Tarif Akhras v Council of the European Union.
Date: 2016-04-07
32


It follows that the object of an appeal brought against the judgment under appeal can only be to call into question at least one of those two aspects of the decision of the General Court, contesting either the annulment of certain measures as ordered by the General Court or the dismissal, for the remainder, of the action brought by Mr Akhras (see, by analogy, the order in Cytochrome Development v OHIM, C‑490/13 P, EU:C:2014:2122, paragraph 32). Conversely, an appeal which sought only a substitution of the grounds stated by the General Court for that decision, without requesting that that decision be wholly or partly set aside, would have to be considered, pursuant to Article 169(1) of the Court’s Rules of Procedure, to be inadmissible (see, to that effect, the judgments in Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraphs 44 and 45, and Council and Others v Vereeniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraphs 33 and 34).
35


That being the case, it is clear that the aim of the appeal is to have the decision of General Court as it appears in the operative part of the judgment under appeal partly set aside and that the defects of form that affect the drafting of the forms of order in the appeal do not prevent the Court from carrying out its review of legality (see, by analogy, the judgment in ISD Polska and Others v Commission, C‑369/09 P, EU:C:2011:175, paragraph 67, and order in Fercal v OHIM, C‑324/13 P, EU:C:2014:60, paragraph 37).
50


In that regard, 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 Akhras on such lists and, third, the evidence that his listing was well founded (see, to that effect, the judgments in Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 41; Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 40; and Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 39).
51


First, as regards the general criteria which were adopted in this case for the purpose of applying restrictive measures, and for the defining of which the Council has a broad discretion (see, to that effect, the judgments in Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 120; Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 42; and Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 41), it is clear that Articles 18(1) and 19(1) of Decision 2011/782 targeted in particular persons and entities benefiting from or supporting the Syrian regime and persons and entities associated with them, while Article 15(1) of Regulation No 36/2012 targets in particular persons and entities benefiting from or supporting the regime, and persons and entities associated with them.
52


Neither Decision 2011/782 nor Regulation No 36/2012 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 (see, by analogy, the judgments in Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 43, and Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 42).
53


It is therefore clear that neither Decision 2011/782 nor Regulation No 36/2012 establishes a presumption that the heads of the leading businesses of Syria provide support for the Syrian regime (see, by analogy, the judgments in Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 44, and Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 43).
55


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 of the lawfulness of the findings upon which the Council based its decision to include Mr Akhras 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 (see, to that effect, the judgments in Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 45, and Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 44).
56


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 contested acts, 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 that effect, the 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; Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 46; and Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 45).
57


In this instance, in carrying out an 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 in order to put pressure on the Syrian regime to stop the violent repression against the population, and of the difficulty in obtaining more specific evidence in a State beset by civil war and an authoritarian regime (see, by analogy, the judgments in Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 47, and Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 46).
60


As regards, third, the review as to whether the inclusion of Mr Akhras on the lists of persons and entities subject to restrictive measures was well founded, that must be carried out by assessing whether his situation constitutes sufficient proof that he provided economic support for the Syrian regime or benefited from it. Such an appraisal must be carried out by examining the evidence not in isolation but in the context in which it fits (see, to that effect, the judgments in Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 51, and Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 50).
61


Taking into consideration how difficult it is for the Council to produce evidence because of the state of war that prevails in Syria, the Council discharges the burden of proof that lies on 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 Syrian regime (see, to that effect, the judgments in Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 53, and Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 52).
62


In the light of the context surrounding the evidence on which the Council relies, the General Court was correct to hold that the position of Mr Akhras in Syrian economic life and the important offices held by him, currently or in the past, within the Homs Chamber of Commerce and the Board of the Federation of Syrian Chambers, constituted a set of indicia sufficiently specific, precise and consistent to establish that Mr Akhras was providing economic support to the Syrian regime or benefiting from it (see, by analogy, the judgments in Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 52, and Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 51).
64


It is apparent from, first, the Court’s case-law that the inclusion of a person on a list such as those established by the contested acts can be justified if one of the reasons relied upon, deemed sufficient in itself to support that listing, is substantiated (see, to that effect, the judgment 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, second, from Decision 2011/782, Regulation No 36/2012 and the contested acts that the fact that a person provides economic support to the Syrian regime or benefits from it is sufficient in itself to justify the inclusion of that person on the lists of persons and entities subject to restrictive measures.
66


It is therefore necessary, in order to determine whether the General Court reviewed to the requisite legal standard whether there was a sufficiently solid factual basis to support the inclusion of Mr Akhras on the lists of persons and entities subject to restrictive measures, to give a ruling on the appellant’s arguments that the General Court disregarded the rules relating to the burden of proof and distorted the sense of some of the evidence in its examination of various claims made by Mr Akhras whereby he sought to establish that his business had, in fact, been hindered by the Syrian regime and that he had opposed that regime (see, by analogy, the judgments in Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraphs 54 and 55, and Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraphs 53 and 54).
67


In that regard, it should be recalled that, according to the Court’s settled case-law, the General Court has exclusive jurisdiction to find and appraise the relevant facts and, in principle, to examine the evidence it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that assessment does not therefore constitute a point of law which is subject as such to review by the Court of Justice (judgment in InnoLux v Commission, C‑231/14 P, EU:C:2015:451, paragraph 59 and the case-law cited).
68


There is such distortion where, without recourse to new evidence, the assessment of the existing evidence is clearly incorrect. However, such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (judgment in Italy v Commission, C‑280/14 P, EU:C:2015:792, paragraph 52 and the case-law cited).
82


It is apparent from all the foregoing that the General Court undertook a review of whether the inclusion of the name of Mr Akhras in the lists of persons and entities subject to restrictive measures was well founded on the basis of a set of indicia relating to his situation and the positions occupied by him in the context of the Syrian regime that was not rebutted by him. Consequently, the reference, in the judgment under appeal, to a presumption of support for that regime cannot affect the legality of the judgment under appeal, since it is apparent from the findings made by the General Court that it undertook a review to the requisite legal standard of whether there existed a sufficiently solid factual basis for the inclusion of the name of Mr Akhras in the lists under consideration (see, by analogy, the judgments in Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 55, and Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 54).