Contents
Judgment of the General Court (Ninth Chamber, Extended Composition)28 October 2020note(Common foreign and security policy — Restrictive measures taken in view of the situation in Tunisia — Measures taken against persons responsible for misappropriation of State funds and associated persons and entities — List of persons, entities and bodies covered by the freezing of funds — Maintenance of the applicant’s name on the list — Rights of the defence — Right to effective judicial protection — Obligation to adjudicate within a reasonable time — Sufficient factual basis — Time limits for bringing proceedings — Legal aid — Suspensive effect — Admissibility — Conditions)In Case T‑151/18,Slim Ben Tijani Ben Haj Hamda Ben Ali, residing in Verneuil-l’Étang (France), represented by K. Lara, lawyer,vCouncil of the European Union, represented by S. Lejeune, A. Jaume and V. Piessevaux, acting as Agents,THE GENERAL COURT (Ninth Chamber, Extended Composition),composed of M.J. Costeira, President, D. Gratsias (Rapporteur), M. Kancheva, B. Berke and T. Perišin, Judges,Registrar: L. Ramette, Administrator,having regard to the written part of the procedure and further to the hearing on 22 June 2020,gives the following
Judgment
I.Background to the dispute and factual context
1Following political developments in Tunisia during the months of December 2010 and January 2011, the Council of the European Union adopted, on 31 January 2011, on the basis of Article 29 TEU, Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2011 L 28, p. 62).
2Recitals 1 and 2 of Decision 2011/72 read as follows:(1) On 31 January 2011, the Council reaffirmed its full solidarity and support with Tunisia and its people in their efforts to establish a stable democracy, the rule of law, democratic pluralism and full respect for human rights and fundamental freedoms.(2) The Council further decided to adopt restrictive measures against persons responsible for misappropriation of Tunisian State funds and who are thus depriving the Tunisian people of the benefits of the sustainable development of their economy and society and undermining the development of democracy in the country.’
3Article 1(1) of Decision 2011/72 provides:‘All funds and economic resources belonging to, owned, held or controlled by persons responsible for misappropriation of Tunisian State funds, and natural or legal persons or entities associated with them, as listed in the Annex, shall be frozen.’
4Article 2 of Decision 2011/72 provides:1. The Council, acting upon a proposal by a Member State or the High Representative of the Union for Foreign Affairs and Security Policy, shall establish and amend the list in the Annex.2. The Council shall communicate its decision, including the grounds for the listing, 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 present observations.3. Where observations are submitted, or where substantial new evidence is presented, the Council shall review its decision and inform the person or entity concerned accordingly.’
5Article 3(1) of Decision 2011/72 provides:‘The Annex shall include the grounds for listing the persons and entities.’
6Article 5 of Decision 2011/72, in its original version, provided:‘This Decision shall apply for a period of 12 months. It shall be kept under constant review. It shall be renewed, or amended as appropriate, if the Council deems that its objectives have not been met.’
7The list originally annexed to Decision 2011/72 contained only the names of the former President of the Republic of Tunisia, in office at the time of the events referred to in paragraph 1 above, and of his wife.
8On 4 February 2011, on the basis of Article 2(1) of Decision 2011/72 and Article 31(2) TEU, the Council adopted Implementing Decision 2011/79/CFSP implementing Decision 2011/72 (OJ 2011 L 31, p. 40). Article 1 of that implementing decision provided that the annex to Decision 2011/72 was to be replaced by the text set out in the annex thereto. That annex listed the names of 48 natural persons including, in particular, in the first and second lines, the names of the two persons referred to in paragraph 7 above and, in line 47, the name of the applicant, Mr Slim Ben Tijani Ben Haj Hamda Ben Ali. Line 47 of that annex also contained ‘identifying information’ on the latter’s Tunisian nationality, his marital status and his place of residence in Tunisia, as well as the grounds for his inclusion in that annex, worded as follows:‘Person subject to judicial investigation by the Tunisian authorities in respect of the acquisition of movable and immovable property, the opening of bank accounts and the holding of financial assets in several countries as part of money-laundering operations.’
9On the basis of Article 215(2) TFEU and of Decision 2011/72, the Council adopted Regulation (EU) No 101/2011 of 4 February 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia (OJ 2011 L 31, p. 1). That regulation reproduces, in essence, the provisions of Decision 2011/72, and the list in Annex I to that regulation is identical to that annexed to that decision, as amended by Implementing Decision 2011/79.
10In accordance with Article 5 of Decision 2011/72, the Council renewed that decision several times for a period of one year by adopting, successively, Decision 2012/50/CFSP of 27 January 2012 (OJ 2012 L 27, p. 11), Decision 2013/72/CFSP of 31 January 2013 (OJ 2013 L 32, p. 20), Decision 2014/49/CFSP of 30 January 2014 (OJ 2014 L 28, p. 38), Decision (CFSP) 2015/157 of 30 January 2015 (OJ 2015 L 26, p. 29), Decision (CFSP) 2016/119 of 28 January 2016 (OJ 2016 L 23, p. 65), Decision (CFSP) 2017/153 of 27 January 2017 (OJ 2017 L 23, p. 19), Decision (CFSP) 2018/141 of 29 January 2018 (OJ 2018 L 25, p. 38), Decision (CFSP) 2019/135 of 28 January 2019 (OJ 2019 L 25, p. 23), and Decision (CFSP) 2020/117 of 27 January 2020 (OJ 2020 L 22, p. 31).
11The applicant’s designation on the list annexed to Decision 2011/72 (‘the list at issue’) and, consequently, on the list in Annex I to Regulation No 101/2011 was maintained in those successive renewals. Moreover, Decision 2016/119 supplemented the identifying information relating to the applicant by mentioning his French nationality and his address in France.
