Case T-203/20

Maher Al-Imam

v

Council of the European Union

Judgment of the General Court (Fourth Chamber), 22 September 2021 (Extracts)

(Common foreign and security policy – Restrictive measures adopted against Syria – Freezing of funds – Rights of the defence – Right to effective judicial protection – Error of assessment – Proportionality – Right to property – Damage to reputation)

1. Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Decision to freeze funds concerning restrictive measures adopted against Syria – Decision reviewing the list of persons, groups or entities concerned and supplementing the list without repealing the earlier decision – Appeal against this first decision by a person not mentioned in it – Person mentioned in the subsequent decision – Inadmissibility

   (Article 263 TFEU; Council Decision 2013/255/CFSP)

   (see paragraphs 47-52)

2. 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 grounds for the decisions adopted – Scope – Communication to the person concerned by means of publication in the Official Journal – Council unable to effect notification – Admissibility – Infringement – Absence

   (Charter of Fundamental Rights of the European Union, Article 41(2), 47 and 52(1); Council Implementing Decision (CFSP) 2020/212; Council Implementing Regulation 2020/211)

   (see paragraphs 54-56, 67-71, 102-104, 108, 109 and 128-132)

3. 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 – 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 notify the person concerned of the new elements taken into account when periodically renewing restrictive measures – Infringement of the right to be heard – Absence

   (Council Decision (CFSP) 2020/719; Council Implementing Regulation 2020/716)

   (see paragraphs 72-78)

4. EU law – Principles – Duty to act within a reasonable time – Administrative procedure – Assessment that must be made in concreto – Criteria for assessment – Restrictive measures against Syria – Inclusion of the applicant in the list annexed to the contested decision by virtue of his status as a leading businessperson operating in Syria – Time limit for filing a request for review not established by a provision of Union law – Shortness of the deadline indicated in the notice published in the Official Journal – Infringement of the right to be heard – Absence

   (Charter of Fundamental Rights of the European Union, Article 41(1) and 47; Council Decision 2014/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2020/212 and (CFSP) 2020/719, Article 34 and Annex I; Council Regulations No 36/2012, Article 32(3) and (4), 2015/1828, 2020/211 and 2020/716, Annex II)

   (see paragraphs 89, 92 and 94-98)

5. Acts of the institutions – Statement of reasons – Obligation – Scope – Restrictive measures against Syria – Ban on entry and transit and freezing of funds of leading businesspersons operating in Syria – 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 – Admissibility of a summary statement of reasons

   (Article 296 TFEU; Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2020/212 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2020/211 and 2020/716, Annex II)

   (see paragraphs 112-117 and 122-124)

6. Common foreign and security policy – Specific restrictive measures against certain persons and bodies in view of the situation in Syria – Council Decision 2013/255/CFSP and Council Regulation No 36/2012 – Criteria for adopting restrictive measures – Leading businesspersons operating in Syria – Concept

   (Article 29 TEU; Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2020/212 and (CFSP) 2020/719, Article 27(2)(a) and (3), and Article 28(2)(a) and (3); Council Regulation No 36/2012, as amended by Regulations 2015/1828, 2020/211 and 2020/716, Article 15(1a)(a) and (1b))

   (see paragraphs 120, 121, 146 and 225)

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 grounds relied on against the persons or entities concerned are well founded

   (Charter of Fundamental Rights of the European Union, Article 47; Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2020/212 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2020/211 and 2020/716, Annex II)

   (see paragraphs 134-140)

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 in the list attached to the contested decision by virtue of his status as a leading businessperson operating in Syria – Documents accessible to the public – Probative value

   (Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2020/212 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2020/211 and 2020/716, Annex II)

   (see paragraphs 147, 158-161, 166, 174 and 179)

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 time of adoption of the decision

   (Article 263 TFEU; Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2020/212 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2020/211 and 2020/716, Annex II)

   (see paragraph 175)

10. Common foreign and security policy – Restrictive measures against Syria – Freezing of funds and economic resources – Action for annulment by a leading businessperson operating in Syria against a decision to freeze funds – Allocation of the burden of proof – Decision based on a series of indicators – Probative value – Scope

    (Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2020/212 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2020/211 and 2020/716, Annex II)

    (see paragraphs 180, 181, 188-191, 196-200, 211, 216, 223-225, 233 and 234)

11. Common foreign and security policy – Specific restrictive measures against certain persons and bodies in view of the situation in Syria – Council Decision 2013/255/CFSP and Council Regulation No 36/2012 – Presumption of support for the Syrian regime in the case of leading businesspersons operating in Syria – Admissibility – Conditions – Rebuttable presumption – Evidence to the contrary – Absence

    (Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2020/212 and (CFSP) 2020/719, Annex I; Council Regulations No 36/2012, 2020/211 and 2020/716, Annex I)

    (see paragraphs 236-239, 244, 245 and 247)

12. Common foreign and security policy – Restrictive measures against Syria – Freezing of funds and restrictions on admission of persons, entities or bodies associated with the Syrian regime – Restrictions on the right to property – Infringement of the principle of proportionality – Absence

