Joined Cases T‑307/12 and T‑408/13

Adib Mayaleh

v

Council of the European Union

‛Common foreign and security policy — Restrictive measures against Syria — Freezing of funds — Functions of the Governor of the Central Bank of Syria — Actions for annulment — Communication of an act imposing restrictive measures — Time-limit for bringing proceedings — Admissibility — Rights of the defence — Fair hearing — Obligation to state reasons — Burden of proof — Right to effective judicial protection — Proportionality — Right to property — Right to private and family life — Application of restrictions on entry to a national of a Member State — Freedom of movement for citizens of the Union’

Summary — Judgment of the General Court (Ninth Chamber, Extended Composition), 5 November 2014

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 respect for private life and free movement within the Union — No breach of principle of proportionality

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 — No breach of principle of proportionality

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 — Support for the regime — Concept — Any form of support — Functions conferring managerial power over an entity covered by the restrictive measures — Governor of the Central Bank of Syria whose role includes serving as banker to the Government of that country — Included — 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 — Judicial review — Scope — Restricted review for general rules — Review extending to the assessment of facts and verification of evidence for measures applying to specific entities

Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Restrictive measures taken against Syria in response to violent repression of the civilian population — Act adopting or maintaining such measures — No communication to the applicant — Irrelevant unless established that the applicant’s rights thereby infringed

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 new grounds — 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 — Prohibition of entry and transit and freezing of funds of certain persons and entities responsible for violent repression against the civilian population in Syria — Such persons and entities not notified of the evidence against them or given a hearing — Lawfulness

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 — Obligation to communicate the reasoning to the person concerned at the same time as the measure adversely affecting him or immediately thereafter — Limits — Safety of the Union and the Member States or conduct of their international relations — 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

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 — Obligation to communicate the reasoning to the person concerned at the same time as the measure adversely affecting him or immediately thereafter — Correction of an error of reasoning during the proceedings before the Court — Not permissible

Actions for annulment — Time-limits — Point from which time starts to run — Measure entailing restrictive measures against a person or body — Measure published and notified to the addressees — Date of notification of the measure — Notification to the person concerned by means of a publication in the Official Journal of the European Union — Lawfulness — Conditions — Council unable to effect notification

Judicial proceedings — Measures repealing and replacing the contested measure in the course of proceedings — Application to amend pleas for annulment formulated in the course of the proceedings — Time-limit for the submission of such an application — Point from which time starts to run — Date of communication of the new measure to the persons concerned — Obligation to communicate even where there are no new grounds

See the text of the decision. (see paras 47-49)

See the text of the decision. (see paras 56-58)

See the text of the decision. (see paras 59-66)

Where an act must be notified in order for the period for bringing proceedings to begin to run, it must in principle be sent to the addressee of the act, and not to the lawyers representing him. Notification to an applicant’s representative amounts to notification to the addressee only where such a form of notification is expressly provided for in the legislation or by agreement between the parties. (see para. 74)

See the text of the decision. (see para. 85)

See the text of the decision. (see paras 86-88, 93, 94)

See the text of the decision. (see para. 96)

See the text of the decision. (see paras 102, 103, 110-113, 120)

In the context of the adoption of Decision 2012/739, Implementing Regulation No 363/2013 and Decision 2013/255, concerning restrictive measures against Syria, which are subsequent acts that maintained the applicant’s name on the lists of names of persons subject to restrictive measures, the argument that the measures must have a surprise effect cannot in principle be legitimately relied on. None the less, the right to be heard prior to the adoption of acts maintaining restrictive measures in respect of persons already covered by them presupposes that the Council has admitted new evidence against those persons. Inasmuch as the Council, when maintaining the applicant’s name on the lists of persons covered by the restrictive measures against Syria, did not admit new evidence that had not already been communicated to the applicant following the adoption of the acts first placing him on the lists at issue, and the applicant has not used the opportunity to submit his observations to the Council on his own initiative, without a fresh invitation being expressly formulated prior to the adoption of each subsequent act, in the absence of new evidence admitted with respect to him, the applicant has had the opportunity over several months to submit his observations to the Council and to challenge the merits of the reasons, as indicated with sufficient clarity in the contested acts, that resulted in his being included and maintained on the lists of persons covered by the restrictive measures. There has therefore been no breach of the applicant’s right to be heard. (see paras 114-119, 123)

