Case T‑163/18

Gabriel Amisi Kumba

v

Council of the European Union

Judgment of the General Court (Ninth Chamber, Extended Composition), 12 February 2020

(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 — Proportionality — Presumption of innocence — Plea of illegality)

1. Acts of the institutions — Statement of reasons — Obligation — Scope — Restrictive measures taken 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 paragraphs 32, 34-36)

2. Common foreign and security policy — Restrictive measures taken 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 paragraphs 33, 41-45)

3. EU law — Principles — Rights of the defence — Right to effective judicial protection — Restrictive measures taken 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

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

   (see paragraphs 49, 50, 52)

4. Common foreign and security policy — Restrictive measures taken against the Democratic Republic of the Congo — Freezing of funds — Rights of the 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 paragraphs 54-61, 64, 67)

5. EU law — Principles — Rights of the defence — Restrictive measures taken 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 paragraphs 68-71, 73, 76)

6. Common foreign and security policy — Restrictive measures taken 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 paragraphs 81-84, 86)

7. European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures taken 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

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

   (see paragraphs 93-95, 98, 99)

8. Common foreign and security policy — Restrictive measures taken 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 — Absence

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

   (see paragraphs 112-115)

9. Common foreign and security policy — Restrictive measures taken 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 the principle of proportionality — Absence

   (Arts 3(5), 21(2)(b) and (c) and 29 TEU; Art. 215(2) TFEU; EU Charter of Fundamental Rights, 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 paragraphs 120-133)

10. 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

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

    (see paragraphs 136-141)

11. 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 — Absence — Inadmissibility

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

    (see paragraphs 145, 146)

12. European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures taken 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, paragraph 2, TFEU; Council Decisions 2010/788/CFSP, Art. 3(2)(b), and (CFSP) 2016/2231, recitals 3 and 4; Council Regulation No 1183/2005)

    (see paragraphs 147-157)

Résumé

In the judgments Amisi Kumba v Council (T‑163/18) and Kande Mupompa v Council (T‑170/18), delivered on 12 February 2020, the General Court dismissed the action for annulment brought by the respective applicants, namely the military commander of the first defence zone of the armed forces of the Democratic Republic of the Congo (FARDC) and the Governor of Kasai Central, against the measures imposed by the Council of the European Union ( 1 ) ensuring, in essence, the continued inclusion of the applicants’ names on the list of the names of persons and entities subject to the restrictive measures taken against the Democratic Republic of Congo with a view to establishing lasting peace in that country, as identified in Annex II to Decision 2010/788 (‘the list at issue’).

Those judgments fall within the context of the worsening of the political situation in the Democratic Republic of the Congo due to the failure to call the presidential elections by the end of 2016 and the deterioration of the security situation that followed. In accordance with Article 3(2) of Decision 2010/788, the Council imposed restrictive measures against persons involved in acts that constitute serious human rights violations in the Democratic Republic of the Congo. The disproportionate use of force and violent repression by the FARDC in respect of demonstrations in September 2016 in Kinshasa led to the inclusion of the name of the military commander of the first defence zone of the FARDC on the list at issue on the ground that, in the performance of his duties, he was involved in planning, directing, or committing acts that constitute serious human rights violations. As for the Governor of Kasai Central, his name was included on the list at issue on the ground that, in the light of his duties, he was ‘responsible for the ongoing disproportionate use of force, violent repression and extrajudicial killings’ committed by security forces in that region since 2016, including alleged unlawful killings in February 2017. By means of Decision 2017/2282, the Council maintained, on 11 December 2017, the listing of the applicants’ names on the list at issue on identical grounds. The grounds for listing the Governor of Kasai Central on the list at issue were subsequently amended on 12 April 2018.

In support of their actions, the applicants raised several pleas in law, alleging, inter alia, infringement of the obligation to state reasons and of the rights of the defence, and an error of law.

