CJEU - T 190/12 / Judgment Tomana and Others v Council and Commission

Key facts of the case:

(Common foreign and security policy — Restrictive measures imposed on certain persons and entities in view of the situation in Zimbabwe — Restrictions on entry into and transit through the European Union — Freezing of funds — Legal basis — Manifest error of assessment — Obligation to state reasons — Rights of the defence — Fundamental rights — Proportionality)

Results (sanctions) and key consequences of the case:

THE GENERAL COURT (Eighth Chamber) Hereby:

  1. Dismisses the action;
  2. Orders Mr Johannes Tomana and the 120 other applicants listed in the annex hereto to bear their own costs and to pay the costs incurred by the Council of the European Union and the European Commission;
  3. Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs.

 

Paragraphs referring to EU Charter: 

Charter article 52

294    That being the case, this plea in law can only be understood as meaning that the applicants plead a breach of the principle of proportionality, with which Article 52(1) of the Charter of Fundamental Rights requires compliance.

295    In that regard, it must be recalled that the principle of proportionality, as one of the general principles of EU law, requires that measures adopted by the EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued by the legislation in question. Consequently, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (the judgment in Case C‑189/01 Jippes and Others [2001] ECR I‑5689, paragraph 81, and the judgment of 6 May 2010 in Case T‑388/07 Comune di Napoli v Commission, paragraph 143).

296    It must however also be recalled that, with regard to judicial review of compliance with the principle of proportionality, the Court of Justice has held that the EU legislature must be allowed a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. The Court of Justice concluded that the legality of a measure adopted in such spheres can be affected only if the measure is manifestly inappropriate with regard to the objective which the competent institution is seeking to pursue (see Council v Manufacturing Support & Procurement Kala Naft, paragraph 290 above, paragraph 120 and case-law cited).

297    In this case, it must be recalled that, as was stated in paragraph 97 above, the objective of the restrictive measures at issue is to encourage the persons and entities affected by them to reject policies that lead to the suppression of human rights and freedom of expression and the hindrance of good governance. Admittedly, those measures are supposed to act indirectly, the underlying idea being that those targeted by them will reject the abovementioned policies in order to have the restrictions imposed on them revoked as far as they are concerned. None the less, in the case of a sovereign third country, such as Zimbabwe, it is self-evident that the Union can influence its policies only indirectly.

298    It must also be recalled that the contested acts are the product of the deep concern felt by the European Union authorities as regards the situation in Zimbabwe, that concern being first expressed ten years earlier (see paragraph 1 above). Yet that concern, which the applicants have not in these proceedings claimed to be unjustified, was still present when the contested acts were adopted. The competent EU authorities cannot therefore be accused of an infringement of the principle of proportionality by reason of having maintained in force the previously imposed restrictive measures and of having extended their scope, with the intention of bringing to an end a situation of deep concern of such long standing (see, to that effect, Council v Manufacturing Support & Procurement Kala Naft, paragraph 290 above, paragraph 126).

299    Moreover, it is clear that the applicants have not suggested any specific less onerous measure which would have had an effect comparable to that of the measures at issue and which might have achieved the same objectives.

300    It must also be noted that the restrictive measures at issue are inherently temporary and reversible and therefore do not impair the ‘essential content’ of the fundamental rights relied on by the applicants. That is even more the case when all the applicants are natural or legal persons established in Zimbabwe and not within the European Union, which means that the disadvantages arising from those measures, although undeniably significant, are not as onerous as in the case of natural or legal persons established within the European Union.

301    Last, it must be observed that both Regulation No 314/2004 and Decision 2011/101 provide for exceptions to the restrictive measures which they establish. Thus, under Article 7(1) of Regulation No 314/2004, the competent authorities may authorise the release of funds or economic resources ‘necessary for basic expenses, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums and public utility charges’ or ‘intended exclusively for payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services’. Further, Article 4(3) to (5) of Decision 2011/101 provides for derogations from the prohibition on entry into or transit through the territory of the Member States, inter alia ‘where travel is justified on urgent and imperative humaritarian grounds’.

302    In the light of all the foregoing, and taking into account, in particular, the case-law cited in paragraph 298 above, the Court considers it to be established that the restrictive measures are proportionate. Accordingly the fifth plea in law must be rejected, and this action must therefore be dismissed in its entirety.