Judgment of the General Court (Ninth Chamber) of 26 March 2019 –

Boshab and Others v Council

(Case T‑582/17)

(Common Foreign and Security Policy — Restrictive measures directed against certain persons and entities in view of the situation in the Democratic Republic of the Congo — List of persons and entities subject to the freezing of funds and economic resources and to the prohibition of entry and transit — Inclusion of the names of the applicants on the list — Rights of the defence — Right to be heard — Obligation to state reasons — Manifest error of assessment — Right to effective judicial protection)

1. Acts of the institutions — Statement of reasons — Obligation — Scope — Restrictive measures directed against the Democratic Republic of the Congo — Freezing of funds of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violations — Minimum requirements (Art. 296 TFEU; Council Regulations No 1183/2005, as amended by Regulation 2016/2230, Annex Ia, and 2017/904; Council Decisions 2010/788/CFSP, as amended by Decision (CFSP) 2016/2231, Annex II and (CFSP) 2017/905) (see paras 38-40, 42-44)

2. Common foreign and security policy — Restrictive measures directed against the Democratic Republic of the Congo — Freezing of funds of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violations — Obligation to identify in the statement of reasons individual and specific reasons justifying such measures — Decision falling within a context known to the person concerned, enabling him to understand the scope of the measure taken against him (Art. 296 TFEU; Council Regulations No 1183/2005, as amended by Regulation 2016/2230, Annex Ia, and 2017/904; Council Decisions 2010/788/CFSP, as amended by Decision (CFSP) 2016/2231, Annex II and (CFSP) 2017/905) (see paras 41, 47, 49, 58, 59)

3. Action for annulment — Pleas in law — Lack of or inadequate statement of reasons — Separate ground from the one concerning substantive legality (Arts 263 and 296 TFEU) (see para. 60)

4. European Union — Judicial review of the legality of the acts of the institutions — Regulation imposing certain specific restrictive measures directed against persons acting in breach of the arms embargo imposed on the Democratic Republic of the Congo — Ambit of the review — Evidence of the acts and roles attributed to the applicants by the Council — Principle of the free assessment of evidence (Charter of Fundamental Rights of the European Union, Art. 47; Council Regulations No 1183/2005, as amended by Regulation 2016/2230, Annex Ia, and 2017/904; Council Decisions 2010/788/CFSP, as amended by Decision (CFSP) 2016/2231, Annex II and (CFSP) 2017/905) (see paras 63, 65, 76, 106, 136, 187, 217, 237)

5. Common foreign and security policy — Restrictive measures against the Democratic Republic of the Congo — Freezing of funds and economic resources — Actions for annulment by persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violations — Burden of proof — Decision based on a series of indicators — Lawfulness — Conditions (Council Regulations No 1183/2005, as amended by Regulation 2016/2230, Annex Ia, and 2017/904; Council Decisions 2010/788/CFSP, as amended by Decision (CFSP) 2016/2231, Annex II and (CFSP) 2017/905) (see paras 64, 88, 111, 165, 199, 213)

6. Common foreign and security policy — Restrictive measures directed against the Democratic Republic of the Congo — Freezing of funds of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violations — Criteria — Roles conferring responsibility for the repression of the civil population or compliance with the rule of law — Evidence to the contrary — Position in respect of disassociation from the regime –None — Manifest error of assessment — None (Council Regulations No 1183/2005, as amended by Regulation 2016/2230, Annex Ia, and 2017/904; Council Decisions 2010/788/CFSP, as amended by Decision (CFSP) 2016/2231, Annex II and (CFSP) 2017/905) (see paras 80, 94, 95, 112, 152, 153, 166, 168, 189, 203, 205, 224, 239)

Re:

Application on the basis of Article 263 TFEU seeking the annulment of Council Implementing Regulation (EU) 2017/904 of 29 May 2017 implementing Article 9(2) of Regulation (EC) No 1183/2005 imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the Democratic Republic of the Congo (OJ 2017 L 138 I, p. 1), and of Council Implementing Decision (CFSP) 2017/905 of 29 May 2017 implementing Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo (OJ 2017 L 138 I, p. 6), in so far as those acts concern the applicants.

Operative part

The Court:

1. Dismisses the action;