25.9.2010   

EN

Official Journal of the European Union

C 260/11

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Set aside, in whole, the decision of the General Court;

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Make a declaration that Regulation 194/2008 (1) of 25 February 2008 is void and a nullity in so far as it concerns the appellant; and

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An order that the Council pay the Appellant's costs of this appeal and the proceedings before the General Court.

1.

The Appellant contends that the following principal flaw runs throughout the General Court’s judgment. The General Court accepted the Council’s submission that the freezing of the Appellant’s funds was justified on the basis that he is a ‘family member’ of a ‘leading businessman’, namely his father Tay Za. The General Court held that the Appellant is therefore not listed as an individual, but as part of a ‘category’ of persons, with the consequence that he loses all procedural protection to which he would be entitled were he listed as an individual, including the requirement for there to be some evidence put forward by the institutions to justify his listing, and basic rights of defence.

2.

That approach is, in the Appellant’s view, incorrect as a matter of law and fact. The Appellant is not included in the Regulation because he is part of a category of ‘family members’; he is listed as an individual in his own name, on the express basis that he is himself presumed to benefit from the economic policies of the Government of Burma/Myanmar. The Appellant is therefore plainly entitled to the protection of the fundamental principles of Community law.

3.

The Appellant alleges, in addition, the following particular legal flaws in the General Court’s judgment.

4.

First, the Court was incorrect to have found that Articles 60 and 301 EC provided an adequate legal base for the Regulation. The Appellant contends that there is an insufficient link between the Appellant and the military regime of Burma/Myanmar. He is not a ruler of Burma/Myanmar nor a person associated with a ruler, and is not controlled, directly or indirectly, by a ruler. The fact that he is the son of someone whom the Council considers to have benefited from the regime is insufficient. The General Court erroneously stated that since (in its view) the institutions would have had the power to impose a more far-reaching trade embargo on Burma/Myanmar, a fortiori it has the power to impose this asset freezing measure on an individual.

5.

Second, the General Court erred in holding that the burden of proof is on the Appellant to rebut the presumption that he does not benefit from the regime. The burden should be on the Council to justify imposing a restrictive measure on the Appellant, and to put forward evidence to justify it.

6.

Third, the General Court wrongly held that the Council had complied with its obligation to give reasons for the Appellant’s inclusion in the Regulation. The Appellant considers that where the Council names an individual in a Regulation on the express basis that he benefits from the economic policies of a regime, the Council must give actual and specific reasons for that view, relating to the Appellant himself.

7.

Fourth, the General Court erred in holding that rights of defence were not applicable to the Appellant. Rights of defence, including the right to a fair hearing and to effective judicial review, are fundamental aspects of the rule of law in the European Union which apply whenever the institutions of the Union impose a measure which directly and adversely affects an individual. Further, the General Court erred in holding that the Appellant’s rights of defence (assuming they do apply) were not violated because a hearing could not have led to a different result since the Appellant had not provided information capable of a different assessment.

8.

Fifth, the General Court applied an incorrect standard of review of decisions by which a person is included in an annex to an asset-freezing regulation. Judicial review of the lawfulness of a decision of that kind extends to the assessment of the facts and circumstances relied on as justifying it, and to the evidence and information on which that assessment is made.

9.

Finally, the General Court erred in dismissing the Appellant’s arguments that his right to property had been infringed and that the Regulation was unjustified and disproportionate as applied to him.