Judgment of the General Court (Eighth Chamber) of 14 April 2016 — Ben Ali v Council

(Case T‑200/14)

‛Common Foreign and Security Policy — Restrictive measures directed against certain persons and entities in view of the situation in Tunisia — Freezing of funds — Legal basis — Inclusion of the name of the applicant on the basis of new grounds following the annulment of the earlier freezing of funds measures — Obligation to state reasons — Right to property — Proportionality — Error of fact — Rights of the defence — Right to effective judicial protection — Misuse of powers — Right to life — Right to a family life — Non-contractual liability’

1. Acts of the institutions — Choice of legal basis — Decision concerning the adoption of restrictive measures against certain persons and entities having regard to the situation in Tunisia — Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them — Article 29 TEU — Admissibility (Arts 3(5) TEU, 21 TEU, 23 TEU, 24(1) TEU, 25 TEU, 28(1) TEU and 29 TEU; Art. 275, second para., TFEU; Council Decision 2011/72/CFSP, Art. 1) (see paras 64, 66-72)

2. Acts of the institutions — Choice of legal basis — Regulation concerning the application of restrictive measures against certain persons and entities having regard to the situation in Tunisia — Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them — Article 215(2) TFEU and Decision 2011/72 — Admissibility (Art. 215(2) TFEU; Council Decision 2011/72/CFSP, Art. 1(1); Council Regulation No 101/2011, Art. 2(1)) (see paras 73, 74)

3. Common foreign and security policy — Restrictive measures against certain persons and entities in view of the situation in Tunisia — Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them — Nature of those measures — Purely protective measures — No penal character (Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2011/72/CFSP, Art. 1; Council Regulation No 101/2011, Art. 2(1)) (see paras 77-84)

4. Acts of the institutions — Statement of reasons — Obligation — Scope — Restrictive measures against certain persons and entities in view of the situation in Tunisia — Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them — Decision falling within a context known to the person concerned, enabling him to understand the scope of the measure taken against him — Whether a summary statement of reasons is sufficient — Limits — Statement of reasons not capable of consisting of a general and stereotyped formulation (Art. 296 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(c); Council Decisions 2011/72/CFSP and 2014/49/CFSP; Council Regulations No 101/2011 and No 81/2014) (see paras 94-101)

5. Common foreign and security policy — Restrictive measures against certain persons and entities in view of the situation in Tunisia — Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them — Misappropriation of public funds — Concept — Independent and uniform interpretation — Broad interpretation (Art. 29 TEU; Art. 215 TFEU; Council Decision 2011/72/CFSP, Art. 1(1); Council Regulation No 270/2011, Art. 2(1)) (see paras 107, 109-116)

6. European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures against certain persons and entities in view of the situation in Tunisia — Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them — Ambit of the review (Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2011/72/CFSP; Council Regulation No 101/2011) (see paras 145, 146, 158-160, 165, 276)

7. EU law — Principles — Rights of defence — Right to effective judicial protection — Restrictive measures against certain persons and entities in view of the situation in Tunisia — Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them — Obligation to disclose incriminating evidence — Scope (Art. 275, second para., TFEU; Charter of Fundamental Rights of the European Union, Arts 41 and 47; Council Decisions 2011/72/CFSP, 2011/79/CFSP and 2014/49/CFSP; Council Regulations No 101/2011 and No 81/2014) (see paras 183-188, 199-200, 215)

8. EU law — Principles — Rights of defence — Restrictive measures against certain persons and entities in view of the situation in Tunisia — Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them — Right of access to documents — Rights subject to an application in that behalf before the Council (Charter of Fundamental Rights of the European Union, Art. 41; Council Decisions 2011/72/CFSP, 2011/79/CFSP and 2014/49/CFSP; Council Regulations No 101/2011 and No 81/2014) (see para. 201)

9. Common foreign and security policy — Restrictive measures against certain persons and entities in view of the situation in Tunisia — Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them — Restriction of the right to property and the free exercise of an economic activity — No breach of principle of proportionality (Charter of Fundamental Rights of the European Union, Arts 16, 17 and 52; Council Decisions 2011/72/CFSP and 2014/49/CFSP; Council Regulations No 101/2011 and No 81/2014) (see paras 232-249, 253-257)

10. Common foreign and security policy — Restrictive measures against certain persons and entities in view of the situation in Tunisia — Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them — Application in derogation seeking the unblocking of certain funds — Discretion of the competent national authority — Limits — Compliance with fundamental rights (Charter of Fundamental Rights of the European Union, Art. 51(1); Council Decision 2011/72/CFSP, Art. 1(4); Council Regulation No 101/2011, Art. 5) (see para. 266)

11. Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — One of the conditions not satisfied — Claim for compensation dismissed in its entirety (Art. 340, second para., TFEU) (see para. 283)

12. Non-contractual liability — Conditions — Actual and certain damage — Burden of proof (Art. 340, second para., TFEU) (see paras 284, 290, 301)

Re:

APPLICATION for annulment of Council Decision 2014/49/CFSP of 30 January 2014, amending 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. 38), and of Council Implementing Regulation (EU) No 81/2014 of 30 January 2014 implementing Regulation (EU) No 101/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia (OJ 2014 L 28, p. 2), in so far as those measures concern the applicant, and, secondly, an application for damages.

Operative part

The Court:

1. Dismisses the action;