Issam Anbouba v Council of the European Union.
Date: 2015-04-21
21. In paragraph 47 of the judgment under appeal, the General Court also referred to paragraph 69 of the judgment in Tay Za v Council  (C‑376/10 P, EU:C:2012:138), relating to a decision to freeze funds, in which the Court of Justice held that the use of presumptions is not precluded if the contested acts have made provision for them and they serve the purpose of the legislation at issue.
32. The appeal is based on two grounds. By his first ground of appeal, Mr Anbouba submits that the General Court erred in law in that it held that the Council properly applied a presumption of support for the Syrian regime to the heads of the leading businesses of Syria, when that presumption has no legal basis, is disproportionate to the legitimate aim pursued and is irrebuttable. By his second ground of appeal, alleging infringement by the General Court of the rules of evidence, Mr Anbouba submits that, since the Council could not rely on such a presumption, it had to provide the General Court with the evidence on which its decision to include his name on the list of persons subject to the restrictive measures in Syria was based (judgment in Commission and Others  v Kadi , C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518). It is appropriate to consider these two grounds of appeal together.
Arguments of the parties
33. As regards the first ground of appeal, Mr Anbouba submits, first, that there is no legal basis for reliance on the presumption, contrary to the condition laid down by the Court in Tay Za  v Council (C‑376/10 P, EU:C:2012:138). The second sentence of paragraph 42 of the judgment under appeal constitutes an interpretation of Decision 2011/522 by the General Court and does not set out the terms of a presumption for which the EU legislature has made provision.
40. By his two grounds of appeal, Mr Anbouba submits, in essence, that in the judgment under appeal the General Court failed to comply with the rules relating to the burden of proof as regards restrictive measures by accepting the existence of a presumption of support for the Syrian regime in his regard and not requiring the Council to provide additional evidence in support of his inclusion on the lists of persons subject to such measures.
41. It is necessary to examine, first, the general criteria for inclusion on the lists of persons subject to restrictive measures, second, the grounds stated for including Mr Anbouba on such a list and, third, the evidence that his listing was well founded.
42. As regards the general criteria which were adopted in this instance for the purpose of applying restrictive measures, and for the defining of which the Council has a broad discretion (see, to this effect, judgment in Council  v Manufacturing Support & Procurement Kala Naft , C‑348/12 P, EU:C:2013:776, paragraph 120 and the case-law cited), Articles 3(1) and 4(1) of Decision 2011/273, as amended by Decision 2011/522, apply to, amongst others, persons and entities benefiting from or supporting the Syrian regime and persons and entities associated with them, whilst Article 5(1) of Regulation No 442/2011, as amended by Regulation No 878/2011, likewise applies to, amongst others, persons and entities benefiting from or supporting that regime and persons and entities associated with them.
43. Neither Decision 2011/273, as amended by Decision 2011/522, nor Regulation No 442/2011, as amended by Regulation No 878/2011, contains definitions of the concepts of ‘benefit’ derived from the Syrian regime, of ‘support’ for that regime or of ‘association’ with the persons and entities benefiting from or supporting the Syrian regime. Nor do they contain any details regarding how those matters are to be proved.
44. Therefore, neither Decision 2011/273, as amended by Decision 2011/522, nor Regulation No 442/2011, as amended by Regulation No 878/2011, establishes a presumption that the heads of the leading businesses of Syria provide support for the Syrian regime. Notwithstanding the absence of an express presumption of that kind, the General Court held in paragraph 42 of the judgment under appeal that Decision 2011/522 extended the restrictive measures to the leading Syrian business figures on the ground that the Council took the view that the heads of the leading Syrian businesses could be classified as persons associated with the Syrian regime, since the commercial activities of those businesses could not prosper without enjoying the favour of that regime and providing it with a degree of support in return. The General Court inferred that, in so doing, the Council had intended to apply a presumption of support for the Syrian regime to the heads of the leading businesses in Syria.
45. That said, even though the General Court thus referred to the application of a presumption by the Council, it must, however, be determined whether, in the light of the review which it carried out regarding the lawfulness of the findings upon which the Council based its decision to include Mr Anbouba on the list of persons subject to restrictive measures, the General Court in fact committed an error of law which should result in the judgment under appeal being set aside.
46. In that regard, it should be noted that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to include a person’s name on the list of persons subject to restrictive measures, the Courts of the European Union are to ensure that that decision, which affects that person individually, is taken on a sufficiently solid factual basis. That entails, in this instance, a verification of the factual allegations in the summary of reasons underpinning the acts at issue, in order to review whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support those acts, is substantiated (see, to this effect, judgments in Commission and Others  v Kadi , C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119, and Council  v Manufacturing Support & Procurement Kala Naft , C‑348/12 P, EU:C:2013:776, paragraph 73).
47. In this instance, in carrying out the assessment of the importance of what was at stake, which forms part of the review of the proportionality of the restrictive measures at issue, account may be taken of the context of those measures, of the fact that there was an urgent need to adopt such measures intended to put pressure on the Syrian regime in order for it to stop the violent repression against the population, and of the difficulty in obtaining more specific evidence in a State at civil war and having an authoritarian regime.
51. The review as to whether Mr Anbouba’s inclusion on the lists was well founded must be carried out by assessing whether his situation constitutes sufficient proof that he provided economic support for the Syrian regime. Such an appraisal must be carried out by examining the evidence not in isolation but in the context in which it fits (see, to this effect, judgments in Commission and Others  v Kadi , C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 102, and Council  v Manufacturing Support & Procurement Kala Naft , C‑348/12 P, EU:C:2013:776, paragraph 70).
52. In the light of that context, the General Court was entitled to hold that Mr Anbouba’s position in Syrian economic life, his position as the president of SAPCO, his important functions within both Cham Holding and the Chamber of Commerce and Industry of Homs and his relations with a member of the family of President Bashar Al-Assad constituted a set of indicia sufficiently specific, precise and consistent to establish that he provided economic support for the Syrian regime.
53. As the Advocate General has observed in point 208 of his Opinion, in view of the situation in Syria, the Council discharges the burden of proof borne by it if it presents to the Courts of the European Union a set of indicia sufficiently specific, precise and consistent to establish that there is a sufficient link between the person subject to a measure freezing his funds and the regime being combated.
54. As regards observance of the rights of the defence, in paragraphs 65 to 76 of the judgment under appeal the General Court examined the evidence adduced by Mr Anbouba. The General Court did not err in law in holding, in paragraphs 71 to 73 of the judgment under appeal, that certain evidence could not be taken into consideration. As to the remaining evidence, the General Court held that it was not capable of demonstrating that Mr Anbouba did not provide any economic support for the Syrian regime. Since Mr Anbouba has not asserted that the General Court’s analysis is founded on a distortion of the clear sense of that evidence, it is not for the Court, on appeal, to review the merits of the General Court’s findings of fact in respect of that evidence.
55. It follows from all the foregoing considerations that the General Court reviewed whether Mr Anbouba’s inclusion on the lists of persons subject to restrictive measures was well founded on the basis of a set of indicia relating to his situation, functions and relations in the context of the Syrian regime that were not rebutted by him. Consequently, the reference in the judgment under appeal to a presumption of support for that regime is not such as to affect the lawfulness of the judgment under appeal, since it is apparent from the General Court’s findings that it reviewed in a legally satisfactory manner whether there was a sufficiently solid factual basis supporting Mr Anbouba’s inclusion on the lists under consideration.