As regards the infringement of the obligation to state reasons, the Court held that the statement of reasons set out in Decision 2017/2282, and in Implementing Decision 2018/569, identified the actual and specific reasons why the listing criteria were applicable to the applicants, in so far as it was founded on grounds relating to the applicants’ duties and their involvement, in the performance of those duties, in acts that constitute serious human rights violations. In that regard, the Court stated that the applicants could not have been unaware that, in the light of their duties, they had de facto power to influence directly the FARDC military personnel and the security forces in Kasai Central, which were found, in the statement of reasons in question, to be responsible for committing the serious human rights violations referred to above. The Court concluded that the statement of reasons for the contested acts thus made it possible, first, for the applicants to challenge the continued inclusion of their names on the list at issue and, second, for the Court to exercise its power of review. The plea alleging the infringement of the obligation to state reasons was therefore rejected.

With regard, next, to the rights of the defence, the Court considered that, although the renewal of restrictive measures against the applicants, decided upon in Decision 2017/2282, was based on the same grounds as those that justified the initial adoption of restrictive measures, that cannot mean that the Council was not required to respect the applicants’ rights of defence and, in particular, to give them the opportunity effectively to make known their views on the facts on the basis of which it adopted the contested decisions. In that regard, the Court pointed out that restrictive measures are measures of a precautionary and, by definition, provisional nature, the validity of which always depends on whether the factual and legal circumstances which led to their adoption continue to apply and on the need to persist with them in order to achieve their objective, which it is for the Council to assess, in its periodic review of those restrictive measures, by conducting an updated assessment of the situation and appraising the impact of such measures. The Court thus observed that respect for the rights of the defence means that the Council is required to disclose to the applicant, before adopting a decision renewing restrictive measures against him, the evidence it had relied on during the periodic review of the measures at issue in order to update the information that had justified the initial adoption of restrictive measures. In the present case, in the light of the initial objective pursued by the restrictive measures against the Democratic Republic of the Congo, namely to create a climate conducive to the holding of elections and to bring an end to all human rights violations, the Council was required, during the periodic review of the restrictive measures imposed on the applicants, to disclose to them the new evidence on which it had relied in order to update the information concerning not only their personal situation, but also the political and security situation in the Democratic Republic of the Congo. The Court held in that regard that, by failing to seek the applicants’ observations on that evidence before adopting the contested decisions, the Council infringed the applicants’ rights of defence.

However, the Court observed that it is for the Courts of the European Union to verify, where an irregularity affecting the rights of the defence has occurred, whether, in the light of the specific factual and legal circumstances of the case, the procedure at issue could have resulted in a different outcome since the applicants could have been better able to defend themselves had there been no irregularity. The Court went on to find that there was nothing in the file to suggest that, if the new evidence in question had been disclosed to the applicants, the restrictive measures concerned might not have been maintained against them. In the light of the foregoing, the Court rejected the plea alleging infringement of the rights of the defence.

Lastly, the applicants claimed that the Council committed an error of law by adopting the contested acts on the basis of conduct which, when the contested decisions were adopted, had come to an end, disregarding the criteria for inclusion on the list which use the present participle and refer to persons ‘involved in … acts that constitute serious human rights violations’. In that regard, the Court considered that the use of the present participle in the definition of the criteria for inclusion on the list at issue of persons and entities subject to restrictive measures cannot mean that the conduct giving rise to the entry of a person’s or entity’s name on that list must be ongoing when the decision is taken to list or maintain the listing, since the present participle refers to the general meaning particular to legal definitions, not to a given period of time. The Court added that, in so far as the Council decided to refer, in the grounds for including the applicants’ names on the list at issue, to specific facts and situations involving security forces operating under their control, there could be no question of anything other than past conduct. Finally, the Court observed that, if that provision is not to be rendered redundant, Article 9(2) of Decision 2010/788, as amended by Decision 2017/2282, according to which ‘the restrictive measures at issue are to be renewed, or amended as appropriate, if the Council deems that their objectives have not been met’, corroborates that interpretation. The Court thus rejected the plea alleging an error of law and dismissed the action in its entirety.

( 1 ) 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) and, in respect of Alex Kande Mupompa, Council Implementing Decision (CFSP) 2018/569 of 12 April 2018 implementing Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo (OJ 2018 L 95, p. 21) and Council Implementing Regulation (EU) 2018/566 implementing Article 9 of Regulation No 1183/2005 imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the Democratic Republic of the Congo (OJ 2018 L 95, p. 9).