Judgment of the General Court (Fifth Chamber) of 12 December 2018.Mohamed Hosni Elsayed Mubarak 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 — Maintenance of the applicant’s 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.Case T-358/17.

Judgment // 12/12/2018 // 4 min read
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Judgment of the General Court (Fifth Chamber) of 12 December 2018 –Mubarak v Council

(Case T‑358/17)

(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 — Maintenance of the applicant’s 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, entities and bodies 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 — Restricted review for general rules — Review extending to the assessment of facts and verification of evidence for measures applying to specific entities — Maintenance of the applicant’s designation on the list of persons targeted — Obligation on the part of the Council to undertake further checks — Scope

(Council Decisions (CFSP) 2017/496 and (CFSP) 2018/466; Council Regulations 2017/491 and 2018/465)

(see paras 40, 41, 102)

  1. Common foreign and security policy — Restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt — Decision to freeze funds — Adoption or retention on the basis of a national fund-freezing decision of an authority of a third State — Whether permissible — Condition — National decision adopted in accordance with the rights of the defence and the right to effective judicial protection — Council’s verification obligation — Obligation to state reasons — Scope

(Council Decisions 2011/172/CFSP, (CFSP) 2017/496 and (CFSP) 2018/466; Council Regulations 2017/491 and 2018/465)

(see paras 64, 65, 70, 72-74, 78)

  1. Common foreign and security policy — Restrictive measures directed against certain persons, entities and bodies 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 — Concept — Independent and uniform interpretation — Broad interpretation — Actions capable of being characterised in terms of Egyptian criminal law as misappropriation of State funds — Included

(Council Decision 2011/172/CFSP, Art. 1(1); Council Regulation No 270/2011, Art. 2(1))

(see paras 101, 103, 104, 111, 112, 116)

  1. EU law — Principles — Rights of defence — Right to effective judicial protection — Restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt — Decision maintaining the applicant’s designation on the list of persons targeted — 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 2011/172/CFSP, (CFSP) 2017/496 and (CFSP) 2018/466; Council Regulations No 270/2011, 2017/491 and 2018/465)

(see paras 151-153, 158)

  1. Common foreign and security policy — Restrictive measures directed against certain persons, entities and bodies 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 — Restriction on the right to property and reputation — Breach of principle of proportionality — None

(Council Decisions 2011/172/CFSP, (CFSP) 2017/496 and (CFSP) 2018/466; Council Regulations No 270/2011, 2017/491 and 2018/465)

(see paras 166, 177-181, 182)

Re:

Application under Article 263 TFEU for annulment (i) of 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); (ii) of 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); (iii) of Council Decision (CFSP) 2018/466 of 21 March 2018 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2018 L 78I, p. 3); and (iv) of Council Implementing Regulation (EU) 2018/465 of 21 March 2018 implementing Regulation (EU) No 270/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2018 L 78I, p. 1), in so far as those acts apply to the applicant.

Operative part

The Court:

  1. Dismisses the action;

  2. Orders Mr Mohamed Hosni Elsayed Mubarak to bear his own costs and to pay those incurred by the Council of the European Union.

Common foreign and security policy , External relations