Aiman Jaber v Council of the European Union (T-653/11)

Contents

Judgment of the General Court (Seventh Chamber)13 November 2014^note(Common foreign and security policy — Restrictive measures adopted against Syria — Freezing of funds — Action for annulment — Period for bringing proceedings — Partial inadmissibility — Legal interest in bringing proceedings — Burden of proof — Adjustment of temporal effects of annulment)In Case T‑653/11,Aiman Jaber, residing in Lattakia (Syria), represented by M. Ponsard, D. Amaudruz and A. Boesch, lawyers,vCouncil of the European Union, represented by B. Driessen and S. Kyriakopoulou, acting as Agents,THE GENERAL COURT (Seventh Chamber),composed of M. van der Woude, President, I. Wiszniewska-Białecka and I. Ulloa Rubio (Rapporteur), Judges,Registrar: C. Heeren, Administrator,having regard to the written procedure and further to the hearing on 11 June 2014,gives the following

Judgment

Background to the dispute

1The applicant, Aiman Jaber, is a Syrian national trained in mechanical engineering who carries on a business in the area of steel, construction materials and the import and export of agricultural goods.

Decision 2011/273 and Regulation No 442/2011

2On 9 May 2011, the Council of the European Union — strongly condemning the violent repression of peaceful protest in various locations across Syria and calling on the Syrian security forces to exercise restraint instead of repression — adopted Decision 2011/273/CFSP concerning restrictive measures against Syria (OJ 2011 L 121, p. 11). In view of the seriousness of the situation, the Council imposed an arms embargo, a ban on exports of internal repression equipment, and restrictions on the admission to the European Union, and the freezing of funds and economic resources, of certain persons and entities responsible for the violent repression against the civilian population in Syria.

3The names of the persons responsible for the violent repression against the civilian population in Syria as well as those of the natural or legal persons and entities associated with them are listed in the Annex to Decision 2011/273. Pursuant to Article 5(1) of that decision, the Council, acting upon a proposal by a Member State or the High Representative of the Union for Foreign Affairs and Security Policy, may amend the Annex. The applicant’s name does not appear in it.

4Given that some of the restrictive measures taken against Syria fall within the scope of the TFEU, the Council adopted Regulation (EU) No 442/2011 of 9 May 2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 121, p. 1). This regulation is, in the main, identical to Decision 2011/273, but provides for the release of frozen funds in certain circumstances. The list of persons, entities and bodies recognised as being responsible for the repression in question or as being associated with those responsible, set out in Annex II to that regulation, is identical to the list appearing in the Annex to Decision 2011/273. The applicant’s name does not appear on it. Pursuant to Article 14(1) and (4) of Regulation No 442/2011, where the Council decides to subject a natural or legal person, entity or body to the restrictive measures referred to, it shall amend Annex II accordingly and, in addition, shall review the list contained therein at regular intervals and at least every 12 months.

5By Implementing Decision 2011/488/CFSP of 1 August 2011 implementing Decision 2011/273 (OJ 2011 L 199, p. 74), the Council amended Decision 2011/273 in order to, in particular, apply the restrictive measures in question to other persons and entities. In addition to the applicant’s name, line 4 of the table in the Annex to that decision contains various items of information, including the date of inclusion of the applicant’s name on the list, in this instance ‘1 August 2011’, the applicant’s place of birth and the following reasons:‘Associate of Mahir al-Assad for the Shabiha militia. Directly involved in repression and violence against the civilian population and co-ordination of Shabiha militia groups.’

6On the same day, the Council — acting under Article 215(2) TFEU and Decision 2011/273 — adopted Implementing Regulation (EU) No 755/2011 implementing Regulation No 442/2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 99, p. 33). The applicant’s name appears in line 4 of the table in the Annex to that implementing regulation together with the same information and reasons as those set out in the Annex to Implementing Decision 2011/488.

7On 2 August 2011, the Council published in the Official Journal of the European Union the Notice for the attention of the persons to which restrictive measures provided for in Decision 2011/273, as implemented by Implementing Decision 2011/488, and in Regulation No 442/2011, as implemented by Implementing Regulation No 755/2011 apply (OJ 2011 C 227, p. 3).