12Following the judgments of 28 May 2013, Trabelsi and Others v Council (T‑187/11, EU:T:2013:273); of 28 May 2013, Chiboub v Council (T‑188/11, not published, EU:T:2013:274); and of 28 May 2013, Al Matri v Council (T‑200/11, not published, EU:T:2013:275), the grounds for the applicant’s designation were amended by Decision 2014/49 as follows:‘Person subject to judicial investigations by the Tunisian authorities for complicity in the misappropriation of public monies by a public office-holder, complicity in the misuse of office by a public office-holder to procure an unjustified advantage for a third party and to cause a loss to the administration, and complicity in exerting wrongful influence over a public office-holder with a view to obtaining directly or indirectly an advantage for another person’.
13Those grounds were amended again by Decision 2016/119 as follows:‘Person subject to judicial investigations by the Tunisian authorities for complicity in the misappropriation of public monies by a public officeholder, complicity in the misuse of office by a public office-holder to procure an unjustified advantage for a third party and to cause a loss to the administration, and exerting wrongful influence over a public office-holder with a view to obtaining directly or indirectly an advantage for another person’.
14The annex to Decision 2011/72 was replaced with the text in the annex to Decision 2020/117, which contains a part A, relating to the list of persons and entities referred to in Article 1 of Decision 2011/72, and a part B, entitled ‘Rights of defence and right to effective judicial protection under Tunisian law’. In part A of that new annex, the grounds for the applicant’s designation were amended again, as follows: ‘Person subject to judicial proceedings, or an asset recovery process following a final court ruling, by the Tunisian authorities for complicity in the misappropriation of public monies by a public office-holder, complicity in the misuse of office by a public office-holder to procure an unjustified advantage for a third party and to cause a loss to the administration, and exerting wrongful influence over a public office-holder with a view to obtaining directly or indirectly an advantage for another person.’ In part B of that annex, it is stated, as regards the applicant, that:‘The investigation or trial relating to the misappropriation of public funds or assets is still ongoing. The Council has found no indication that the rights of defence or the right to effective judicial protection of Mr Slim Ben Tijani Ben Haj Hamda Ben Ali were not respected.’
15The same amendments as those referred to in paragraphs 11 to 14 above were made to Annex I to Regulation No 101/2011.
II.Procedure and forms of order sought
16By document lodged at the General Court Registry on 5 March 2018, the applicant applied for legal aid. The Council submitted observations on 26 April 2018. By orders of 14 September 2018 and 3 May 2019 respectively, the President of the Fifth Chamber of the Court upheld that application and appointed a lawyer.
17On 24 June 2019, the applicant brought the present action and made an application for the case to be decided by the Court under the expedited procedure, in accordance with Article 151 of its Rules of Procedure. The Court rejected that application by decision of 18 July 2019.
18On 10 September 2019, the Council lodged the defence.
19Following a change in the composition of the Chambers of the Court, pursuant to Article 27(5) of the Rules of Procedure, the case was reallocated to the Ninth Chamber by decision of 16 October 2019.
20The reply and the rejoinder were lodged on 24 October and 6 December 2019 respectively.
21On 13 December 2019, by way of a measure of organisation of procedure, the Court requested the parties to comment on the possible implications for the present case of the judgments of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031, paragraphs 29 and 30); of 11 July 2019, Azarov v Council (C‑416/18 P, not published, EU:C:2019:602, paragraphs 30 and 31); and of the order of 22 October 2019, Azarov v Council (C‑58/19 P, not published, EU:C:2019:890, paragraphs 30, 31 and 44), and, in particular, to state, in the light of those judgments and that order, whether and to what extent Decisions 2018/141 and 2019/135 fulfilled the obligation to state reasons. The applicant and the Council lodged their written responses on 27 December 2019 and 16 January 2020 respectively.
22On a proposal from the Ninth Chamber, the Court, pursuant to Article 28 of the Rules of Procedure, decided on 7 February 2020 to assign the case to a Chamber sitting in extended composition.
23On 28 February 2020, by way of a measure of organisation of procedure, the Court requested the applicant to provide a written response to a question, and the Council to produce some additional documents. The parties replied to those requests on 9 March and 16 March 2020 respectively. Furthermore, the Court requested the parties to comment, at the hearing, on the question whether the suspension of the time limit for bringing proceedings, resulting from the applicant’s application for legal aid, was applicable to Decision 2019/135.
24The hearing took place on 22 June 2020. Pursuant to Article 85(3) of the Rules of Procedure, the Council requested to be allowed to lodge documents relating to the notification of Decision 2019/135.
25On 24 June 2020, the applicant lodged a statement of modification in order that the form of order sought and the pleas raised in the application be extended to Decision 2020/117 in so far as it concerns him.
26On 25 June 2020, the Council lodged some documents relating to the notification of Decision 2019/135. The applicant submitted his observations on those documents on 8 July 2020.
27On 24 July 2020, the Council lodged its observations on the statement of modification.
28On 3 August 2020, the oral part of the procedure was closed.
29The applicant claims that the Court should:– annul Decisions 2018/141, 2019/135 and 2020/117 in so far as those decisions concern him;– order the Council to pay the costs.
30The Council contends that the Court should:– dismiss the action in its entirety;– in the alternative, should the contested decisions be annulled, maintain the effects of those decisions as regards the applicant until the expiry of the time limit for bringing an appeal or, if an appeal is lodged, until its dismissal;– order the applicant to pay the costs.
III.Law
A.The admissibility of the claims for annulment of Decisions 2019/135 and 2020/117
1.The admissibility of the claims for annulment of Decision 2019/135
31According to settled case-law, the question whether proceedings have been brought within the time limit provided for in the sixth paragraph of Article 263 TFEU constitutes an absolute bar to proceedings, which it is for the Court to examine of its own motion (see order of 25 November 2008, S.A.BA.R. v Commission, C‑501/07 P, not published, EU:C:2008:652, paragraph 19 and the case-law cited).
