Suzanne Saleh Thabet and Others v Council of the European Union.
Date: 2020-12-03
The Council is of the view that the first part of the first ground of appeal is unfounded. It points out that, in accordance with the settled case-law of the Court of Justice, it is not for the General Court to verify whether or not the investigations or procedures concerning the appellants in Egypt were well founded, but only to verify whether that was the case as regards the decisions to adopt restrictive measures in the light of the evidence on which those decisions were based (see, to that effect, judgments of 19 October 2017, Yanukovych v Council, C‑599/16 P, not published, EU:C:2017:785, paragraph 69, and of 19 October 2017, Yanukovych v Council, C‑598/16 P, not published, EU:C:2017:786, paragraph 72). Moreover, in a situation where, as in the present case, a person covered by a restrictive measure has not put forward any evidence capable of demonstrating that his particular situation was affected by the alleged problems in the judicial system of the third State concerned, the Council is not bound to require additional verification on the part of the third State concerned as to the facts alleged against that person (see, to that effect, judgment of 19 October 2017, Yanukovych v Council, C‑598/16 P, not published, EU:C:2017:786, paragraph 64). Lastly, where such a person relies on general information relating to the human rights situation in a third State, in order to demonstrate that the General Court erred in law in finding that the Council had discharged its burden of proof as regards the conformity of the relevant decision of the third State concerned with that person’s fundamental rights, it is for that person to provide concrete evidence of the effect of that general situation on his particular situation (see, to that effect, judgment of 19 October 2017, Yanukovych v Council, C‑598/16 P, not published, EU:C:2017:786, paragraph 75.
In accordance with the case-law of the Court, in a review of restrictive measures, the Courts of the European Union must ensure the review, in principle a full review, of the lawfulness of all Union acts in the light of the fundamental rights forming an integral part of the EU legal order, which include, in particular, observance of the rights of the defence and the right to  effective judicial protection (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraphs 20 and 21 and the case-law cited, and judgment of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 22).
The effectiveness of the judicial review guaranteed by Article 47 of the Charter requires, as the General Court correctly pointed out in paragraph 112 of the judgment under appeal in Case C‑72/19 P, that, as part of the review of the lawfulness of the grounds which are the basis of the decision to include or to maintain a person’s name on the lists of persons subject to restrictive measures, the EU Courts are to ensure that that decision, which affects that person individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, are substantiated (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119; of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 42; of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 22; and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 23).
It is for the Council, before acting on the basis of a decision of an authority of a third State with a view to adopting or maintaining restrictive measures, to verify whether that decision was adopted in accordance with the rights of the defence and the right to effective judicial protection (judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 24; of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 26; and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 27).
In accordance with settled case-law, the Council is obliged, when adopting restrictive measures, to act in accordance with the fundamental rights that form an integral part of the EU legal order, which include, as has been pointed out in paragraph 32 of the present judgment, observance of the rights of the defence and the right to effective judicial protection (see, to that effect, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 97 and 98; of 26 July 2017, Council v LTTE, C‑599/18 P, EU:C:2017:583, paragraph 25; of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 27; and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 28).
In that regard, the requirement for the Council to verify that the decisions of third States on which it bases the entry of a person or entity on a list of persons or entities whose assets are to be frozen have been taken in accordance with those rights is designed to ensure that they are included on that list only on a sufficiently solid factual basis and, thus, to protect the persons or entities concerned (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/18 P, EU:C:2017:583, paragraph 26; judgments of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 28, and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 29).
The Council cannot conclude that a listing decision is taken on a sufficiently solid factual basis before having itself verified that the rights of the defence and the right to effective judicial protection were observed at the time of the adoption of the decision by the third State in question on which it intends to base the adoption of restrictive measures (judgments of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 34, and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 35).
Lastly, and while the decision to maintain, by the acts at issue in Case C‑72/19 P, the freezing of the appellants’ assets affects them individually, it must be added that, in accordance with the case-law cited in paragraph 33 of the present judgment, the EU Court must be satisfied, in the context of its review of the lawfulness of the grounds on which such a decision is based, that, at the very least, one of those grounds is sufficiently detailed and specific, that it is substantiated and that it constitutes in itself sufficient basis to support that decision (see, to that effect, judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 72; judgments of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 38, and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 39).
Thus, although it is true that the listing criterion referred to in paragraph 34 of the present judgment allows the Council to base restrictive measures on a decision of a third State, such as those referred to in the letters and memorandum of the Egyptian authorities referred to in paragraph 35 of this judgment, the fact remains that the obligation, on that institution, to observe the rights of the defence and the right to effective judicial protection means that it must satisfy itself that those rights were observed by the authorities of the third State which adopted that decision (see, to that effect, judgments of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 35, and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 36).
That conclusion cannot be called into question by the Council’s argument that the appellants have not put forward any evidence capable of demonstrating that their particular situation had been affected by the alleged problems of the Egyptian judicial system. Indeed, in accordance with the settled case-law, it is the task of the competent EU authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 121; of 28 November 2013, Council v Fulmen and Mahmoudian, C-280/12 P, EU:C:2013:775, paragraph 66); of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 39; and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 40).
Moreover, the Court has stated that, in the light of the settled case-law cited in paragraphs 38, 39 and 45 above, it cannot be inferred from the judgments of 19 October 2017, Yanukovych v Council (C‑598/16 P, not published, EU:C:2017:786), and of 19 October 2017, Yanukovych v Council (C‑599/16 P, not published, EU:C:2017:785), to which the Council referred, that the Council is not required to verify that the decision of a third State on which it intends to base the adoption or maintenance of restrictive measures has been taken in accordance with the rights of the defence and the right to effective judicial protection (see, to that effect, judgments of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 40, and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 41).