Judgment of the General Court (Ninth Chamber, Extended Composition) of 12 February 2020.Ferdinand Ilunga Luyoyo v Council of the European Union.Common foreign and security policy – Restrictive measures taken in view of the situation in the Democratic Republic of the Congo – Freezing of funds – Renewal of the listing of the applicant’s name on the list of persons concerned – Obligation to state reasons – Rights of the defence – Obligation for the Council to communicate the new elements justifying the renewal of the restrictive measures – Error of law – Manifest error of assessment – Right to property – Right to respect for private and family life – Proportionality – Presumption of innocence – Plea of illegality.Case T-166/18.

Judgment // 12/02/2020 // 7 min read
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Judgment of the General Court (Ninth Chamber, Extended Composition) of 12 February 2020 –Ilunga Luyoyo v Council

(Case T‑166/18)

(Common foreign and security policy – Restrictive measures taken in view of the situation in the Democratic Republic of the Congo – Freezing of funds – Renewal of the listing of the applicant’s name on the list of persons concerned – Obligation to state reasons – Rights of the defence – Obligation for the Council to communicate the new elements justifying the renewal of the restrictive measures – Error of law – Manifest error of assessment – Right to property – Right to respect for private and family life – Proportionality – Presumption of innocence – Plea of illegality)

  1. Acts of the institutions – Statement of reasons – Obligation – Scope – Restrictive measures directed against the Democratic Republic of the Congo – Freezing of funds of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violations – Minimum requirements

(Art. 296 TFEU; Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2017/2282, Annex II)

(see paras 32, 34-36)

  1. Common foreign and security policy – Restrictive measures directed against the Democratic Republic of the Congo – Freezing of funds of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violations – Obligation to identify in the statement of reasons individual and specific reasons justifying such measures – Decision falling within a context known to the person concerned, enabling him to understand the scope of the measure taken against him

(Art. 296 TFEU; Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2017/2282, Annex II)

(see paras 33, 41-45)

  1. EU law – Principles – Rights of defence – Right to effective judicial protection – Restrictive measures directed against the Democratic Republic of the Congo – Freezing of funds of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violations – 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

(Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2017/2282, Annex II)

(see paras 49, 50, 52)

  1. Common foreign and security policy – Restrictive measures directed against the Democratic Republic of the Congo – Freezing of funds – Rights of defence – Subsequent decision maintaining the name of the applicant on the list of persons covered by those measures – No new grounds – Obligation for the Council to disclose to the person concerned new evidence taken into account during its periodic review of the restrictive measures – Communication of new evidence to the person concerned in order to seek his observations – Absence – Infringement of the rights of the defence

(Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2017/2282, Art. 9(2) and Annex II)

(see paras 54-61, 64, 67)

  1. EU law – Principles – Rights of defence – Restrictive measures directed against the Democratic Republic of the Congo – Obligation for the Council to disclose to the person concerned new evidence taken into account during its periodic review of the restrictive measures – Scope – Unlawfulness of the act depending on proving the procedural relevance of the infringement of that obligation – No effect in the present case

(Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2017/2282, Annex II)

(see paras 68-71, 73, 76)

  1. Common foreign and security policy – Restrictive measures directed against the Democratic Republic of the Congo – Scope – Persons involved in planning, directing or committing acts that constitute serious human rights violations or abuses – Definition – Persons who have committed such acts in the past, notwithstanding the lack of evidence establishing current involvement in such acts – Included – Interpretation corroborated by the possibility of renewing the restrictive measures – Effectiveness

(Council Decision 2010/788/CFSP, as amended by Decisions (CFSP) 2016/2231 and (CFSP) 2017/2282, Arts 3 (2) (b) and 9 (2))

(see paras 81-84, 86)

  1. European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures directed against the Democratic Republic of the Congo – Scope of the review – Inclusion of the applicant’s name on the list annexed to the contested decision by virtue of his duties – Documents publicly available establishing serious human rights violations – Probative value – Principle of the unfettered assessment of the evidence – Inculpatory and exculpatory evidence provided

(Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2017/2282, Annex II)

(see paras 94-96, 98, 103, 118, 124)

  1. Common foreign and security policy – Restrictive measures directed against the Democratic Republic of the Congo – Freezing of funds of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violations – Criteria – Roles conferring responsibility for the repression of the civil population or compliance with the rule of law – Error of assessment – None

(Council Decision 2010/788/CFSP, as amended by Decisions (CFSP) 2016/2231 and (CFSP) 2017/2282, Annex II)

(see paras 132-136)

  1. Common foreign and security policy – Restrictive measures directed against the Democratic Republic of the Congo – Freezing of funds of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violations – Restrictions on the right to property – Breach of principle of proportionality – None

(Arts 3 (5), 21 (2) (b) and (c) and 29 TEU; Art. 215(2) TFEU; Charter of Fundamental Rights of the European Union, Arts 17 (1) and 52 (1); Council Decision 2010/788/CFSP, as amended by Decisions (CFSP) 2016/2231 and (CFSP) 2017/2282, Art. 5(1))

(see paras 141-154)

  1. Common foreign and security policy – Restrictive measures directed against the Democratic Republic of the Congo – Prohibition of the entry and transit, and freezing of funds, of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violations – Restriction on the right to respect for private and family life and the right of free movement within the EU – Breach of principle of proportionality – None

(Charter of Fundamental Rights of the European Union, Art. 7; Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2017/2282, Annex II)

(see paras 155, 156)

  1. EU law – Principles – Fundamental rights – Presumption of innocence – Decision to freeze funds taken against certain persons and entities in view of the situation in the Democratic Republic of the Congo – Compatibility with that principle – Conditions

(Charter of Fundamental Rights of the European Union, Art. 48(1); Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2017/2282, Art. 5(1) and Art. 9)

(see paras 158-163)

  1. Plea of illegality – Scope – Measures the illegality of which may be pleaded – General measure providing the basis of the contested decision – Need for a legal connection between the contested measure and the contested general measure – None – Inadmissibility

(Art. 277 TFEU; Council Decision 2010/788/CFSP, Art. 3(2)(b); Council Regulation No 1183/2005, Art. 2b(1)(b))

(see paras 167, 168)

  1. European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures directed against the Democratic Republic of the Congo – Scope of the review – Restricted review for general rules – Criteria for adopting restrictive measures – Involvement in planning, directing or committing acts that constitute serious human rights violations – Scope – Compliance with the principle of legal certainty requiring clarity, precision and foreseeability of the effects of legal rules

(Arts 3 (5) and 21 (2) (b) and (c) TEU; Art. 275, second para. TFEU; Council Decisions 2010/788/CFSP, Art. 3(2)(b) and (CFSP) 2016/2231, Recitals 3 and 4; Council Regulation No 1183/2005)

(see paras 169-179)

Re:

Application based on Article 263 TFEU seeking annulment of Council Decision (CFSP) 2017/2282 of 11 December 2017 amending Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo (OJ 2017 L 328, p. 19), in so far as it concerns the applicant.

Operative part

The Court:

  1. Dismisses the action;

  2. Orders Mr Ferdinand Ilunga Luyoyo to pay the costs.

Common foreign and security policy , External relations