8Decision 2011/273 and Regulation No 442/2011 were also implemented or amended, in particular, by the following acts, which do not mention the applicant’s name in the lists annexed thereto:— Council Implementing Decision 2011/302/CFSP of 23 May 2011 implementing Decision 2011/273 (OJ 2011 L 136, p. 91) and Council Implementing Regulation (EU) No 504/2011 of 23 May 2011 implementing Regulation No 442/2011 (OJ 2011 L 136, p. 45);— Council Implementing Decision 2011/367/CFSP of 23 June 2011 implementing Decision 2011/273 (OJ 2011 L 164, p. 14) and Council Implementing Regulation (EU) No 611/2011 of 23 June 2011 implementing Regulation No 442/2011 (OJ 2011 L 164, p. 1);— Council Implementing Decision 2011/515/CFSP of 23 August 2011 implementing Decision 2011/273 (OJ 2011 L 218, p. 20) and Council Implementing Regulation (EU) No 843/2011 of 23 August 2011 implementing Regulation No 442/2011 (OJ 2011 L 218, p. 1);— Council Decision 2011/522/CFSP of 2 September 2011 amending Decision 2011/273 (OJ 2011 L 228, p. 16) and Council Regulation (EU) No 878/2011 of 2 September 2011 amending Regulation No 442/2011 (OJ 2011 L 228, p. 1);— Council Decision 2011/628/CFSP of 23 September 2011 amending Decision 2011/273 (OJ 2011 L 247, p. 17) and Council Regulation (EU) No 950/2011 of 23 September 2011 amending Regulation No 442/2011 (OJ 2011 L 247, p. 3);— Council Decision 2011/684/CFSP of 13 October 2011 amending Decision 2011/273 (OJ 2011 L 269, p. 33) and Council Regulation (EU) No 1011/2011 of 13 October 2011 amending Regulation No 442/2011 (OJ 2011 L 269, p. 18);— Council Decision 2011/735/CFSP of 14 November 2011 amending Decision 2011/273 (OJ 2011 L 296, p. 53) and Council Regulation (EU) No 1150/2011 of 14 November 2011 amending Regulation No 442/2011 (OJ 2011 L 296, p. 1);— Council Implementing Decision 2011/736/CFSP of 14 November 2011 implementing Decision 2011/273 (OJ 2011 L 296, p. 55) and Council Implementing Regulation (EU) No 1151/2011 of 14 November 2011 implementing Regulation No 442/2011 (OJ 2011 L 296, p. 3);— Council Implementing Regulation (EU) No 1244/2011 of 1 December 2011 implementing Regulation No 442/2011 (OJ 2011 L 319, p. 8).

Decision 2011/782 and Regulation No 36/2012

9By Decision 2011/782/CFSP of 1 December 2011 concerning restrictive measures against Syria and repealing Decision 2011/273 (OJ 2011 L 319, p. 56), the Council considered it necessary to impose additional restrictive measures in view of the gravity of the situation in Syria. For the sake of clarity, the measures imposed by Decision 2011/273 and the additional measures were integrated into a single legal instrument. Article 18 of Decision 2011/782 lays down restrictions on admission to the European Union and Article 19 thereof provides for the freezing of funds and economic resources of the persons and entities listed in Annex I thereto. The applicant’s name appears in that Annex in line 34 of the table containing the list in question under the heading ‘A. Persons’, together with the same information and reasons as those set out in the Annex to Implementing Decision 2011/488.

10On 2 December 2011, the Council published in the Official Journal the Notice for the attention of the persons and entities to which restrictive measures provided for in Decision 2011/782 and Regulation No 442/2011 as implemented by Implementing Regulation No 1244/2011 apply (OJ 2011 C 351, p. 14).

11Regulation No 442/2011 was replaced by Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation No 442/2011 (OJ 2012 L 16, p. 1). The applicant’s name appears in line 34 of the table in Annex II to Regulation No 36/2012 together with the same information and reasons as those set out in the Annex to Implementing Decision 2011/488.

12On 24 January 2012, the Council published in the Official Journal the Notice for the attention of the persons and entities to which restrictive measures provided for in Decision 2011/782, as implemented by Council Implementing Decision 2012/37/CFSP, and in Regulation No 36/2012, as implemented by Council Implementing Regulation (EU) No 55/2012 concerning restrictive measures against Syria apply (OJ 2012 C 19, p. 5).

13Decision 2011/782 and Regulation No 36/2012 were also implemented or amended, in particular, by the following acts, which do not mention the applicant’s name in the annexed lists:— Council Decision 2012/122/CFSP of 27 February 2012 amending Decision 2011/782 (OJ 2012 L 54, p. 14), and Council Regulation (EU) No 168/2012 of 27 February 2012 amending Regulation No 36/2012 (OJ 2012 L 54, p. 1);— Council Implementing Decision 2012/172/CFSP of 23 March 2012 implementing Decision 2011/782 (OJ 2012 L 87, p. 103), and Council Implementing Regulation (EU) No 266/2012 of 23 March 2012 implementing Article 32(1) of Regulation No 36/2012 (OJ 2012 L 87, p. 45);— Council Decision 2012/206/CFSP of 23 April 2012 amending Decision 2011/782 (OJ 2012 L 110, p. 36);— Council Implementing Decision 2012/256/CFSP of 14 May 2012 implementing Decision 2011/782 (OJ 2012 L 126, p. 9), and Council Implementing Regulation (EU) No 410/2012 of 14 May 2012 implementing Article 32(1) of Regulation No 36/2012 (OJ 2012 L 126, p. 3);— Council Regulation (EU) No 509/2012 of 15 June 2012 amending Regulation No 36/2012 (OJ 2012 L 156, p. 10);— Council Decision 2012/322/CFSP of 20 June 2012 amending Decision 2011/782 (OJ 2012 L 165, p. 45);— Council Implementing Decision 2012/335/CFSP of 25 June 2012 implementing Decision 2011/782 (OJ 2012 L 165, p. 80), Council Implementing Regulation (EU) No 544/2012 of 25 June 2012 implementing Article 32(1) of Regulation No 36/2012 (OJ 2012 L 165, p. 20) and Council Regulation (EU) No 545/2012 of 25 June 2012 amending Regulation No 36/2012 (OJ 2012 L 165, p. 23);— Council Decision 2012/420/CFSP of 23 July 2012 amending Decision 2011/782 (OJ 2012 L 196, p. 59), Council Implementing Decision 2012/424/CFSP of 23 July 2012 implementing Decision 2011/782 (OJ 2012 L 196, p. 81), and Council Implementing Regulation (EU) No 673/2012 of 23 July 2012 implementing Article 32(1) of Regulation No 36/2012 (OJ 2012 L 196, p. 8).

