Keywords

Summary



Keywords

1. Acts of the institutions – Choice of legal basis – Regulation renewing and strengthening the restrictive measures taken against a third country

(Arts 60 EC and 301 EC; Council Common Positions 2006/318 and 2007/750; Council Regulation No 194/2008)

2. Acts of the institutions – Statement of reasons – Obligation – Scope – Regulation renewing and strengthening the restrictive measures taken against a third country

(Art. 253 EC; Council Regulation No 194/2008, Art. 11(1))

3. Community law – Principles – Rights of the defence – Regulation renewing and strengthening the restrictive measures taken against a third country

(Art. 249 EC; Council Common Positions 2006/318 and 2007/750; Council Regulation No 194/2008, Art. 11(1))

4. European Communities – Judicial review of the legality of the acts of the institutions – Economic sanctions adopted by the Council on the basis of Articles 60 EC and 301 EC

(Art. 6 EU; Arts 60 EC and 301 EC; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 194/2008)

5. Community law – Principles – Fundamental rights – Restrictions on the exercise of fundamental rights justified in the public interest – Sanctions against a third country

(Council Regulation No 194/2008)

Summary

1. On the basis of Article 60(1) EC, the Council may, in accordance with the procedure provided for in Article 301 EC, take the necessary urgent measures on the movement of capital and on payments as regards the third countries concerned. Article 301 EC expressly provides for the possibility of Community action to interrupt or to reduce, in part or completely, economic relations with one or more third countries.

In that connection the measure consisting in freezing the funds and economic resources of a person on the basis of Council Regulation (EC) No 194/2008 renewing and strengthening the restrictive measures in respect of Burma/Myanmar constitutes a measure adopted against a third country as, first, the concept of a third country, within the meaning of Articles 60 EC and 301 EC, may include the rulers of such a country and also individuals and entities associated with or controlled, directly or indirectly, by them and, second, there is a sufficient link between the individual concerned and the military regime in Myanmar.

Furthermore, since Regulation No 194/2008 was adopted by the Council in order to implement Common Position 2006/318, renewing restrictive measures against Burma/Myanmar, and Common Position 2007/750, the restrictive measures provided for by that regulation may be regarded as necessary urgent measures within the meaning of Articles 60 EC and 301 EC.

(see paras 54, 56, 61, 73, 76, 79, 82)

2. Unless overriding considerations concerning the security of the Community or its Member States or the conduct of their international relations preclude it, the Council is required to state the matters of fact and law which constitute the legal basis of its decision and the considerations which led it to adopt that decision. The grounds for such a measure must therefore indicate the actual and specific reasons why the Council considers that the relevant rules are applicable to the party concerned.

That requirement is fulfilled where, when adopting a regulation such as Regulation No 194/2008 renewing and strengthening the restrictive measures in respect of Burma/Myanmar, the Council sets out the reasons for which it considers that, in general, the restrictive measures taken against the Union of Myanmar and, in particular, those specifically applying to the applicant are or remain justified. In so far as the contested regulation was intended only to maintain those measures, in the absence of substantial changes in the matters of fact and law which justified the inclusion of the names of the persons or entities among the persons who benefit from the economic policies of the Government of Myanmar and other persons associated with it, the Council was not required to state explicitly the reasons for which certain restrictive measures taken against the Union of Myanmar specifically apply to a particular person.

(see paras 96-98, 102, 105)

3. A regulation which contains sanctions against a third country applying to certain categories of its nationals is a general legislative act even if the persons concerned are identified by name. It is true that such a regulation adversely affects them directly and individually and they are entitled to bring an action to challenge it. However, in a legislative procedure culminating in the adoption of sanctions against a third country which apply to certain categories of its nationals, the rights of the defence are not applicable to them. For the establishment of such a regulation, individuals do not have rights of participation, even if they are ultimately individually concerned.

Furthermore, as regards the restrictive measures in respect of the Union of Myanmar, laid down in Regulation No 194/2008, renewing and strengthening the restrictive measures in respect of Burma/Myanmar, a specific notification of the matters of law and fact justifying the restrictive measures at issue was not, in any event, necessary prior to the adoption of that regulation, since its purpose is to maintain restrictive measures already adopted. Regulation No 148/2008 implements Common Positions 2006/318 and 2007/750 which were published in the Official Journal and which set out all the matters of fact and law justifying the adoption and maintenance of the restrictive measures at issue.

Given the considerations justifying the restrictive measures provided for in the common positions, the individuals and entities specifically referred to by those measures could have effectively made known their views to the Council before the adoption of Regulation No 194/2008. However, the absence of a prior hearing would have no effect on the legality of the act, since such a hearing could not have led to a different result.

(see paras 123-124, 127, 130-132)

4. Individuals must be able to avail themselves of effective judicial protection of the rights they have under the Community legal order, as the right to such protection is part of the general principles of law which stem from the constitutional traditions common to the Member States and has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union.

For the individuals and entities targeted by the asset freezing measures pursuant to Regulation No 194/2008 renewing and strengthening the restrictive measures in respect of Burma/Myanmar, the safeguard relating to the right to effective judicial protection is ensured by the right the parties concerned have to bring an action for annulment before the Court against that decision.

As regards the extent of the review exercised by the Court, it must be acknowledged that the Council enjoys broad discretion in its assessment of the matters to be taken into consideration for the purpose of adopting economic sanctions on the basis of Articles 60 EC and 301 EC, consistent with a common position adopted on the basis of the common foreign and security policy. Thus, because the Courts may not, in particular, substitute their assessment of the evidence, facts and circumstances justifying the adoption of such measures for that of the Council, the review carried out by the Court of the lawfulness of decisions to freeze funds must be restricted to checking that the rules governing procedure and the statement of reasons have been complied with, that the facts are materially accurate, and that there has been no manifest error of assessment of the facts or misuse of power.

(see paras 141-142, 144)

5. The importance of the aims pursued by legislation providing for sanctions may be such as to justify negative consequences, even of a substantial nature, for certain persons concerned, including persons who are in no way responsible for the situation which led to the adoption of the measures concerned, but who are adversely affected in particular with respect to their rights to property.

Regulation No 194/2008 renewing and strengthening the restrictive measures in respect of Burma/Myanmar is intended, in view of the longstanding, continuing serious violations of fundamental rights by the military regime of Myanmar, to promote respect for fundamental human rights and thus to serve the purpose of protecting public morals. In the light of the importance of such an objective of general interest, the freezing of all the funds and economic resources of members of the Government of Myanmar and the persons associated with them cannot, in itself, be regarded as inappropriate or disproportionate.

Furthermore, the fact that a person is regarded by such a regulation as being a person associated with that military regime does not have the consequence that, following an individual reconsideration by the Council of the decision by which his name was included or maintained on the list of persons to which an asset freeze applies, his name must automatically be maintained on that list, since it is always open to him to show that he has dissociated himself from his father and does not benefit in any way from the economic policies of the third country.

(see paras 160-161, 163, 167)