Case T‑619/15

Bureau d’achat de diamant Centrafrique (Badica)
and
Kardiam

v

Council of the European Union

(Common foreign and security policy — Restrictive measures taken against certain persons and entities in view of the situation in the Central African Republic — Freezing of funds — Initial listing decision — List of persons and entities to which the freezing of funds and economic resources applies — Inclusion of the applicants’ names — Implementation of a UN resolution — Obligation to state reasons — Rights of defence — Presumption of innocence — Manifest error of assessment)

Summary — Judgment of the General Court (Ninth Chamber), 20 July 2017

1. Actions for annulment — Grounds — Infringement of essential procedural requirements — Infringement of the duty to state reasons — To be considered of the Court’s own motion

   (Art. 263 TFEU)

2. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Restrictive measures taken against certain persons and entities in view of the situation in the Central African Republic — Acts adopting or maintaining such measures — No communication to the applicant — Irrelevant unless established that the applicant’s rights thereby infringed

   (Art. 263, fourth para., TFEU)

3. European Union — Judicial review of the legality of the acts of the institutions — Act implementing resolutions of the United Nations Security Council — Indirect review of the lawfulness of decisions of the Security Council — Precluded — Review of the said act in the light of EU law — Lawfulness

   (Arts 263, first para., TFEU, and 275, second para., TFEU)

4. EU law — Principles — Fundamental rights — Presumption of innocence — Fund-freezing decision taken against certain persons and entities having regard to the situation in the Central African Republic — Compatibility with that principle — Conditions

   (Charter of Fundamental Rights of the European Union, Art. 48(1); Council Regulations No 224/2014 and 2015/1485)

5. Common foreign and security policy — Restrictive measures against certain persons and entities having regard to the situation in the Central African Republic — 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 — No criminal character

   (Arts 21 and 29 TEU; Council Regulations No 224/2014 and 2015/1485)

6. EU law — Principles — Rights of defence — Right to effective judicial protection — Restrictive measures against certain persons and entities having regard to the situation in the Central African Republic — 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 — Obligation to verify the accuracy of the facts and circumstances underlying the listing measure — Scope

   (Council Regulations No 224/2014, Arts 5(3), and 17(2), and 2015/734)

7. European Union — Judicial review of the legality of the acts of the institutions — Regulation introducing restrictive measures against certain persons and entities having regard to the situation in the Central African Republic — Ambit of the review

   (Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 2015/1485)

1.  See the text of the decision.

   (see paras 42, 43)

2.  See the text of the decision.

   (see paras 52-54)

3.  It follows from Article 263(1) TFEU and from Article 275(2) TFEU, that, while the EU judicature has jurisdiction to review the legality of the acts of the EU institutions and, in particular, the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council, it has no such jurisdiction to review the international agreement on which such EU measures are based. In that regard, it must be emphasised that the review of lawfulness thus to be ensured by the EU Courts applies to the Union act intended to give effect to the international agreement at issue, and not to the latter as such. With more particular regard to a Union act which is intended to give effect to a Security Council resolution, it is not, therefore, for the EU Courts to review the lawfulness of such a resolution adopted by an international body, or the enquiry underlying it.

   (see paras 66, 67)

4.  See the text of the decision.

   (see paras 71-75)

5.  See the text of the decision.

   (see para.78)

6.  In proceedings relating to the adoption of the decision to list or maintain the listing of the name of an individual, where, beforehand, under the relevant Security Council resolutions, the Sanctions Committee has decided to list the name of that person on its own list, respect for the rights of the defence and the right to effective judicial protection requires that the competent Union authority disclose to the individual concerned the evidence against that person available to that authority and relied on as the basis of its decision, that is to say, at the very least, the summary of reasons provided by the Sanctions Committee, so that that individual is in a position to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in bringing an action before the EU Courts. When that disclosure takes place, the competent Union authority must ensure that that individual is placed in a position in which he may effectively make known his views on the grounds advanced against him. However, in the context of an initial listing, contrary to the position in respect of the procedure for maintaining the name of a person on the list, compliance with that dual procedural obligation does not have to precede the adoption of the decision.

   Moreover, the Council must take its decision ‘on the basis of the statement of reasons provided by the Sanctions Committee’. There is no provision for that committee automatically to make available to the competent European Union authority, for the purposes of the adoption by that committee of its decision, any material other than that statement of reasons. It follows that the Council is not bound, when implementing the Security Council resolution, to verify ‘the accuracy of the facts and circumstances’ underlying the listing measure. It is when comments are made by the individual concerned on the summary of reasons that the competent European Union authority is under an obligation to examine, carefully and impartially, whether the alleged reasons are well founded, in the light of those comments and any exculpatory evidence provided with those comments.

   (see paras 79-81, 86-88)

7.  See the text of the decision.

   (see paras 96-99, 130, 132, 133)