Case T‑259/19

Aman Dimashq JSC

v

Council of the European Union

Judgment of the General Court (Fourth Chamber), 24 November 2021

(Common foreign and security policy – Restrictive measures against Syria – Freezing of funds – Error of assessment – Proportionality – Right to property – Right to pursue an economic activity – Misuse of powers – Obligation to state reasons – Rights of the defence – Right to a fair trial – Right to effective judicial protection)

1. Acts of the institutions – Statement of reasons – Obligation – Scope – Restrictive measures against Syria – Freezing of funds of persons, entities or bodies supporting the Syrian regime – Decision falling within a context known to the person concerned, enabling him or her to understand the scope of the measure taken against him or her – Whether summary statement of reasons sufficient

   (Art. 296 TFEU; Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2019/87, (CFSP) 2019/806 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2019/85, 2019/798 and 2020/716, Annex II)

   (see paragraphs 35-40, 46, 49)

2. Common foreign and security policy – Specific restrictive measures against certain persons and entities in view of the situation in Syria – Decision 2013/255/CFSP and Regulation No 36/2012 – Criteria for adopting restrictive measures – Support provided to and benefit derived from the Syrian regime – Concept – Autonomous legal criterion – Inclusion on the lists based on a specific, precise and consistent set of indicia

   (Art. 29 TEU; Council Decisions 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2019/87, (CFSP) 2019/806 and (CFSP) 2020/719, Arts 27(1) and 28(1); Council Regulations No 36/2012, as amended by Regulation 2015/1828, Art. 15(1)(a), 2019/85, 2019/798 and 2020/716)

   (see paragraphs 44-45, 107, 128, 129, 138, 153, 158, 159)

3. EU law – Principles – Rights of the defence – Right to effective judicial protection – Restrictive measures against Syria – Freezing of funds of persons, entities or bodies associated with the Syrian regime – Obligation to disclose individual and specific reasons for the decisions adopted – Scope – Notification to the person concerned through publication in the Official Journal – Whether permissible

   (Charter of Fundamental Rights of the European Union, Arts 41(2)(a), 47 and 52(1); Council Decision (CFSP) 2019/87; Council Regulation 2019/85)

   (see paragraphs 55-65)

4. Common foreign and security policy – Specific restrictive measures against Syria – Freezing of funds of persons, entities or bodies associated with the Syrian regime – Rights of the defence – Notification of incriminating evidence – Subsequent decision maintaining the name of the applicant on the list of persons subject to those measures – No new reasons – No obligation on the Council to notify the incriminating evidence

   (Council Decisions (CFSP) 2019/806 and (CFSP) 2020/719; Council Regulations 2019/798 and 2020/716)

   (see paragraphs 67-70, 79, 80)

5. EU law – Principles – Rights of the defence – Right to effective judicial protection – Restrictive measures against Syria – Freezing of funds of persons, entities or bodies associated with the Syrian regime – Obligations on the part of the Council – Notification to the person concerned of incriminating evidence and the right to be heard – Request of the party concerned – Failure to act within a reasonable period – Infringement

   (Charter of Fundamental Rights of the European Union, Arts 41(2)(a) and 47; Council Decision (CFSP) 2019/806, Annex I; Council Regulation 2019/798, Annex II)

   (see paragraphs 71-75)

6. EU law – Principles – Rights of the defence – Right to effective judicial protection – Restrictive measures against Syria – Freezing of funds of persons, entities or bodies associated with the Syrian regime – Decision based on facts and documents provided by one party without the other party being heard – Late disclosure of evidence – Infringement – Annulment of that decision – None – Condition – Possibility for the procedure to lead to a different outcome in the absence of that infringement

   (Charter of Fundamental Rights of the European Union, Arts 41(2)(a) and 47; Council Decision (CFSP) 2019/806, Annex I; Council Regulation 2019/798, Annex II)

   (see paragraphs 76-78)

7. European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures against Syria – Scope of the review – Proof that the measure is well founded – Obligation on the competent EU authority to establish, in the event of challenge, that the reasons held against the persons or entities concerned are well founded

   (Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2019/87, (CFSP) 2019/806 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2019/85, 2019/798 and 2020/716, Annex II)

   (see paragraphs 100-106)

8. European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures against Syria – Scope of the review – Inclusion of the applicant on the list annexed to the contested decision on account of its status as an entity supporting the Syrian regime – Publicly accessible documents – Probative value

   (Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2019/87, (CFSP) 2019/806 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2019/85, 2019/798 and 2020/716, Annex II)

   (see paragraphs 109, 118, 121, 122, 127)

9. European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures against Syria – Scope of the review – Assessment of the legality by reference to the information available at the date of adoption of the decision

   (Art. 263 TFEU; Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2019/87, (CFSP) 2019/806 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2019/85, 2019/798 and 2020/716, Annex II)

   (see paragraph 110)

10. Common foreign and security policy – Specific restrictive measures against certain persons and entities in view of the situation in Syria – Decision to freeze funds – Rules on evidence – Recourse to presumptions – Whether permissible – Rebuttable – Infringement of the rights of the defence – None

    (Art. 263 TFEU; Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2019/87, (CFSP) 2019/806 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2019/85, 2019/798 and 2020/716, Annex II)

