexed to the application, the Tunisian Cour de cassation (Court of Cassation) took the view, in its judgment of 1 July 2014, that the assets which were inherited and therefore excluded from the scope of the confiscation imposed by Decree Law No 2011-47 of 31 May 2011 consist not only of assets passed on by way of inheritance but also the income from those assets and the proceeds of all forms of reinvestment of those assets. In that letter, the applicant’s lawyer in Tunisia infers from that judgment that ‘the effect of [its] application should be that all the [applicant’s] assets are excluded from the scope of the Decree Law on confiscation, as those assets are either directly inherited from his father or derive from reinvestment of the inherited assets and the income thereon’.
52
Suffice it to note in that regard that it is not possible, on the basis of the abovementioned considerations concerning the judgment of the Tunisian Cour de cassation (Court of Cassation) of 1 July 2014 alone, to rule out that the ongoing judicial investigation concerning the applicant will find that the applicant is responsible for acts entailing the misappropriation of Tunisian State funds.
53
It may be concluded from those considerations simply that the income from the assets which the applicant inherited and the proceeds of the reinvestment of those assets cannot be confiscated under Decree Law No 2011-47 of 31 May 2011. On the other hand, it is not possible to draw any conclusion regarding the outcome of the judicial investigation in question. Thus, even if it were established, the applicant’s claim that he may freely deal with his Tunisian assets as a result of that judgment does not prejudge the outcome of that investigation, which, in view of the acts being investigated, may call into question whether the applicant is lawfully entitled to certain of the assets in his possession.
54
Furthermore, the applicant has not been able to explain the relationship between, on the one hand, that decree law and the civil proceedings in which the judgment of the Tunisian Cour de cassation (Court of Cassation) of 1 July 2014 was delivered and, on the other, the judicial investigation in question. When questioned on this subject at the hearing, he merely confirmed that Decree Law No 2011-47 of 31 May 2011 is applicable not only to himself but also to a number of other persons who are the subject of similar judicial investigations and that it was possible that the case in which that judgment was delivered, which concerned him, might also concern some of those other persons. The fact that, in parallel with the judicial investigations directed at the applicant and other persons, the scope of the administrative confiscation measures taken by the Tunisian authorities in their regard was restricted by a decision of the Tunisian Cour de cassation (Court of Cassation) is not sufficient to raise legitimate questions as to whether the reasons for initiating those judicial investigations were well founded.
55
In the second place, nor is the lifting of the ban on leaving Tunisia to which the applicant was subject, as a result of the three judgments of the Tunisian courts of 28 May 2013, 21 August 2014 and 17 December 2014, sufficient to raise such questions. Indeed, it is apparent from the applicant’s assertions and the documents before the Court that the judgments in question were handed down in cases separate from the criminal proceedings that gave rise to that investigation, which, at the time Decision 2015/157 was adopted, was still ongoing. Moreover, the applicant does not claim that those judgments were handed down in cases that were in any way connected with that investigation. The fact that, as a result of those judgments, the applicant might be free to leave Tunisia is, even if it were established, wholly immaterial.
56
It is true that the lifting of the ban on leaving Tunisian territory as a result of the first of those judgments followed on, as is apparent from the documents before the Court, from the acquittal of the applicant by that judgment in a case in which the applicant was tried before the court at issue for offences of a comparable nature to those forming the subject matter of the judicial investigation in question. However, it has neither been established nor even claimed that the applicant’s acquittal in that case would lead to his acquittal in the case covered by that investigation or constitute exculpatory evidence in the latter case.
57
In the third place, as regards the applicant’s argument that he has not been ‘charged’ with holding illicit assets outside Tunisia, it should be recalled that the fact that the judicial investigation in question concerns acts that may be categorised as misappropriation of State funds constitutes a sufficient factual basis to justify the freezing of his funds in the European Union. As indicated in paragraph 33 above, the sole purpose of that measure 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 the misappropriation. Its purpose is not, therefore, to facilitate the establishment of the offence of holding illicit funds outside Tunisia and, more specifically, within the European Union. Furthermore, it is not disputed that the acts with which that investigation is concerned, in particular the act of complicity in misappropriation by a public office holder of State funds, has a clear and direct link with the notion of misappropriation of State funds within the meaning of Article 1(1) of Decision 2011/72. It is therefore irrelevant that the attestation of the Tunisian authorities of 19 December 2014, on which the Council relies, and the grounds for listing the applicant do not refer to acts entailing the holding of unlawful assets outside Tunisia and, in particular, within the European Union (see, to that effect and by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 116).
58
It follows from all the foregoing that the first part of the first plea must be rejected.
– The second part of the first plea, alleging failure by the Council to take account of the infringement of the principle that proceedings should be concluded within a reasonable time in the context of the judicial investigation concerning the applicant
59
In the second part of the first plea, the applicant submits that the ongoing judicial investigation concerning him in Tunisia does not have due regard for the principle that proceedings should be concluded within a reasonable time. He observes, in that regard, that that principle is enshrined in Article 7(1)(d) of the African Charter on Human and People’s Rights, adopted in Nairobi (Kenya) on 27 June 1981 (‘the African Charter), which has been ratified by the Tunisian Republic. Next, the applicant observes that, in the present case, the investigation has been under way for over four years and there is no prospect of it ending. He adds that the delay is entirely attributable to the Tunisian authorities. Lastly, the applicant concludes by stating that, having regard to the duration of the investigation and developments which have taken place in his favour, the investigation should have been completed. Those arguments, it is alleged, are confirmed by the judgment of the European Court of Human Rights of 3 May 2012, Masár
v. Slovakia (CE:ECHR:2012:0503JUD006688209). In the reply, the applicant states, in essence, that the review which, in his view, the Council must carry out of the lawfulness of the judicial proceedings in Tunisia must lead to the removal of his name from the Annex to Decision 2011/72 as those proceedings have been going on for an unreasonably long time.
60
For its part, the Council submits that it is for the Council to assess not the conduct of third countries, but only the relevance and adequacy of the evidence produced by the authorities of those countries. In its view, it was on the basis of that principle that it indicated to the applicant in the letter which it sent to him on 4 February 2015 that it took due note of his arguments and would review his situation before July 2015. In the rejoinder, the Council added that it had in its possession evidence showing that the judicial proceedings in Tunisia concerning the applicant were ongoing and that the delays in those proceedings were not unreasonable, given the complexity of all the cases concerned. It annexed to the rejoinder the documents containing that evidence.
61
As a preliminary point, it should be noted that, according to settled case-law, the lawfulness of an EU measure is to be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (see judgments of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 22 and the case-law cited, and of 4 September 2015, NIOC and Others v Council, T‑577/12, not published, EU:T:2015:596, paragraph 112 and the case-law cited). In the present case, the complaints made by the applicant in the second part of the first plea cannot be examined in the light of matters which postdated Decision 2015/157. That is the case as regards the letter of 4 February 2015 from the Council to the applicant and, a fortiori, of the review of the applicant’s situation, which the Council undertook in that letter to carry out subsequently. Similarly, the documents annexed to the rejoinder on which the Council relies in that pleading to show that the length of judicial proceedings concerning the applicant in Tunisia is not unreasonable were drawn up by the Tunisian authorities on 11 May 2015. It follows that those documents were unknown to the Council at the time it adopted Decision 2015/157 and cannot be taken into account by the Court.
62
As regards the substance, in the second part of the first plea, the applicant maintains, in essence, that as the judicial proceedings concerning him are inconsistent with the principle that proceedings should be concluded within a reasonable time and are thus unlawful, the Council was not entitled to maintain his listing in the Annex to Decision 2011/72 in reliance on those proceedings. As a consequence, with regard to the part of the plea under consideration, the Court must confine itself to verifying whether or not the Council was entitled to consider that the length of the judicial proceedings did not justify bringing to an end the restrictive measures targeting the applicant.
63
In that regard, for the same reasons as those set out in paragraph 46 above, it should be noted that it is for the Tunisian courts to determine whether there has been any breach of the principle that proceedings should be concluded within a reasonable time in the judicial proceedings concerning the applicant. In particular, as the applicant himself acknowledges, the Tunisian Republic is a party to the African Charter and Article 7(1)(d) of that international convention lays down the right to be tried within a reasonable period by an impartial court or tribunal. As a consequence, it is for the Tunisian courts, should the applicant make an application to them, to determine whether the provisions of that article have been observed in those judicial proceedings. Furthermore, neither the European Union nor the Member States are party to the African Charter, so that the Council and the General Court cannot interpret that international convention or apply it (see, to that effect, judgment of 21 December 2011, Air Transport Association of America and Others, C‑366/10, EU:C:2011:684, paragraphs 52 and 62).
64
It is true that, according to case-law, compliance with the principles of the rule of law and human rights, as well as respect for human dignity, is required of all actions of the European Union, including actions under the CFSP, as is clear from the provisions, read together, set out in the first subparagraph of Article 21(1), Article 21(2)(b) and (3) TEU, and Article 23 TEU (see, to that effect, judgment of 14 June 2016, Parliament v Council, C‑263/14, EU:C:2016:435, paragraph 47). In particular, Article 21(1) TEU provides that the Union’s action on the international scene is to seek to advance in the wider world, inter alia, the rule of law, the universality and indivisibility of human rights and respect for international law. The principle that proceedings should be concluded within a reasonable time forms part of the right to a fair trial, which is safeguarded by the provisions of a number of binding instruments of international law, in particular by Article 14(3)(c) of the International Covenant on Civil and Political Rights adopted by the United Nations General Assembly on 16 December 1966, to which all the Member States and the Tunisian Republic are parties. Moreover, as stated in recital 1 of Decision 2011/72, that decision and the subsequent decisions were adopted as part of a policy of providing support to Tunisia based, inter alia, on the objectives of promoting respect for human rights and the rule of law, as laid down in Article 21(2)(b) TEU.
65
As a consequence, it cannot be ruled out that, where there is objective, reliable, specific and consistent evidence such as to raise legitimate questions concerning observance of an applicant’s right to have his case heard 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, the Council may be required to carry out the necessary verifications.
66
However, the second part of the first plea is based on the assumption that, in view of the excessive length of that judicial investigation, which, according to the applicant, should already be concluded, and of the fact that the investigation is therefore unlawful, the Council was required to bring to an immediate end the freezing of his assets in the European Union. That assumption cannot be accepted.
67
In the first place, it has neither been established nor indeed claimed that, under Tunisian law, the effect of failure to have regard for the principle that a case must be concluded within a reasonable time in criminal proceedings is that the proceedings are terminated or discontinued.
68
Moreover, the applicant refers to the case-law of the European Court of Human Rights (‘ECHR’) concerning the application in criminal proceedings of the principle that a person must be brought to trial within a reasonable time enshrined in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (‘the CPHR’). Admittedly, that case-law provides a relevant point of comparison in the present case, as Article 6(1) of the CPHR safeguards that principle in the same way as Article 14(3)(c) of the International Covenant on Civil and Political Rights and Article 7(1)(d) of the African Charter. However, it is clear that, in the context of that case-law, the ECHR has not inferred from that principle an obligation on the part of national authorities to bring to an end criminal proceedings which have been under way for an unreasonably long period of time (see, to that effect, ECtHR, 28 June 2016, O’Neill and Lauchlan
v. United Kingdom, CE:ECHR:2016:0628JUD004151610, paragraph 87).