32Under Article 147(7) of the Rules of Procedure, the introduction of an application for legal aid, for the person who made it, suspends the time limit prescribed for the bringing of an action until the date of service of the order making a decision on that application or, in the cases referred to in Article 148(6) of those rules, of the order designating the lawyer instructed to represent the applicant. Under Article 148(6), without prejudice to paragraph 4, which provides that any order granting legal aid may designate a lawyer if that lawyer has been proposed by the applicant in the application for legal aid and has agreed to represent the applicant before the General Court, the lawyer instructed to represent the applicant is to be designated by way of an order, having regard to the suggestions made by the person concerned or to the suggestions made by the competent national authority, as the case may be.
33In the present case, the applicant’s application for legal aid, lodged on 5 March 2018, concerned only Decision 2018/141. Indeed, it was that decision which was in force on that date, whereas Decision 2019/135, which succeeded it, was not adopted until 28 January 2019 and did not enter into force until 30 January 2019, in accordance with Article 2 thereof. However, in the present action, lodged on 24 June 2019, the applicant seeks the annulment of both those decisions.
34The question therefore arises whether, for the purposes of assessing whether the time limit for bringing proceedings was complied with, it is necessary to consider whether or not the application for legal aid suspended that time limit not only as regards Decision 2018/141, but also as regards Decision 2019/135. Since the parties did not address that question themselves during the written procedure, the Court requested that they comment on it at the hearing.
35At the hearing, the applicant submitted that the application for legal aid suspended the time limit for bringing proceedings against Decision 2019/135. First, he submitted that the subject matter, the parties and the reasons in Decision 2018/141 and in that subsequent decision were identical. Secondly, according to the applicant, the pleas raised against those two decisions were also identical, so by seeking the annulment of the second decision, he was merely modifying the action he initially brought against the first. Thirdly, in the light of the principle of effective judicial protection, the applicant’s access to the Courts of the European Union should not carry excessive procedural requirements, particularly in view of the fact that he is a beneficiary of legal aid and that the procedure relating to legal aid is lengthy.
36For its part, the Council contended that, in so far as Decision 2019/135 was not referred to in the application for legal aid, that application cannot have the effect of suspending the time limit for bringing proceedings against the decision at issue. It refers, in that regard, to the judgment of 18 June 2015, Ipatau v Council (C‑535/14 P, EU:C:2015:407), in particular to paragraphs 15 to 18 thereof. Furthermore, it stated that it has documents establishing that Decision 2019/135 had been notified to the applicant on 4 February 2019, and therefore the action was brought out of time, and it requested that the Court accept the submission of that evidence on the basis of Article 85(3) of the Rules of Procedure. It added that, in the light of the case-law, the time limit for bringing proceedings must be strictly observed. It stated that the applicant was familiar with the procedure for the renewal of restrictive measures and that he had the opportunity to lodge another application for legal aid, or to state succinctly in the one he had submitted that he also intended to challenge the further renewal of the decision referred to in that application. Thus, according to the Council, there was no case of force majeure in the present case. Furthermore, on 25 June 2020, on the basis of Article 85(3) of those rules, it lodged documents concerning the date on which Decision 2019/135 was notified to the applicant.
37As regards the documents lodged by the Council, it should be borne in mind that, pursuant to Article 85(3) of the Rules of Procedure, it is only exceptionally that the main parties may produce or offer further evidence before the oral part of the procedure is closed or before the Court’s decision to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified.
38In the present case, the documents in question are intended to give guidance to the Court, following its request for the parties to address at the hearing the question whether the suspension of the time limit for bringing proceedings applies to Decision 2019/135. It follows that the delay in the submission of those documents must be considered to be justified (see, to that effect and by analogy, judgment of 24 October 2018, Epsilon International v Commission, T‑477/16, not published, EU:T:2018:714, paragraph 57).
39In the present case, those documents contain, first, an extract from an online postal tracking report, indicating that that letter was delivered to the applicant on 4 February 2019 and, secondly, an acknowledgement of receipt of a letter sent by the Council to the applicant on 30 January 2019, which reached its destination on 5 February. In that regard, the applicant disputes the fact that the Council has submitted proof of the notification of Decision 2019/135 because the acknowledgement of receipt indicates an address which is not his. However, although it is true that that second document indicates an address which is not the address given by the applicant in his action, and the ‘addressee unknown at this address’ box has been ticked, the applicant does not dispute the contents of the first document, which clearly refers to the address he gave in his action and indicates a delivery date of 4 February 2019. It must therefore be held that he was able to acquaint himself with the Council’s letter on that date.
40As regards the question whether the application for legal aid was applicable to the action against Decision 2019/135 and had the effect of suspending the time limit in that regard, it should be borne in mind, in the first place, that Article 147(4) of the Rules of Procedure provides that, if the application for legal aid is made before the action has been brought, the applicant must briefly state the subject matter of the proposed action, the facts of the case and the arguments in support of the action.
41It must be inferred from the wording of Article 147(4) of the Rules of Procedure, and in particular from the phrase ‘subject matter of the proposed action’, that in the present case, it was for the applicant to identify the act of which he intended to seek annulment in his future action. However, it was necessary for that act already to have been adopted since, according to settled case-law, only actions for annulment of an act in existence adversely affecting the applicant may be brought before the General Court, and an action for annulment cannot seek the speculative review of hypothetical acts which have not yet been adopted (see judgment of 5 October 2017, Ben Ali v Council, T‑149/15, not published, EU:T:2017:693, paragraph 59 and the case-law cited). Consequently, in accordance with Article 146(2) of those rules, an application for legal aid identifying such a hypothetical act as the subject matter of the proposed action must be rejected, since that action would appear to be manifestly inadmissible.
