Judgment of the General Court (Ninth Chamber, Extended Composition) of 12 February 2020.Roger Kibelisa Ngambasai 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 – Proportionality – Article 76(d) of the Rules of Procedure – Plea of illegality.Case T-169/18.

Judgment // 12/02/2020 // 6 min read
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Judgment of the General Court (Ninth Chamber, Extended Composition) of 12 February 2020 –Kibelisa Ngambasai v Council

(Case T‑169/18)

(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 – Proportionality – Article 76(d) of the Rules of Procedure – 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 – None – 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 institutions to disclose to the person concerned new evidence taken into account during their 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 who have prevented a consensual and peaceful crisis exist strategy aimed at holding elections, in particular by acts of violence, repression, incitement to violence, or by undermining the rule of law – 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) (a) 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

(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 92-94, 96, 101, 103)

  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 116-119)

  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)(a); Council Regulation No 1183/2005, Art. 2b(1)(a))

(see paras 128, 129)

  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 – Obstruction of a consensual and peaceful crisis exist strategy aimed at holding elections, in particular by acts of violence, repression, incitement to violence, or by undermining the rule of law – 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)(a) and (CFSP) 2016/2231, Recitals 3 and 4; Council Regulation No 1183/2005)

(see paras 130-140)

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 Roger Kibelisa Ngambasai to pay the costs.

Common foreign and security policy , External relations