Decision 2012/739

14By Council Decision 2012/739/CFSP of 29 November 2012 concerning restrictive measures against Syria and repealing Decision 2011/782 (OJ 2012 L 330, p. 21), the restrictive measures in question were integrated into a single legal instrument. The applicant’s name appears in line 33 of the table in Annex I to Decision 2012/739 together with the same information and reasons as those set out in the Annex to Implementing Decision 2011/488.

15On 30 November 2012, the Council published in the Official Journal the Notice for the attention of the persons and entities to which restrictive measures provided for in Decision 2012/739 and Regulation No 36/2012, as implemented by Council Implementing Regulation (EU) No 1117/2012, concerning restrictive measures in view of the situation in Syria apply (OJ 2012 C 370, p. 6).

16Council Implementing Decision 2013/185/CFSP of 22 April 2013 implementing Decision 2012/739 (OJ 2013 L 111, p. 77) seeks to update the list of the persons and entities subject to restrictive measures appearing in Annex I to Decision 2012/739. The applicant’s name appears in line 33 of the table in Annex I together with the same information and reasons as those set out in the Annex to Implementing Decision 2011/488.

17Council Implementing Regulation (EU) No 363/2013 of 22 April 2013 implementing Regulation No 36/2012 (OJ 2013 L 111, p. 1) contains the same information and reasons as those set out in the Annex to Implementing Decision 2011/488.

18On 23 April 2013, the Council published in the Official Journal the Notice for the attention of the persons and entities to which restrictive measures provided for in Decision 2012/739, as implemented by Implementing Decision 2013/185, and in Regulation No 36/2012, as implemented by Implementing Regulation No 363/2013 apply (OJ 2013 C 115, p. 5).

Decision 2013/255

19On 31 May 2013, the Council adopted Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2013 L 147, p. 14). The applicant’s name appears in line 33 of the table in Annex I to that decision together with the same information and reasons as those set out in the Annex to Implementing Decision 2011/488.

20On 1 June 2013, the Council published in the Official Journal the Notice for the attention of the persons and entities to which restrictive measures provided for in Decision 2013/255 and Regulation No 36/2012 apply (OJ 2013 C 155, p. 1).

Procedure and forms of order sought by the parties

21By application lodged at the Registry of the General Court on 26 December 2011, the applicant brought the present action for the annulment of Decision 2011/273, as implemented or amended up to the date of filing of the application, including all amending or implementing decisions; Regulation No 442/2011, as implemented or amended up to the date of filing of the application, including all amending or implementing regulations; and Decision 2011/782, as implemented or amended up to the date of filing of the application, in so far as those acts concern him.

22By separate document lodged at the Registry of the General Court on 26 December 2011, the applicant applied for the case to be decided under an expedited procedure pursuant to Article 76a of the Rules of Procedure of the General Court.

23By decision of 29 March 2012, the General Court (Sixth Chamber) rejected the application for an expedited procedure.

24On 20 February 2012, the Council lodged its defence at the Registry of the General Court.

25By document lodged at the Registry of the General Court on 13 February 2012, the applicant requested leave to amend his heads of claim as regards Council Implementing Decision 2012/37/CFSP of 23 January 2012 implementing Decision 2011/782 (OJ 2012 L 19, p. 33), Council Implementing Regulation (EU) No 55/2012 of 23 January 2012 implementing Article 33(1) of Regulation No 36/2012 (OJ 2012 L 19, p. 6) and Regulation No 36/2012. By letter lodged at the Registry of the General Court on 16 March 2012, the Council filed its observations on the applicant’s request, claiming, in particular, that the first two acts covered by the request did not mention him and that the action against Regulation No 36/2012 was out of time. By decision of 4 April 2012, the General Court granted the applicant leave to lodge a document amending his heads of claim, but restricted such leave to Regulation No 36/2012. The applicant lodged the document amending his heads of claim at the Registry on 15 June 2012. By letter lodged at the Registry on 29 June 2012, the Council filed its observations on the document amending the heads of claim.

26By document lodged at the Registry of the General Court on 30 March 2012, the applicant requested leave to amend his heads of claim as regards Regulation No 168/2012, Decision 2012/122, Implementing Regulation No 266/2012 and Implementing Decision 2012/172. By letter lodged at the Registry on 24 April 2014, the Council filed its observations on the applicant’s request, claiming that the acts covered by the request did not mention him. By decision of 1 June 2012, the General Court decided not to grant leave to lodge a document amending the heads of claim.

27By document lodged at the Registry of the General Court on 24 May 2012, the applicant requested leave to amend his heads of claim as regards Decision 2012/206. The applicant lodged the document amending his heads of claim at the Registry on 22 June 2012. By letter lodged at the Registry on 3 July 2012, the Council objected to the amendment of the heads of claim in so far as that decision did not mention the applicant.

