Key facts of the case:
Common foreign and security policy — Restrictive measures directed against certain persons and entities in view of the situation in Tunisia — Measures taken against persons responsible for misappropriation of public funds and associated persons and entities — Freezing of funds — List of persons, entities and bodies subject to the freezing of funds and economic resources — Inclusion of the applicant’s name — Inadequate factual basis — Error of fact — Error of law — Right to property — Freedom to conduct a business — Proportionality — Rights of defence — Right to effective judicial protection — Obligation to state reasons
Results (sanctions) and key consequences of the case:
THE COURT (Eighth Chamber) hereby:
- Dismisses the action;
- Orders Mr Fahed Mohamed Sakher Al Matri to bear his own costs and to pay those incurred by the Council of the European Union.
- By contrast, according to settled case-law, 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 acts at issue, 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 judgment in Anbouba v Council, cited in paragraph 48 above, EU:C:2015:248, paragraph 45 and the case-law cited).
- It can, it is true, be inferred by analogy from the case-law on restrictive measures adopted in the fight against terrorism that it was for the Council, in this instance, to examine carefully and impartially the evidence that had been sent to it by the Tunisian authorities, that is to say, the certificates at issue, in the light, in particular, of the comments and any exculpatory evidence submitted by the applicant (see, to that effect and by analogy, judgment of 18 July 2013 in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, ECR, EU:C:2013:518, paragraph 114). Furthermore, in the context of the adoption of restrictive measures, the Council is under an obligation to observe the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights, which, according to settled case-law, entails the obligation for the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see, to that effect and by analogy, judgments in Commission and Others v Kadi, EU:C:2013:518, paragraph 99, and of 5 November 2014 in Mukarubega, C‑166/13, ECR, EU:C:2014:2336, paragraph 48).
- The first of those rights, which is affirmed in Article 41(2) of the Charter of Fundamental Rights, includes the right to be heard and the right to have access to the file, subject to legitimate interests in maintaining confidentiality. The second of those rights, which is affirmed in Article 47 of the Charter of Fundamental Rights, requires that the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based, either by reading the decision itself or by requesting and obtaining disclosure of those reasons, without prejudice to the power of the court having jurisdiction to require the authority concerned to disclose that information, so as to make it possible for him to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his applying to the court having jurisdiction, and in order to put the latter fully in a position to review the lawfulness of the decision in question (see judgment in Commission and Others v Kadi, cited in paragraph 58 above, EU:C:2013:518, paragraphs 99 and 100 and the case-law cited).
- In particular, in proceedings relating to the adoption of the decision to enter or maintain the entry of the name of an individual on a list of persons and entities whose assets are to be frozen, respect for the rights of the defence requires that the competent EU authority disclose to the individual concerned the evidence against that person available to that authority and relied on as the basis of its decision, so that that individual is in a position to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in bringing an action before the Courts of the European Union. In addition, when that disclosure takes place, the competent EU authority must ensure that that individual is placed in a position in which he may effectively make known his views on the grounds advanced against him. Lastly, where the decision is one whereby the name of the individual concerned is to be maintained on such a list, compliance with that dual procedural obligation must, contrary to the position in respect of an initial listing, precede the adoption of that decision (see, to that effect, judgment in Commission and Others v Kadi, cited in paragraph 58 above, EU:C:2013:518, paragraphs 111 to 113 and the case-law cited). By contrast, where that decision merely extends the continued listing of the individual concerned without amending the grounds justifying that continued listing, the Council cannot be required to respect that dual procedural obligation (see, to that effect, judgment of 18 June 2015 in Ipatau v Council, C‑535/14 P, ECR, EU:C:2015:407, paragraphs 26 and 27).
- Article 52(1) of the Charter of Fundamental Rights nevertheless allows limitations on the exercise of the rights enshrined in the Charter, subject to the conditions that the limitation concerned respects the essence of the fundamental right in question and, subject to the principle of proportionality, that it is necessary and genuinely meets objectives of general interest recognised by the European Union. Further, the question whether there is an infringement of the rights of the defence and of the right to effective judicial protection must be examined in relation to the specific circumstances of each particular case, including the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question (judgment in Commission and Others v Kadi, cited in paragraph 58 above, EU:C:2013:518, paragraphs 101 and 102).
- Furthermore, 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 measure 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 judgment in Ezz and Others v Council, cited in paragraph 32 above, EU:T:2014:93, paragraph 107 and the case-law cited).