Judgment of the General Court (Seventh Chamber) of 3 February 2021 –

Kanyama v Council

(Case T‑123/19)

(Common foreign and security policy – Restrictive measures adopted in view of the situation in the Democratic Republic of the Congo – Freezing of funds – Retention of the applicant’s name on the lists of persons covered – Obligation to state reasons – Right to be heard – Proof that inclusion and retention on the lists is well founded – Manifest error of assessment – Continuation of the factual and legal circumstances which led to the adoption of the restrictive measures – Right to private and family life – Presumption of innocence – Proportionality – Plea of illegality)

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, second para. TFEU; Council Regulation No 1183/2005, Art. 9(3); Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2018/1940, Art. 7(2)) (see paras 51-56)

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 or her to understand the scope of the measure taken against him or her (Art. 296 TFEU; Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2018/1940, Annex II; Council Regulation No 2018/1931, Annex) (see paras 52, 59-64)

3. EU law – Principles – Rights of the defence – Right to effective judicial protection – 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 disclose individual and specific grounds for the decisions adopted – Obligation to enable the person concerned effectively to put forward his point of view on the grounds held against him – Scope (Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2018/1940, Annex II; Council Regulation No 2018/1931, Annex) (see paras 69-71)

4. Common foreign and security policy – Restrictive measures directed against the Democratic Republic of the Congo – Freezing of funds – Rights of the defence – Notification of inculpatory evidence – Subsequent decision maintaining the name of the applicant on the list of persons covered by those measures – No new grounds – Infringement of the right to be heard – None (Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2018/1940, Art. 9(2) and Annex II; Council Regulation No 2018/1931, Annex) (see paras 72-74, 78-80, 89-91)

5. European Union – Judicial review of the legality of the acts of the institutions – Regulation introducing restrictive measures against certain persons and entities having regard to the situation in the Democratic Republic of the Congo – Scope of the review (Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2018/1940, Art. 9(2) and Annex II; Council Regulation No 2018/1931, Annex) (see paras 98-100, 117)

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 – Error of assessment – None (Council Decision 2010/788/CFSP, as amended by Decisions (CFSP) 2016/2231 and (CFSP) 2018/1940, Annex II; Council Regulation No 2018/1931, Annex) (see paras 101, 106, 110, 111, 129-132)

7. Common foreign and security policy – Restrictive measures directed against the Democratic Republic of the Congo – Scope – Persons who have been involved in planning, directing, or committing acts that constitute serious human rights violations or abuses – Definition – Persons who have committed such acts in the past, notwithstanding the lack of evidence establishing current involvement in such acts – Included (Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2016/2231, Art. 9(2)) (see paras 123, 124)

8. Common foreign and security policy – Restrictive measures directed against the Democratic Republic of the Congo – Prohibition of the entry and transit, and freezing of funds, of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violations – Restriction on the right to respect for private and family life – Breach of principle of proportionality – None (Arts 21(2)(b) and (c) and 29 TEU; Art. 215(2) TFEU; Charter of Fundamental Rights of the European Union, Arts 7 and 52(1); Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2018/1940, Art. 4(1), (2) and (7) and Annex II; Council Regulation No 2018/1931, Annex) (see paras 139-150)

9. EU law – Principles – Fundamental rights – Presumption of innocence – Decision to freeze funds taken against certain persons and entities in view of the situation in the Democratic Republic of the Congo – Compatibility with that principle – Conditions (Art. 29 TEU; Art. 215(2) TFEU; Charter of Fundamental Rights of the European Union, Art. 48(1); Council Regulation No 1183/2005; Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2018/1940, Art. 5(1) and Art. 9; Council Regulation No 2018/1931, Annex) (see paras 151-158)

10. European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures directed against the Democratic Republic of the Congo – Scope of the review – Restricted review for general rules – Criteria for adopting restrictive measures – Involvement in planning, directing or committing acts that constitute serious human rights violations – Scope – Compliance with the principle of legal certainty requiring clarity, precision and foreseeability of the effects of legal rules (Arts 3(5) and 21(2)(b) and (c) TEU; Art. 275, second para. TFEU; Council Decisions 2010/788/CFSP, as amended by Decision (CFSP) 2018/1940, Art. 3(2)(b) and (CFSP) 2016/2231, Recitals 3 and 4; Council Regulation No 1183/2005) (see paras 168, 169, 171-178)

11. European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures directed against the Democratic Republic of the Congo – Scope of the review – Restricted review for general rules – Criteria for adopting restrictive measures – Involvement in planning, directing or committing acts that constitute serious human rights violations – Scope – Compliance with the principle of proportionality (Art. 275, second para. TFEU; Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2018/1940, Art. 3(2) and Art. 5(5); Council Regulation No 2018/1931, Annex) (see paras 168, 169, 182-186)

Re:

Application under Article 263 TFEU seeking annulment, first, of Council Decision (CFSP) 2018/1940 of 10 December 2018 amending Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo (OJ 2018 L 134, p.47) and, second, Council Implementing Regulation (EU) 2018/1931 of 10 December 2018 implementing Article 9 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 2018 L 314, p. 1), in so far as those acts concern the applicant.

Operative part

The Court:

1. Dismisses the action;