69
Furthermore, it should be noted that, even when applying Article 5(3) of the CPHR, under which temporary detention in custody or pre-trial detention is subject to the person concerned being brought to trial within a reasonable time, the ECHR does not consider that breach of that requirement should lead to the termination of the judicial investigation in question. Admittedly, it considers that, in such circumstances, the case must be dealt with all due speed. However, it also considers that the speed to which a detained person who has been charged is entitled in the examination of his case must not undermine the work done by the judges in accomplishing their task with all necessary care (ECtHR, 11 December 2007, Pecheur
v. Luxembourg, EC:ECHR:2007:1211JUD001630802, paragraph 62, and 5 November 2009, Shabani
v. Switzerland, EC:ECHR:2009:1105JUD002904406, paragraph 65).
70
As a consequence, there are no grounds for considering that any infringement of the applicant’s right to have his case heard within a reasonable time in the judicial proceedings concerning him in Tunisia should lead to the termination or discontinuation of those proceedings.
71
In the second place, it should be noted that, in the light of the case-law of the ECHR, observance of a person’s right to be brought to trial 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 (see ECtHR, 28 June 2016. O’Neill and Lauchlan
v. United Kingdom, EC:ECHR:2016:0628JUD004151610, paragraph 86 and the case-law cited). In the case-law of the courts within the European Union, similar principles are applied to the examination of observance of a person’s right to have his case brought to trial within a reasonable time (see, to that effect, judgment of 26 November 2013, Groupe Gascogne v Commission, C‑58/12 P, EU:C:2013:770, paragraphs 85 and 86 and the case-law cited).
72
Even if it were possible for it to carry out an overall assessment in the light of the circumstances of the case, in order to do so, the Council would necessarily be required to seek further information concerning the judicial proceedings in question from the Tunisian authorities. As is clear from paragraphs 43 to 45 above, in order to maintain the listing of the applicant in the Annex to Decision 2011/72, the Council is simply required, in the present case, to gather evidence of the existence of ongoing judicial proceedings concerning the applicant in respect of acts that may be classified as misappropriation of State funds. In the light of the requirements set out in paragraph 71 above, such evidence clearly cannot suffice for the purpose of determining whether there has been an infringement in those proceedings of the applicant’s right to have his case brought to trial within a reasonable time. Moreover, even if the evidence produced by the applicant were such as to raise legitimate questions concerning the observance of that right, it could not, in any event, be sufficient to enable the Council to reach the conclusion that that right has been infringed.
73
Accordingly, the Council could not be required to end the listing of the applicant in the Annex to Decision 2011/72 without first carrying out appropriate checks with the Tunisian authorities.
74
In particular, it is in his observations of 15 January 2015 that the applicant submitted evidence to the Council that he relied on in the present action in support of his claim that his right to have his case tried within a reasonable time had been infringed by the Tunisian authorities. By virtue of Article 1(1) of Decision 2014/49, the extension of the restrictive measures concerning the applicant imposed by that decision expired on 31January 2015. Moreover, Decision 2015/157 entered into force the same day. As a consequence, even if that evidence had been such as to justify the Council’s seeking verifications from the Tunisian authorities, that institution could not have been required to carry out such verifications or draw the appropriate conclusions arising therefrom within the time available to it before the expiry of the effects of Decision 2014/49 as regards the applicant and the adoption of a similar new decision, which was just two weeks.
75
Accordingly, it follows from all the foregoing that the applicant was incorrect to maintain that the Council was required, on the basis of that evidence alone, to bring to an end his listing in the Annex to Decision 2011/72.
76
In any event, that evidence was not such as to raise legitimate questions on the part of the Council that would have justified its seeking further verifications from the Tunisian authorities.
77
The length of the judicial proceedings in question, which, according to the applicant, is four years, is not, prima facie, unreasonable, given that they relate, as is apparent from the documents annexed to the application, to an investigation into misappropriation of State funds, in connection with other related judicial proceedings involving a great many other persons and necessitating investigations abroad. Furthermore, the example cited by the applicant in support of his arguments, concerning the handling by the Tunisian authorities of his request that his case be severed from that concerning other persons, does not, in itself, amount to significant evidence to support the claim that the judicial investigation procedure is, as a whole, excessively long. It should be added that, in his observations of 15 January 2015, the applicant stated that the legal characterisation of the acts being investigated by the Tunisian authorities in so far as concerns the applicant have been altered in the course of the investigative procedure. Such a factor may constitute an additional piece of contextual evidence that may explain the length of that procedure. In addition, contrary to what the applicant maintains, the various judicial developments in his favour, which he relies on in the first part of the first plea, do not appear to be capable of justifying, for the reasons given in paragraphs 49 to 58 above, the termination of that procedure.
78
The judgment of the ECtHR of 3 May 2012, Masár v. Slovakia (CE:ECHR:2012:0503JUD006688209), to which the applicant refers in support of the second part of the first plea, cannot call into question the foregoing considerations. That case concerns criminal proceedings relating to offences which bear no similarity to those at issue in the ongoing judicial investigation concerning the applicant in Tunisia. The fact that the ECHR found, in that judgment, that the length of the criminal proceedings in question, which was comparable to that of that investigation, was not consistent with the principle that a person has the right to be tried within a reasonable time enshrined in Article 6(1) CPHR is therefore of no consequence. The same reasoning is applicable to the judgments of that court cited by the applicant at the hearing.
79
It follows from all the foregoing that the second part of the first plea in law must be rejected.
– The third part of the first plea, alleging that the Council erred in law in that it was incorrect to consider that the evidence produced by the Tunisian authorities established that the applicant was being prosecuted
80
In support of the third part of the first plea, the applicant submits that the Council was incorrect to consider that the attestation of the Tunisian authorities of 19 December 2014 established that he was being prosecuted in Tunisia, whereas that attestation merely mentions an ongoing investigation. Accordingly, the attestation does not provide a sufficient factual basis for Decision 2015/157.
81
That argument cannot be accepted.
82
In the first place, the applicant’s argument is directed at the Council’s letter of 4 February 2015, in which the latter states that the attestation of the Tunisian authorities of 19 December 2014 certifies that the applicant is being prosecuted for complicity in misappropriation of Tunisian State funds on the basis of Articles 32, 87, 96 and 99 of the Tunisian Criminal Code. That is a document that postdates the adoption of Decision 2015/157. Moreover, the grounds for the inclusion of the applicant in the Annex to Decision 2011/72, as amended by Decision 2014/49 and extended by Decision 2015/157, do not mention the existence of criminal proceedings against the applicant but simply the existence of judicial investigations concerning him. The maintenance of the restrictive measures directed at the applicant as a result of Decision 2015/157 is not, therefore, based on the fact that the applicant is being prosecuted for the offences mentioned in those grounds for inclusion.
83
In the second place, as indicated in paragraph 34 above and as acknowledged by the applicant himself in the present plea, the existence of ongoing judicial proceedings for misappropriation of State funds, on which the grounds for inclusion are based, constituted, in principle a sufficient basis for the adoption of the restrictive measures. Accordingly, even if the Council had been incorrect to take the view that the attestation of the Tunisian authorities of 19 December 2014 established that the applicant was being prosecuted, that error would have been of no consequence.
84
In any event, it should be noted that that attestation, which the applicant himself annexed to the application, mentions the existence of criminal proceedings against the applicant. The text of the attestation, which is written in French, states that ‘the case in question, registered under No 19592/1, … is currently being investigated and concerns Mohamed Marouen Ben Aki Ben Mohamed Mabrouk, who is being prosecuted, inter alia, for complicity in the misappropriation by a public official of public funds; complicity in the misrepresentation by a public official to procure an unjustified advantage for a third party and to cause a loss to the administration and complicity in exerting undue influence over a public official with a view to obtaining directly or indirectly an advantage for another person’. As a consequence, the factual premiss on which the third part of the first plea is based is incorrect.
85
Accordingly, the third part of the first plea and, as a consequence, the first plea in its entirety, must be rejected.
The second plea, alleging infringements of the applicant’s fundamental rights, vitiating the procedure which led to the adoption of Decision 2015/157
– The first part of the second plea, alleging infringement of Article 47 of the Charter, on account of the Council’s own failure to have due regard for the principle that proceedings must be concluded within a reasonable time
86
In support of the first part of the second plea, the applicant submits, in essence, that Article 47 of the Charter is applicable in the present case because the restrictive measures adopted by the Council were imposed on him in conjunction with judicial proceedings. For the purpose of establishing infringement of the principle that proceeding must be concluded within a reasonable time, the applicant refers to the arguments he put forward in connection with the first plea. The requirement for the Council to have due regard for the reasonable time principle enshrined in Article 47 of the Charter is confirmed by the case-law of the Court of Justice. In the reply, the applicant submits, in response to the Council’s arguments, that it is of no consequence that the Council was not acting in the present case in a judicial capacity. Nor is it of any consequence that the Council’s review process satisfies the requirements of Article 47 of the Charter, as the Council is not an impartial and independent tribunal.
87
The Council submits, in the defence, that it was not acting in the present case in a judicial capacity, a function which, in the interinstitutional system of the European Union, rests exclusively with the Court of Justice of the European Union. Moreover, the General Court has previously held that measures such as the restrictive measures at issue are not in the nature of judicial acts. The Council also takes the view that, even if the principle that proceedings should be concluded within a reasonable time enshrined in Article 47 of the Charter were applicable to it, the length of the procedure before that institution has not infringed the reasonable time requirement as the Council carried out, each year, a review of whether it was necessary to maintain the listing of the applicant in the Annex to Decision 2011/72.
88
It should be noted, at the outset, that the applicant’s argument in the present plea cannot be examined in the light of Article 47 of the Charter.
89
It should be borne in mind, in that regard, that the first sentence of the second paragraph of Article 47 of the Charter provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. It should also be noted that, pursuant to Article 51(1) thereof, the Charter is addressed to the institutions, bodies, offices and agencies of the European Union and to the Member States only when they are implementing EU law. Moreover, Article 51(2) of the Charter states that it does not extend the field of application of EU law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.
90
In the light of Article 51(1) and (2) of the Charter, the provisions of Article 47 thereof must be interpreted as being directed at the right to effective judicial protection only in proceedings in which the rights and freedoms guaranteed by EU law are at stake (see, to that effect and by analogy, judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 52).
91
Thus, in the present case, Article 47 of the Charter is applicable in the sense that it provides the applicant with the assurance that the contested asset freeze will be subject to effective judicial review by the General Court, entailing, inter alia, verification that the decision to adopt those measures was taken on a sufficiently solid factual basis (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, paragraph 119). Such an obligation to verify, pursuant to Article 47 of the Charter, therefore rests with the General Court, not with the Council.
92
On the other hand, the provisions of Article 47 of the Charter cannot apply to the applicant’s right to effective judicial protection in the context of the judicial proceedings concerning him in Tunisia, which is a third country. Moreover, the fact that the decision to adopt restrictive measures targeting the applicant was based on those judicial proceedings cannot have the effect of justifying a review of the lawfulness of that decision in the light of those provisions. First, that decision emanated from an EU institution which is not empowered by the Treaties to exercise judicial functions. Second, the decision, which was, moreover, adopted under the CFSP, is not in the nature of a judicial decision, as its object is neither to rule on an action nor to settle a dispute (see, to that effect and by analogy, order of 24 March 2011, Bengtsson, C‑344/09, EU:C:2011:174, paragraphs 22 to 24 and the case-law cited).
