Judgment of the General Court (Ninth Chamber, Extended Composition) of 12 February 2020 –

Mende Omalanga v Council

(Case T‑176/18)

(Common foreign and security policy – Restrictive measures taken in view of the situation in the Democratic Republic of the Congo – Freezing of funds – Renewal of the listing of the applicant’s name on the list of persons concerned – Obligation to state reasons – Rights of the defence – Obligation for the Council to communicate the new elements justifying the renewal of the restrictive measures – Error of law – Manifest error of assessment – Right to property – Right to respect for private and family life – Proportionality – Presumption of innocence – Plea of illegality – Modification of the forms of order sought)

1. Acts of the institutions – Statement of reasons – Obligation – Scope – Restrictive measures directed against the Democratic Republic of the Congo – Freezing of funds of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violations – Minimum requirements (Art. 296 TFEU; Council Decision 2010/788/CFSP, as amended by Decisions (CFSP) 2017/2282 and (CFSP) 2018/569, Annex II) (see paras 43, 45-47)

2. Common foreign and security policy – Restrictive measures directed against the Democratic Republic of the Congo – Freezing of funds of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violations – Obligation to identify in the statement of reasons individual and specific reasons justifying such measures – Decision falling within a context known to the person concerned, enabling him to understand the scope of the measure taken against him (Art. 296 TFEU; Council Decision 2010/788/ CFSP, as amended by Decisions (CFSP) 2017/2282 and (CFSP) 2018/569, Annex II) (see paras 44, 52-56)

3. EU law – Principles – Rights of defence – Right to effective judicial protection – Restrictive measures directed against the Democratic Republic of the Congo – Freezing of funds of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violations – Obligation to disclose individual and specific grounds for the decisions adopted – Obligation to enable the person concerned effectively to put forward his point of view on the grounds held against him – Scope (Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Council Decision 2010/788/CFSP, as amended by Decisions (CFSP) 2017/2282 and (CFSP) 2018/569, Annex II) (see paras 60, 61, 63)

4. Common foreign and security policy – Restrictive measures directed against the Democratic Republic of the Congo – Freezing of funds – Rights of defence – Subsequent decision maintaining the name of the applicant on the list of persons covered by those measures – No new grounds – Obligation for the Council to disclose to the person concerned new evidence taken into account during its periodic review of the restrictive measures – Communication of new evidence to the person concerned in order to seek his observations – None – Infringement of the rights of the defence (Council Decision 2010/788/CFSP, as amended by Decisions (CFSP) 2017/2282 and (CFSP) 2018/569, Art. 9(2) and Annex II) (see paras 65-72, 75, 78, 79)

5. EU law – Principles – Rights of defence – Restrictive measures directed against the Democratic Republic of the Congo – Obligation for the institutions to disclose to the person concerned new evidence taken into account during their periodic review of the restrictive measures – Scope – Unlawfulness of the act depending on proving the procedural relevance of the infringement of that obligation – No effect in the present case (Council Decision 2010/788/CFSP, as amended by Decisions (CFSP) 2017/2282 and (CFSP) 2018/569, Annex II) (see paras 80-83, 85, 88)

6. Common foreign and security policy – Restrictive measures directed against the Democratic Republic of the Congo – Scope – Persons who have prevented a consensual and peaceful crisis exist strategy aimed at holding elections, in particular by acts of violence, repression, incitement to violence, or by undermining the rule of law – Definition – Persons who have committed such acts in the past, notwithstanding the lack of evidence establishing current involvement in such acts – Included – Interpretation corroborated by the possibility of renewing the restrictive measures – Effectiveness (Council Decision 2010/788/CFSP, as amended by Decisions (CFSP) 2016/2231, (CFAP) 2017/2282 and (CFSP) 2018/569, Arts 3(2)(a) and 9(2)) (see paras 93-96, 98)