42That is all the more so in the present case since, as is clear from Article 5 of Decision 2011/72, in its original version (see paragraph 6 above), every twelve months, the Council is to consider whether or not that decision should be renewed or even amended. Consequently, on the date when the applicant made his application for legal aid, there was nothing to support the presumption that Decision 2018/141 would be followed by a new decision renewing Decision 2011/72 for a further year. The applicant cannot therefore be criticised for failing to refer, in advance, to that new decision in his application for legal aid.
43However, Article 147(4) of the Rules of Procedure cannot preclude the applicant from modifying the application, under Article 86(1) of those rules, where the decision constituting ‘the subject matter of the proposed action’ is replaced or amended by another decision with the same subject matter.
44It follows that, although on the date when the applicant lodged the application for legal aid, he was not, by definition, in a position to identify the decision replacing or amending Decision 2018/141, which did not exist yet, that fact could not, once he had brought his action against Decision 2018/141, prevent him from subsequently modifying that action to take account of the adoption of Decision 2019/135. Indeed, as the applicant stated at the hearing, the claims directed against Decisions 2018/141 and 2019/135 have, in essence, the same subject matter, since they seek annulment of the applicant’s designation on the list at issue, and are based on the same pleas. Moreover, such a modification of the application initiating proceedings cannot have the effect of imposing an obligation on the applicant to submit a new application for legal aid, provided that it is made by means of a statement of modification lodged, in accordance with Article 86(1) of the Rules of Procedure, in the action for which he obtained that aid, and not in a separate action.
45That being so, in the particular circumstances of the present case, the act replacing or amending the decision referred to in the application for legal aid was adopted before the procedure for processing that application had come to an end, and before the applicant had been able to lodge the application initiating proceedings. However, in such a situation, the applicant, as he submitted, in essence, at the hearing, had no choice but to ‘modify’ the subject matter of the original action by setting out, in the application itself, claims for annulment both of Decision 2018/141 and of Decision 2019/135.
46In the second place, the provisions in the Rules of Procedure relating to legal aid must be interpreted in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which provides expressly, in the third paragraph thereof, that legal aid must be made available in so far as it is necessary to ensure effective access to justice. In particular, it is necessary to ensure that the interpretation of those provisions does not constitute a disproportionate limitation on the right of access to the courts, which undermines the very core of that right (see, to that effect, judgment of 22 December 2010, DEB, C‑279/09, EU:C:2010:811, paragraph 60).
47In that regard, time limits for bringing proceedings are to be applied strictly (see judgment of 13 December 2016, Al-Ghabra v Commission, T‑248/13, EU:T:2016:721, paragraph 43 and the case-law cited). However, the interpretation of the provisions of Article 147 of the Rules of Procedure and, in particular, paragraph 7 thereof relating to the suspension of those time limits, must not result in the applicant being treated less favourably than another beneficiary of legal aid who was, in particular, in a position to lodge his action against the decision referred to in the application for legal aid before the adoption of the act replacing or amending that decision.
48In the third place, the specific nature of the circumstances in which the applicant lodged the application initiating proceedings on 24 June 2019 is clear.
49First, as is apparent from the documents provided in support of his application for legal aid, the applicant received the Council’s letter notifying Decision 2018/141 on 10 February 2018. He lodged that application on 5 March 2018. Furthermore, it is clear from the content of that application for legal aid that the applicant did not appoint a lawyer. It follows, therefore, that in accordance with Article 147(7) of the Rules of Procedure, the time limit for bringing the action was suspended with effect from 5 March 2018 until service of the order designating the lawyer instructed to represent the applicant, namely, as is apparent from the documents before the Court, until 29 May 2019. The application initiating proceedings made on 24 June 2019 was therefore lodged in accordance with the provisions of Article 263, sixth paragraph, TFEU and of Article 60 of those rules, in so far as it refers to Decision 2018/141, which, moreover, the Council does not dispute.
50Secondly, it follows from the findings in paragraph 49 above that, on the date on which, according to the information provided by the Council, Decision 2019/135 was notified to the applicant, 4 February 2019, the time limit for lodging the action was suspended as regards Decision 2018/141. Furthermore, that time limit was still suspended on 15 April 2019, the date by which the applicant was due to bring an action against Decision 2019/135 if his application for legal aid did not have the effect of suspending the time limit for bringing proceedings as regards that second decision. It follows that, in that case, the applicant had no option but to lodge a second application for legal aid referring to that second decision, so that his action against that decision would also obtain a suspension of the time limit for bringing proceedings until his lawyer was appointed.
51However, as pointed out in paragraph 44 above, it is apparent, on the one hand, from reading Article 147(4) in conjunction with Article 86(1) of the Rules of Procedure that a beneficiary of legal aid cannot be required to lodge a second application for such aid in order to challenge, in a statement of modification, the act replacing or amending the decision initially referred to in his action. Consequently, the Court cannot treat the applicant less favourably by requiring him to lodge such a second application. Decision 2019/135 constitutes an act replacing Decision 2018/141, which he would have been entitled to challenge in such a statement of modification had he been able to lodge the application initiating proceedings before the adoption of that new decision.
52On the other hand, the only purpose of a second application for legal aid would have been to allow the suspension of the time limit for bringing proceedings as regards Decision 2019/135. Indeed, when that decision was adopted, the applicant was already the beneficiary of legal aid and it was open to him to seek annulment of that decision in the context of the modification of the application against Decision 2018/141, in respect of which he had obtained that aid. In those circumstances, the obligation to lodge a second application for legal aid constitutes a superfluous formality, unrelated to the purpose of legal aid, which is, in accordance with Article 146 of the Rules of Procedure, to enable those who are unable to meet the costs of the proceedings to be represented before the General Court and therefore to have access to the EU Courts.
53Thirdly, almost eight months elapsed between the order of 14 September 2018 granting the applicant legal aid and the order of 3 May 2019 appointing a lawyer, during which period the applicant was not in a position to bring the action in respect of which he had lodged an application for legal aid. It is clear from the documents before the Court that, for most of that period, that delay is not attributable to him.