93
That interpretation is not affected by paragraphs 178 to 184 and 188 of the judgment of 16 July 2009, Der Grüne Punkt — Duales System Deutschland v Commission (C‑385/07 P, EU:C:2009:456), cited by the applicant in support of the part of the plea under consideration. It is in fact clear from those paragraphs, in particular paragraph 188, that in that judgment the Court of Justice simply applied the principle that proceedings must be concluded within a reasonable time, enshrined in the first sentence of the second paragraph of Article 47 of the Charter, to the handling of a case by the General Court, in the context of the procedure followed before that court, and did not intend to extend the application of that principle to EU institutions which do not have judicial authority (see, to that effect, judgment of 16 July 2009, Der Grüne Punkt — Duales System Deutschland v Commission, C‑385/07 P, EU:C:2009:456, paragraphs 178 to 184 and 188 and the case-law cited).
94
Admittedly, the Council is under a duty to handle the affairs of persons targeted by restrictive measures adopted by it within a reasonable time, by virtue of Article 41(1) of the Charter, which lays down the right for every person to good administration.
95
However, even if, notwithstanding the arguments put forward by the applicant, the first part of the second plea were to be interpreted as alleging infringement by the Council of Article 41(1) of the Charter, it is apparent from the considerations set out in paragraphs 62 to 78 above that it must, in any event, be rejected as unfounded.
96
First, for the reasons set out in paragraphs 66 to 75 above, even if those considerations had justified the Council requesting verifications from the Tunisian authorities concerning the status of the ongoing judicial investigation regarding the applicant, they could not have had the effect of obliging it to bring to an end the freezing of the applicant’s assets in the European Union. Second, as indicated in paragraphs 76 to 78 above, the evidence produced by the applicant before the adoption of Decision 2015/157 was not such as to raise legitimate questions as to whether the Tunisian authorities had due regard for the principle that proceedings should be concluded within a reasonable time. Lastly, it should be added that, for the same reasons and contrary to what is claimed by the applicant, the Council cannot be criticised for not informing the Tunisian authorities of the limits on the length of time for which the applicant’s assets may be frozen in the European Union and of the need for a swift judicial investigation.
97
As is apparent from the very wording of the application and the reply, in the present plea, the applicant merely alleges that the Council infringed his right to have his case heard within a reasonable time by failing to take the measures within its competence to ensure that the length of the judicial proceedings concerning him in Tunisia was not unreasonable.
98
Accordingly, as the evidence submitted by the applicant to the Council does not show that the length of those judicial proceedings has been vitiated by such an irregularity, those proceedings cannot, in turn, vitiate the length of the freezing of the applicant’s assets in the European Union.
99
Furthermore, the applicant does not claim that, prior to his letter of 15 January 2015, he submitted to the Council evidence that would have justified that European institution approaching the Tunisian authorities to satisfy itself that his right to have his case heard within a reasonable time in the judicial investigation concerning him was being observed. As a consequence, the applicant cannot take issue with the Council for failing to act with all diligence in that regard in respect of the period prior to the letter of 15 January 2015.
100
In view of all the foregoing, the first part of the second plea cannot be upheld.
– The second part of the second plea, alleging infringement of the presumption of innocence, on account of the Council’s press release of 31 January 2011
101
In support of the second part of the second plea, the applicant submits that the Council’s press release of 31 January 2011 infringes the presumption of innocence in that it encourages the public to believe that the persons designated in that press release as responsible for misappropriation of State funds are in fact guilty of such an offence. In paragraph 126 of the application, the applicant requests the Court to ‘rule that this statement breached the presumption of his innocence contrary to Article 48 of the Charter’. In the reply, the applicant responds to the Council’s arguments in the defence, stating that the fact that the press release is a separate document from Decision 2015/157 does not alter the fact that there has been an infringement, even though ‘the judicial finding is made separately’. Similarly, the fact that no action has been brought for annulment of the press release does not alter its effect. Lastly, it is irrelevant that the press release in question predated that decision by four years, as the decision provides for the continuation of the restrictive measures adopted on the same day as the press release. The applicant adds that the infringement of the presumption of innocence alleged may compromise a fair trial in Tunisia, as it could influence the conduct of the Tunisian authorities towards him.
102
For its part, the Council argues, in the defence, that, by adopting Decision 2015/157, it did not itself state that the applicant was guilty of misappropriation of State funds and did not prejudge the assessment of the facts to be made by the court with jurisdiction in Tunisia. It adds that the press release that is the subject of the applicant’s complaint in the second part of the second plea is separate and distinct from that decision and is not the subject of an action for annulment. It adds that, in any event, the legal nature of the press release is different from that of the decision and their legality must be examined separately. In the rejoinder, the Council submits, in essence, that, viewed within the overall context of the press release, the phrase quoted by the applicant in support of the second plea cannot be regarded as infringing the presumption of innocence.
103
In that regard, it should be noted that the document to which the second part of the second plea relates, which is annexed to the application, is a Council press release of 31 January 2011 (5881/2011 REV 1), in which the Council published the conclusions of the meeting of the Foreign Affairs Council of the same date. There is a box on the first page of that document, the second line of which contains the following statement:
‘The Council also discussed events in Tunisia and adopted conclusions stating the EU’s readiness to support the democratic transition, in particular the preparation of elections. It also adopted restrictive measures freezing the assets of people who have embezzled Tunisian public funds.’
104
Moreover, in paragraph 6 of page 8 of the press release referred to in paragraph 103 above, the Council states that ‘in consultation with the Tunisian authorities, the Council has adopted restrictive measures against individuals responsible for misappropriation of State funds’.
105
Those are the two statements which the applicant considers to be vitiated by infringement of the presumption of innocence. With regard to the first statement, the applicant considers that it is worded in such a way as to give the impression that the persons in question have already been found guilty of misappropriation of State funds. With regard to the second, while acknowledging that the Court has previously held that such statements do not prejudge the findings of fact by the court with jurisdiction (judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:C:2014:93, paragraph 83), the applicant claims, in essence, that the Council gave the expression ‘individuals responsible for misappropriation of State funds’ an absolute character by failing to specify that it was relying on proceedings in which the criminal liability of those individuals has not yet been established.
106
First, it should be noted that, in response to a question put by the Court at the hearing, the applicant clarified that the request made in paragraph 126 of the application, namely that the Court rule that those two statements had infringed the principle of innocence, did not form a separate head of claim from that seeking annulment of Decision 2015/157, but was to be interpreted as a plea in support of that head of claim. It must therefore necessarily be concluded that the applicant is of the view that the alleged infringement of his right to respect for the presumption of innocence resulting from those statements is such as to affect the legality of Decision 2015/157.
107
In that regard, it must be observed, as maintained, in essence, by the Council, that the press release at issue is a separate document from Decision 2011/72 and Decision 2015/157 and its purpose is simply to inform the public of the content of the first of those decisions. Moreover, it is not a document that was prepared in the context of the procedure which led to the adoption of either of those decisions. Lastly, the applicant does not dispute that those decisions do not, in themselves, infringe the presumption of innocence in so far as he is concerned. As a consequence, the applicant cannot validly claim infringement of the presumption of innocence resulting from those statements in the press release in order to challenge Decision 2015/157 on the ground that it is unlawful (see, to that effect and by analogy, judgment of 5 April 2006, Degussa v Commission, T‑279/02, EU:T:2006:103, paragraphs 413 and 423). The second part of the second plea is therefore ineffective.
108
In any event, the second part of the second plea is based on a literal reading of the two statements quoted in paragraphs 103 and 104 above, which fails to take account of the context in which they were made.
109
A reading of the content of the press release in question confirms that, as its title suggests, its sole purpose is to inform the public of the conclusions of the meeting of the Foreign Affairs Council of 31 January 2011, in particular of the adoption of Decision 2011/72.
110
Consequently, the two statements at issue must be interpreted by reference to the content of Decision 2011/72. It should be recalled in that regard that Article 1(1) of that decision provides for the freezing of the assets of persons responsible for misappropriation of Tunisian State funds and those of natural or legal persons or entities associated with them. However, as indicated in paragraph 34 above, the term ‘ persons responsible for misappropriation of Tunisian State funds’ within the meaning of Article 1(1) of that decision must include not only the persons already found responsible for such acts but also those who are the subject of ongoing judicial investigations to establish whether or not they are responsible.
111
Furthermore, those statements must also be understood by reference to the grounds for the inclusion of those persons in the Annex to Decision 2011/72. With regard to the applicant, those grounds expressly mention, from the first time his name appears on that list, that he is the subject of judicial investigations relating to acts that may be classified as misappropriation of State funds.
112
Accordingly, the applicant is incorrect to claim that those statements foster the belief that the persons listed in the Annex to Decision 2011/72 are guilty, as their content refers to the content of that decision and the latter, as noted above, does not concern the applicant as a person already found responsible for misappropriation of Tunisian State funds but as a person who is the subject of judicial investigations relating to such misappropriation. For the same reasons, those statements cannot be regarded as likely to influence the competent Tunisian authorities or likely to prejudge the assessment of the facts by the court with jurisdiction. They cannot, therefore, in any event, be regarded as constituting an infringement of the principle of the presumption of innocence.
113
It follows from all the foregoing that the second part of the second plea must be rejected.
– The third part of the second plea, alleging infringement of the right to good administration, in particular to the impartial handling of a person’s affairs under Article 41(1) of the Charter
114
In support of the third part of the second plea, the applicant relies on a set of circumstances which, in his view, demonstrate that he has not been treated impartially by the Council. In the first place, in its ‘initial public statement’, the Council claimed that all the persons listed in the Annex to Decision 2011/72 were guilty of embezzling public funds ‘without any qualification whatsoever’. In the second place, the current grounds for the inclusion of the applicant in that annex no longer have any ‘obvious EU dimension’, which should have led to the fund freezing at issue being withdrawn. In the third place, the Council, in response to the exculpatory evidence produced by the applicant, refused, incorrectly, to verify whether the facts alleged were accurate. In the fourth place, Decision 2015/157 was adopted despite the inactivity of the Tunisian judicial authorities and the resultant lapse of over four years from the time the applicant was charged. In the fifth place, the Council adopted that decision without account being taken of evidence establishing that democracy had been restored in Tunisia. Finally, in the sixth place, the Council adopted that decision without verifying, in particular, the objection that that measure infringed the applicant’s right to have his case heard within a reasonable time.
115
The Council disputes each of those arguments and states, in general, that the fact that the Council disagrees with the applicant in his assessment of the factual and legal elements put forward by him by way of exculpatory evidence cannot be equated to a lack of impartiality on its part.
116
In that regard, it should be noted that, in adopting restrictive measures, the Council is under an obligation to observe the principle of good administration enshrined in Article 41 of the Charter, which, according to settled case-law, entails the obligation for the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 58 and the case-law cited).
117
In the present case, the applicant reiterates, in essence, in support of the third part of the second plea, the various complaints made in the first and third pleas and in other parts of the second plea. For the reasons given in connection with the examination of those pleas and parts of pleas, those complaints must be rejected.
118
In the first place, assuming that, by the expression ‘initial public statement’, the applicant is referring to the press release the lawfulness of which he disputes in the second part of the second plea, it is apparent from paragraphs 107 to 112 above that the applicant’s arguments concerning the alleged infringement of the presumption of innocence as a result of that press release must be rejected.
