Judgment of the General Court (Ninth Chamber) of 3 July 2014 — Alchaar v Council

(Case T‑203/12)

‛Common foreign and security policy — Restrictive measures taken against Syria — Entry of an individual on the lists of persons subject to restrictive measures — Links with the regime — Rights of the defence — Right to a fair hearing — Obligation to state reasons — Burden of proof — Right to effective judicial protection — Proportionality — Right to property — Right to privacy’

1. Judicial proceedings — Admissibility of actions — Judged by reference to the situation when the application was lodged — Decision replacing the contested decision during the proceedings — Adaptation of initial forms of order sought and pleas in law — Possibility subject to the admissibility of the initial application (Rules of Procedure of the General Court, Art. 48(2)) (see paras 46, 62-70)

2. Actions for annulment — Time-limits — Point from which time starts to run — Measure entailing restrictive measures against a person or body — Measure published and notified to the addressees — Date of notification of the measure — Notification to the person concerned by means of a publication in the Official Journal of the European Union — Lawfulness — Conditions — Council unable to effect notification (Arts 263, sixth para., TFEU and 275, second para., TFEU; Rules of Procedure of the General Court, Art. 102; Council Decision 2011/782/CFSP; Council Regulations No 1244/2011 and No 36/2012) (see paras 48-56)

3. Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects — Purely informative measure — Not included (Art. 263 TFEU) (see paras 58, 59)

4. Judicial proceedings — Decision replacing in the course of proceedings a contested decision since withdrawn — Admissibility of new pleas — Limits — Hypothetical measures not yet adopted (see para. 72)

5. Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute (Rules of Procedure of the General Court, Art. 44(1)(c)) (see para. 73)

6. European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures against Syria — Freezing of funds of certain persons and bodies in view of the situation in Syria — Ambit of the review — Restricted review for general rules — Review extending to the assessment of facts and verification of evidence for measures applying to specific entities — Differentiation, for considerations of effectiveness, between the extent of review relating, first to measures taken against third countries or associated persons, and, second, measures adopted against terrorist persons or entities — Not permissible (Art. 29 TEU; Art. 215(2) TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulations No 36/2012, No 410/2012, No 509/2012, 2012/544/CFSP, No 545/2012 and No 363/2013) (see paras 83-86)

7. Acts of the institutions — Statement of reasons — Obligation — Scope — Restrictive measures against Syria — Freezing of funds of persons, entities or bodies having regard to the situation in Syria — Decision falling within a context known to the person concerned, enabling him to understand the scope of the measure taken in his regard — Whether a summary statement of reasons is sufficient (Art. 296 TFEU; Council Regulations No 36/2012 and No 363/2013) (see paras 91-93)

8. Actions for annulment — Grounds — Lack of or inadequate statement of reasons — Separate ground from the one concerning substantive legality (Arts 263 TFEU and 296 TFEU) (see para. 101)

9. EU law — Principles — Rights of defence — Right to effective judicial protection — Freezing of funds of persons, entities or bodies associated with the Syrian regime — 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 (Art. 6(1) TEU; Charter of Fundamental Rights of the European Union, Arts 41(2)(a), and 47; Council Decision 2012/634/CFSP; Council Regulations No 944/2012 and No 363/2013) (see paras 111-132)

10. Common foreign and security policy — Restrictive measures against Syria — Freezing of funds and economic resources — Annulment action by a former Syrian government leader concerned by a fund-freezing decision — Burden of proof — Decision based on the presumption of links with the Syrian regime — Lawfulness — Conditions — Obligation to adduce sufficiently probative evidence of the persistence of such links — Obligation to examine carefully and impartially all the exculpatory evidence adduced by the person concerned (Art. 296, second para., TFEU; Council Regulations No 36/2012, No 410/2012, No 509/2012, 2012/544/CFSP, No 545/2012 and No 363/2013) (see paras 144-156, 161-170)

11. Acts of the institutions — Statement of reasons — Obligation — Scope — Freezing of funds of persons, entities or bodies associated with the Syrian regime — Obligation to communicate the reasoning to the person concerned at the same time as the measure adversely affecting him or immediately thereafter — Correction of an error of reasoning during the proceedings before the Court — Not permissible (Art. 296, second para., TFEU; Council Regulation No 363/2013) (see para. 168)

12. Common foreign and security policy — Restrictive measures against Syria — Freezing of funds and economic resources — No breach of principle of proportionality (Charter of Fundamental Rights of the European Union, Art. 17; Council Regulations No 36/2012, No 410/2012, No 509/2012, 2012/544/CFSP, No 545/2012 and No 363/2013) (see paras 180-188)

Re:

ACTION for partial annulment, first, of Council Decision 2011/782/CFSP of 1 December 2011 concerning restrictive measures against Syria and repealing Decision 2011/273/CFSP (OJ 2011 L 319, p. 56), Council Implementing Regulation (EU) No 1244/2011 of 1 December 2011 implementing Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 319, p. 8) and Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation (EU) No 442/2011 (OJ 2012 L 16, p. 1), in so far as those acts contain restrictive measures concerning the applicant, as well as of all future acts amending that decision or regulation and, secondly, of the Council’s communication of 16 March 2012 informing the applicant that his name was being maintained on the list of persons subject to restrictive measures.

Operative part

The Court:

1. Annuls Council Implementing Regulation (EU) No 363/2013 of 22 April 2013 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, in so far as it concerns Mr Mohamad Nedal Alchaar;

2. Dismisses the action as to the remainder;

3. Orders the Council of the European Union to bear its own costs and to pay two thirds of the costs incurred by Mr Alchaar;

4. Orders Mr Alchaar to bear one third of his own costs;