54After the order of 14 September 2018 was made, it was not until 14 November that the applicant informed the Court that he had been unable to appoint a lawyer to represent him, and asked the Court to appoint one itself. However, in accordance with Article 148(5) of the Rules of Procedure, after receiving that letter, the Court Registry sent, on 28 November 2018, a copy of the applicant’s application for legal aid and of the abovementioned order to the competent national authority in order for that authority to appoint a lawyer. It was only on 23 April 2019, five months later, that the national authority replied to the Court Registry with the names of a number of lawyers who were willing to represent the applicant. In that regard, it should be pointed out that it was precisely during that period of almost five months that Decision 2019/135 was adopted, and that the time limit for bringing proceedings against that decision, if it was not suspended, would have expired.
55It follows that, if the time limit for bringing proceedings was not suspended as regards Decision 2019/135, the admissibility of the applicant’s claims against that decision would be called into question, in this case, because of the time it took to appoint a lawyer, even though most of the delay was not attributable to the applicant. As the applicant stated, in essence, at the hearing, it cannot be accepted, in the light of the purpose of legal aid, as enshrined in the third paragraph of Article 47 of the Charter, that the time taken, altogether, to process the applicant’s application for legal aid has the effect of depriving him of access to the EU Courts, or at least of restricting that access, which is precisely what the suspension of the time limits for bringing proceedings provided for in Article 147(7) of the Rules of Procedure aims to avoid.
56It is true that, on the date the application initiating proceedings was lodged, the applicant retained an interest in bringing proceedings for annulment of Decision 2018/141 (see, to that effect, judgment of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraphs 79 and 80). However, in so far as, on that date, his designation on the list at issue was maintained under Decision 2019/135, it was the latter decision which affected his situation and had a substantial negative impact on his freedoms and rights (see, to that effect and by analogy, judgment of 27 September 2018, Ezz and Others v Council, T‑288/15, EU:T:2018:619, paragraph 71 and the case-law cited). Accordingly, the fact that it was impossible to refer to that decision in his action against Decision 2018/141, deprived that action, on the date on which it was brought, of a great deal of its effectiveness.
57As regards the particular circumstances of the case, the applicant is therefore justified in submitting that the suspension of the time limits for bringing proceedings provided for in Article 147(7) of the Rules of Procedure is applicable to the claims in the application initiating proceedings directed against Decision 2019/135, since, as he stated at the hearing, the claims directed against that decision and those directed against Decision 2018/141 have, in essence the same subject matter, and the period of time taken to process his application for legal aid cannot have the effect of excessively restricting his access to the EU Courts. Consequently, since the application initiating the proceedings was lodged on 24 June 2019, within the time limit for bringing proceedings as regards Decision 2018/141, in view of the suspension of that time limit from 5 March 2018 until 29 May 2019 (see paragraph 49 above), that time limit must, therefore, also be considered to have been complied with as regards Decision 2019/135. The claims directed against those two decisions are therefore admissible.
58The Council’s arguments do not call that finding into question.
59In the first place, the circumstances of the case which gave rise to the judgment of 18 June 2015, Ipatau v Council (C‑535/14 P, EU:C:2015:407), relied on by the Council, are clearly different from those of the present case.
60Indeed, in that case, the applicant claimed that the General Court had infringed his right to effective judicial protection on the ground that it had dismissed his action as inadmissible in so far as it was directed against the Council’s letter of 14 November 2011. However, the Court of Justice found that the General Court had not erred in law in stating that that letter had not been referred to in the applicant’s application for legal aid as an act that ought to be the subject of the proposed action, and therefore as forming part of the subject matter of that action. Accordingly, unlike Decision 2019/135 in the present case, the letter at issue in that case had been issued before the application for legal aid was lodged and had been mentioned by the applicant in that application. However, it was clear from the General Court’s analysis of the clear and precise terms of that application that the applicant had not expressed his intention to seek annulment of that letter, but rather of the acts which were the subject of a request for review refused by the letter, and of the subsequent acts contained therein (see, to that effect, judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraphs 16 to 20).
61Conversely, in the present case, the applicant could not, by definition, express his intention to challenge Decision 2019/135, which had not yet been adopted, so it was not possible to exclude in advance the extension of the subject matter of the action to that decision. The judgment cited by the Council is therefore irrelevant.
62In the second place, as regards the Council’s argument regarding the strict application of time limits for bringing proceedings, it has been found in paragraph 47 above that that principle, which is moreover based on considerations of legal certainty and equality among litigants, cannot have the effect of putting the applicant in a less favourable position than that of a beneficiary of legal aid who has been able to lodge his action against the decision referred to in the application for legal aid before the adoption of the act replacing or amending that decision, and who has therefore been able to present claims directed against that act in his statement of modification.
63In the third place, as regards the Council’s arguments that the applicant was familiar with the procedure for the renewal of the restrictive measures, and that he had the opportunity to lodge another application for legal aid, or to state succinctly in the one he had submitted that he also intended to challenge the subsequent renewal of that application, it is sufficient to recall that, for the reasons stated in paragraphs 41 and 42 above, the applicant could not express, in his application for legal aid, his intention to challenge an act that had not yet been adopted, particularly since there was nothing to support the presumption that, on the date the application was lodged, that act would be adopted.
64In the fourth place, as regards the Council’s argument relating to the absence of force majeure, it need only be recalled that the case-law on the concept of force majeure applies only in circumstances which are quite exceptional, where derogation from the procedural time limits may be made (see order of 11 June 2020, GMPO v Commission, C‑575/19 P, not published, EU:C:2020:448, paragraph 33 and the case-law cited). However, in the present case, it has been found in paragraph 57 above that the suspension of the time limit for bringing proceedings provided for in Article 147(7) of the Rules of Procedure was applicable to the claims in the application directed against Decision 2019/135 and that, consequently, that time limit was complied with. The abovementioned case-law is therefore not applicable, so that argument is irrelevant.
