Ahmed Abdelaziz Ezz and Others v Council of the European Union.
Date: 2015-03-05
42. Review of the legal basis of an act enables the powers of the author of the act to be verified (see, to that effect, judgment in Germany  v Parliament and Council , C‑376/98, EU:C:2000:544, paragraph 83) and the procedure for the adoption of that directive to be checked as to whether it was vitiated by any irregularity (judgment in ABNA and Others , C‑453/03, C‑11/04, C‑12/04 and C‑194/04, EU:C:2005:741, paragraph 53). According to settled case-law, the choice of legal basis for an EU measure must rest on objective factors amenable to judicial review, including the purpose and content of that measure (see, in particular, judgment in Parliament  v Council , C‑130/10, EU:C:2012:472, paragraph 42).
43. In paragraphs 44 to 46 of the judgment under appeal, the General Court examined the purpose and content of Decision 2011/172 and concluded that it could be lawfully adopted on the basis of Article 29 TEU. In particular, in paragraph 44 of the judgment under appeal, the General Court held that Decision 2011/172 forms part of a policy of supporting the new Egyptian authorities, intended to promote both the economic and political stability of Egypt and, in particular, to assist the authorities of that country in their fight against the misappropriation of State funds, and that, accordingly, that decision is fully based on the CFSP and satisfies the objectives referred to in Article 21(2)(b) and (d) TEU.
44. In that respect, the appellants have not developed any argument to demonstrate that the General Court erred in law in the reasoning set out in the preceding paragraph, but merely assert generally that the Egyptian authorities did not declare in the letters produced by the Council that the appellants’ alleged actions undermined democracy or the sustainable economic or social development of Egypt, within the meaning of Article 21(2)(b) and (d) TEU. Consequently, the appellants’ argument cannot be accepted.
57. That error is particularly evident as regards the second, third and fourth appellants. The General Court found, in paragraph 131 of the judgment under appeal, that none of the documents produced by the Council suggests that those appellants have been prosecuted in Egypt for the misappropriation of State funds. In relying on an association of those appellants with the first appellant, the General Court failed to have any regard to the judgment of the Court in Tay Za  v Council  (C‑376/10 P, EU:C:2012:138, paragraph 66) or to the judgment of the General Court in Nabipour and Others  v Council  (T‑58/12, EU:T:2013:640, paragraphs 107 and 108), under which only a natural person’s own involvement in activities to which the relevant legislation relates justifies the adoption of restrictive measures against him.
67. Lastly, the Commission contends that the judgment in Tay Za v Council  (EU:C:2012:138) is not relevant in this instance. That case concerned the son of a businessman who was associated with the rulers of Burma/Myanmar, and the measures taken against the regime of that third country were aimed at officials ‘who formulate, implement or benefit from policies that impede Burma/Myanmar’s transition to democracy’. In the present case, the aim is to preserve State funds for their future return to the Arab Republic of Egypt. Thus, the mere fact of being married to a person who has links with the rulers of a State does not imply an association with the political regime of that State. By contrast, that situation is relevant where restrictive measures are aimed at preserving State funds, since husbands and wives may own certain assets jointly. The very fact that orders were made in Egypt, even if these were not strictly necessary for including the second, third and fourth appellants on the lists annexed to Decision 2011/172 and Regulation No 270/2011, is a good indication of such an association, since the Egyptian courts have a better knowledge of the matrimonial regime applicable to the first appellant and his wives.
Findings of the Court
69. Contrary to what is submitted in the first place by the appellants, the General Court interpreted Article 1(1) of Decision 2011/172 and Article 2(1) of Regulation No 270/2011 taking into account the divergent wording of those provisions in the various language versions of Decision 2011/172 and Regulation No 270/2011, their context and their purpose.
70. The General Court did not err in law when, in paragraph 66 of the judgment under appeal, it identified the objective of those acts as being to assist the Egyptian authorities in their fight against the misappropriation of State funds. That objective is clear from recital 2 of Decision 2011/172.
71. Nor, in view of that objective, did the General Court err in law in holding, also in paragraph 66, that the effectiveness of Decision 2011/172 would be undermined if the adoption of restrictive measures were made subject to the criminal convictions of persons suspected of having misappropriated funds, since those persons would have enough time pending their conviction to transfer their assets to States having no form of cooperation with the Egyptian authorities.
72. The General Court correctly concluded, therefore, in paragraph 67 of the judgment under appeal, that Article 1(1) of Decision 2011/172 had to be interpreted as being directed not only at persons being prosecuted but also persons the subject of judicial proceedings connected to criminal proceedings for ‘misappropriation of Egyptian State funds’ who may on that basis be described as persons associated with the individuals the subject of those criminal proceedings.
77. It should be emphasised in that regard that it was not for the Council or the General Court to verify whether the investigations to which the appellants were subject were well founded, but only to verify whether that was the case as regards the decision to freeze funds in the light of the request for assistance. So far as concerns the findings of fact made by the General Court with regard to the existence of judicial proceedings concerning the four appellants, it must be borne in mind that the Court of Justice has consistently held that the General Court has exclusive jurisdiction, first, to find the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, secondly, to assess those facts. Save where the evidence adduced before the General Court has been distorted, the appraisal of the facts therefore does not constitute a point of law which is subject as such to review by the Court of Justice (see, in particular, judgments in Versalis  v Commission , C‑511/11 P, EU:C:2013:386, paragraph 66, and Telefónica and Telefónica de España  v Commission , C‑295/12 P, EU:C:2014:2062, paragraph 84).
111. According to settled case-law, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal (see, in particular, judgments in France  v Monsanto and Commission , C‑248/99 P, EU:C:2002:1, paragraph 68, and Inuit Tapiriit Kanatami and Others  v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraph 46).