28By document lodged at the Registry of the General Court on 22 June 2012, the applicant requested leave to amend his heads of claim as regards Implementing Decision 2012/256 and Implementing Regulation No 410/2012. The applicant lodged the document amending his heads of claim at the Registry on 23 July 2012. By letter lodged at the Registry on 9 August 2012, the Council objected to the amendment of the heads of claim in so far as those acts did not mention the applicant.

29By document lodged at the Registry of the General Court on 31 July 2012, the applicant amended his heads of claim, also seeking the annulment of Regulation No 509/2012, Decision 2012/322, Implementing Decision 2012/335, Implementing Regulation No 2012/544, Regulation No 545/2012, Implementing Regulation No 673/2012, Decision 2012/420 and Implementing Decision 2012/424. By letter lodged at the Registry of the General Court on 9 August 2012, the Council objected to the amendment of the heads of claim in so far as those acts did not mention the applicant.

30By document lodged at the Registry of the General Court on 7 December 2012, the applicant requested leave to amend his heads of claim as regards Decision 2012/739. The applicant lodged the document amending his heads of claim at the Registry on 7 January 2013. By letter lodged at the Registry on 21 January 2013, the Council indicated that it had no objections to that amendment of the heads of claim.

31By document lodged at the Registry of the General Court on 24 May 2013, the applicant requested leave to amend his heads of claim as regards Council Decision 2013/109/CFSP of 28 February 2013 amending Decision 2012/739 (OJ 2013 L 58, p. 8), Council Regulation (EU) No 325/2013 of 10 April 2013 amending Regulation No 36/2012 (OJ 2013 L 102, p. 1), Implementing Decision 2013/185, Council Decision 2013/186/CFSP of 22 April 2013 amending Decision 2012/739 (OJ 2013 L 111, p. 101), and Implementing Regulation No 363/2013. By document lodged at the Registry on 24 June 2013, the applicant amended his heads of claim, seeking the annulment of only the last regulation, Implementing Decision 2013/185 and Decision 2013/255. By letter lodged at the Registry on 17 July 2013, the Council indicated that it had no objections to that amendment of the heads of claim.

32Following a change in the composition of the Chambers of the General Court, the Judge-Rapporteur was assigned to the Seventh Chamber, to which the present case was accordingly allocated.

33Upon hearing the report of the Judge-Rapporteur, the General Court decided to open the oral procedure and, by way of measures of organisation of procedure provided for under Article 64 of the Rules of Procedure, requested the parties to answer certain written questions and to provide certain documents. The Council complied with that request. By contrast, the applicant’s representative informed the Court that he would not answer the written questions.

34At the hearing on 11 June 2014, the parties presented oral arguments and answered the questions put to them by the Court.

36The Council claims that the Court should:— declare as inadmissible the amendment of the heads of claim concerning Regulation No 36/2012, Decision 2012/206, Implementing Regulation No 410/2012, Implementing Decision 2012/256, Regulation No 509/2012, Decision 2012/322, Implementing Decision 2012/335, Implementing Regulation No 2012/544, Regulation No 545/2012, Implementing Regulation No 673/2012, Decision 2012/420 and Implementing Decision 2012/424;— dismiss the action;— order the applicant to pay the costs.

Law

Admissibility

37The Council, without raising a plea under Article 114 of the Rules of Procedure, claims that the present action is partly inadmissible because it was out of time and because the applicant has no legal interest in bringing proceedings.

Belated nature of the action

38Under the sixth paragraph of Article 263 TFEU, an action for annulment must be brought within two months of the publication of the contested act, or of its notification to the applicant, or, in the absence thereof, of the day on which it came to the knowledge of the applicant, as the case may be. In accordance with Article 102(1) of the Rules of Procedure, where the period for bringing proceedings against an act adopted by an institution runs from the publication of that act, the period runs from the end of the 14th day after publication of the act in the Official Journal of the European Union. In accordance with the provisions of Article 102(2) of those rules, that period must also be extended on account of distance by a single period of 10 days.

39Furthermore, as regards restrictive measures, the period for bringing proceedings for the annulment of an act imposing such measures against a person or entity only starts to run either from the date of the individual communication of that act to the interested party, if his address is known, or from the publication of a notice in the Official Journal, if it was impossible to communicate the act directly to the interested party (Joined Cases C‑478/11 P to C‑482/11 P Gbagbo and Others v Council [2013] ECR, paragraphs 59 to 62).

40Since Article 102(1) of the Rules of Procedure provides for an additional period of 14 days in order to initiate proceedings against acts published in the Official Journal, it has to be concluded that this provision must also apply, by analogy, when the event triggering the period for bringing proceedings is a notice concerning those acts, a notice which is also published in the Official Journal. The same reasons which justified the grant of an additional period of 14 days with regard to published acts are valid as regards published notices, unlike individual communications (Joined Cases T‑174/12 and T‑80/13 Syrian Lebanese Commercial Bank v Council [2014] ECR, paragraphs 64 and 65).

41First, it should be noted that the application initiating proceedings was lodged at the Registry of the General Court on 26 December 2011.