65In the light of all the foregoing, the action is admissible in so far as it is directed against Decision 2019/135.
2.The admissibility of the claims for annulment of Decision 2020/117
66The applicant submits that the case-law permits him to lodge a statement of modification concerning Decision 2020/117 by referring to the pleas and arguments put forward in the application. He states that that decision was not notified to him in its entirety and did not include any indication of the remedies available and the time limit for bringing proceedings.
67The Council contends that, as shown by the acknowledgement of receipt signed by the applicant, Decision 2020/117 was communicated to him on 4 February 2020 and that, consequently, the claims directed against that decision are manifestly out of time. It then states that that analysis cannot be called into question based on the principle of effective judicial protection. Lastly, it contends that its intention to renew the restrictive measures concerning the applicant is expressed explicitly in its letter of 28 January 2020, and that Decision 2020/117 is specifically identified in that letter.
68As a preliminary point, it must be recalled, as has already been pointed out in paragraphs 47 and 56 above, that the time limits for bringing proceedings are to be applied strictly, which meets the requirement of legal certainty and the need to avoid all discrimination or arbitrary treatment in the administration of justice.
69Moreover, according to the case-law, the time limit for bringing an action for annulment of an act imposing restrictive measures starts to run only from the date on which the person concerned is given notification of the act, provided that his address is known, and not the date on which the act was published, as the latter forms part of a series of individual decisions (see, to that effect and by analogy, judgment of 5 October 2017, Ben Ali v Council, T‑149/15, not published, EU:T:2017:693, paragraphs 44 and 47 and the case-law cited). That case-law is applicable to a statement of modification submitted against the renewal of those restrictive measures subsequent to the act contested in the application (see, to that effect, judgment of 18 October 2016, Sina Bank v Council, T‑418/14, EU:T:2016:619, paragraphs 51, 56 and 57 and the case-law cited).
70In the present case, unlike the time limit for bringing proceedings concerning Decisions 2018/141 and 2019/135, the time limit concerning Decision 2020/117 was not suspended, inter alia, because an application for legal aid was lodged. It is therefore necessary to determine, first, whether the notification of the latter decision addressed to the applicant was capable of setting time running for the purposes of that time limit and, secondly, whether the statement of modification was lodged within that time limit which, in accordance with Article 263, sixth paragraph, TFEU and Article 60 of the Rules of Procedure, expired after a period of 2 months and 10 days.
71As to the question whether the notification given by the Council to the applicant set the time running for the purposes of the time limit for bringing proceedings against Decision 2020/117, it is clear from the documents before the Court that the Council’s letter of 28 January 2020 was delivered to the applicant on 1 February 2020. The applicant does not dispute that that notification took place, but rather disputes its validity on the ground that that decision was not notified to him in its entirety, and that the letter from the Council at issue does not indicate the remedies available and the time limit for bringing proceedings.
72As regards the applicant’s complaint that Decision 2020/117 was not notified in its entirety, it should be noted that, as the Council states, its letter of 28 January 2020 explicitly mentions the adoption of that decision and the maintenance of the restrictive measures against the applicant as a result thereof. Furthermore, that letter provides references from the Official Journal of the European Union and the address of the website on which the decision at issue can be accessed. That letter also explains why the Council decided to maintain those measures against him. Consequently, although the Council did not communicate, at the same time as it sent the letter at issue, a copy of the decision in question, it nevertheless provided sufficient information for the applicant to acquaint himself with decision in its entirety and the reasons for that decision. Consequently, despite the fact that such a copy was not communicated, that decision cannot be considered not to have been validly notified to the applicant. Therefore, that fact is not capable of preventing time from starting to run for the purposes of the time limit for bringing an action against that decision.
73As regards the applicant’s complaint that there is no indication of the remedies and time limit for bringing proceedings, it is sufficient to point out that, irrespective of whether the absence of that indication is such as to vitiate the validity of the notification of Decision 2020/117, the applicant, who, moreover, had legal representation on the date of notification of that decision, could not have been unaware of the remedies and time limit for bringing proceedings against that decision, given that he had already brought an action before the Court against previous similar decisions. Consequently, such an absence cannot, in any event, be a ground for preventing time from starting to run for the purposes of the time limit for bringing proceedings, and is not capable of leading the applicant to make an excusable error, for the purposes of the case-law, that could justify derogation from that time limit (see, to that effect and by analogy, order of 10 December 2015, NICO v Council, C‑153/15 P, not published, EU:C:2015:811, paragraphs 55 to 61).
74In addition, the applicant’s claims relating to the notification, by the Council, of Decision 2020/117 to an incorrect address, which are set out in his observations of 8 July 2020, cannot succeed, as it is apparent from the documents provided by the Council that it notified that decision to the same address as that indicated as being the applicant’s home address in all the procedural documents he lodged with the Court Registry and in those observations.
75It must therefore be found that, for the purposes of the time limit for bringing proceedings against Decision 2020/117, time started to run, as regards the applicant, from the date of notification of that decision by the Council, which took place on 1 February 2020.
76As regards compliance with the time limit for bringing proceedings, it should be noted that that time limit of 2 months and 10 days expired on 13 April 2020. Consequently, the statement of modification directed against Decision 2020/117 on 24 June 2020 was lodged out of time and the claims directed against that decision are therefore inadmissible. It follows that the action must be dismissed in so far as it is directed against that decision.
B.Substance
77In support of his claims for annulment of Decisions 2018/141 and 2019/135, the applicant formally raises three pleas in law. The first plea alleges infringement of the United Nations Convention against Corruption, adopted by the United Nations General Assembly on 31 October 2003 in New York. The second plea alleges ‘manifest’ errors of assessment and consists of three parts relating, in the first place, to the infringement of the principle of proportionality, in the second place, to the infringement of the applicant’s right to have his case heard within a reasonable time by the Tunisian authorities and, in the third place, to the Council’s failure to carry out further verifications. The third plea alleges misuse of power, in so far as the real purpose of the criminal proceedings on which the maintenance of the applicant’s designation on the list at issue is based is to justify a posteriori the confiscation of his property and assets in Tunisia.