    (see paragraph 140)

11. Common foreign and security policy – Restrictive measures against Syria – Freezing of the funds and restrictions on the admission of persons, entities or bodies associated with the Syrian regime – Restriction of the right to property and the freedom to pursue an economic activity – Breach of the principle of proportionality – None

    (Art. 5(4) TEU; Charter of Fundamental Rights of the European Union, Arts 15, 16 and 17; Council Decision 2013/255/CFSP, Arts 28(6) and (7) and 34, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2019/87 and (CFSP) 2019/806, Annex I; Council Regulations (EU) No 36/2012, as amended by Regulation 2015/1828, Art. 32(4), 2019/85 and 2019/798, Annex II)

    (see paragraphs 170-172, 174-179)

Résumé

Aman Dimashq JSC is a legal person governed by Syrian law, established in Damascus, active in the development of residential, commercial and leisure buildings. Its name was included, in January 2019, ( 1 ) on the lists of persons and entities subject to the restrictive measures against the Syrian Arab Republic adopted by the Council of the European Union and then maintained on those lists in May 2019 and May 2020 ( 2 ) as a joint venture formed between Damascus Cham Holding and Aman Holding supporting and benefiting from the Syrian regime by reason of its participation in the construction of Marota City, a regime-backed luxury development project.

In support of its action for annulment of the measures at issue (‘the initial measures’, ‘the 2019 maintaining acts’ and ‘the 2020 maintaining acts’), the applicant disputed the evidence adduced by the Council, which, in its view, was not capable of demonstrating that it benefited from the Syrian regime and that it was associated with it. It also claimed that the contested measures infringed its rights of defence, its right to a fair trial and its right to effective judicial protection.

The Court dismisses the applicant’s action while clarifying, as regards the rights of the defence and to an effective judicial remedy, the concept of access to documentary evidence, in the case of a re-listing, and the need for the applicant to be able effectively to submit its observations within a reasonable period before the adoption of the decision at issue and, in the case of an initial listing, the need for the existence, at the date of adoption of the decision at issue, of documentary evidence supporting that listing.

Findings of the Court

The Court notes, as a preliminary point, that the right to be heard and the right to access the file are enshrined in Article 41(2)(a) and (b) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and that the right to effective judicial protection, as enshrined in Article 47 of the Charter, requires that the person concerned be able to ascertain the reasons on which the decision taken against him or her is based, in order to enable him or her, inter alia to decide, with full knowledge of the relevant facts, whether there is any point in bringing an action and, at the same time, to enable the court having jurisdiction to exercise its power of review. It points out that, in the case of a re-listing decision, unlike an initial listing decision, a surprise effect is no longer necessary in order to ensure that those measures are effective, with the result that the adoption of the acts in question must, in principle, be preceded by notification of the incriminating evidence and by affording the person or entity concerned an opportunity to be heard.

In the light of the foregoing, the Court finds, first, that the adoption of the 2019 maintaining acts should have been preceded, in principle, by notification of the incriminating evidence to the applicant within a reasonable period. Since that notification occurred only four days before the adoption of those acts, the Court considers that the disclosure to the applicant of the document in question was too late and that its rights of the defence were therefore infringed. However, since the applicant has not explained which arguments or information it could have put forward if it had received the documents in question earlier nor has it demonstrated how those arguments or that information could have led to a different outcome in its case, the Court holds that the infringement in question of the rights of the defence does not entail, in the circumstances of the present case, the annulment of the 2019 maintaining acts so far as concerns the applicant.

Next, the Court finds that, as regards the right to effective judicial protection, the Council has demonstrated that it was in possession of a body of evidence before the adoption of the initial measures which supported the reasons for listing set out in those measures. The Court observes, moreover, that although the Council is required, at the request of the party concerned, to provide access to all non-confidential official documents within a reasonable period, and that the period which elapsed between the date of adoption of the initial measures and the date of the applicant’s request for access cannot justify the Council’s failure to reply within a reasonable period, there are also internal deadlines within the Council for obtaining approval from various bodies in order to send this type of document. The Court points out in that regard that the applicant itself waited about 21 days before the expiry of the time limit for bringing its action before it sent the Council its first request for access to the file: the fact that the Council was not in a position to disclose the document in question to the applicant before its action was brought was therefore not attributable entirely to the Council. Since the applicant was also able to state its views on the evidence contained in that document both in its reply and at the hearing, the Court concludes in that regard that the disclosure of that document within the period in question was sufficient to enable the applicant to exercise its right to an effective judicial remedy.

( 1 ) Council Implementing Decision (CFSP) 2019/87 of 21 January 2019 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2019 L 18 I, p. 13) and Council Implementing Regulation (EU) 2019/85 of 21 January 2019 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2019 L 18 I, p. 4).

( 2 ) Council Decision (CFSP) 2019/806 of 17 May 2019 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2019 L 132, p. 36) and Council Implementing Regulation (EU) 2019/798 of 17 May 2019 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2019 L 132, p. 1); Council Decision (CFSP) 2020/719 of 28 May 2020 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2020 L 168, p. 66) and Council Implementing Regulation (EU) 2020/716 of 28 May 2020 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2020 L 168, p. 1).