42In so far as the applicant, in his application, seeks the annulment of Decision 2011/273, as implemented by Implementing Decision 2011/488, and Regulation No 442/2011, as implemented by Implementing Regulation No 755/2011, the action was out of time.

43The Council did not send the applicant an individual notification. However, it reached out to the persons to which the restrictive measures provided for in Decision 2011/273, as implemented by Implementing Decision 2011/488, and in Regulation No 442/2011, as implemented by Implementing Regulation No 755/2011, apply by means of a notice published in the Official Journal on 2 August 2011 (see paragraph 7 above). Therefore, the period for bringing proceedings expired on 26 October 2011, that is to say well before the application was filed.

44Nevertheless, the applicant complains that the Council failed to notify him individually of Decision 2011/273, as implemented by Implementing Decision 2011/488, and Regulation No 442/2011, as implemented by Implementing Regulation No 755/2011. In this connection, he submits that the assertion that the Council did not know his address is at odds with his businessman status, which is amply demonstrated, and his status as a well-known public figure within the economic elite in Syria. He also claims that the period for bringing proceedings only starts to run after the review procedure before the Council, a procedure which, in the present case, was only completed on 5 January 2012, when the Council replied for the first time to the applicant’s request for a review.

45So far as concerns the applicant’s argument that the decisions ought to have been notified to him individually as his address was known, it should be observed at the outset that Article 5(2) of Decision 2011/273 states that the Council shall communicate its decision, including the grounds for inclusion on the list of persons or entities subject to the restrictive measures, to the person or entity concerned, either directly, if the address is known, or through the publication of a notice, providing such person or entity with an opportunity to submit observations.

46Furthermore, it should be recalled that, in accordance with the case-law, the Council is not free to choose arbitrarily the method of communicating its decisions to the interested parties. It is apparent from paragraph 61 of Gbagbo and Others v Council, that the Court of Justice allowed the indirect communication of acts subject to an action for annulment through the publication of a notice in the Official Journal only where it was impossible for the Council to undertake notification.

47In the present case, the Council cannot be criticised for failing to send an individual notification to the applicant. The EU institutions do not have unlimited resources in Syria to search for the private addresses of all natural persons affected by the restrictive measures system, especially when there is public unrest. Moreover, the Council’s practice of sending notifications to natural persons only at their private, and not professional, address is justified given that, otherwise, the notification might be opened and read by third parties unconnected with the interested party, when restrictive measures are a sensitive issue. Accordingly, in the circumstances of the present case, the Council had no other option than to communicate the inclusion of the applicant’s name on the list of persons subject to restrictive measures through the publication of a notice in the Official Journal.

48The applicant’s claim that the period for bringing proceedings only starts to run after the review procedure before the Council must be rejected. In that regard, it should be borne in mind that, under the sixth paragraph of Article 263 TFEU, the period for bringing proceedings against acts adopted by the EU institutions is two months from the publication of the contested act, or of its notification to the applicant, or, in the absence thereof, of the day on which it came to the knowledge of the applicant. The possibility of referring a case to the Council in the context of a review procedure is not, therefore, capable of derogating from such a rule. It is appropriate to recall that, according to settled case-law, no derogation from the application of procedural time-limits may be made save where the circumstances are exceptional, in the sense of being unforeseeable or amounting to force majeure, in accordance with the second paragraph of Article 45 of the Statute of the Court of Justice, since the strict application of those rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see, to that effect, Case 42/85 Cockerill-Sambre v Commission [1985] ECR 3749, paragraph 10; order in Case C-59/91 France v Commission [1992] ECR I-525, paragraph 8; and order in Case C-239/97 Ireland v Commission [1998] ECR I-2655, paragraph 7).

49In so far as the applicant, in his application, seeks the annulment of Decision 2011/782, the action was brought within the time-limits laid down in the sixth paragraph of Article 263 TFEU, read in conjunction with Article 102(2) of the Rules of Procedure. Since the Council reached out to the persons and entities targeted by that decision through a notice published in the Official Journal on 2 December 2011 (see paragraph 10 above), and the application was filed on 26 December 2011, the action was brought in good time as regards that decision. Therefore, it is not necessary to take into account other factors such as the date of publication in the Official Journal or the date of individual notification to the applicant.

50Accordingly, the application cannot be considered to have been filed in good time as regards the action for annulment of Decision 2011/273, as implemented by Implementing Decision 2011/488, and Regulation No 442/2011, as implemented by Implementing Regulation No 755/2011. By contrast, the application can indeed be considered to have been filed in good time as regards Decision 2011/782.

51Second, it must be stated that the requests for leave to amend the heads of claim were filed in good time in accordance with the sixth paragraph of Article 263 TFEU (see, to that effect, Case T‑110/12 Iranian Offshore Engineering & Construction v Council [2013] ECR, paragraphs 16 and 17). Indeed, each of those requests was filed during the two months following the date of adoption of the act (see paragraphs 25 to 31 above). Therefore, it is not necessary to take into account other factors such as the date of publication in the Official Journal or the date of individual notification to the applicant.

52In the light of the foregoing, all of the requests for leave to amend the heads of claim must be regarded as admissible ratione temporis.

Legal interest in bringing proceedings

53Under the fourth paragraph of Article 263 TFEU, ‘[a]ny natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’.

