Case T‑190/12

Johannes Tomana and Others

v

Council of the European Union

and

European Commission

‛Common foreign and security policy — Restrictive measures imposed on certain persons and entities in view of the situation in Zimbabwe — Restrictions on entry into and transit through the European Union — Freezing of funds — Legal basis — Manifest error of assessment — Obligation to state reasons — Rights of the defence — Fundamental rights — Proportionality’

Summary — Judgment of the General Court (Eighth Chamber), 22 April 2015

Common foreign and security policy — Restrictive measures taken against certain persons and entities in view of the situation in Zimbabwe — Restriction of the right to property, the right to respect for private and family life and the right to freedom to conduct a business — Lawfulness — No breach of principle of proportionality

Common foreign and security policy — Restrictive measures taken against certain persons and entities in view of the situation in Zimbabwe — 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 new grounds — No infringement of the right to be heard

EU law — Principles — Rights of defence — Restrictive measures taken against certain persons and entities in view of the situation in Zimbabwe — Right of access to documents — Right to be heard — Rights subject to an application in that behalf before the Council

European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures taken against certain persons and entities in view of the situation in Zimbabwe — 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

Acts of the institutions — Statement of reasons — Obligation — Scope — Restrictive measures taken against certain persons and entities in view of the situation in Zimbabwe — Obligation to identify in the statement of reasons the specific and concrete elements justifying the said measure — Decision falling within a context known to the person concerned, enabling him to understand the scope of the measure taken against him — Activities seriously undermining democracy, respect for human rights and the rule of law — No infringement of the duty to state reasons

Common foreign and security policy — Restrictive measures against Zimbabwe — Scope ratione personae — Persons having participated in activities seriously undermining democracy, respect for human rights and the rule of law, members of the government and persons associated with the latter — Concept of associated person

Common foreign and security policy — Restrictive measures against Zimbabwe — Choice of legal basis — Entry on the list of persons covered by those measures of persons associated with members of the government — Foundation on Articles 60 EC and 301 EC and on Regulation No 314/2004

Common foreign and security policy — Restrictive measures against Zimbabwe — Choice of legal basis — Entry on the list of persons covered by those measures justified by actions linked to activities of which the country’s leaders are accused — Foundation on Article 29 TEU — Lawfulness

Actions for annulment — Interest in bringing proceedings — Interest to be assessed at the time at which an action is brought — Action against an act imposing restrictive measures on the applicant — Repeal of the contested act in the course of the proceedings — Declaration that no need to adjudicate — Inadmissibility — Maintenance of the applicant’s interest in obtaining recognition of the unlawfulness of the contested measure

Actions for annulment — Jurisdiction of the EU judicature — Death of a natural person who was the addressee of a decision of an EU institution — Action for annulment capable of being brought by the heir

See the text of the decision. (see para. 50)

Before commencing the examination of an action brought before it, the Court must satisfy itself that the lawyer who has signed the application has indeed been appointed by the person in whose name the action has been brought as that person’s representative. In that regard, the Court regards the fact that a lawyer has signed and lodged an application in the name of a natural person as an implicit declaration on the part of that lawyer that he has been duly instructed by the natural person concerned, and the Court regards that form of declaration as being sufficient. To give the other party to proceedings the right to demand that the lawyer of an applicant who is a natural person should produce an authority to act signed by his client, failing which the action should be dismissed as being inadmissible, would to a great extent nullify the rule that natural persons may be represented by a lawyer without that lawyer having to produce authority to act, and would be likely to complicate and prolong proceedings unduly, particularly in cases where the action is brought by a large number of natural persons who reside outside the European Union. However, if there are specific factors which are capable of casting doubt on the reality of that implicit declaration, the Court may justifiably request the lawyer concerned to prove that he is in fact instructed. (see paras 58, 61)

See the text of the decision. (see paras 64-67)

Article 29 TEU constitutes an adequate legal basis for the adoption of decisions such as Decision 2011/101 concerning restrictive measures against Zimbabwe and Decision 2012/97, amending Decision 2011/101, with regard to persons having perpetrated acts which led the Council to assert that the leaders of Zimbabwe were responsible for an escalation of violence, intimidation of political opponents and the harassment of the independent press, serious infringements of human rights and of the freedom of opinion, of association and of peaceful assembly in the country or again a systematic campaign of violence, obstruction and intimidation led by the Zimbabwean authorities. The restrictive measures concerned by the said decisions were not imposed on those persons on the ground of their alleged implication in any conduct whatsoever which might constitute a crime or an offence, but because of the alleged conduct on their part which, while also falling in all probability within the scope of criminal or, at the least, civil law, was part of a strategy of intimidation and systematic violation of the fundamental rights of the Zimbabwean people. There is, moreover, a clear and obvious link between the persons subject to restrictive measures and the legitimate objectives of the CFSP, as set out in Article 21 TEU. When account is taken of the objective of the restrictive measures concerned, renewed by Decision 2011/101, it is absolutely reasonable to include, among the persons subject to such measures, the alleged perpetrators of the violence and intimidation for which the leaders of Zimbabwe had, in the view of the Council, to assume political responsibility, and not those leaders alone. Regardless of whether any action could be taken under criminal, or civil, law against the persons allegedly involved in the alleged violence, it is legitimate and compatible with the objectives of the CFSP to adopt measures intended to encourage those individuals, and others, to reject policies that lead to the suppression of human rights, of the freedom of expression and of good governance, which, in their case, would mean that they should not engage in any similar conduct in the future. Similarly, Article 6(1) of Decision 2011/101 constitutes an adequate legal basis for the adoption of Decision 2012/124, implementing Decision 2011/101. (see paras 102, 105, 106, 112)

