Case T‑108/21

Ferdinand Ilunga Luyoyo

v

Council of the European Union

Judgment of the General Court (Seventh Chamber), 27 April 2022

(Common foreign and security policy – Restrictive measures adopted in view of the situation in the Democratic Republic of the Congo – Freezing of funds – Restriction on admission to the territory of the Member States – Retention of the applicant’s name on the lists of persons covered – Proof that inclusion and retention on the lists is well founded – Continuation of the factual and legal circumstances which led to the adoption of the restrictive measures)

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 – Proof that the measure is well founded – Obligation on the competent EU authority to establish, in the event of challenge, that the grounds relied on against the persons or entities concerned are well founded

   (Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2015/788/CFSP, as amended by Decision (CFSP) 2020/2033, Annex; Council Regulations No 1183/2005 and 2020/2021, Annex)

   (see paragraphs 51-54)

2. Common foreign and security policy – Restrictive measures directed against the Democratic Republic of the Congo – Scope – Persons who have been 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 despite there being no evidence proving current involvement in such acts – Conditions – Error of assessment

   (Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2020/2033, Art. 3(2)(b) and Annex; Council Regulations No 1183/2005, Art. 2b(1)(b) and 2020/2021, Annex)

   (see paragraphs 55, 56, 62-64, 75, 76, 79, 80)

3. 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 of persons covered by those measures by virtue of his duties – Documents publicly available establishing serious human rights violations or actions undermining the rule of law – No probative value

   (Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2020/2033, Annex; Council Regulations No 1183/2005 and 2020/2021, Annex)

   (see paragraphs 66-68, 71, 73, 74)

4. 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 civilian population or compliance with the rule of law – Council’s obligation to carry out an updated assessment in the course of the review of the restrictive measures – Evidence to the contrary – Change in the specific situation of the person covered by the restrictive measures – Position in respect of disassociation from the regime – Unnecessary – Error of assessment

   (Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2020/2033, Annex; Council Regulations No 1183/2005 and 2020/2021, Annex)

   (see paragraphs 77, 78)

Résumé

In response to the deteriorating security situation in the Democratic Republic of the Congo (DRC) and the worsening of the political situation in that country at the end of 2016, the Council had adopted, on 12 December 2016, Decision 2016/2231 and Regulation 2016/2230, ( 1 ) which provide, inter alia, for the freezing of funds and economic resources belonging to persons involved in acts undermining the rule of law in the DRC or constituting serious human rights violations.

The applicant’s name, Mr Ilunga Luyoyo, was initially included on the lists of persons covered by those restrictive measures in 2016. By Decision 2020/2033 and Regulation 2020/2021, ( 2 ) the Council maintained that listing, ( 3 ) on the grounds that, as the commander of an anti-riot unit (the LNI) until 2017 and the commander of a unit responsible for the protection of institutions and high-ranking officials (the UPIHP) until December 2019, the applicant bore responsibility for human rights violations committed by the Congolese National Police (PNC), which had made disproportionate use of force and violent repression in September 2016 in Kinshasa. The Council had added that Mr Ilunga Luyoyo had retained his rank of General and remained active on the public scene in the DRC.

Mr Ilunga Luyoyo claimed that the Council had committed a manifest error of assessment, given that he had not held a position within the PNC since 2019 and that he no longer carried out any specific public duties. He maintained, inter alia, that his former positions could not justify the decision to maintain his name on the lists in question.

The General Court upholds the action for annulment brought by Mr Ilunga Luyoyo, since the Council was unable to establish that the maintenance of the restrictive measures against him was justified, in particular in the light of changes in his personal situation since the initial inclusion of his name on the lists at issue.

Findings of the Court

The Court points out, first of all, that the EU judicature must ensure that a decision imposing restrictive measures is taken on a sufficiently solid factual basis. To that end, in so far as it is for the competent EU authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, it is necessary that the information or evidence produced should support the reasons relied on. In that regard, the Court observes that it was common ground between the parties that Mr Ilunga Luyoyo had not held a position within the PNC since December 2019 and that the Council had that information when the time came to review the restrictive measures at issue.

The Court then points out that restrictive measures are of a precautionary and, by definition, provisional nature, and their validity 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. It is for the Council, in the course of its periodic review of those measures, to carry out an updated assessment of the situation and to appraise the impact of such measures.

The Court finds, in the present case, that the evidence relied on by the Council is not capable of establishing a link between human rights violations and Mr Ilunga Luyoyo since December 2019, which is almost one year before the adoption of the contested measures, or demonstrating that Mr Ilunga Luyoyo may have been reinstated to any position in connection with the security situation in the DRC. Moreover, the fact that Mr Ilunga Luyoyo retained his rank of General does not in itself permit the inference that he could have exercised any influence whatsoever on the security forces in the DRC. As regards Mr Ilunga Luyoyo’s duties as President of the Congolese Boxing Federation, there is no concrete information in the articles produced by the Council to justify the view that the holder of that position may have an influence on security policy in the DRC, or to suggest that Mr Ilunga Luyoyo carried out highly politicised duties in that capacity.

Since the Council has failed to adduce sufficient evidence to support the view that there was still a sufficient link between Mr Ilunga Luyoyo and the security situation which gave rise to the human rights violations in the DRC, even though, for a considerable period of time before the adoption of the contested measures, he had not held the various positions which had justified the inclusion of his name on the lists in question, the Court also considers that the Council could not legitimately rely on the fact that Mr Ilunga Luyoyo had not dissociated himself from the regime formerly in power in the DRC to support its decision to maintain the restrictive measures against him.

( 1 ) Council Decision (CFSP) 2016/2231 of 12 December 2016 amending Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo (OJ 2016 L 336I, p. 7) and Council Regulation (EU) 2016/2230 of 12 December 2016 amending Council Regulation (EC) 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 2016 L 336I, p. 1)

( 2 ) Council Decision (CFSP) 2020/2033 of 10 December 2020 amending Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo (OJ 2020 L 419, p. 30) and Council Implementing Regulation (EU) 2020/2021 of 10 December 2020 implementing Article 9 of Regulation (EC) 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 2020 L 419, p. 5); ‘the contested acts’.

( 3 ) As had already been the case on three occasions. See, in that regard, judgment of 12 February 2020, Ilunga Luyoyo v Council (T‑166/18, not published, EU:T:2020:50); judgment of 3 February 2021, Ilunga Luyoyo v Council (T‑124/19, not published, EU:T:2021:63); and judgment of 15 September 2021, Ilunga Luyoyo v Council (T‑101/20, not published, EU:T:2021:575).