119
In the second place, for the reasons set out in paragraphs 39 and 57 above, the fact that the grounds for the inclusion of the applicant in the Annex to Decision 2011/72 do not refer to acts which occurred in the European Union is of no consequence, as those grounds refer only to a judicial investigation concerning acts that may be classified as misappropriation of State funds.
120
In the third place, for the reasons set out in paragraphs 49 to 57 above, the exculpatory evidence produced by the applicant seeking to establish, in particular, that there is no prospect of him being tried, do not oblige the Council to carry out further verifications as to the status of the judicial proceedings concerning him in Tunisia.
121
In the fourth place, for the reasons given in paragraphs 63 to 78 above, the evidence produced by the applicant to establish infringement by the Tunisian authorities of his right to have his case heard within a reasonable time cannot justify an end being put to the freezing of his assets in the European Union.
122
In the fifth place, for the reasons set out in paragraphs 127 to 134 below in connection with the third plea, the Council did nor err in maintaining the restrictive measures at issue notwithstanding developments in the democratic process in Tunisia. Lastly, for the reasons given in paragraphs 88 to 96 above in the context of the first part of the second plea, the sixth argument alleging that the Council itself failed to have due regard to the applicant’s right to have his case heard within a reasonable time must be rejected.
123
As a consequence, it follows from the foregoing that the applicant was incorrect to maintain that the Council infringed the right to good administration, in particular the principle of impartiality. Accordingly, the third part of the second plea and, as a consequence, that plea in its entirety must be rejected.
The third plea, alleging that Decision 2015/157 is devoid of purpose, in the light of developments in the process of democratisation in Tunisia
124
The applicant submits, in support of the third plea, that the Council made manifest errors of assessment with regard to developments in the process of democratisation in Tunisia and the need for restrictive measures in respect of Tunisian nationals responsible for misappropriation of Tunisian State funds. First, according to the applicant, since 31 January 2011, a number of events of a judicial, constitutional and electoral nature have demonstrated the successful completion of the transition to democracy in Tunisia. By maintaining the restrictive measure at issue in view of the ‘situation in Tunisia’, according to the words used in Decision 2011/72, the Council failed to carry out a correct assessment of the nature of those developments or, at the very least, failed to take them into account. Second, the applicant is of the view that, if the Council considered that the transition to democracy had been achieved in Tunisia, it was no longer entitled to rely on the objective of safeguarding the process of democratisation to justify maintaining the restrictive measures at issue. In the alternative, the applicant contends that, by failing to explain why, notwithstanding developments in the transition to democracy in Tunisia, the restrictive measures were still required, the Council vitiated Decision 2015/157 by a lack of reasoning.
125
In the defence, the Council replies that the applicant’s reasoning rests on the incorrect assumption that the process of transition to democracy in Tunisia has been successfully completed. It points out that, as is apparent from, in particular, its conclusions of 19 January 2015, it considered that that process was still ongoing at the time Decision 2015/157 was adopted.
126
First of all, it should be noted that, although the applicant does not expressly refer to Article 277 TFEU, the present plea must be interpreted as raising a plea of illegality as regards Article 1(1) of Decision 2011/72, as extended by Decision 2015/157. The manifest errors of assessment alleged in the present plea do not relate to the continuation of the listing of the applicant in the Annex to Decision 2011/72 as such, but to the continuation, in general, of the freezing of the assets of the persons responsible for misappropriation of Tunisian State funds and of those associated with those persons, as imposed by Article 1(1) of that decision (see, to that effect and by analogy, judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 31). Thus, what the applicant is disputing is whether it is possible for the Council to continue to maintain, in their entirety, the restrictive measures adopted under Decision 2011/72 in the light of the objectives of that decision and developments in the democratic process in Tunisia.
127
It should be noted, in that regard, first, that, as is apparent from recital 1 thereof, Decision 2011/72, which is based on Article 29 TEU, seeks to support ‘the efforts [by the Tunisian people] to establish a stable democracy, the rule of law, democratic pluralism and full respect for human rights and fundamental freedoms’. It seeks, inter alia, according to recital 2 thereof, to assist the Tunisian authorities in combating misappropriation of State funds by freezing the assets of persons ‘responsible’ for misappropriation of such funds, who are thus depriving the Tunisian people of the benefits of the sustainable development of their economy and society and undermining the development of democracy in the country.
128
As a consequence, as this Court has previously held, Decision 2011/72 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. It thus satisfies the objectives of the CFSP, which are defined, in particular, in Article 21(2)(b) and (d) TEU, pursuant to which the European Union is to engage in international cooperation with a view to consolidating and supporting democracy, the rule of law, human rights and the principles of international law and, moreover, to fostering the sustainable — notably economic — development of developing countries (see judgments of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 60 and the case-law cited, and of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 67 and the case-law cited).
129
According to settled case-law concerning the CFSP, the Council must be allowed a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments, so that the legality of a measure adopted in those areas can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph120 and the case-law cited).
130
In the present case, as the Council observes with reference to its conclusions of 19 January 2015, it did not consider, unlike the applicant, that the process of transition to democracy in Tunisia had been successfully completed by the time Decision 2015/157 was adopted. The various developments of a judicial, constitutional and electoral nature put forward by the applicant do not show that the Council made a manifest error in its assessment of that process. Indeed, while those developments are indicative of progress, they did not allow any obvious conclusion to be drawn that that process had been successfully completed, as that process was subject, as the Council stated in the conclusions mentioned above, to, inter alia, the consolidation of the rule of law and the democratic achievements of the new Tunisian constitution.
131
In any event, the third plea is based, by necessary implication if nothing else, on the incorrect premiss that the successful completion of the transition to democracy in Tunisia should oblige the Council to bring to an end the restrictive measures imposed by Decision 2011/72. As indicated in paragraph 33 above, the sole purpose of the asset freeze imposed by Article 1(1) of Decision 2011/72, read in the light of recitals 1 and 2 thereof, 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. Consequently, any repeal of those restrictive measures is dependent only on the completion of the judicial proceedings on which they are based, not on the successful completion of the process of transition to democracy in Tunisia, support for that process being just one of the ultimate objectives of the policy of which that asset freeze forms part, not an additional condition for maintaining the asset freeze (see, to that effect and by analogy, judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 143).
132
It should be added that, even if that process of transition to democracy were successfully completed, the freezing of his assets does not represent, contrary to what the applicant claims, interference by the ‘legislature’ in matters falling within the jurisdiction of the courts.
133
Irrespective of the fact that, under Article 24 TEU, the Council does not adopt legislative measures under the CFSP, the successful completion of the process of transition to democracy in Tunisia, as indicated in paragraph 131 above, could not have the effect of obliging the Council to withdraw the restrictive measures adopted under Decision 2011/72. As it would be likely to hinder the establishment by the Tunisian authorities of the misappropriation of State funds that has taken place and of the recovery of the proceeds of such misappropriation, the withdrawal of those measures before the ongoing judicial investigations were completed would be likely to undermine the objective of consolidating and supporting democracy and the rule of law in Tunisia laid down in that decision. Thus, the maintenance of those measures, which, as stated in paragraph 33 above, are of a purely precautionary nature and have no criminal law connotations, remains justified, having regard to the objectives of the CFSP. As a consequence, if the applicant’s argument is to be understood as alleging interference by a political authority, such as the Council, in matters falling solely within the jurisdiction of the Tunisian courts, it is clear that the maintenance of those measures does not amount to such interference.
134
Therefore, the plea alleging that the Council made a manifest error of assessment as regards developments in the political situation in Tunisia must be rejected.
135
With regard to the plea alleging, in the alternative, failure to state adequate reasons, it is sufficient to note that it is clear from paragraphs 127 to 133 above that developments in the political situation in Tunisia since Decision 2011/72 was adopted are not a justification for specific reasons to be given for the maintenance, by Decision 2015/157, of the restrictive measures adopted under Decision 2011/72, in the light of those developments. That plea must therefore also be rejected.
136
In the light of all the foregoing, the third plea must be rejected.
The fourth plea alleging, in the alternative, a ‘manifest error of assessment’ relating to the failure by the Council to give sufficient consideration to the ‘criminal law element’ of Decision 2015/157
137
In support of the fourth plea, the applicant argues that the Council did not carry out an objective assessment of the arguments presented by him ‘from the perspective of the criminal law’ in his letter of 15 January 2015. The applicant submits in that regard that the Council dismissed his explanations concerning the weakening of the charges against him in Tunisia on the basis of speculative considerations focused solely on CFSP objectives. The Council thereby failed to examine the applicant’s rights under EU law as a person who is the subject of a judicial investigation. In the reply, the applicant maintains that Decision 2015/157 has a criminal law dimension or, at the very least, criminal law effects or a criminal law purpose, in that it has the same effect as a measure of legal assistance issued by a criminal court on the basis of the United Nations Convention against Corruption, adopted by the United Nations Assembly on 31 October 2003.
138
In the defence, the Council contends that Decision 2015/157 was adopted on the only legal basis possible, namely Article 29 TEU, and does not have any criminal law dimension.
139
By the present plea, the applicant must be regarded as alleging, in essence, an error of law, in so far as the Council reviewed the maintenance of the restrictive measures targeting the applicant, when adopting Decision 2015/157, only in the light of CFSP objectives and, therefore, without applying the requirements and safeguards that are necessary in criminal proceedings. That plea is, however, clearly unfounded.
140
First, for the reasons set out in paragraphs 127 and 128 above, Decision 2011/72 and, as a consequence, Decision 2015/157, which extends it, meet the CFSP objectives laid down in Article 21(2)(b) and (d) TEU. Second, as indicated in paragraph 33 above, the freezing of the applicant’s assets in the European Union, which is not intended to penalise his conduct in Tunisia, is devoid of any criminal law connotation. The Council was therefore entitled, when adopting Decision 2015/157, to do no more than verify whether the evidence in its possession constituted, having regard to the objectives of Decision 2011/72, which form part of the CFSP, a sufficient basis for maintaining the asset freeze. Thus, it was not required to consider whether the asset freeze should be maintained in the light of the requirements of criminal law and by ensuring that the applicant had the benefit of specific safeguards comparable to those available in criminal proceedings.
141
The arguments in the reply by which the applicant seeks to demonstrate that the asset freeze at issue is in the nature of a criminal law measure cannot alter that conclusion.
142
In the first place, the precautionary nature of the asset freeze at issue and the fact that the maintenance of that measure depends on the outcome of criminal proceedings in Tunisia cannot, of itself, turn it into a criminal law measure.
143
As is apparent from paragraphs 33, 127 and 128 above, in implementing a policy of support for the Tunisian authorities to promote democratic stability and the rule of law on the basis of Article 29 TEU, the Council has the power to adopt measures that assist in the effective conclusion of criminal proceedings initiated in Tunisia in respect of misappropriation of State funds. Thus, as the Council is correct to point out, the criminal proceedings in Tunisia do not form the legal basis of the asset freeze at issue, but its factual basis. Moreover, as indicated by the grounds for the inclusion of the applicant in the Annex to Decision 2011/72, which relate to ongoing judicial investigations concerning the applicant, the Council did not adopt Decision 2015/157 on the basis that it was convinced that the applicant had misappropriated State funds.
