Case T‑208/22

Kinda Makhlouf

v

Council of the European Union

Judgment of the General Court (Ninth Chamber, Extended Composition) of 17 July 2024

(Common foreign and security policy – Restrictive measures taken in view of the situation in Syria – Freezing of funds and economic resources – Restriction on entry into the territory of the Member States – List of persons, entities and bodies subject to the freezing of funds and economic resources or subject to restrictions on entry into the territory of the Member States – Inclusion and maintenance of the applicant’s name on the list – Heir of a person already subject to restrictive measures – Rights of the defence – Error of assessment – Proportionality – Right to property – Freedom to move and reside in the Member States – Right to family life – Non-contractual liability)

  1. Judicial proceedings – Decision or regulation replacing the contested measure in the course of proceedings – Application to modify the application – Conditions

    (Rules of Procedure of the General Court, Art. 86(1))

    (see paragraphs 25, 29)

  2. Judicial proceedings – Decision or regulation replacing the contested measure in the course of proceedings – Application to modify the application – Obligation for the applicant to accompany that application with modified pleas in law and arguments – None, except where there are substantial differences between the two measures – General Court’s obligation of verification

    (Rules of Procedure of the General Court, Art. 86(1) and (4))

    (see paragraphs 35-37)

  3. Judicial proceedings – Modification of the pleas in the course of proceedings – Formal requirements – Summary of the pleas in law on which the application is based – Transposition of the initial pleas in law – Conditions

    (Rules of Procedure of the General Court, Art. 86(4))

    (see paragraphs 38, 39)

  4. EU law – Principles – Rights of defence – Right to effective judicial protection – Restrictive measures – Obligation to disclose individual and specific grounds for the decisions adopted – Right to be heard prior to the adoption of such measures – Limitations – Conditions

    (Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Council Decision 2013/255/CFSP, as amended by Decision (CFSP) 2022/242, Annex; Council Regulations No 36/2012 and No 2022/237)

    (see paragraphs 51-54, 56, 58, 61)

  5. EU law – Principles – Rights of defence – Right to be heard – Obligation on the institutions to adhere to the point of view of the parties concerned – None – Obligation to reply to all the arguments of the parties – None

    (Charter of Fundamental Rights of the European Union, Art. 41(2))

    (see paragraph 68)

  6. 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 relied on 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) 2022/242 and (CFSP) 2023/1035, Annex; Council Regulations No 36/2012, No 2022/237 and No 2023/1027)

    (see paragraphs 76-82)

  7. 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 her membership of the Assad or Makhlouf families – Documents available to the public – Probative value

    (Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2022/242 and (CFSP) 2023/1035, Annex; Council Regulations No 36/2012, No 2022/237 and No 2023/1027)

    (see paragraphs 83, 86, 87, 121-123)

  8. 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 – Presumption of support for the Syrian regime in the case of leading businesspersons operating in Syria and members of the Assad or Makhlouf families – Whether permissible – Conditions

    (Council Decision 2013/255/CFSP, as amended by Decision (CFSP) 2015/1836, Arts 27(1) and (2)(a) and (b) and 28(1) and (2); Council Regulations No 36/2012 and 2015/1828, Art. 15(1)(a) and (1a)(b))

    (see paragraphs 89-92, 94)

  9. 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 – Presumption of support for the Syrian regime in the case of members of the Assad or Makhlouf families – Whether permissible – Conditions – Rebuttable presumption – Evidence to the contrary – None

    (Council Decision 2013/255/CFSP, as amended by Decision (CFSP) 2015/1836, Arts 27(1) to (3) and 28(1) to (3); Council Regulations No 36/2012 and No 2015/1828, Art. 15(1)(a), (1a)( b) and (1b))

    (see paragraphs 93, 95-98, 101-104, 114, 116, 125)

  10. Common foreign and security policy – Restrictive measures against Syria – Freezing of the funds of and restrictions on the admission of persons, entities or organisations associated with the Syrian regime – Restriction of the right to property – Breach of principle of proportionality – None

    (Arts 5(4) and 29 TEU; Art. 215 TFEU; Charter of Fundamental Rights of the European Union, Arts 17 and 52(1); Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2022/242 and (CFSP) 2023/1035, Art. 28(6); Council Regulations No 36/2012, No 2022/237 and No 2023/1027, Art. 16)

    (see paragraphs 131-155, 160)

  11. Common foreign and security policy – Restrictive measures against Syria – Freezing of the funds of and restrictions on the admission of persons, entities or organisations associated with the Syrian regime – Restrictions on the right to respect for private and family life – Breach of principle of proportionality – None

    (Art 5(4) and 29 TEU; Art. 215 TFEU; Charter of Fundamental Rights of the European Union, Arts 7 and 52(1); Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2022/242 and (CFSP) 2023/1035, Arts 27(9) and 34; Council Regulations No 36/2012, No 2022/237 and No 2023/1027, Art. 32(4))

    (see paragraphs 163, 168-183)

  12. Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link – Cumulative conditions

    (Art. 340, second para., TFEU)

    (see paragraphs 187, 191, 192)

Résumé

By its judgment, the General Court dismisses the action for annulment brought by Ms Kinda Makhlouf against the acts which included her name on the lists of persons benefiting from or supporting the policies of the Syrian regime and, for that reason, subject to restrictive measures. It clarifies inter alia the scope of the criterion of family membership established by Decision 2013/255 ( 1 ) concerning restrictive measures against Syria and the rules concerning the burden of proof and the rebuttal of the presumption established by that decision.