See the text of the decision. (see para. 122)

See the text of the decision. (see paras 127-129)

With regard to restrictive measures taken against persons supporting the Syrian regime, whilst the concept of ’support for the regime’ is not defined in the relevant provisions, namely Article 18(1) and Article 19(1) of Decision 2011/782, Article 24(1) and Article 25(1) of Decision 2012/739 and Article 27(1) and 28(1) of Decision 2013/255, there is no ground on which to conclude that only persons supporting the Syrian regime for the precise purpose of enabling it to pursue its repressive activities against the civilian population might be covered by restrictive measures. Since it is impossible for the Council to ascertain the purposes for which resources provided to that regime are used, it was necessary to adopt measures applicable to any form of support. In that regard, a person exercising functions which confer on him the power to manage an entity covered by restrictive measures may, as a general rule, himself be considered to be involved in the activities that justified the adoption of the restrictive measures covering the entity in question. The Council may therefore, without committing a breach of the principle of proportionality, rely on a person’s functions, in this case Governor of the Central Bank of Syria whose role includes serving as banker to the Government of that country, in order to take the view that he is in a position of power and influence with respect to the financial support of the Syrian regime supplied by the Central Bank of Syria, and thus also legitimately take the view that the adoption of restrictive measures against that person is likely to contribute to putting pressure on that regime that might put an end to, or attenuate, the repression against the civilian population. The Council initiated restrictive measures against Syria in response to the violent repression by the authorities of that country against the civilian population. If the restrictive measures at issue were aimed only at those in charge of the Syrian regime, and not also the persons supporting that regime, the attainment of the objectives pursued by the Council could have been frustrated, as those in charge of the regime could easily obtain the support, in particular the financial support, which they needed in order to continue that repression, through other persons holding senior managerial posts within the principal institutions of the Syrian State. Moreover, it is necessary to take into account the importance for the European Union of the objective of maintaining peace and international security and also of protecting the civilian population. (see paras 135-137, 143, 147, 148)

See the text of the decision. (see para. 146)

Measures relating to the freezing of the funds, financial assets and other economic resources of the persons identified as supporting the Syrian regime imposed by the contested acts are temporary precautionary measures and are not supposed to deprive the persons concerned of their property. However, the measures in question undeniably entail a restriction of the exercise of the right to property. Those measures are provided for by law, since they are set out in acts of general application and have a clear legal basis in European Law and since they are also formulated in sufficiently precise terms as regards their scope and the reasons showing why they apply to the applicant. As regards the appropriateness of the measures at issue, with reference to an objective of general interest as fundamental to the international community as the protection of civilian populations and the maintenance of peace and international security, those measures cannot be regarded as inappropriate. As regards the necessity of the measures, the alternative and less restrictive measures, such as a system of prior authorisation or an obligation to justify, a posteriori, how the funds transferred were used, are not as effective in achieving the goal pursued, namely the application of pressure on those supporting the Syrian regime, having regard in particular to the possibility of circumventing the restrictions imposed. In addition, Article 19(3) to (7) of Decision 2011/782, Article 25(3) to (11) of Decision 2012/739, Article 28(3) to (11) of Decision 2013/255 and Articles 16 to 18 of Regulation No 36/2012 provide for the possibility, first, to authorise the use of frozen funds to satisfy basic needs or meet certain commitments and, second, to grant specific authorisations for the release of certain funds, financial assets or other economic resources. Lastly, maintenance of the applicant’s name on the lists annexed to the measures in question is periodically examined with a view to ensuring that persons and entities who no longer meet the criteria for inclusion on that list are removed from it. (see paras 172, 175-181)