144
In the second place, the comparison made by the applicant between the effects of the freezing of his funds and the effects of a measure of legal assistance adopted in the context of international cooperation in criminal law is not persuasive.
145
It is true that the freezing of the applicant’s funds imposed by the Council has the concrete effect of immobilising those funds in the European Union in a way that is comparable to what may occur if a national court decided to freeze those funds in the context of international cooperation in criminal law. However, the fact nonetheless remains that the nature of those measures is different.
146
First, the measure freezing the applicant’s funds, adopted on the basis of Article 29 TEU, is an independent measure designed to attain the objectives of the CFSP, not a measure designed to respond to a request by the Tunisian authorities for legal assistance (see, to that effect and by analogy, judgment of 26 October 2015, Portnov v Council, T‑290/14, EU:T:2015:806, paragraph 45).
147
Second, the Council’s powers in the present case, by virtue of Article 21(2)(b) and (d) and Article 29 TEU, are confined to the adoption of measures freezing the funds of the persons concerned as a precautionary measure which, by definition, is temporary and reversible. On the other hand, the powers of national judicial authorities in the context of international cooperation in criminal law are not necessarily confined to the adoption of such measures.
148
In the light of all the foregoing, the fourth plea must be rejected.
The fifth plea, alleging infringement of the right to property and of Article 17 of the Charter.
149
In support of the fifth plea, the applicant submits that, as Decision 2015/157 is unjustified and unlawful, the restrictions on his right to property are also unjustified and infringe Article 17 of the Charter. The Council contests that line of argument.
150
It should be noted in that regard that, in order to comply with EU law, a limitation on the exercise of the right to property must satisfy three conditions. First, the limitation must be ‘provided for by law’. In other words, the measure in question must have a legal basis. Secondly, the limitation must refer to an objective of general interest, recognised as such by the European Union. Thirdly, the limitation may not be excessive: it must be necessary and proportional to the aim sought, and the substance of the right or freedom at issue must not be impaired (see judgments of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraphs 197 to 200 and the case-law cited, and of 30 June 2016, CW v Council, T‑516/13, EU:T:2016:377, paragraphs 165 to 168 and the case-law cited).
151
The applicant simply claims in the present plea that, in so far as he has shown, in the earlier pleas, that the freezing of his assets in the European Union is unlawful and unjustified, that restriction on his right to property is also, as a consequence, unjustified. He therefore simply questions whether that restriction meets the first two conditions mentioned in paragraph 150 above. It is apparent, however, from paragraphs 36 to 148 above that, in the earlier pleas, the applicant has not succeeded in establishing that the freezing of his assets is either unlawful or unjustified. As a consequence, he has also failed to establish that the restrictions imposed on his right to property as a result of the asset freeze lack a proper legal basis or that they are not justified in the light of the objectives of Decision 2011/72 and the CFSP. The fifth plea must therefore be rejected.
152
It follows from all the foregoing that, as none of the applicant’s pleas is well founded, the claims seeking the annulment of Decision 2015/157 must be rejected.
The claims in the first statement of modification, seeking the annulment of the Council’s ‘decision’ of 16 November 2015, by which the Council rejected the applicant’s request of 29 May 2015 to remove his name from the list in the Annex to Decision 2011/72
153
Article 86(1) of the Rules of Procedure provides that, where in the course of the proceedings the measure initially contested is replaced or amended by another measure with the same subject matter, the applicant may, before the oral part of the procedure is closed, or before the decision of the Court to rule without an oral part of the procedure, modify the application to take account of that new factor. Pursuant to Article 86(2) of those rules, such modification must be made by separate document within the time limit laid down in the sixth paragraph of Article 263 TFEU within which the annulment of the measure justifying the modification of the application may be sought.
154
Moreover, according to case-law, the modification of the application must relate to a measure that is capable of forming the subject matter of an application for annulment for the purpose of Article 263 TFEU, that is, an act producing binding legal effects that may affect the interests of the applicant by bringing about a distinct change in his legal position (see, to that effect and by analogy, judgment of 3 July 2014, Alchaar v Council, T‑203/12, not published, EU:T:2014:602, paragraphs 58 and 59 and the case-law cited). In that regard, it is settled case-law that a measure which merely confirms a previous measure, that is, a measure which contains no new factor as compared with the previous measure and was not preceded by a re-examination of the circumstances of the person concerned, does not constitute such a measure (see orders of 7 December 2004, Internationaler Hilfsfonds v Commission, C‑521/03 P, not published, EU:C:2004:778, paragraph 47 and the case-law cited, and of 29 June 2009, Cofra v Commission, C‑295/08 P, not published, EU:C:2009:407, paragraph 35 and the case-law cited).
155
In particular, according to case-law, a measure adopted following a review of an earlier measure, which was necessary on account of the existence of new and substantial facts, does not constitute a purely confirmatory measure. A fact must be classified as new where it did not exist at the time the measure was adopted or was not taken into account when the measure was adopted, and as substantial where it substantially alters the legal position of the applicant as it stood at the time the earlier measure was adopted, such as a fact capable of raising doubts as to the merits of that measure (see, to that effect, judgment of 13 November 2014, Commission v Spain, T‑481/11, EU:T:2014:945, paragraphs 34 to 39 and the case-law cited).
156
With regard to restrictive measures, first, it is settled case-law that an applicant is permitted, in principle, to amend the form of order sought and the pleas in law in the application seeking annulment of a decision freezing his funds in the light of a subsequent measure extending the fund freeze. In those circumstances, the subsequent decision does not simply confirm the earlier decision, as it extends, in so far as concerns the person concerned, the duration of that earlier decision following a review of his circumstances (see, to that effect and by analogy, order of 15 February 2005, PKK and KNK v Council, T‑229/02, EU:T:2005:48, paragraph 44, confirmed on appeal by judgment of 18 January 2007, PKK and KNK v Council, C‑229/05 P, EU:C:2007:32, paragraph 103).
157
Second, as is apparent from Articles 2(3) and 5(6) of Decision 2011/72, the Council may be required, at any time, to review the decision to include a person in the annex to that decision in the light of substantial evidence or observations submitted to it, so that the inclusion of that person is kept under constant review. That provision is designed to ensure that persons who no longer meet the criteria for inclusion in the annex to that decision are removed not only at the end of the periodic review carried out each year but also, if appropriate, immediately (see, to that effect and by analogy, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 129). As a consequence, a decision by the Council not to remove the name of a person from the Annex to Decision 2011/72 adopted following a review of that person’s circumstances based on new and substantial facts, within the meaning of the case-law cited in paragraph 155 above, does not constitute a purely confirmatory measure, even where that decision does not extend the inclusion of the person but simply maintains the application of the earlier decision (see, to that effect and by analogy, judgment of 13 November 2014, Commission v Spain, T‑481/11, EU:T:2014:945, paragraph 40 and the case-law cited).
158
In the present case, first, the Council’s decision of 16 November 2015, which is contested in the first statement of modification, did not amend or replace Decision 2015/157, which forms the subject matter of the application. In its letter of 16 November 2015, the Council merely rejected the applicant’s request seeking, in essence, the repeal of Decision 2015/157 in so far as it concerned the applicant. It does not therefore contain a new factor within the meaning of the case-law cited in paragraph 154 above.
159
Second, the refusal to grant the applicant’s request was not the result of a review justified in the light of facts that were both new and substantial, within the meaning of the case-law cited in paragraph 155 above.
160
In the first place, the observations submitted by the applicant on 29 May and 7 September 2015 refer, essentially, to facts preceding the adoption of Decision 2015/157, and to questions previously raised in the applicant’s observations of 15 January 2015, which do not, therefore, amount to new facts.
161
Furthermore, the only facts postdating Decision 2015/157 referred to in those observations, that is, a judgment of the cour d’appel de Tunis (Court of Appeal, Tunis, Tunisia), of 25 February 2015 and three decisions of the Tunisian Administrative court, in response to applications for interim relief, of 30 March 2015, do not constitute substantial facts, that is, facts capable of bringing about a significant change in the applicant’s position with regard to the restrictive measures targeting the applicant extended by Decision 2015/157.
162
As previously observed on a number of occasions, those restrictive measures are based on the existence of an ongoing judicial investigation concerning the applicant for acts that may be classified as misappropriation of State funds. While it is apparent from the note prepared by the applicant’s lawyer in Tunisia dated 24 April 2015 that the judgment of the cour d’appel de Tunis (Court of Appeal, Tunis) of 25 February 2015 grants the applicant’s request for that investigation to be severed from the other criminal proceedings, that development in the proceedings does not appear, of itself, to be of such a nature as to call into question the conduct of that investigation. Moreover, it is clear from the note of the applicant’s lawyer in Tunisia, annexed to the applicant’s observations of 29 May 2015, that the three court decisions of 30 March 2015 ordered a stay of execution of the three administrative decisions confiscating some of the applicant’s property but the link between those decisions and the judicial investigation on which the asset freeze is based is not readily apparent.
163
In the second place, it is apparent from the evidence before the Court that the documents provided by the Tunisian authorities on 11 May 2015, on which the Council relies in its letter of 16 November 2015, simply confirm that the judicial investigation concerning the applicant in Tunisia is ongoing and that they were produced by the Council purely for the purpose of addressing the applicant’s arguments contesting the basis of that investigation. As a consequence, those documents, which admittedly constitute new evidence, cannot, in any event, be described as substantial. Indeed, they disclose no substantial change in the applicant’s circumstances by comparison with his circumstances at the time Decision 2015/157 was adopted.
164
That analysis is not altered by the fact that those documents were produced by the Council following verifications which, as the Council indicated in its letter of 4 February 201, it intended to carry out in response to the applicant’s observations.
165
Articles 2(3) and 5(6) of Decision 2011/72 confer on the Council broad discretion when deciding whether it is necessary to carry out verifications of evidence submitted to it by the Tunisian authorities or by the applicant, inter alia for the purpose of enquiring as to the status of the judicial proceedings concerning the applicant. As a consequence, not all new evidence obtained as a result of verifications carried out by the Council ex officio or at the request of the applicant necessarily constitutes a substantial factor capable of justifying a review of the inclusion of the applicant in the annex to that decision and of giving rise, in the event of a refusal to review that inclusion, to a decision adversely affecting the applicant.
166
In the present case, it is apparent from the documents before the Court that, in its letter of 4 February 2015, the Council stated, in essence, that, while it considered that there were grounds for maintaining the listing of the applicant in the Annex to Decision 2011/72, it took note of the applicant’s observations concerning the status of the ongoing judicial investigation concerning him in Tunisia and that it would carry out a fresh examination of the restrictive measures applicable to the applicant before 31 July 2015. It transpires that, following that letter, the Council also took into account the observations submitted by the applicant on 18 February, 29 May and 7 September 2015 and replied to the applicant in its letter of 16 November 2015, giving him an account of the results of the verifications which it had undertaken in the meantime in consultation with the Tunisian authorities and, in particular, sending him the documents referred to in paragraph 163 above. Thus, by taking the view that it was appropriate to carry out those verifications, the Council merely exercised the discretion conferred on it by the provisions referred to in paragraphs 157 and 165 above and did not undertake a review of the applicant’s situation that was dictated by factors capable of bringing about a substantial change in that situation.
