Johannes Tomana and Others v Council of the European Union and European Commission.
Date: 2016-07-28
It should be noted that, according to the case-law of the Court, to allow a party to put forward for the first time before
         the Court of Justice a plea in law which it did not raise before the General Court would in effect allow that party to bring
         before the Court a wider case than that heard by the General Court. In an appeal, the Court’s jurisdiction is, as a general
         rule, confined to a review of the assessment by the General Court of the pleas argued before it. However, an argument which
         was not raised at first instance does not constitute a new plea that is inadmissible at the appeal stage if it is simply an
         amplification of an argument already developed in the context of a plea set out in the application before the General Court
         (judgment of 10 April 2014 in Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraphs 113 and 114).
Furthermore, according to settled case-law, it follows from the second subparagraph of Article 256(1) TFEU, the first paragraph
         of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure
         of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant
         seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, judgments
         of 4 September 2014 in Spain v Commission, C‑197/13 P, EU:C:2014:2157, paragraph 43, and of 5 March 2015 in Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraph 111). In this regard, Article 169(2) of the Rules of Procedure of the Court of Justice
         specifies that the pleas in law and legal arguments relied on must identify precisely those points in the grounds of the decision
         of the General Court which are contested.
It should be borne in mind that review of the legal basis of an act enables the procedure for the adoption of that act to
         be checked as to whether it was vitiated by any irregularity (judgment of 6 December 2005 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 the
         legal basis for an EU measure must rest on objective factors amenable to judicial review, which include the aim and content
         of that measure (see, in particular, judgment of 19 July 2012 in Parliament v Council, C‑130/10, EU:C:2012:472, paragraph 42).
Article 29 TEU, which replaced Article 15 EU, enables the Council to adopt decisions which define the approach of the Union
         to a particular matter of a geographical or thematic nature. Member States are to ensure that their national policies conform
         to the Union positions. Furthermore, Article 215(2) TFEU allows the Council to adopt restrictive measures against natural
         or legal persons and groups or non-State entities, namely, measures that, before the Treaty of Lisbon entered into force,
         required Article 308 EC too to be included in their legal basis if their addressees were not linked to the governing regime
         of a third country (see, to that effect, judgment of 3 September 2008 in Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 216).
Furthermore, in paragraphs 63 and 64 of the judgment of 13 March 2012 in Tay Za v Council (C‑376/10 P, EU:C:2012:138), the Court stated that, in order for it to be possible for them to be adopted on the basis of
         Articles 60 EC and 301 EC as restrictive measures imposed on third States, the measures in respect of natural persons must
         be directed only against the leaders of such States and the persons associated with those leaders (judgment of 3 September
         2008 in Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 166). That requirement ensures that there is a sufficient link between
         the persons concerned and the third State targeted by the restrictive measures adopted by the Union, precluding too broad
         an interpretation of Articles 60 EC and 301 EC which would therefore be contrary to the case-law of the Court.
In that regard, it must be noted that, according to the case-law of the Court of Justice, when sufficiently precise information
         has been disclosed, enabling the person concerned properly to state his point of view on the evidence adduced against him
         by the Council, the principle of respect for the rights of the defence does not mean that that institution is obliged spontaneously
         to grant access to the documents in its file. It is only on the request of the party concerned that the Council is required
         to provide access to all non-confidential official documents concerning the measure at issue (see, to that effect, judgment
         of 16 November 2011 in Bank Melli Iran v Council, C‑548/09 P, EU:C:2011:735, paragraph 92).
It must also be stated that, according to the case-law of the Court of Justice, the right to be heard prior to the adoption
         of acts which maintain restrictive measures against persons already subject to those measures applies where the Council has
         admitted new evidence against those persons and not where those measures are maintained on the basis of the same grounds as
         those that justified the adoption of the initial act imposing the restrictive measures in question (see, to that effect, judgment
         of 21 December 2011 in France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 63).
As is apparent from the case-law of the Court, the concept of a third country, within the meaning of Articles 60 EC and 301
         EC, may include the rulers of such a country and also individuals and entities associated with or controlled, directly or
         indirectly, by them (judgment of 13 March 2012 in Tay Za v Council, C‑376/10 P, EU:C:2012:138, paragraph 43 and the case-law cited).
It must, however, be determined whether, in the light of the review which the General Court carried out regarding the grounds
         on the basis of which the appellants were included on the list of persons subject to restrictive measures, it made an error
         of law which should result in the judgment under appeal being set aside (see, to that effect, judgment of 21 April 2015 in
         Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 44).
In view of the situation in Zimbabwe, 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 (see, to that effect, judgment of 21 April
         2015 in Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 52).
Moreover, as is apparent from the established case-law of the Court of Justice, the General Court has exclusive jurisdiction
         to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and
         to appraise those facts. The appraisal of the facts therefore does not, save where the clear sense of the evidence has been
         distorted, constitute a point of law which is subject, as such, to review by the Court of Justice (judgment of 10 July 2014
         in Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 84).
It will be recalled that the obligation to state the reasons on which a judgment is based arises under Article 36 of the Statute
         of the Court of Justice of the European Union, which applies to the General Court by virtue of the first paragraph of Article 53
         of the Statute, and Article 81 of the Rules of Procedure of the General Court. It has consistently been held that the statement
         of the reasons on which a judgment of the General Court is based must clearly and unequivocally disclose that court’s reasoning
         in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice
         to exercise its power of review (see, to that effect, judgment of 19 December 2012 in Mitteldeutsche Flughafen and Flughafen Leipzig-Halle v Commission, C‑288/11 P, EU:C:2012:821, paragraph 83 and the case-law cited).
With regard to restrictive measures, the Courts of the European Union must determine whether the competent EU authority has
         complied with the procedural safeguards and the obligation to state reasons laid down in Article 296 TFEU, in particular,
         whether the reasons relied on are sufficiently detailed and specific (see, to that effect, judgment of 18 July 2013 in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 118).