Article 48 - Presumption of innocence and right of defence
Article 17 - Right to property
Article 41 - Right to good administration
Article 49 - Principles of legality and proportionality of criminal offences and penalties
Article 52 - Scope and interpretation
Common foreign and security policy — Restrictive measures directed against certain persons and entities in view of the situation in Egypt — Freezing of funds — Legal basis — Obligation to state reasons — Error of fact — Rights of the defence — Right to effective judicial protection — Right to property — Freedom to conduct a business.
Outcome of the case:
On those grounds, THE GENERAL COURT (Third Chamber) hereby:
Dismisses the action;
70) According to the case-law, the principle of legality in relation to crime and punishment, enshrined in the first sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union, requires that a provision of the criminal law may not be applied extensively to the detriment of the defendant (Joined Cases C-74/95 and C-129/95 X [1996] ECR I-6609, paragraph 25).
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73) Consequently, if Decision 2011/172 laid down administrative penalties and, therefore, came within the scope of the first sentence of Article 49(1) of the Charter of Fundamental Rights, it would have to be interpreted strictly.
75) The provisions of the first sentence of Article 49(1) of the Charter of Fundamental Rights are identical those of the first sentence of Article 7(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. In accordance with Article 52(3) of the Charter of Fundamental Rights, those provisions must be interpreted in the light of the case-law of the European Court of Human Rights (‘the ECHR’).
80) Accordingly, that freezing of assets does not constitute an administrative penalty nor does it come within the scope of the first sentence of Article 49(1) of the Charter of Fundamental Rights.
82) It is indeed true that the presumption of innocence is enshrined, in the European Union legal order, in Article 48(1) of the Charter of Fundamental Rights. That principle, which, in accordance with Article 52(3) of that charter, must be interpreted in the light of the ECHR’s case-law, requires that no representative of an official authority may declare a person guilty of a criminal offence before he has been proved guilty by a court (see Allenet de Ribemont v. France, 10 February 1995, §§ 35-36, Series A no. 308, and Lizaso Azconobieta v. Spain no. 28834/08, § 37, 28 June 2011). In addition, the presumption of innocence is breached by statements or decisions which reflect the sentiment that the person is guilty, which encourage the public to believe in his guilt or which prejudge the assessment of the facts by the competent court (see Pandy v. Belgium, no. 13583/02, § 42, 21 September 2006, and Pavalache v. Romania, no. 38746/03, § 116, 18 October 2011).
106) Under Article 41(2)(c) of the Charter of Fundamental Rights, the right to good administration includes, in particular, ‘the obligation of the administration to give reasons for its decisions’.
107) It has consistently been held that the statement of reasons required by Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights must be appropriate to the contested act and to the context in which it was adopted. It must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the person concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case (see Case C‑417/11 P Council v Bamba [2012] ECR, paragraphs 50 and 53 and the case-law cited).
108) It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. Thus, first, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to the person concerned and which enables him to understand the scope of the measure concerning him (see Council v Bamba, cited at paragraph 107 above, paragraphs 53 and 54 and the case-law cited). Secondly, the degree of precision of the statement of the reasons for a measure must be weighed against practical realities and the time and technical facilities available for taking the measure (see Case T-228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II-4665, paragraph 141 and the case-law cited).
180) Secondly, the principle of the observance of the rights of the defence and the right to an effective remedy guaranteed by the first paragraph of Article 47(1) of the Charter of Fundamental Rights require, as a rule, that the European Union authority which adopts an act imposing restrictive measures in respect of a person or entity communicate the grounds for that act, at least as swiftly as possible after it was adopted, in order to enable those persons or entities to defend their interests or exercise their right to bring an action (see, to that effect, Kadi and Al Barakaat International Foundation v Council and Commission, cited at paragraph 52 above, paragraphs 335 and 336, and Bank Melli Iran v Council, cited at paragraph 161 above, paragraph 92). The Council is, as a rule, required to communicate a decision individually to satisfy that obligation (Case C-548/09 P Bank Melli Iran v Council [2011] ECR I-11381, paragraphs 52 and 55).
194) Article 17(1) of the Charter of Fundamental Rights provides: ‘Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.’
195) In the present case, the Council froze, by Decision 2011/172 and Regulation No 270/2011, during a definite period, the assets held, inter alia, by the applicants. Consequently, the Council must be regarded as having limited the exercise, by the applicants, of the right referred to in Article 17(1) of the Charter of Fundamental Rights (see, to that effect, Kadi and Al Barakaat International Foundation v Council and Commission, cited at paragraph 52 above, paragraph 358). However, the right to property, as protected by that article, does not constitute an unfettered prerogative (see, to that effect, Case 4/73 Nold v Commission [1974] ECR 491, paragraph 14, and Kadi and Al Barakaat International Foundation v Council and Commission, cited at paragraph 52 above, paragraph 355) and may therefore be limited, under the conditions laid down in Article 52(1) of the Charter of Fundamental Rights.
196) Article 52(1) of the Charter of Fundamental Rights provides, first, that ‘[an]y limitation on the exercise of the rights and freedoms recognised by [the Charter of Fundamental Rights] must be provided for by law and respect the essence of those rights and freedoms’, and, secondly, that ‘[s]ubject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the [European] Union or the need to protect the rights and freedoms of others’.
202) First, the limitation on the exercise of the right to property in question must be regarded as ‘provided for by law’, within the meaning of Article 52(1) of the Charter of Fundamental Rights, given that the criteria laid down in Article 1(1) of Decision 2011/172 and in Article 2(1) of Regulation No 270/2011 have been complied with (see paragraphs 99 and 103 above).
211) First, in accordance with Article 52(3) of the Charter of Fundamental Rights, Article 17(1) of that charter, which enshrines the right to property, must be interpreted in the light of the ECHR’s case-law on Article 1 of Protocol No 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, which guarantees the right to the peaceful enjoyment of ‘possessions’.
215) As to future payments which, when the freezing of assets entered into force, were not provided for by any legal act, the applicants are incorrect to take the view that those payments fall within the scope of Article 17(1) of the Charter of Fundamental Rights. By preventing third parties from making such payments, the Council did not deprive the applicants of any ‘possession’, within the meaning of the ECHR’s case-law referred to in paragraph 212 above.
218) Under Article 16 of the Charter of Fundamental Rights, ‘[t]he freedom to conduct a business in accordance with Union law and national laws and practices is recognised’.