54According to settled case-law, the admissibility of an action for annulment brought by a natural or legal person is conditional upon that person proving that he has a vested and present interest in the annulment of the contested act (Case C-174/99 P Parliament v Richard [2000] ECR I-6189, paragraph 33, and Case T-310/00 MCI v Commission [2004] ECR II-3253, paragraph 44).

55The legal interest in bringing proceedings must continue until the final decision, which presupposes that the action must be capable, having regard to its purpose and if it is successful, of procuring an advantage for the party bringing it (Case C-362/05 P Wunenburger v Commission [2007] ECR I-4333, paragraph 42, and order of 7 December 2011 in Case T‑255/11 Fellah v Council, not published in the ECR, paragraph 12).

56That advantage may relate to the material interests, morale or future prospects of the interested party (see, to that effect, Case 35/72 Kley v Commission [1973] ECR 679, paragraph 4, and Joined Cases T-78/96 and T-170/96 W v Commission [1998] ECR-SC I-A-239 and II-745, paragraph 47).

57In the present case, the Council submits that the action is inadmissible in respect of the acts which do not mention the applicant, who therefore has no legal interest in bringing proceedings. Likewise, it argues that the action for annulment concerning Decision 2011/273 is inadmissible for want of a legal interest in bringing proceedings since that act was repealed and replaced by Decision 2011/782.

–Acts which do not mention the applicant

58First, as regards the acts in respect of which the applicant does not have any legal interest in bringing proceedings on the ground that they do not mention his name, it must be stated that of all the contested acts covered by the application initiating proceedings, only Decision 2011/782, which repeals Decision 2011/273, expressly refers to the applicant in its Annexes. Consequently, when the application was filed, the applicant had a legal interest in asking the Court to annul that act as such annulment is capable of causing the applicant’s name to be removed from the lists of persons and entities subject to the restrictive measures taken against Syria.

59Second, as regards the contested acts covered by the documents amending the heads of claim, the applicant seeks the annulment of several acts adopted by the Council which implement or amend both Decision 2011/782 and Regulation No 36/2012, as well as Decisions 2012/739 and 2013/255.

60In that connection, it must be stated that only Regulation No 36/2012, as implemented by Implementing Regulation No 363/2013, Decision 2012/739, as implemented by Implementing Decision 2013/185, and Decision 2013/255 expressly refer to the applicant. In the case of those acts, either the applicant’s name is included on the lists relating to the restrictive measures annexed to the basic acts, or the references to those listings are replaced. Accordingly, it must be held that the applicant retains a legal interest in bringing proceedings in respect of said acts since their annulment would result in the removal of his name from the lists in question. By contrast, the same is not true of the other acts covered by the documents amending the heads of claim, which contain no reference to the applicant.

61Consequently, in the light of the findings set out in paragraphs 50, 52, 58 and 60 above, the action must be rejected as inadmissible in so far as it concerns the following acts:— Decision 2011/273, as implemented or amended by Implementing Decisions 2011/302, 2011/367, 2011/515 and 2011/736 and Decisions 2011/522, 2011/628, 2011/684 and 2011/735;— Regulation No 442/2011, as implemented or amended by Implementing Regulations Nos 504/2011, 611/2011, 843/2011, 1151/2011 and 1244/2011 and Regulations Nos 878/2011, 950/2011, 1011/2011 and 1150/2011;— Implementing Decisions 2012/256, 2012/335 and 2012/424 as well as Decisions 2012/206, 2012/322 and 2012/420 implementing or amending Decision 2011/782;— Implementing Regulations Nos 410/2012, 2012/544 and 673/2012 as well as Regulations Nos 509/2012, 545/2012 and 325/2013 implementing or amending Regulation No 36/2012.

–Repealed and replaced acts

62As regards the acts in respect of which the applicant has no legal interest in bringing proceedings on the ground that they are no longer in force, it should be noted, as the Council does, that Decision 2011/782 was repealed and replaced by Decision 2012/739 and that the latter only applied until 1 June 2013, in accordance with Article 31(1) thereof.

63Therefore, Decisions 2011/782 and 2012/739 ceased to produce legal effects as from their respective dates of repeal and expiry.

64According to settled case-law, in an action for annulment, the applicant may retain an interest in the annulment of an act which is repealed in the course of proceedings if the annulment of that act is still capable, if successful, of having legal consequences (see order of 14 January 2013 in Case T‑497/10 Divandari v Council, not published in the ECR, paragraph 19 and the case-law cited).

65The question whether an applicant retains his interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained (Case C‑183/12 P Ayadi v Commission [2013] ECR, paragraph 63).

66It is for the applicant to prove that he has a legal interest in bringing proceedings against the repealed acts (order of 15 May 2013 in Case T‑413/12 Post Invest Europe v Commission, not published in the ECR, paragraph 22).

67In the present case, it is not apparent from either the documents before the Court or the answers provided by the applicant on this point at the hearing that the annulment of the contested acts which are no longer in force could procure an advantage for him. In particular, it should be pointed out that, in his reply, the applicant failed to address the arguments of the Commission put forward in its defence to the effect that he no longer had a legal interest in bringing proceedings against the repealed acts. Against that background, the applicant has not proven that he has a legal interest in bringing proceedings in accordance with the case-law cited in paragraph 66 above (see, to that effect, Joined Cases T‑128/12 and T‑182/12 HTTS v Council [2013] ECR, paragraphs 34 and 35, and Joined Cases T‑42/12 and T‑181/12 Bateni v Council [2013] ECR, paragraphs 31 and 32).

