Case T‑209/22

Shalaa 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 – 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. 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 36-42)

3. 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 43, 46, 47)

4. 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 No 2015/1828, Art. 15(1)(a) and (1a)(b))

   (see paragraphs 49-52, 54)

5. 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 – Error of assessment

   (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 2015/1828, Art. 15(1)(a), (1a)( b) and (1b))

   (see paragraphs 53, 55-58, 60, 63, 67, 69, 72, 73, 76, 77)

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

   (Art. 340, second para., TFEU)

   (see paragraph 87)

7. Non-contractual liability – Conditions – Sufficiently serious breach of EU law – Discretion of the institution when adopting the measure – Assessment of whether the act or conduct of the institution is illegal – Necessity of taking contextual and temporal factors into consideration – Existence of a sufficiently serious breach of EU law – None

   (Art. 340, second para., TFEU; 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 90-93, 99-102)

8. Non-contractual liability – Conditions – Unlawfulness – Sufficiently serious breach of a rule of EU law – Requirement that the institutions manifestly and seriously disregard the limits of their discretion – Fund-freezing measures – Assessment of the legality of the institutions’ conduct – Proof – Public information sources – Sufficiently serious breach of the substantive listing conditions – None

   (Art. 340, second para., TFEU; 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 96, 97)

Résumé

By its judgment, the General Court annuls the restrictive measures adopted by the Council of the European Union against Ms Shalaa Makhlouf, clarifying 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 Shalaa 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 applicant asserts, in the present case, that, as she came from a marriage which lasted only a few months between her mother and Mr Mohammed Makhlouf, never lived in Syria and spent her childhood with her mother in Lebanon, she visited her father only very infrequently. She also maintains that she acquired US nationality after emigrating to the United States in 1990, where she pursued higher education, and that she now resides there with her husband and her children. She produces a set of documents in support of her statements which, according to the Court, corroborate those statements, the centre of the applicant’s interests now being in the United States. The Court also finds that the death notice for Mr Mohammed Makhlouf, which mentions the names of five sons and two daughters of the deceased, does not, as is customary, mention either the name of the applicant or the name of her mother, as the former wife of the deceased. It therefore rules that the evidence produced by the applicant is consistent and credible and that, taken as a whole, it supports to the requisite legal standard her claims regarding her distance from the Makhlouf family. Accordingly, that evidence constitutes a body of sufficiently specific, precise and consistent evidence establishing that she was not, or is no longer, associated with the Syrian regime, that she did not exercise influence over the regime and that she did not pose a real risk of circumvention of the restrictive measures. It follows that in this regard the applicant must be considered to have validly rebutted the presumption of association with the Syrian regime based on the criterion of family membership.

The Court therefore concludes that the contested acts are vitiated by an error of assessment and annuls them in so far as they concern the applicant.

( 1 ) Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (OJ 2013 L 147, p. 14), as amended by 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.