167
Accordingly, by stating, in its letter of 16 November 2015, that the restrictive measures targeting the applicant were to be maintained, the Council did not adopt a new decision distinct from Decision 2015/157 but merely confirmed the latter. In so far as that letter rejected the applicant’s request to remove his name form the Annex to Decision 2011/72, it therefore constitutes a purely confirmatory measure which does not adversely affect the applicant. It follows that the claims in the first statement of modification seeking the annulment of that act must be rejected as inadmissible.
168
The arguments by which the applicant seeks to show that that statement of modification is admissible cannot alter that conclusion.
169
In the first place, the applicant’s line of reasoning to the effect that the Council’s decision of 16 November 2015 altered Decision 2015/157, in that it turned the latter decision, which, up to that point, had been a ‘conditional decision’, into an ‘unconditional decision’, is unfounded. First, as the Council indicated, in essence, in its observations on the first statement of modification, that argument is based on the erroneous premiss that the Council’s letter of 4 February 2015, in which that institution had stated that it would review the applicant’s situation before 31 July 2015, made Decision 2015/157 conditional. Second, the Council’s power to review restrictive measures adopted under Decision 2011/72, by virtue of the provisions of that decision referred to in paragraph 157 above, with the possibility, where appropriate, of repealing or amending those measures, did not in any way have the effect making them ‘conditional’. Consequently, the fact that the Council indicated in its letter of 16 November 2015 that the restrictive measures targeting the applicant were to be maintained did not have the effect of making Decision 2015/157 an unconditional act. Moreover, it should be noted that the Council was entitled to repeal or amend those measures after that letter of 16 November 2015 in the event that any new and substantial facts were brought to its attention.
170
In the second place, contrary to what the applicant maintains, it cannot be claimed that the statement of modification is admissible because it is necessary, in accordance with the principle of equality of arms, to give him the opportunity to comment on the evidence produced by the Council in the rejoinder.
171
First, the principle of equality of arms cannot, in the present case, have the effect of causing time to run afresh for the purpose of bringing proceedings for the annulment of Decision 2015/157. Moreover, whether an act may be challenged must be determined only on the basis of an objective assessment of the substance of the act, not by reference to the principle of equality of arms (see, to that effect and by analogy, judgment of 20 September 2012, France v Commission, T‑154/10, EU:T:2012:452, paragraphs 37 to 40).
172
Second and in any event, the applicant had the opportunity at the hearing on 14 December 2016 to submit observations on the evidence produced by the Council in the rejoinder. Furthermore, as is apparent from paragraph 61 above, the Court considers that that evidence, which postdated Decision 2015/157, could not be taken into account in the assessment of the legality of that decision. As a result, the decision to reject the claims in the first statement of modification as inadmissible cannot interfere with the equality of arms.
173
It follows from all of the foregoing that those claims must be dismissed as inadmissible.
The claims in the second statement of modification seeking the annulment of Decision 2016/119
174
In the second statement of modification, which concerns Decision 2016/119, the applicant raises, in essence, five pleas. Those pleas allege: (i) infringement of the presumption of innocence and the principle of good administration; (ii) that there is no sufficiently solid factual basis for the measures at issue; (iii) that that decision has become devoid of purpose; (iv) infringement of the principle that proceedings must be concluded within a reasonable time; and (v) that the Council’s interference with the applicant’s right to property was manifestly disproportionate.
175
As a preliminary point, it should be noted that, as indicated in paragraph 16 above, Decision 2016/119 extended the application of Decision 2011/72 until 31 January 2017 and amended the grounds for the inclusion of the applicant in the annex to that decision, on the basis of the attestation of the Tunisian authorities of 20 October 2015, as referred to in paragraph 16 above. That amendment consisted in replacing the reference to the offence of complicity in exerting wrongful influence over a public office-holder with a view to obtaining directly or indirectly an advantage for another person with a reference to the offence of exerting wrongful influence over a public office-holder with a view to obtaining directly or indirectly an advantage for another person.
176
Moreover, the Court finds that, in accordance with the case-law cited in paragraph 156 above, the claims in the second statement of modification, seeking the annulment for Decision 2016//119, which extends Decision 2011/72 for a further period beyond the period set in Decision 2015/157, are admissible.
The first plea, alleging infringement of the presumption of innocence and the principle of good administration
177
In the first plea, the applicant reiterates, in essence, the arguments developed in the second and third parts of the second plea in the application, concerning an alleged infringement of the presumption of innocence. He relies in support of those arguments, first, on a press release dated 25 January 2016 by the non-governmental organisation Transparency International, which stated that the assets of 48 persons had been frozen in Tunisia ‘on the basis of evidence that they have misappropriated public funds and abused their positions’. Second, he also relies on a note from the Tunisian authorities dated 15 January 2015, in response to the Council’s requests for clarification as to the applicant’s situation, which proves, according to the applicant, that ‘no relief will be granted on the merits’ in the judicial investigation concerning him in Tunisia.
178
The Council, in essences, disputes the relevance of that new evidence.
179
It is clear that the Court’s reasoning in paragraphs 107 to 112 and 118 above in its examination of the third part of the second plea in the application is applicable in this instance. First, the Council’s press release of 31 January 2011, referred to in paragraph 103 above, is a separate act from Decision 2011/72 and from Decision 2016/119 and was not prepared in connection with the adoption of those decisions. The applicant, who does not dispute that those two decisions do not, of themselves, infringe the presumption of innocence, cannot therefore properly allege that the press release is vitiated (as he claims) by such an infringement in order to call into question the legality of those decisions. Second and in any event, that compliant is based on a literal reading of the press release, which must, however, be interpreted by reference to the content of Decision 2011/72, the purpose of the press release being, inter alia, to bring the adoption of the decision to the public’s attention. As the content of the Annex to Decision 2011/72 does not refer to the applicant as a person found responsible for misappropriation of Tunisian State funds but as a person who is the subject of judicial investigations for such acts, the content of the press release, which refers to those investigation, cannot infringe the applicant’s right to respect for the presumption of innocence.
180
As a consequence, even if the statements in the press release of Transparency International referred to in paragraph 177 above had infringed the applicant’s right to respect for the presumption of innocence, such an infringement could not be imputed to the Council’s press release of 31 January 2011 mentioned above or, in any event, affect the legality of Decision 2016/119.
181
As regards the note of 15 January 2016 of the Tunisian authorities, the applicant’s claims in that regard are, in any event, purely speculative. That note merely sets out the procedural reasons why the judge in charge of investigating the matter did not separate the applicant’s case from the cases concerning the other persons involved. Consequently, there is nothing in that note to indicate what conclusions may be drawn by the Tunisian authorities from the judicial investigation concerning the applicant or whether there is any plausible connection between the considerations set out in that note and the Council’s press release at issue.
182
Accordingly, the first plea must be rejected.
The second plea, alleging that there is no sufficiently solid factual basis for the measures at issue
183
The second plea may be divided, essentially, into four parts, alleging that: (i) the allegations justifying the maintenance of the applicant’s name in the Annex to Decision 2011/72 are too vague; (ii) the Tunisian authorities have failed to examine his case separately, thus creating, according to the applicant, the false impression that the case against him has a solid factual basis; (iii) there has been no significant activity in the judicial proceedings in Tunisia in so far as he is concerned; and (iv) there is an insufficient degree of precision in the allegations referred to above, in so far as concerns the offences with which the applicant is charged and his individual liability
184
For its part, the Council contests the relevance of the evidence submitted by the applicant in reliance on the judgment of 14 April 2016, Ben Ali v Council (T‑200/14, not published, EU:T:2016:216).
– The first part of the second plea, claiming that the allegations justifying the maintenance of the applicant’s name in the Annex to Decision 2011/72 are too vague
185
As a preliminary point, it should be noted that the first part of the second plea is based on a new complaint not made in application, in particular in the first plea thereof. Moreover, that plea cannot be regarded as amplifying one of the complaints previously made in that plea (see judgment of 15 March 2006, Italy v Commission, T‑226/04, EU:T:2006:85; paragraphs 64 and 65 and the case-laws cited). However, the applicant is entitled to submit that complaint for the first time, in connection with the modification of the first plea, in the light of the new grounds for his inclusion introduced by Decision 2016/119 and the attestation of the Tunisian authorities of 20 October 2015, which constitute new evidence (see, to that effect and by analogy, judgment of 13 September 2013, Anbouba v Council, T‑563/11, not published, EU:T:2013:429, paragraph 52).
186
Nevertheless, for the reasons set out in paragraphs 187 to 195 below, that complaint is unfounded.
187
In the first place, the applicant contends that there are differences between the attestation of the Tunisian authorities of 20 October 2015 and the grounds for his inclusion in the Annex to Decision 2011/72, as amended by Decision 2016/119, as regards the nature of the criminal offences mentioned and that there is a lack of sufficient detail concerning those alleged offences and the concrete evidence to substantiate them.
188
In that regard it should be noted that, while the grounds for the inclusion of the applicant in the Annex to Decision 2011/72, as amended by Decision 2016/119, which were adopted by the Council set out the criminal offences to which the ongoing judicial investigation concerning the applicant in Tunisia relates more concisely than the attestation of the Tunisian authorities in question, there is no significant difference between those grounds and that attestation. Moreover, the Council cannot be expected to reproduce, in the grounds for the inclusion of the applicant, the evidence on which those grounds are based as it had in fact disclosed that evidence to the applicant (see, to that effect, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraphs 132 and 133).
189
In the second place, while the attestation in question does not mention the specific circumstances pertaining to the criminal offences in question, it identifies those offences and the applicant’s presumed degree of involvement, either as principal or as accomplice, in sufficiently specific terms to enable the Council to determine whether the applicant satisfies the general criteria set out in Article 1(1) of Decision 2011/72 (see, to that effect and by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 123).
190
Furthermore, as indicated, inter alia, by the applicant’s use of the term ‘actus reus’, his argument is based on the incorrect premiss that the evidence on which the Council relies should display the precision necessary to establish his responsibility for the aforementioned criminal offences. However, the applicant does not dispute that the Council is entitled to rely on the ongoing judicial investigations into those offences, that is to say, at a stage of the criminal proceedings at which, by definition, the evidence proving that the applicant is so responsible or on the contrary, absolving him of such responsibility, is in the process of being assessed (see, to that effect, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraphs 83 to 90).
191
For the same reasons, the fact that no indication is given as to the identity of the persons other than the applicant who are alleged to have been involved in the criminal offences to which the grounds for the inclusion of the applicant and the attestation of the Tunisian authorities of 20 October 2015 refer is of no consequence. As stated in paragraph 189 above, it is sufficient that that attestation mentions, in sufficiently specific terms, those offences and the applicant’s alleged degree of involvement in the offences. The same applies as regards the fact that no indication is given in the attestation as to the time at which or place in which the offences in question were committed.
192
Equally of no consequence is the allegedly incorrect description of the former President of the Tunisian Republic as a public office-holder. It is sufficient to note that neither the attestation referred to in paragraph 16 above nor the grounds for the inclusion of the applicant in the Annex to Decision 2011/72, as amended by Decision 2016/119, refer to that person. Furthermore, as the duties performed in that capacity by that person may involve the management of State funds, they may, in any event, be assimilated to the duties performed by a public office-holder, for the purpose of establishing an offence that maybe classified as misappropriation of State funds within the meaning of Article 1(1) of Decision 2011/72 (see, to that effect and by analogy, judgment of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraphs 120 and 178).