78It is appropriate to begin by examining the second plea.
1.The second plea, alleging manifest errors of assessment
(a)Preliminary remarks
79As a preliminary point, it should first be pointed out that, despite the differences in the way it is formulated in the application and the reply, the present plea must, as far as its second and third parts are concerned, be understood as alleging an error of assessment, and not a manifest error of assessment. The Council had no discretion to determine whether it had sufficient evidence to assess whether the Tunisian authorities had respected the applicant’s right to have his case heard within a reasonable time, and whether that evidence was capable of giving rise to legitimate doubts concerning the observance of that right (see, to that effect and by analogy, judgment of 27 September 2018, Ezz and Others v Council, T‑288/15, EU:T:2018:619, paragraph 215).
80Secondly, it seems necessary, in the context of the present plea, to consider the possible implications of the judgments of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031); and of 11 July 2019, Azarov v Council (C‑416/18 P, not published, EU:C:2019:602); and of the order of 22 October 2019, Azarov v Council (C‑58/19 P, not published, EU:C:2019:890). By way of a measure of organisation of procedure of 13 December 2019, the Court requested the parties to submit their observations on that question and, in particular, to indicate whether and to what extent they considered that Decisions 2018/141 and 2019/135 fulfilled the obligation to state reasons in the light of, inter alia, those judgments and that order.
81In his written response of 27 December 2019, the applicant stated, in essence, that the requirements defined in the judgments of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031); and of 11 July 2019, Azarov v Council (C‑416/18 P, not published, EU:C:2019:602); and of the order of 22 October 2019, Azarov v Council (C‑58/19 P, not published, EU:C:2019:890), were applicable in the present case. He stated that those requirements were related to the Council’s obligation to carry out verifications regarding the evidence provided by the Tunisian authorities, which he had highlighted in the substantive pleas he had raised. He submitted that Decisions 2018/141 and 2019/135 did not state the reasons why the Council held that the Tunisian State’s decision, on which those decisions were based, had been adopted in accordance with the rights of the defence and the right to effective judicial protection. He concluded, in the alternative, that the plea alleging the absence of such a statement of reasons should lead to the annulment of those decisions.
82In its written response of 16 January 2020, in the first place, the Council contended that it was clear from a combined reading of, on the one hand, the judgments of 18 February 2016, Council v Bank Mellat (C‑176/13 P, EU:C:2016:96); and of 21 April 2016, Council v Bank Saderat Iran (C‑200/13 P, EU:C:2016:284); and, on the other, the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), that, in some cases, the Council may have been subject to an obligation to verify whether the rights of the defence and right to effective judicial protection had been respected and, as a corollary, the obligation to refer to that verification in the statements of reasons of the acts at issue, and in other cases, it was not subject to such obligations. According to the Council, the difference between Cases C‑176/13 P and C‑200/13 P, on the one hand, and Case C‑530/17 P on the other lay in the fact that, in the first two cases, the entities concerned had not submitted observations in that regard to the Council, whereas in the third case, the person at issue had referred to the abovementioned obligations before the adoption of the contested decision. In the present case, the applicant has not submitted such observations. In the second place, the Council contended that the information in the statements of reasons for Decisions 2018/141 and 2019/135 was sufficient for the purposes of ascertaining whether the decisions were well founded and enabling the EU Courts to review of the legality of those decisions, in accordance with the case-law. Furthermore, those decisions were taken in a context known to the applicant. In the third place, the Council contends that Articles 27, 29 and 108 of the Tunisian Constitution and Articles 13, 47, 50, 59, 66 and 175 of the Tunisian Criminal Code provided guarantees relating to the applicant’s right to a fair trial within a reasonable time and to respect for his rights of defence. Those provisions show that the Tunisian Republic has a legal framework safeguarding those rights and, as they are part of the statements of reasons for those decisions, those provisions fall within a context which is known to the applicant, or at least a context of which he cannot have been unaware.
83First of all, it should be recalled that, in the context of an appeal against a judgment of the General Court ruling on the lawfulness of the continued inclusion of an entity on the list provided for in Article 2(3) of Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70, and corrigendum OJ 2010 L 52, p. 58), the Court of Justice held that, before acting on the basis of a decision of an authority of a third State, the Council had to verify whether that decision had been adopted in accordance with the rights of the defence and the right to effective judicial protection (judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 24).
84In that regard, the Court of Justice recalled that it had repeatedly held that the Council was obliged, when adopting restrictive measures, to respect the fundamental rights that form an integral part of the EU legal order, which include, in particular, respect for the rights of the defence and the right to effective judicial protection (see judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 25 and the case-law cited).
85The Court of Justice stated, furthermore, that the need for such verification arose, inter alia, from the fact that the objective of protecting the persons or entities concerned, by ensuring that they were first included on the list at issue only on a sufficiently solid factual basis, could not be attained unless the decisions of third States on which the Council based those initial listings had been adopted in accordance with the rights of the defence and the right to effective judicial protection (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 26 and the case-law cited).
86The Court of Justice concluded that the guarantee that the decision of the third State had been taken in accordance with the rights of the defence and the right to effective judicial protection had decisive importance in the context of that listing and of subsequent decisions to freeze funds, and that the Council was, therefore, required to provide, in the statements of reasons for those decisions, the particulars from which it may be concluded that it had ascertained that those rights were respected (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 31).