Article 11(b) of Regulation No 314/2004, concerning certain restrictive measures against Zimbabwe, constitutes an adequate legal basis for the adoption of Implementing Regulation No 151/2012, amending the said basic regulation. Whilst, after the entry into force of the Treaty of Lisbon, the Council has an adequate legal basis, constituted by Article 215(2) TFEU, for adopting a regulation imposing restrictive measures on natural or legal persons in Zimbabwe not linked to the leaders of that third country, Regulation No 314/2004 continues to refer, in Article 6(1) thereof, to individual members of the Government of Zimbabwe and to any natural or legal persons, entities or bodies associated with them as listed in Annex III. Consequently, the Commission cannot, by an implementing regulation, amend Annex III of Regulation No 314/2004 unless the persons whose names are to be entered in that Annex may be classified either as members of the Government of Zimbabwe or persons associated with them. (see paras 122-124, 130, 132, 133, 231)

In the matter of the common foreign and security policy, Decision 2011/101, concerning restrictive measures against Zimbabwe, covers three categories of persons, namely (i) persons and entities whose activities seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe, (ii) members of the Government of Zimbabwe, and (iii) any natural or legal persons, entities or bodies associated with them. Therefore, the status of a person or an entity, as being a member of the Government of Zimbabwe or associated with such a member is, in itself, sufficient ground for the imposition on that person or entity of the restrictive measures laid down by Decision 2011/101. In that regard, the natural persons whose activities seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe and the legal persons, entities or bodies belonging to those natural persons, all referred to in Articles 4 and 5 of Decision 2011/101, should not be regarded as other than persons associated with the members of the Government of Zimbabwe and the legal persons, entities or bodies belonging to such associates, but constitute, in fact, a particular category of those associates. It would be paradoxical to accept that the restrictive measures laid down by Regulation No 314/2004 might be adopted against family members of the leaders of Zimbabwe on the sole ground that they are persons associated with those leaders, where they need not be accused of any specific conduct undermining democracy, respect for human rights and the rule of law, and to exclude, at the same time, the adoption of such measures against persons who were the true instruments for the implementation of the policy of violence, intimidation and infringement of fundamental rights which the European Union imputes to those leaders. Thus, the persons who are to be categorised as ‘associates’ of the members of governments of a third country are not only those who are involved in the formulation of the policies of that government and who exercise an influence on those policies, but also individuals involved in the implementation of those policies, particularly where the policies in question consist in the perpetration of violence, intimidation and infringements of the fundamental rights of the people. Similarly, the fact that the members of the government concerned are members of the party in power does not mean that the persons concerned, and the entities associated with them, are subject to sanctions for the sole reason that they are members of a political party, where that party monopolised power during the period of violence, intimidation and infringements of the fundamental rights of the Zimbabwean people relied on by the authors of the acts imposing restrictive measures. An interpretation of Article 6(1) of Regulation No 314/2004 and Article 5 of Decision 2011/101 whereby the entities belonging to, or controlled by, natural persons, or, as may be, legal persons, associated with members of the Government of Zimbabwe may also be subject to the restrictive measures laid down by those provisions is wholly compatible with their wording. The same is true of the interpretation that the entities belonging to, or controlled by, the Government of Zimbabwe itself must be considered to be associated, within the meaning of those two provisions, with the members of that government. (see paras 123, 124, 130, 132, 133, 229, 231, 232, 236, 238, 242, 282)