193
In the third place, the applicant is of the view that, notwithstanding the new evidence produced by the Council before adopting Decision 2016/119, in particular the document of 18 January 2016 bearing the reference MD 7/16 EXT 1 RELEX enclosed with the Council’s letter of 29 January 2016, that institution does not have and has never had in its possession evidence capable of substantiating the allegations made in his regard. The applicant states in particular, with regard to that document, that the reference it contains to international letters rogatory does not display any of the precision necessary for it to be possible to identify the purpose of the letters rogatory, the other persons concerned by them or the recipients.
194
It should be noted in that regard, first, that the applicant cannot validly claim, with regard to Decision 2016/119, that, until document MD 7/16 EXT 1 RELEX of 18 January 2016 was produced, the Council did not have any evidence concerning his involvement in the offences to which the judicial investigations concerning him in Tunisia relate. As indicated in paragraph 61 above, the lawfulness of an EU measure is to be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted. Consequently, it is in the light of the evidence held by the Council at the time it adopted Decision 2016/119, that is, on 28 January 2016, that the lawfulness of that decision must be assessed.
195
Moreover, the applicant has failed to produce any evidence to call into question the factual accuracy of the evidence set out in document MD 7/16 EXT 1 RELEX and, in particular, the reference, in paragraph 3, to five international letters rogatory concerning the applicant dated 19 January 2011, 21 January 2011, 10 January 2012, 22 October 2013 and 5 May 2015. In any event, given that the attestation of the Tunisian authorities of 20 October 2015 establishes the existence of judicial investigations concerning the applicant in respect of acts that may be classified as misappropriation of State funds, it constitutes, for that purpose, sufficient evidence on which the Council may rely in order to maintain the listing of the applicant in the Annex to Decision 2011/72. Accordingly, even if the reference to the letters rogatory lacks precision, that is not decisive.
196
The first part of the second plea must therefore be rejected.
– The second part of the second plea, alleging that the Tunisian authorities failed to examine the applicant’s case separately
197
In support of the second part of the second plea, the applicant submits that his case should be handled separately by the Tunisian authorities from that of the other persons and calls into question the decision of the investigating magistrate who, as indicated by the Tunisian authorities in the note of 15 January 2016, considered it necessary not to separate the applicant’s case, notwithstanding the judgment of the cour d’appel de Tunis (Court of Appeal, Tunis) of 25 February 2015.
198
However, those factors cannot alter the lawfulness of Decision 2016/119. Indeed, they raise questions of Tunisian procedural law on which only the Tunisian courts can adjudicate, if needs be, in a new action by the applicants to set aside that decision by the investigating magistrate. Moreover, the explanations provided by the Tunisian authorities in the aforementioned note, in response to the Council’s requests for clarification, confirm that the handling by the Tunisian authorities of the separation of the applicant’s case was based on purely legal considerations and disclosed nothing to give rise to legitimate questions concerning a possible misuse of power by those authorities such as to call into question the maintenance of the restrictive measures targeting the applicant.
199
Furthermore, the fact that the applicant does not himself have any family connections with the wife of the former President of the Tunisian Republic is irrelevant in this case. The applicant is included in the Annex to Decision 2011/72, as amended by Decision 2016/119, not on account of any such family connection but on account of a judicial investigation on the part of the Tunisian authorities concerning his personal involvement in acts which may be classified as misappropriation of State funds.
200
Moreover, while the applicant is endeavouring to show that, unlike the case of the other persons concerned by the related judicial investigations, the Tunisian courts have gradually released him from constraint measures imposed in the judicial investigation concerning him, the supporting evidence put forward by the applicant in that regard is not significant. As indicated, in essence, in paragraphs 49 to 56 above, the various court decision lifting the ban on leaving Tunisian territory and setting aside the decisions confiscating the applicant’s property cannot prejudge the final decision of the Tunisian courts on the outcome of the criminal proceedings relied on by the Council. In addition, the applicant does not at any point explain the connection between those various court decisions and the criminal proceedings in question. Accordingly, the Council did not err in its assessment of the evidence supplied by the Tunisian authorities and did not participate in any ‘unlawful activity’ on the part of those authorities by taking the view that that evidence entitled it to extend the restrictive measures targeting the applicant.
201
The second part of the second plea must therefore be rejected.
– The third part of the second plea, alleging that there has been no significant activity in the judicial proceedings in Tunisia, in so far as concerns the applicant
202
The applicant contends that the document dated 10 December 2015 bearing the reference MD 745/15 ADD 1 EXT 1, which contains a data sheet drawn up by the Tunisian authorities setting out the main evidence in Case No 19592/1, in which the applicant is involved, reveals that the judicial authorities have taken no real steps in investigating that case.
203
That argument cannot be accepted.
204
First, the data sheet in question states that, in Case No 19592/1, the applicant was questioned by the investigating magistrate on 14 May 2014, which is not disputed by the applicant. Moreover, as is apparent from the note prepared by the applicant’s lawyer in Tunisia dated 4 February 2016, annexed to the second statement of modification, the applicant was also previously questioned by the court on two occasions, namely on 15 February 2012 and 21 February 2012, in connection with that same case.
205
Second, it is clear from the data sheet in question that Case No 19592/1 relates not only to the applicant but to all the persons against whom charges were brought concerning the use of ties of kinship or marriage with the President of the Tunisian Republic for the conclusion of fictitious contracts and the procurement of unlawful public contracts. It is also apparent from that data sheet that, between 14 May 2014 and 4 March 2015, a considerable number of investigative measures were taken by the competent judge or judges in that case. Moreover, there is nothing on that data sheet to suggest that no investigative measures were taken outside that period.
206
As a consequence, in view of all the above, the fact that, in that case, the last investigative measure concerning the applicant that is mentioned in the data sheet in question was taken on 14 May 2014 is not, in itself, sufficient to suggest that that case has been handled in a dilatory manner or a lack of diligence on the part of the Tunisian authorities. In any event, even if that were the case, for the reasons indicated in paragraphs 67 to 75 above, the Council cannot be required, on that ground alone, to bring to an end the asset freeze targeting the applicant. The third part of the second plea must therefore be rejected.
– The fourth part of the second plea, alleging that the degree of precision required by case-law is lacking with regard to the offences the applicant is alleged to have committed and his individual liability
207
In support of the fourth part of the second plea, the applicant relies on paragraph 44 of the judgment of 26 October 2015, Portnov v Council (T‑290/14, EU:T:2015:806) and paragraphs 44 and 48 of the judgment of 28 January 2016, Stavytskyi v Council (T‑486/14, not published, EU:T:2016:45), in support of his claim that the Council is under an obligation not only to specify the precise offences which the person who is listed in the annex in question is alleged to have committed but also to give details of that person’s individual liability for those acts. The applicant alleges that those criteria are not met in the present case. Moreover, in the light of those judgments, the Council cannot take the view that it is entitled to freeze the assets in the European Union of a third country national on the sole ground that the person concerned is being prosecuted in the third country in question. Lastly, according to the applicant, given the absence of any progress in the criminal procedure concerning him, he cannot be regarded as being the subject of the criminal proceedings.
208
It should be noted in that regard that the judgments of 26 October 2015, Portnov v Council (T‑290/14, EU:T:2015:806), and of 28 January 2016, Stavytskyi v Council (T‑486/14, not published, EU:T:2016:45) concern actions for the annulment of Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26).
209
At paragraph 44 of the judgment of 26 October 2015, Portnov v Council (T‑290/14, EU:T:2015:806) and paragraph 44 of the judgment of 28 January 2016, Stavytskyi v Council (T‑486/14, not published, EU:T:2016:45), the General Court found that the only evidence on which the restrictive measures at issue were based, although provided by a high-ranking judicial body in a non-member country, namely, the Public Prosecutor of Ukraine, was a general and generic statement linking the applicants’ names, among those of other former senior officials, to an investigation to establish, in essence, whether there had in fact been misappropriation of State funds. Moreover, the General Court also found in those paragraphs that, although that evidence indicated the offence under the Ukrainian Criminal Code which the applicants were alleged to have committed, namely misappropriation of Ukrainian State funds, punishable under Article 191 of that code, it did not give any details as regards the confirmation of the acts which the investigation being conducted by the Ukrainian authorities was in the process of verifying or, still less, the applicants’ individual responsibility for those acts, even if only presumed.
210
Furthermore, in paragraph 48 of the judgment of 28 January 2016, Stavytskyi v Council (T‑486/14, not published, EU:T:2016:45), the General Court stated that, irrespective of the stage of the proceedings to which the applicant was deemed to be subject, the Council could not adopt restrictive measures against him without knowing the acts entailing misappropriation of public funds which the Ukrainian authorities specifically alleged he had committed, as it is only by being aware of such acts that the Council would have been in a position to establish that they were capable, first, of being categorised as misappropriation of public funds and, secondly, of undermining the rule of law in Ukraine, the consolidation and support of which constituted the objective pursued by the restrictive measures in question (judgment of 28 January 2016, Stavytskyi v Council, T‑486/14, not published, EU:T:2016:45, paragraph 48).
211
Irrespective of whether the restrictive measures adopted under Decision 2014/119 are in all respects comparable with those adopted under Decision 2011/72, it is sufficient to note that, as is apparent from paragraph 44 of the judgment and 26 October 2015, Portnov v Council (T‑290/14, EU:T:2015:806) and paragraphs 44 and 48 of the judgment of 28 January 2016, Stavytskyi v Council (T‑486/14, not published, EU:T:2016:45), the factual background of the cases which gave rise to those judgments differs in significant respects from that of the present case.
212
First, the background to the present case is characterised by an ongoing judicial investigations concerning the applicant, established by attestations from the court within which those the investigations are being conducted, which specify in detail the references of the case at issue and the precise nature of the criminal offences to which those investigations relate, as well as the degree of the applicant’s alleged involvement in those offences. Accordingly, contrary to what the applicant maintains, the restrictive measures directed at him are based on concrete factual evidence relating to offences which he is alleged to have committed and his alleged individual liability for those offences. Moreover, it is clear from the documents before the Court that, in addition to those attestations, the Council also had in its possession at the time it adopted Decision 2016/119 documents provided by the Tunisian authorities containing further details as regards the nature of the acts to which the investigation concerning the applicant relates and the status of that investigation (see the documents mentioned in paragraphs 193 and 202 above).
213
Second, as the General Court found in paragraph 44 of the judgment of 26 October 2015, Portnov v Council (T‑290/14, EU:T:2015:806), and in paragraph 44 of the judgment of 28 January 2016, Stavytskyi v Council (T‑486/14, not published, EU:T:2016:45), the restrictive measures at issue in those judgments were based only on a letter from the Prosecutor General of Ukraine, which contains merely a general and generic statement linking the names of the applicants, among those of other former senior officials, to an investigation which essentially sought to establish whether misappropriation of public funds had in fact occurred and did not provide any further details.
214
It follows that the applicant is not entitled to claim that, in adopting Decision 2016/119, the Council failed to have regard to the requirements laid down in the judgments of 26 October 2015, Portnov v Council (T‑290/14, EU:T:2015:806), and of 28 January 2016, Stavytskyi v Council (T‑486/14, not published, EU:T:2016:45).
215
As regards the applicant’s argument that it cannot be claimed that he is being prosecuted by the Tunisian authorities, it is, for the reasons given in paragraphs 82 to 84 above, unfounded.
216
It follows from all the forgoing that the fourth part of the second plea and, as a consequence, that plea in its entirety, must be rejected.
