Case T-170/21: Action brought on 25 March 2021 — Ben Ali v Council
Date: 2021-03-25
Institutions: General Court
Subjects: EU restrictive measure, Tunisia, abuse of power, economic sanctions, indemnification, international sanctions, natural person, principle of proportionality, right to justice, rights of the defence








C_2021217EN.01004701.xml










7.6.2021   


EN


Official Journal of the European Union


C 217/47






Action brought on 25 March 2021 — Ben Ali v Council
(Case T-170/21)
(2021/C 217/63)
Language of the case: French

Parties


Applicant: Mehdi Ben Tijani Ben Haj Hamda Ben Haj Hassen Ben Ali (Saint-Étienne-du-Rouvray, France) (represented by: A. de Saint Remy, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the General Court should:






—


hear Mr. Mehdi Ben Ali’s application and declare it well-founded;










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rule as a matter of urgency, in accordance with the applicable procedural rules;










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adopt, for all purposes, a measure of organisation of procedure under Article 64 of its Rules of Procedure requiring the Commission to disclose ‘all of the documents relating to the adoption’ of the contested regulation;










—


annul, with immediate effect, Council Decision (CFSP) 2021/55 concerning him, notified by letter reference SGS 21/0041 dated 25 January 2021, sent by registered post with acknowledgment of receipt on 26 January 2021 and received on 29 January 2021, seeking to maintain his name on the list of persons subject to the restrictive measures set out in the Annex to Council Decision 2011/72/CFSP, as amended by Council Decision 2021/55/CFSP, in Annex I to Council Regulation (EU) 101/2011 implemented by Council Implementing Regulation (EU) 2021/49, concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia and, secondly, annul Council Implementing Regulation (EU) 2021/49 implementing Regulation (EU) No 101/2011 on restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia;










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order the Council of the European Union to pay Mr. Mehdi Ben Ali a total sum of EUR 150 000 by way of compensation for damages from all causes;










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order the Council of the European Union to pay Mr. Mehdi Ben Ali a sum of EUR 30 000 in respect of his defence costs in support of the present application, in addition to the recoverable defence costs pursuant to Article 91 of the Rules of Procedure;










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order the Council of the European Union to pay all the costs.





Pleas in law and main arguments

In support of the action, the applicant relies on seven pleas in law.






1.


First plea in law, alleging a lack of a sufficient legal basis. The applicant submits that a sanction is only justified in so far as it can achieve the objectives for which it is adopted and that the mere finding of a threat to peace is not sufficient. In the present case, the Council of the European Union used the objective of sustainable development of the Tunisian economy and society as justification for the measures adversely affecting the applicant. Thus, the sanction applied by the Council is not aimed at maintaining or restoring peace but at the economic and democratic development of Tunisian society. That sanction must therefore be lifted or amended.










2.


Second plea in law, alleging infringement of the rights of the defence and the right to effective judicial protection. The applicant takes the view, first, that at the time the decisions were adopted, the procedures applied infringed his fundamental rights because of the imbalance between the reasons given and respect for individual rights. Secondly, at the designation stage, the applicant claims that his rights were infringed by inadequate procedures as they did not allow him recourse to an effective remedy. Finally, the applicant submits that at the execution stage, the procedure for derogations does not comply with the right to an effective remedy.










3.


Third plea in law, alleging a breach of the obligation to state reasons. The applicant submits in that respect that there was no decision, and more specifically no statement of the relevant facts, by the Tunisian State, which could be used as a basis for including him on the contested list.










4.


Fourth plea in law, alleging a manifest error of assessment. According to the applicant, the lack of evidence of his participation in any unlawful act consisting of misuse of Tunisian public funds or money laundering operations amounts to a manifest error. Furthermore, the charge that he was complicit in misuse of office by a public office-holder was not supported by any evidence either.










5.


Fifth plea in law, alleging an infringement of Articles 31, 46 and 55 of the United Nations Convention Against Corruption. The applicant claims in that regard that, in accordance with those provisions, a protective freezing and confiscation measure must be based on either a decision of the requesting State or a statement of relevant facts made by that same State with a description of the measures requested. In his view, the restrictive measures were ordered against him without meeting these criteria.










6.


Sixth plea in law, alleging that the Council made an error of assessment with regard to the proportionality of the measures adopted against the applicant.










7.


Seventh plea in law, alleging a misuse of power.