As regards restrictive measures against Zimbabwe in the framework of the EU Common Foreign and Security Policy, and, more particularly, those imposed on members of the Government of Zimbabwe and any natural or legal persons, entities or bodies associated with them, in order to comply with the obligation to state reasons, the authors of the acts imposing those measures are not obliged to set out therein their own interpretation of the concept of ‘association’ with the Government of Zimbabwe or, more generally, their interpretation of the relevant provisions and case-law. Moreover, since, in the first place, the freezing of funds and economic resources established by Regulation No 314/2004 applies to members of the Government of Zimbabwe and to their associates, both natural and legal persons, entities or bodies, in the second place, the restrictive measures established by Decision 2011/101 apply to members of the Government of Zimbabwe and to their associates, both natural and legal persons, including [any other] ‘natural or legal person whose activities seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe’, who constitute a particular category of such associates, and, in the third place, the grounds stated in Decision 2012/97 and Implementing Regulation No 151/2012 clearly indicate the posts which those persons occupied when those acts were adopted and those posts fully justify the characterisation of those applicants as members of the Government of Zimbabwe, the contested acts must be regarded as containing statements of reasons to the requisite legal standard. In that regard, persons occupying senior positions in the army or the police are close collaborators of the government of a country and can legitimately be classified as associates of members of that government, without any additional justification being necessary. The same is true of members of the governing body of the political party holding power alone in the country. The same applies to the reference, in the statement of reasons, to direct participation in violence and intimidation, moreover in the role of leaders and instigators, which identifies actual and specific factors, in terms of the status held or post occupied and the kinds of conduct mentioned, which show, according to the authors of the contested acts, that the parties concerned were involved in the violence, intimidation and infringements of fundamental rights in Zimbabwe. Finally, accusations with regard to violence, intimidation and infringements of fundamental rights in Zimbabwe, both generally and more particularly during the 2008 election, are matters of international public knowledge, of which the applicants could not have been unaware. Those accusations, whether they are true or false, are accordingly part of the background to the contested acts which is of relevance to the examination as to whether the obligation to state reasons has been complied with. (see paras 141-143, 145, 146, 153, 157-164, 167, 174-177)

It is not inconceivable that the past conduct of one or other of the applicants might justify the imposition or renewal of restrictive measures against him or her. Accordingly, the reference to the past conduct of one or other applicant cannot demonstrate that the statement of reasons in the acts at issue is lacking or insufficient. (see paras 150, 168, 207)

See the text of the decision. (see para. 151)

See the text of the decision. (see paras 165, 166)

In the area of the common foreign and security policy, in a situation where the Council defines abstractly the criteria which may justify the listing of a person, or entity, in the list of persons or entities subject to restrictive measures, it is the task of the EU judicature to determine, on the basis of the pleas in law raised by the person or entity concerned or, where necessary, raised of its own motion, whether the case in point corresponds to the abstract criteria defined by the Council. That review extends to the assessment of the facts and circumstances relied on as justifying the listing of the person or entity concerned on the list of persons and entities subject to restrictive measures, and to verifying the evidence and information on which that assessment is based. In that regard, Decision 2011/101, concerning restrictive measures against Zimbabwe, envisages three categories of persons, namely, first, the persons and entities whose activities seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe, second, members of the Government of Zimbabwe and, finally, any natural or legal persons, entities or bodies associated with them. Therefore, the status of a person or an entity, as being a member of the Government of Zimbabwe or associated with such a member is, in itself, sufficient ground for the imposition on that person or entity of the restrictive measures laid down by Decision 2011/101. With regard to the latter, the Council has a broad discretion enabling it, when appropriate, not to impose those measures on such a person, where the Council considers that, in the light of the objectives of those measures, it would not be appropriate to do so. (see paras 186, 216-222, 243)

See the text of the decision. (see paras187, 192-194)

In the area of the common foreign and security policy, the right of a person or entity, with respect to whom restrictive measures previously imposed are renewed by a further act, to be heard prior to the adoption of that act must be respected where the author of the act concerned has adduced new evidence against those persons or entities and not where the renewal is based, in essence, on grounds which are the same as those which justified the adoption of the original act imposing the restrictive measures concerned. That is not the case where the grounds appearing in the contested acts to justify the imposition of the restrictive measures in question on the applicants, while containing further detail on the conduct imputed to many of the applicants, or a more detailed description of that conduct, remain essentially the same as those set out in the earlier acts. (see paras 204-206)

See the text of the decision. (see para. 260)

See the text of the decision. (see paras 263, 266)

With regard to judicial review of compliance with the principle of proportionality, the EU legislature must be allowed a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. Thus, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institutions are seeking to pursue. In that regard, the competent EU authorities cannot be accused of an infringement of the principle of proportionality by maintaining the previously imposed restrictive measures in force and extending their scope, where the objective of the restrictive measures at issue is to encourage the persons and entities affected by them to reject policies that lead to the suppression of human rights and freedom of expression and the hindrance of good governance. Whilst those measures are supposed to act indirectly, the underlying idea being that those targeted by them will reject the abovementioned policies in order to have the restrictions imposed on them revoked as far as they are concerned, it is only in that manner that the Union may be able to influence the politics of Zimbabwe, a sovereign third country. Moreover, the contested acts are the product of the deep concern felt by the European Union authorities as regards the situation in Zimbabwe, that concern being first expressed ten years earlier. That concern, the justification for which has not been challenged, was still present when the contested acts were adopted, with the aim of bringing to an end the said situation of such long standing. Finally, the said measures are inherently temporary and reversible and therefore do not impair the essential content of the fundamental rights of the persons concerned. That is even more the case when all the applicants are natural or legal persons established in Zimbabwe and not within the European Union, which means that the disadvantages arising from those measures, although undeniably significant, are not as onerous as in the case of natural or legal persons established within the European Union. (see paras 290, 296-298, 300)