Ms Kinda Makhlouf is one of the daughters of Mr Mohammed Makhlouf, a businessman of Syrian nationality who died on 12 September 2020 and whose name had been included on the lists of persons and entities subject to the restrictive measures taken against Syria by the Council in 2011. ( 2 )

The applicant’s name was included on the lists at issue on 21 February 2022 ( 3 ) for the following reason: ‘daughter of Mohammed Makhlouf and member of the Makhlouf family’. That listing was based on the criterion of membership of the Assad and Makhlouf families established by Article 27(2)(b) and Article 28(2)(b) of Decision 2013/255, as amended by Decision 2015/1836, and by Article 15(1a)(b) of Regulation No 36/2012, ( 4 ) as amended by Regulation 2015/1828. To that end, the Council had relied on the decision opening the succession of Mr Mohammed Makhlouf, issued by a Syrian court on 27 September 2020, which was not contested by the applicant, an heir of the deceased. The inclusion of the applicant’s name on the lists at issue was maintained, inter alia, on 25 May 2023. ( 5 )

Findings of the Court

In the view of the applicant, the mere fact that she is a member of the Makhlouf family should not justify the adoption of restrictive measures against her. In this regard, the Court holds, first, that the specific inclusion criteria in respect of the different categories of persons covered by Decision 2013/255, as amended by Decision 2015/1836, ( 6 ) are autonomous of the general criterion of association with the Syrian regime laid down in that decision. ( 7 ) Accordingly, merely belonging to one of the categories of persons at issue is a sufficient basis for taking the restrictive measures in question, without there being any need also to provide evidence of the support that the persons concerned provide to the existing Syrian regime or the benefit that they derive from it. The Court infers from this that the criterion of family membership establishes an objective, autonomous and sufficient criterion to justify the adoption of restrictive measures against ‘members of the … Makhlouf [family]’. However, the persons at issue must not be included on the lists at issue if there is sufficient information that they are not associated with the Syrian regime, or do not exercise influence over it or do not pose a real risk of circumvention of the restrictive measures. ( 8 ) The Court recalls in this respect that it was the task of the applicant, in the context of a challenge to the contested acts, to adduce evidence in order to rebut the rebuttable presumption of association with the Syrian regime based on the criterion of family membership.

The Court finds in the present case, having regard to the arguments put forward by the applicant and the evidence produced by her relating, first, to her private and family life and, second, to the alleged breakdown in relations between the Makhlouf family and the Syrian regime, that those elements are not capable of rebutting the presumption of association with the Syrian regime.

The Court reaches a similar conclusion regarding the inculpatory evidence contained in a supplementary evidence file which the Council sent to the applicant on 31 May 2022. That evidence includes an article from the Financial Times which reports that the applicant, and other members of the Makhlouf family close to her, acquired apartments in Russia by means of loans and financial arrangements which made it possible divert funds outside Syria and thereby circumvent the restrictive measures imposed by the European Union. As the applicant has not contested that information, which also reveals the existence of links between the applicant and other members of the Makhlouf family subject to the same restrictive measures, she has failed to clarify the source of the funds that, among other things, enabled her to acquire the property in Russia. Consequently, the Court finds, first, that the contested acts are taken on a sufficiently solid factual basis and, second, that the applicant has not validly rebutted the presumption of association with the Syrian regime. Since the contested acts are not vitiated by an error of assessment, it concludes that the action must be dismissed.

( 1 ) Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (OJ 2013 L 147, p. 14), as amended Council Decision (CFSP) 2015/1836 of 12 October 2015 (OJ 2015 L 266, p. 75).

( 2 ) See Council Implementing Decision 2011/488/CFSP of 1 August 2011 implementing Decision 2011/273/CFSP concerning restrictive measures against Syria (OJ 2011 L 199, p. 74) and Council Implementing Regulation (EU) No 755/2011 of 1 August 2011 implementing Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 199, p. 33). The name of Mr Mohammed Makhlouf was removed from those lists by Council Implementing Decision (CFSP) 2022/306 of 24 February 2022 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2022 L 46, p. 95) and by Council Implementing Regulation (EU) 2022/299 of 24 February 2022 implementing Regulation (EU) No 36/2012 (OJ 2022 L 46, p. 1).

( 3 ) Council Implementing Decision (CFSP) 2022/242 of 21 February 2022 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2022 L 40, p. 26) and Council Implementing Regulation (EU) 2022/237 of 21 February 2022 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2022 L 40, p. 6).

( 4 ) Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation (EU) No 442/2011 (OJ 2012 L 16, p. 1), as amended by Council Regulation (EU) 2015/1828 of 12 October 2015 (OJ 2015 L 266, p. 1).

( 5 ) Council Decision (CFSP) 2023/1035 of 25 May 2023 amending Decision 2013/255 (OJ 2023 L 139, p. 49) and Council Implementing Regulation (EU) 2023/1027 of 25 May 2023 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2023 L 139, p. 1).

( 6 ) See Article 27(2)(b) of Decision 2013/255, as amended by Decision 2015/1836.

( 7 ) See Article 27(1) and Article 28(1) of Decision 2013/255, as amended by Decision 2015/1836.

( 8 ) See Article 27(3) and Article 28(3) of Decision 2013/255, as amended by Decision 2015/1836.