7. European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures directed against the Democratic Republic of the Congo – Scope of the review – Inclusion of the applicant’s name on the list annexed to the contested decision by virtue of his duties – Documents accessible to the public establishing actions undermining the rule of law – Probative value – Principle of the unfettered assessment of the evidence (Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2010/788/CFSP, as amended by Decisions (CFSP) 2017/2282 and (CFSP) 2018/569, Annex II) (see paras 107-109, 115, 116)

8. Common foreign and security policy – Restrictive measures directed against the Democratic Republic of the Congo – Freezing of funds of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violations – Criteria – Roles conferring responsibility for the repression of the civil population or compliance with the rule of law – Error of assessment – None (Council Decision 2010/788/CFSP, as amended by Decisions (CFSP) 2016/2231, (CFSP) 2017/2282 and (CFSP) 2018/569, Annex II) (see paras 130-133)

9. Common foreign and security policy – Restrictive measures directed against the Democratic Republic of the Congo – Freezing of funds of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violations – Restrictions on the right to property – Breach of principle of proportionality – None (Arts 3(5), 21(2)(b) and (c) and 29 TEU; Art. 215(2) TFEU; Charter of Fundamental Rights of the European Union, Arts 17(1) and 52(1); Council Decision 2010/788/CFSP, as amended by Decisions (CFSP) 2016/2231, (CFSP) 2017/2282 and (CFSP) 2018/569, Art. 5(1)) (see paras 138-151)

10. Common foreign and security policy – Restrictive measures directed against the Democratic Republic of the Congo – Prohibition of the entry and transit, and freezing of funds, of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violations – Restriction on the right to respect for private and family life and the right of free movement within the EU – Breach of principle of proportionality – None (Charter of Fundamental Rights of the European Union, Art. 7; Council Decision 2010/788/CFSP, as amended by Decisions (CFSP) 2017/2282 and (CFSP) 2018/569) (see paras 152, 153)

11. EU law – Principles – Fundamental rights – Presumption of innocence – Decision to freeze funds taken against certain persons and entities in view of the situation in the Democratic Republic of the Congo – Compatibility with that principle – Conditions (Charter of Fundamental Rights of the European Union, Art. 48(1); Council Decision 2010/788/CFSP, as amended by Decisions (CFSP) 2017/2282 and (CFSP) 2018/569, Arts 5(1) and 9) (see paras 155-160)

12. Plea of illegality – Scope – Measures the illegality of which may be pleaded – General measure providing the basis of the contested decision – Need for a legal connection between the contested measure and the contested general measure – None – Inadmissibility (Art. 277 TFEU; Council Decision 2010/788/CFSP, Art. 3(2)(a); Council Regulation No 1183/2005, Art. 2b(1)(a)) (see paras 164, 165)

13. European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures directed against the Democratic Republic of the Congo – Scope of the review – Restricted review for general rules – Criteria for adopting restrictive measures – Obstruction of a consensual and peaceful crisis exist strategy aimed at holding elections, in particular by acts of violence, repression, incitement to violence, or by undermining the rule of law – Scope – Compliance with the principle of legal certainty requiring clarity, precision and foreseeability of the effects of legal rules (Arts 3(5) and 21(2)(b) and (c) TEU; Art. 275, second para. TFEU; Council Decisions 2010/788/CFSP, Art. 3(2)(a) and (CFSP) 2016/2231, Recitals 3 and 4; Council Regulation No 1183/2005) (see paras 166-176)

Re:

Action based on Article 263 TFEU seeking the annulment of Council Decision (CFSP) 2017/2282 of 11 December 2017 amending Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo (OJ 2017 L 328, p. 19), of Council Implementing Decision (CFSP) 2018/569 of 12 April 2018 implementing Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo (OJ 2018 L 95, p. 21), and of Council Implementing Regulation (EU) 2018/566 of 12 April 2018 implementing Article 9 of Regulation (EC) No 1183/2005 imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the Democratic Republic of the Congo (OJ 2018 L 95, p. 9), in so far as those acts concern the applicant.

Operative part

The Court:

1. Dismisses the action;