    (Article 5(4) TEU; Charter of Fundamental Rights of the European Union, Article 17; Council Decision 2013/255/CFSP, as amended by Decisions (CFSP) 2015/1836, (CFSP) 2020/212 and (CFSP) 2020/719, Article 28(3) and (6), Article 34 and Annex I; Council Regulations No 36/2012, Article 16(a) and Article 32(3) and (4), 2015/1828, 2020/211 and 2020/716, Annex II)

    (see paragraphs 254-256 and 258-266)

13. Common foreign and security policy – Jurisdiction of the EU judicature – Action for damages – Action for damages caused by mistaken inclusion on a list of persons subject to restrictive measures and by the implementation of those measures – Inclusion

    (Article 340 TFEU; Council Decisions (CFSP) 2015/1836, (CFSP) 2020/212 and (CFSP) 2020/719; Council Implementing Regulations 2020/211 and 2020/716)

    (see paragraph 279)

Résumé

The applicant, Mr Maher Al-Imam, is a Syrian businessperson with financial interests in tourism, telecommunications and real estate.

His name was included in 2020 on the lists of persons and bodies covered by the restrictive measures imposed against the Syrian Arab Republic by the Council, ( 1 ) and was then maintained on those lists, ( 2 ) on the grounds that he was a leading businessperson operating in Syria, that he was benefiting from the Syrian regime and that he was supporting its financing and construction policies, as the chief executive officer of the regime-backed Telsa Group LLC and Castro LLC, and because of his other financial interests. Those grounds were based on the one hand on the criterion of classification as a leading businessperson operating in Syria, laid down in Article 27(2)(a) and Article 28(2)(a) of Decision 2013/255, ( 3 ) as amended by Decision 2015/1836, and Article 15(1a)(a) of Regulation No 36/2012, ( 4 ) as amended by Regulation 2015/1828, and, on the other hand, on the criterion of classification as a person associated with the Syrian regime laid down in Article 27(1) and Article 28(1) of that decision and in Article 15(1)(a) of that regulation.

The Court rejects the action brought by the applicant in relation to the requests for both annulment of the contested measures and compensation of the loss allegedly suffered as a result of those measures, having examined in particular whether, on the basis of the right to be heard, the time limit for submission to the Council of applications for review of the restrictive measures potentially submitted by the persons included on those lists is reasonable.

Findings of the Court

First, with regard to whether the applicant’s right to be heard has been infringed because of the short time limit for lodging an application for review, the Court notes that this time limit was eight working days from the day of publication in the Official Journal of the European Union of the notice for persons and bodies covered by the measures in question until the final date indicated in that notice for the submission of that application. It should be noted that Council Regulation No 36/2012 does not set a time limit for the submission of an application for review or for observations.

In this case, the Court notes that compliance with a reasonable time requirement in the conduct of administrative procedures constitutes a general principle of EU law and observance of that principle is ensured by the EU Courts and is laid down as a component of the right to good administration in Article 41(1) of the Charter of Fundamental Rights of the European Union. The case-law also suggests that where the duration of a procedure is not set by a provision of EU law, the ‘reasonableness’ of the period of time is to be appraised in the light of all of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties.

In this case, the Court finds that setting a final date for the submission of applications for review is a legitimate means for the Council to ensure that it receives the observations and evidence submitted by the persons and bodies concerned before the end of the review phase and has sufficient time to examine those elements with the necessary diligence. It considers that the time limit of 12 days resulting from the final date set was, admittedly, a short period, in that it would require the applicant to determine the content of the notice and the grounds to be relied on and to draft observations that could be accompanied by evidence. However, the Court notes that, first, there are no formal requirements laid down for the submission of an application for review and, second, the lodging of an application for review establishes a dialogue between the Council and the person or body concerned that is not subject to any limitations in terms of time frame or the number of letters exchanged. There is, therefore, nothing to prevent an application for review containing summary observations being lodged within the mandated time limit and then being supplemented, where applicable, with additional observations or evidence as part of a subsequent process of exchange with the Council. The Court therefore holds that the time limit of 12 days provided by the Council in the notice published in the Official Journal on 18 February 2020 for the submission of applications for review does not constitute grounds for considering that the applicant’s right to be heard has been infringed.

In any event, in so far as the applicant is able, in accordance with Article 32(3) of Regulation No 36/2012, to submit an application or relevant observations at any time, the Court emphasises that the final date set by the Council in the notice published in the Official Journal was merely indicative. Such an indication is useful in order to allow the persons and bodies concerned to submit their applications for review before the Council’s internal review phase is completed and before new instruments are adopted by the Council.

Second, with respect to the arguments asserted by the applicant whereby, first, potential observations submitted are not analysed immediately and, second, the Council decides to examine the lists in question only once a year, the Court notes that the applicant can submit observations at any time to which the Council will provide a response without waiting for the annual review phase. It should also be noted, on the basis of Article 34 of Decision 2013/255, as amended by Decision 2015/1836, that this decision is constantly monitored, such that it can be extended, or amended if applicable, if the Council believes that its objectives are not being achieved.

( 1 ) Council Implementing Decision (CFSP) 2020/212 of 17 February 2020 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2020 L 431, p. 6) and Council Implementing Regulation (EU) 2020/211 of 17 February 2020 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2020 L 431, p. 1).

( 2 ) 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).

( 3 ) 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).

( 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).