The third plea, alleging that Decision 2016/119 has become devoid of purpose
217
In the third plea, the applicant simply adjusts to the context of Decision 2016/119 the arguments put forward in the third plea in the application, based, in essence, on the proposition that developments in the process of democratisation in Tunisia meant there was no legal basis for that decision. However, for the same reasons as those given in paragraphs 127 to 133 above, that argument must be rejected.
The fourth plea, alleging breach of the principle that proceedings must be concluded within a reasonable time
218
In the fourth plea, the applicant adjusts the arguments relating to the principle that proceedings must be concluded within a reasonable time which were put forward in the application in support of the second part of the first plea and the first part of the second plea. In his view, the Council’s arguments in the rejoinder that the length of the judicial investigation by the Tunisian authorities is justified by the nature of the offences being investigated and the existence of judicial assistance proceedings, are not based on any factual element related to the applicant. Moreover, the maintenance of the restrictive measures is based on ‘circular logic’: the Tunisian authorities have an interest in not accelerating the criminal proceedings concerning the applicant, so as to have a ‘maximum punitive effect’ on the freezing of the applicant’s assets in the European Union, whereas the Council is able to justify the length of the asset freeze by referring to the length of the criminal proceedings in Tunisia.
219
In its observations on the second statement of modification, the Council submits that it acts independently of the Tunisian authorities and is not bound to base its assessment of the applicant’s situation on a decision by the Tunisian judicial authorities, simply having the option of so doing. It concludes that there is no ‘circular logic’ in the present case and that the judgment of 9 September 2010, Al-Aqsa v Council (T‑348/07, EU:T:2010:373), cited by the applicant, is irrelevant in that regard.
220
It should be recalled in that regard that, in rejecting the second part of the first plea in the application, it was explained, first, in paragraphs 61 to 75 above, that even if the evidence produced by the applicant before the adoption of Decision 2015/157 may have justified verifications on the part of the Council concerning the status of the judicial investigations concerning him, that evidence could not have placed the Council under an obligation to put an end to the freezing of his funds in the European Union. Second, it was explained in paragraphs 77 and 78 above that that evidence was not such as to raise legitimate questions as to whether there may have been infringement of the applicant’s right to have his case tried within a reasonable time by the Tunisian authorities. In paragraph 96 above, inter alia, the Court relied on that same line of reasoning in rejecting the first part of the second plea in the application.
221
Furthermore, it should be noted, as submitted in its rejoinder, that the Council is of the view that it has in its possession evidence showing that there are no undue delays in the judicial proceedings in Tunisia and that those proceedings form part of a particularly complex case involving a great number of defendants. It relies, in that regard, on the documents bearing the references MD 2015/552 EXT 2 and MD 2015/553 EXT 2, which contain, respectively, a report by the Tunisian authorities on the state of progress of the judicial investigations dated 11 May 2015 and a data sheet of the same date relating to Case No 19592/1 provided by the principal investigation office of the Tribunal de grande instance de Tunis (Regional Court, Tunis, Tunisia).
222
The documents referred to in paragraph 221 above tend to show that procedural steps are in fact being taken in the investigation of the case involving the applicant and the complexity of that case, due to the number of persons concerned and the necessary measures of investigation, including international letters rogatory.
223
While it is true that those documents make scant reference to the applicant’s personal situation, the latter cannot validly contend that the Council’s arguments in that regard are not based on any factual evidence concerning him. As the investigation relating to the offences which the applicant is alleged to have committed forms part of a much wider investigation involving a great many other persons and having an international dimension, the complexity of that investigation is likely to have an effect on the length of the proceedings, in so far as concerns the applicant in particular. That analysis is supported by the document of 10 December 2015 bearing the reference MD 745/15 ADD 1 EXT 1, referred to in paragraph 202 above. In those circumstances, there is nothing to suggest in the documents before the Court that the Council made an error of assessment concerning observance by the Tunisian authorities of the requirement to conclude proceedings within a reasonable time.
224
In any event, it is clear from all those documents that, bearing in mind the applicant’s observations and before adopting Decision 2016/119, the Council carried out a thorough check as to the status of the judicial investigation concerning the applicant and it cannot therefore be criticised for failing to consider the question of the length of the criminal proceedings in Tunisia. Moreover, for the same reasons as those set out in paragraphs 61 to 75 above, even if those proceedings were vitiated by unjustified delays in the handling of the applicant’s case, such delays would not necessarily oblige the Council to bring to an end the freezing of the applicant’s assets in the European Union.
225
The applicant’s argument that the relationship between the judicial proceedings in Tunisia and the freezing of his assets in the European Union gives rise to a problem of circular logic cannot call those conclusions into question.
226
That argument is based on the premiss that the Tunisian authorities may have deliberately behaved in a dilatory fashion in the handling of the judicial investigation concerning the applicant with a view to maintaining the extension of the freezing of his assets in the European Union for punitive reasons and that the Council has knowingly contributed to that abuse. However, it should be noted, first, that the applicant has failed to produce any evidence pointing to the existence of such an intention on the part of the Tunisian authorities or to collusion in any such abuse on the part of the Council. Second, the freezing of the applicant’s assets in the European Union cannot be punitive in nature as it has no criminal law connotations and is subject to certain restrictions. It should be recalled that, in addition to the fact that it is temporary and reversible, that asset freeze, which has been subject to a number of derogations under Article 1(3) and (4) and Article 1(5) of Decision 2011/72, does not deprive the applicant of income deriving from his bank accounts or payments due under contracts, agreements or obligations that were concluded before those assets were frozen. The effects of the asset freeze on the applicant are not, therefore, the same as those of a criminal penalty. The argument is therefore purely speculative.
227
The fourth plea must therefore be rejected.
The fifth plea, alleging infringement of the right to property
228
In the fifth plea, the applicant adjusts the fifth plea in the application, contending that, as there is no factual justification for the freezing of his assets in the European Union and those assets have been frozen for an unreasonable length of time, it amounts to a manifestly disproportionate interference with his right to property.
229
For its part, the Council contests that argument.
230
First, it should be noted that, as indicated in paragraph 151 above, in the fifth plea in the application the applicant simply challenged the freezing of his assets in the European Union on the basis that it did not satisfy the first two conditions for restricting the exercise of the right to property laid down by case-law, namely that there must be a legal basis for the restriction and that it must satisfy an objective of general interest recognised by the European Union. On the other hand, in the present plea, the applicant also questions whether the third of those conditions is satisfied, namely that the restriction must be necessary and proportional to the aim sought by it. The submission of that complaint, which cannot be regarded as an amplification of the complaints made in the fifth plea in the application and is therefore new, is not justified by the new evidence produced before Decision 2016/119 was adopted (see, to that effect and by analogy, judgment of 13 September 2013, Anbouba v Council, T‑563/11, not published, EU:T:2013:429, paragraphs 52 and 53). That being so, that complaint is, in any event, unfounded.
231
It should be recalled in that regard that the freezing of the assets of persons affected by a decision adopted on the basis of the provisions of the CFSP must not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the right to property (see, to that effect, judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraphs 121 and 122 and the case-law cited). Moreover, the Court of Justice has held that restrictions on the use of the right to property of persons targeted by restrictive measures, such as the asset freeze at issue in the present case, stem not only from the general scope of the measure in question but, in some cases, the actual duration of its application (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P et C‑595/10 P, EU:C:2013:518, paragraph 132 and the case-law cited). Thus, the length of the period during which a measure such as the measure at issue is applied is one of the factors which the EU Courts must take into account when examining whether the measure is proportional (judgment of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 172).
232
In the present case, as the applicant has based the present plea solely on the claim that there is no legal basis for the asset freeze at issue and that its duration is unreasonable, it is sufficient to observe that, as is apparent from the considerations set out, on the one hand, in paragraphs 186 to 216 above in connection with the examination of the first part of the second plea, and on the other hand, in paragraphs 220 to 226 above in connection with the examination of the fourth plea, there is an adequate factual basis for the freezing of the applicant’s assets, which has not been in place for an excessively long period of time. As a consequence, the proportionality of that measure is not affected.
233
Accordingly, the fifth plea must be rejected. As none of the pleas raised in the second statement of modification is well founded, the applicant’s claims seeking the annulment of Decision 2016/119 must be rejected and, as a consequence, the action dismissed in its entirety.
Costs
234
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.
235
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 the costs incurred by the Council of the European Union.
Gratsias
Labucka
Ulloa Rubio
Delivered in open court in Luxembourg on 5 October 2017.
E. Coulon
Registrar
D. Gratsias
President
Table of contents
Background to the dispute and factual context
Procedure and forms of order sought
Law
The claims seeking annulment of Decision 2015/157
The first plea, alleging an error in law in that the Council was wrong to consider that the ongoing judicial investigation concerning the applicant in Tunisia constituted a sufficient factual basis
– The first part of the first plea, alleging failure by the Council to take account of favourable developments in the various judicial proceedings relating to the applicant in Tunisia
– The second part of the first plea, alleging failure by the Council to take account of the infringement of the principle that proceedings should be concluded within a reasonable time in the context of the judicial investigation concerning the applicant
– The third part of the first plea, alleging that the Council erred in law in that it was incorrect to consider that the evidence produced by the Tunisian authorities established that the applicant was being prosecuted
The second plea, alleging infringements of the applicant’s fundamental rights, vitiating the procedure which led to the adoption of Decision 2015/157
– The first part of the second plea, alleging infringement of Article 47 of the Charter, on account of the Council’s own failure to have due regard for the principle that proceedings must be concluded within a reasonable time
– The second part of the second plea, alleging infringement of the presumption of innocence, on account of the Council’s press release of 31 January 2011
– The third part of the second plea, alleging infringement of the right to good administration, in particular to the impartial handling of a person’s affairs under Article 41(1) of the Charter
The third plea, alleging that Decision 2015/157 is devoid of purpose, in the light of developments in the process of democratisation in Tunisia
The fourth plea alleging, in the alternative, a ‘manifest error of assessment’ relating to the failure by the Council to give sufficient consideration to the ‘criminal law element’ of Decision 2015/157
The fifth plea, alleging infringement of the right to property and of Article 17 of the Charter.
The claims in the first statement of modification, seeking the annulment of the Council’s ‘decision’ of 16 November 2015, by which the Council rejected the applicant’s request of 29 May 2015 to remove his name from the list in the Annex to Decision 2011/72
The claims in the second statement of modification seeking the annulment of Decision 2016/119
The first plea, alleging infringement of the presumption of innocence and the principle of good administration
The second plea, alleging that there is no sufficiently solid factual basis for the measures at issue
– The first part of the second plea, claiming that the allegations justifying the maintenance of the applicant’s name in the Annex to Decision 2011/72 are too vague
– The second part of the second plea, alleging that the Tunisian authorities failed to examine the applicant’s case separately
– The third part of the second plea, alleging that there has been no significant activity in the judicial proceedings in Tunisia, in so far as concerns the applicant
– The fourth part of the second plea, alleging that the degree of precision required by case-law is lacking with regard to the offences the applicant is alleged to have committed and his individual liability
The third plea, alleging that Decision 2016/119 has become devoid of purpose
The fourth plea, alleging breach of the principle that proceedings must be concluded within a reasonable time
The fifth plea, alleging infringement of the right to property
Costs
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)	Languages of the case: English and French.