Judgment of the General Court (Fifth Chamber) of 22 November 2018.Suzanne Saleh Thabet and Others v Council of the European Union.Common foreign and security policy — Restrictive measures taken in view of the situation in Egypt — Freezing of funds — Objectives — Criteria for inclusion of persons targeted — Renewal of the applicants’ designation on the list of persons targeted — Factual basis — Plea of illegality — Legal basis — Proportionality — Right to a fair trial — Presumption of innocence — Principle of good administration — Error of law — Manifest error of assessment — Right to property — Rights of defence — Right to effective judicial protection.Cases T-274/16 and T-275/16.

Judgment // 22/11/2018 // 7 min read
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Judgment of the General Court (Fifth Chamber) of 22 November 2018 –Saleh Thabet and Others v Council

(Cases T‑274/16 and T‑275/16)

(Common foreign and security policy — Restrictive measures taken in view of the situation in Egypt — Freezing of funds — Objectives — Criteria for inclusion of persons targeted — Renewal of the applicants’ designation on the list of persons targeted — Factual basis — Plea of illegality — Legal basis — Proportionality — Right to a fair trial — Presumption of innocence — Principle of good administration — Error of law — Manifest error of assessment — Right to property — Rights of defence — Right to effective judicial protection)

  1. European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures directed against certain persons and entities in view of the situation in Egypt — Ambit of the review — Assessment of the legality by reference to the information available at the time of adoption of the decision

(Art. 263 TFEU; Council Decisions (CFSP) 2016/411 and (CFSP) 2017/496; Council Regulation 2017/491)

(see para. 28)

  1. Action for annulment — Admissibility criteria — Considered of Court’s own motion

(see para. 31)

  1. Judicial proceedings — Decision or regulation replacing the contested measure in the course of proceedings — New factor — Extension of the initial pleadings — Condition — Initial pleadings directed against the replaced measure — None — Inadmissibility

(Rules of Procedure of the General Court, Art. 86(1))

(see paras 33-35)

  1. Acts of the institutions — Choice of legal basis — Decision concerning the adoption of restrictive measures directed against certain persons and entities in view of the situation in Egypt — Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them — Article 29 TEU — Lawfulness

(Arts 3 (5), 21, 23, 24 and 29 TEU; Council Decisions 2011/172/CFSP, Recital 1, Art. 1(1) (CFSP) 2016/411 and (CFSP) 2017/496)

(see paras 41, 46, 47)

  1. European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures directed against certain persons and entities in view of the situation in Egypt — Ambit of the review — Proof the measure well-founded — Obligation on the competent EU authority to establish, in the event of challenge, that the grounds held against the persons or entities concerned well-founded — Breadth of the discretion of that competent authority

Council Decisions 2011/172/CFSP, (CFSP) 2016/411 and (CFSP) 2017/496)

(see paras 54-57)

  1. Common foreign and security policy — Restrictive measures directed against certain persons and entities in view of the situation in Egypt — Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them — Nature of those measures — Purely protective measures — No criminal character

(Council Decision 2011/72/CFSP)

(see paras 58, 384)

  1. EU law — Values and objectives of the Union — Values — Respect for the rule of law — Rule of law — Meaning

(Art. 2 TEU)

(see para. 95)

  1. European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures directed against certain persons and entities in view of the situation in Egypt — Ambit of the review

(Charter of Fundamental Rights of the European Union, Art. 47; Council Decisions 2011/172/CFSP, (CFSP) 2016/411 and (CFSP) 2017/496; Council Regulation 2017/491)

(see paras 112, 113)

  1. Common foreign and security policy — Restrictive measures directed against certain persons and entities in view of the situation in Egypt — Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them — Misappropriation of public funds — Meaning — Independent and uniform interpretation — Broad interpretation — Obligation to ensure effectiveness

(Council Decision 2011/172/CFSP, Art. 1(1))

(see paras 144, 145, 154, 158, 171, 172, 188)

  1. European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures directed against certain persons and entities in view of the situation in Egypt — Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them — Ambit of the review — Proof the measure well-founded — Obligation on the Council systematically to verify evidence submitted by the authorities of a non-Member country — None

(Council Decision 2011/172/CFSP, Arts 1(1) and 5)

(see paras 146-148, 365, 382)

  1. Acts of the institutions — Statement of reasons — Obligation — Scope — Freezing of the funds of persons involved in the misappropriation of State funds in Egypt and of natural or legal persons, entities or bodies associated with them — Decision falling within a context known to the person concerned, enabling him to understand the scope of the measure taken against him — Whether summary statement of reasons sufficient — Limits — Statement of reasons not capable of consisting of a general and stereotyped formulation

(Art. 296 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(c); Council Decisions 2011/72/CFSP, Art. 1(1), (CFSP) 2016/411 and (CFSP) 2017/496)

(see paras 239-241)

  1. EU law — Principles — Rights of defence — Right to effective judicial protection — Restrictive measures directed against certain persons and entities in view of the situation in Egypt — Obligation to disclose individual and specific grounds for the decisions adopted — Obligation to enable the person concerned effectively to put forward his point of view on the grounds held against him — Scope

(Council Decisions (CFSP) 2016/411 and (CFSP) 2017/496)

(see paras 249-251)

  1. Action for annulment — Pleas in law — Lack of or inadequate statement of reasons — Separate ground from the one concerning substantive legality

(Arts 263 and 296 TFEU)

(see para. 255)

  1. EU law — Principles — Rights of defence — Right to effective judicial protection — Restrictive measures directed against certain persons and entities in view of the situation in Egypt — Procedural irregularity — Possibility of obtaining the annulment of a disputed act by demonstrating the mere possibility of a different decision in the absence of that irregularity

(Council Decisions (CFSP) 2016/411 and (CFSP) 2017/496)

(see para. 257)

  1. Common foreign and security policy — Restrictive measures directed against certain persons and entities in view of the situation in Egypt — Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them — Infringement of the right to property, of the freedom to conduct a business and of the right to reputation — Breach of principle of proportionality — None

(Art. 29 TEU; Charter of Fundamental Rights of the European Union, Arts 16 and 17; Council Decisions 2011/172/CFSP, Art. 1(3) to (5), (CFSP) 2016/411 and (CFSP) 2017/496; Council Regulation No 270/2011)

(see paras 273-291)

Re:

Application under Article 263 TFEU for annulment of (i) Council Decision (CFSP) 2016/411 of 18 March 2016 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2016 L 74, p. 40); (ii) Council Decision (CFSP) 2017/496 of 21 March 2017 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2017 L 76, p. 22); and (iii) Council Implementing Regulation (EU) 2017/491 of 21 March 2017 implementing Regulation (EU) No 270/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2017 L 76, p. 10), in so far as those acts apply to the applicants.

Operative part

The Court:

  1. Orders that Cases T‑274/16 and T‑275/16 be joined for the purposes of the judgment;

  2. Dismisses the actions;

  3. Orders Ms Suzanne Saleh Thabet, Mr Gamal Mohamed Hosni Elsayed Mubarak, Mr Alaa Mohamed Hosni Elsayed Mubarak, Ms Heidy Mahmoud Magdy Hussein Rasekh and Ms Khadiga Mahmoud El Gammal to pay the costs.

Common foreign and security policy , External relations