Case T‑383/11

Eyad Makhlouf

v

Council of the European Union

‛Common foreign and security policy — Restrictive measures against Syria — Freezing of funds and economic resources — Restrictions on entry into, or transit through, the territory of the European Union — Rights of defence — Obligation to state reasons — Manifest error of assessment — Fundamental rights’

Summary — Judgment of the General Court (Sixth Chamber), 13 September 2013

Common foreign and security policy — Restrictive measures against Syria — Prohibition of entry and transit and freezing of funds of certain persons and entities responsible for violent repression against the civilian population — Restriction of the right to property and respect for private life — No breach of principle of proportionality

European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures against Syria — Prohibition of entry and transit and freezing of funds of certain persons and entities responsible for violent repression against the civilian population — Ambit of the review

Acts of the institutions — Statement of reasons — Obligation — Scope — Restrictive measures against Syria — Prohibition of entry and transit and freezing of funds of certain persons and entities responsible for violent repression against the civilian population — Decision falling within a context known to the person concerned — Admissibility of a summary statement of reasons

Common foreign and security policy — Restrictive measures against Syria — Prohibition of entry and transit and freezing of funds of certain persons and entities responsible for violent repression against the civilian population — Rights of defence — Right to effective judicial protection — Obligation to notify the individual and specific reasons justifying such measures — Scope

Common foreign and security policy — Restrictive measures against Syria — Prohibition of entry and transit and freezing of funds of certain persons and entities responsible for violent repression against the civilian population — Rights of defence — Disclosure of inculpatory evidence — Subsequent decision maintaining the name of the applicant on the list of persons covered by those measures — No infringement of the right to be heard

EU law — Principles — Rights of defence — Right to be heard — Right to a fair trial and effective judicial protection — Implementing Decision implementing a decision concerning restrictive measures against Syria — Prohibition of entry and transit and freezing of funds of certain persons and entities responsible for violent repression against the civilian population — Such persons and entities not notified of the evidence against them or given a hearing — Lawfulness

See the text of the decision. (see para. 20)

Concerning restrictive measures prohibiting entry into or transit through the territory of Member States by persons responsible for violent repression against the civilian population in Syria, and the freezing of their funds and economic resources, as regards rights of defence, in particular those persons’ right to be heard, the EU authorities cannot be required to communicate those grounds before the name of a person or entity is entered on the list imposing restrictive measures. Such prior communication would be liable to jeopardise the effectiveness of the freezing of funds and resources imposed by those decisions. In order to attain the objective pursued by the contested decisions, such measures must, by their very nature, take advantage of a surprise effect and apply with immediate effect. In those circumstances, as regards Implementing Decision 2011/302, implementing Decision 2011/273, concerning restrictive measures against Syria, which included the name of the applicant on the list set out in the annex to Decision 2011/273, for reasons concerning both its objective and the effectiveness of the measures laid down therein, the EU authorities were not bound to hear the applicant before his name was included for the first time on the list set out in the annex. (see paras 38-41)

In relation to the adoption of a subsequent decision, such as Decision 2012/739, concerning restrictive measures against Syria, which retains the name of the applicant on the list containing the names of persons subject to restrictive measures, the argument based on the element of surprise of those measures cannot validly be invoked. Where, in the first place, the Council has not admitted any new evidence, that is to say, evidence about which the applicant had not already been informed following his initial listing, when his name was retained on the list of persons covered by such measures; in the second place, the applicant may, at any time, on his own initiative, be heard by the Council without a new express request being made prior to the adoption of each subsequent decision, in the absence of new evidence admitted in relation to him; and, therefore, in the third place, the applicant has had the opportunity over several months to challenge the evidence justifying the inclusion and retention of his name on that list and, finally, the Council has published a notice in the Official Journal the day after the publication of Decision 2012/739, no breach of the applicant’s right to be heard can be established. (see paras 42, 44-46)

Although an individual communication of that type of decision is, in principle, necessary, since the mere publication in the Official Journal is not sufficient, the Court must nevertheless examine, in each case, whether the fact that the statement of reasons for the contested decision was not individually brought to the attention of the applicant has had the effect of depriving the latter of an opportunity to be aware, in good time, of the reasons for the contested decision and to assess the validity of the measure freezing funds and economic resources adopted in his regard. That condition is not fulfilled where the file shows that the applicant was enabled to defend himself effectively against the contested measures following their publication in the Official Journal, even if the Council should have individually notified the reasons for retaining the applicant’s name on the list of persons concerned by such restrictive measures. (see paras 48, 50)

See the text of the decision. (see paras 60-66, 71, 72)

See the text of the decision. (see para. 80)