68It follows that the applicant has not made clear his legal interest in bringing proceedings in respect of Decisions 2011/782, 2012/739 and 2013/185. The Court therefore takes the view that there is no need to adjudicate on the present action in so far as it concerns these acts.

Conclusion on admissibility

69In the light of the assessments made in paragraphs 37 to 68 above, this action is admissible only in respect of Regulation No 36/2012, Implementing Regulation No 363/2013 and Decision 2013/255, in so far as these acts concern the applicant (the ‘contested acts’).

Substance

70In support of the action, the applicant relies on two pleas in law. The first plea alleges infringement of the rights of the defence, of the obligation to state reasons, of the right to be heard and of the right to effective judicial protection. The second plea alleges infringement of the right to property and the freedom to pursue an economic activity.

71By his first plea in law, the applicant complains that the Council infringed his rights of defence, the obligation to state reasons, his right to be heard and his right to effective judicial protection. He points out that, according to the case-law, fundamental rights form an integral part of the general principles of EU law, so that respect for such rights is a condition of the lawfulness of the acts adopted by the European Union.

72The applicant essentially puts forward three complaints.

73First, the applicant complains that the Council did not send him a formal notification enabling him to ascertain the reasons for the inclusion of his name on the lists of persons subject to the restrictive measures provided for in the contested acts. He states that the right to effective judicial protection means, in particular, that the Council is required to communicate to the person or entity affected by the restrictive measures the reasons for the inclusion of their name on those lists. He also points out that the Council did not reply to his questions and confined itself to confirming the continued inclusion of his name on the lists.

74Second, the applicant contends that, in the present case, the Council simply set out vague and general considerations to justify the inclusion of his name on the lists in question. He recalls that, according to the case-law, since the persons and entities subject to restrictive measures have no right to a prior hearing, observance of the obligation to state reasons is particularly important. That statement of reasons must cover not only the applicable legal bases of the act concerned, but also the actual and specific reasons why the Council considers, in the exercise of its discretion, that the persons or entities concerned have to be subject to restrictive measures. Lastly, the applicant claims that the inadequate statement of reasons for the European Union acts cannot be compensated for by explanations given in proceedings before the European Union Courts.

75Third, the applicant disagrees with the reasons for the inclusion of his name on the lists in question and submits that the Council failed to discharge its burden of proof in that regard.

76The Council disputes the applicant’s arguments.

77The Court considers it appropriate to examine the third complaint first.

78In support of the third complaint, the applicant argues that the Council did not demonstrate to the requisite legal standard why his name should be included on the lists in question. He claims that no evidence was adduced proving his association with Maher Al-Assad and the Shabiha militia. He points out that the burden of proof falls on the Council and that it cannot rely on presumptions.

79From the outset, the Council recalls that, in the field of restrictive measures, the Court is only required to exercise a limited review of the lawfulness of decisions adopted by the EU institutions. Next, it submits that the inclusion of the applicant’s name on the lists in question is justified in so far as the applicant is one of the persons associated with the regime who contribute to human rights violations. It points out that the freezing of funds measure was imposed on the applicant on the basis of information supplied by a Member State, classified as ‘EU Confidential’. It also refers to information from ‘open’ sources. The Council considers that, although the applicant contests the accuracy of the statement of reasons, he did not adduce any evidence to demonstrate such inaccuracy.

80According to the case-law, the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires, in particular, that as part of the review of the lawfulness of the grounds which are the basis of the decision to list or to maintain the listing of a given person on the lists of persons subject to sanctions, the Courts of the European Union are to ensure that that decision is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (see Joined Cases C‑584/10 P, C‑593/10 P and C‑595/10 P Commission and Others v Kadi [2013] ECR, ‘Kadi II’, paragraph 119).

81It is the task of the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded. It is necessary that the information or evidence produced by the authority in question should support the reasons relied on against the person concerned. If that material is insufficient to allow a finding that a reason is well founded, the Courts of the European Union shall disregard that reason as a possible basis for the contested decision to list or maintain a listing (Kadi II, paragraphs 121 to 123).

82In the present case, it must be stated, first of all, that the only evidence adduced by the Council to justify the inclusion of the applicant’s name on the list in question comprises extracts from a document dated 25 July 2011 bearing the reference ‘Coreu CFSP/0317/11’ (Council document 5044/12). That document contains the same brief statement of reasons as the contested acts, namely, inter alia, that the applicant was associated with Maher Al-Assad in the context of the Shabiha militia and directly participated in the repression by supporting the Shabiha militia. The Council does not, therefore, adduce any other evidence capable of supporting, or even suggesting, the existence of a link between the applicant and Maher Al-Assad.

83Secondly, the Council produced — as annexes to its pleadings — articles published on various websites relating to the Shabiha militia in order to demonstrate the links between the applicant and that militia, in particular, the Wikipedia website, the official website of the Muslim Brotherhood and the Saada Syria Forums website. Irrespective of whether this information is reliable and was actually taken into account by the Council when the contested acts were adopted, the fact remains that only two of these items briefly refer to the applicant’s name and none of them provide sufficiently substantiated information about the applicant and his involvement in the Shabiha militia.

84In answer to a question put by the Court during the hearing, the Council was unable to adduce any additional evidence capable of substantiating the links between the applicant and, of the one part, Maher-Al-Assad and, of the other part, the Shabiha militia.

85Consequently, the evidence provided by the Council does not contain any indicia capable of supporting its claims that the applicant has links with Maher Al-Assad in the context of the Shabiha militia and is directly involved in the repression and violence against the civilian population and in the coordination of the groups forming part of that militia.

86It follows that the Council has not discharged its burden of proof under Article 47 of the Charter of Fundamental Rights, as interpreted by the Court of Justice in Kadi II.

87Therefore, it is appropriate to uphold the third complaint relied on by the applicant in support of his first plea in law and annul the contested acts in so far as they concern the applicant, without there being any need to examine the other pleas put forward in support of this action.

The temporal effects of the annulment of the contested acts

88Under the second paragraph of Article 264 TFEU, the Court may, if it considers this necessary, state which of the effects of the act which it has declared void shall be considered as definitive. The case-law shows that this provision enables the European Union Courts to decide the date when its annulling judgments are to take effect (see Case T‑58/12 Nabipour and Others v Council [2013] ECR, paragraphs 250 and 251 and the case-law cited).

89In the present case, the Court considers, for the reasons set out below, that it is necessary to maintain the temporal effects of the contested acts until the date of expiry of the period for bringing an appeal laid down in the first paragraph of Article 56 of the Statute of the Court or, if an appeal has been brought within that period, until the dismissal of the appeal.

90It should be remembered that the European Union adopted restrictive measures against Syria because of the repression of the civilian population in that country and that those measures thus pursue humanitarian and pacific objectives.

91Therefore, the applicant’s interest in ensuring that the present annulling judgment should take effect immediately must be weighed against the public interest objective pursued by the European Union’s policy in relation to restrictive measures against Syria. The adjustment of the temporal effects of the annulment of a restrictive measure may thus be justified by the need to ensure the effectiveness of the restrictive measures and, in short, by overriding considerations to do with the conduct of the international relations of the European Union and its Member States.

92The annulment with immediate effect of the contested acts in so far as they concern the applicant would enable the applicant to transfer all or part of his assets outside the European Union, without the Council being able, where appropriate, to apply in good time Article 266 TFEU with a view to correcting the irregularities identified in this judgment, and consequently the effectiveness of any freezing of assets in relation to the applicant which might, in the future, be decided on by the Council might be seriously and irreversibly prejudiced.

93As regards the application of Article 266 TFEU in this case, it must be observed that the annulment by this judgment of the inclusion of the applicant’s name on the lists in question stems from the fact that the reasons stated for that listing are not supported by sufficient evidence (see paragraphs 82 to 86 above). Although it is for the Council to decide on what measures to adopt to comply with this judgment, a further listing of the applicant cannot automatically be ruled out. In the course of a further review, the Council has the possibility of again listing the applicant on the basis of reasons which are supported to the requisite legal standard.

94It follows that the effects of the annulled decisions and regulations must be maintained as regards the applicant, until the date of expiry of the period for bringing an appeal or, if an appeal is brought within that period, until the dismissal of the appeal.

Costs

95Under the first subparagraph of Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, pursuant to Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the Court may order that the costs be shared or that each party is to bear its own costs.

96In this case, since the parties have succeeded on some and failed on other heads, a decision that the Council will bear its own costs and one third of the applicant’s costs will constitute a fair application of that provision.

Operative part

On those grounds,THE GENERAL COURT (Seventh Chamber)hereby:

1.Dismisses the action as being inadmissible, because out of time, in so far as it seeks the annulment of Council Implementing Decision 2011/488/CFSP of 1 August 2011 implementing Decision 2011/273/CFSP concerning restrictive measures against Syria, 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;

3.Declares that there is no need to adjudicate on the action in so far as it seeks the annulment of Council Decision 2011/782/CFSP of 1 December 2011 concerning restrictive measures against Syria and repealing Decision 2011/273, Council Decision 2012/739/CFSP of 29 November 2012 concerning restrictive measures against Syria and repealing Decision 2011/782, and Council Implementing Decision 2013/185/CFSP of 22 April 2013 implementing Decision 2012/739, since those acts have been repealed and replaced;

4.Annuls, in so far as the following acts concern Mr Jaber:— Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation No 442/2011;— Council Implementing Regulation (EU) No 363/2013 of 22 April 2013 implementing Regulation No 36/2012;— Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria;

5.Orders the effects of the annulled decisions and regulations to be maintained with respect to Mr Jaber, until the date of expiry of the period for bringing an appeal or, if an appeal is brought within that period, until any dismissal of that appeal;

6.Orders the Council of the European Union to bear its own costs and to pay one third of the costs incurred by Mr Jaber;

7.Orders Mr Jaber to bear two thirds of his own costs.

Delivered in open court in Luxembourg on 13 November 2014.