87Lastly, the Court of Justice addressed the Council’s argument that, in so far as the third State might regard a comment, in the statements of reasons for the asset-freezing decisions at issue, on whether or not it complies with the rights of the defence and the right to effective judicial protection as amounting to interference in its internal affairs, the reasoning required by the General Court would prevent the Council from relying on the decisions of third States. In that regard, the Court of Justice stated that it was sufficient, for that purpose, that the Council briefly refer, in the statement of reasons for a decision to freeze assets, to the reasons why it considered that the decision of the third State on which it intended to rely had been adopted in accordance with those rights (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 20, 32 and 33).
88Further, it should be recalled that in the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), the Court of Justice ruled on a similar matter in the context of an appeal against a judgment of the General Court ruling on the lawfulness of the continued inclusion of a natural person on the lists set out, respectively, in the annex to Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66 p. 26), as amended by Council Decision (CFSP) 2015/143 of 29 January 2015 (OJ 2015 L 24, p. 16), and in Annex I to Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 1), as amended by Council Regulation (EU) 2015/138 of 29 January 2015 (OJ 2015 L 24, p. 1).
89In the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), the Court of Justice held that the principles set out in paragraphs 83 to 87 above were applicable in the applicant’s situation in the case at issue, since the restrictive measures taken against him were based on the decision of an authority of a third State, which was competent to make it, to initiate and conduct criminal investigation proceedings concerning an offence of misappropriation of State funds. It pointed out, in that regard, that it was irrelevant, as noted in the judgment under appeal, that the existence of such a decision constituted not the listing criterion laid down in Article 1(1) of Decision 2014/119, but rather the factual basis for the restrictive measures at issue (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraphs 25 to 30).
90The Court of Justice found that the reasoning on which the General Court had based its finding that the approach taken in the judgment of 16 October 2014, LTTE v Council (T‑208/11 and T‑508/11, EU:T:2014:885), could not be applied to that case was vitiated by an error of law (see, to that effect, judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraphs 31 to 33).
91In particular, first, according to the Court of Justice, the Council could not conclude that a listing decision was taken on a sufficiently solid factual basis before having itself verified that the rights of the defence and the right to effective judicial protection had been respected at the time of the adoption of the decision by the third State in question on which it intended to base the adoption of restrictive measures (judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 34).
92Secondly, the Court of Justice held that the differences in the wording, structure and objective identified by the General Court between, on the one hand, the model of restrictive measures provided for in the fight against terrorism and, on the other, the model of restrictive measures taken in view of the situation in Ukraine, could not have the effect of limiting the application of the guarantees arising from the approach taken in the judgment of 16 October 2014, LTTE v Council (T‑208/11 and T‑508/11, EU:T:2014:885), only to restrictive measures adopted in the context of the first of those models, and excluding those adopted in the context of cooperation with a third State decided on by the Council as a result of a political decision (see judgment of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 37).
93In that regard, the inevitable conclusion is that the considerations in the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), recalled in paragraphs 89 to 92 above, can be applied to the circumstances in the present case despite the differences in context. Indeed, there are undoubtedly some similarities between the model of restrictive measures in view of the situation in Tunisia and the model of restrictive measures taken in view of the situation in Ukraine. Accordingly, the freezing of the assets of the persons designated on the list at issue, including the applicant, is also based on the decision of the authorities of third States which are competent to make it – namely in this case, the authorities of the Tunisian Republic – to initiate and conduct investigation proceedings concerning an offence of misappropriation of State funds.
94It must therefore be concluded, in the present case, first, that the Council does have an obligation to verify that the applicant’s rights of defence and right to effective judicial protection were respected in the judicial proceedings concerning him in Tunisia and, secondly, that it has an obligation to state the reasons why it considers that those rights were respected.
95Furthermore, such obligations appear all the more inescapable since, as is clear from recital 1 of Decision 2011/72, that decision and the subsequent decisions were adopted as part of a policy of support for Tunisia based, in particular, on the objectives of promoting respect for human rights and the rule of law which are set out in Article 21(2)(b) TEU. Consequently, the purpose of those decisions, which is to assist the Tunisian authorities in finding any misappropriation of State funds that has taken place and to ensure that it remains possible for those authorities to recover the proceeds of misappropriation, would be irrelevant as regards those objectives if that finding were vitiated by a denial of justice or even by arbitrariness (see, to that effect and by analogy, judgments of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 64, and of 27 September 2018, Ezz and Others v Council, T‑288/15, EU:T:2018:619, paragraph 68).
96It is true that, in paragraphs 65 and 72 of the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694), which concerned a dispute relating to the continued designation of a person on the list at issue, the General Court held, inter alia, that, in order to maintain that listing, the Council was merely required to gather evidence of the existence of ongoing judicial proceedings concerning the applicant in respect of acts that may be classified as misappropriation of State funds, and that it was only where there was objective, reliable, specific and consistent evidence such as to raise legitimate questions concerning the observance of an applicant’s right to have his case heard within a reasonable time in the context of the ongoing judicial investigation concerning him, serving as the basis for the freezing of his assets in the European Union, that the Council was required to carry out the necessary verifications in that regard.
97The General Court applied similar reasoning as regards verification of the observance of the right to a fair trial and to the protection of the presumption of innocence, by the Egyptian authorities, of persons whose designation on the list in the annex to Council Decision 2011/172/CFSP of 21 March 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 63, and corrigendum OJ 2014 L 203, p. 113) had been maintained (see, to that effect, judgment of 27 September 2018, Ezz and Others v Council, T‑288/15, EU:T:2018:619, paragraphs 70, 214 and 215).
98However, when the judgments cited in paragraphs 96 and 97 above were given, the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), had not yet been delivered. The Court of Justice had therefore not yet ruled on whether the approach taken in the judgment of 16 October 2014, LTTE v Council (T‑208/11 and T‑508/11, EU:T:2014:885), could be applied as such to a model of restrictive measures adopted in the context of cooperation with a third State with the purpose of assisting that State in the fight against misappropriation of State funds, and in the light of the existence of judicial proceedings initiated by the authorities of that State in connection with offences which may be classified as misappropriation of State funds.
99Moreover, in the judgments cited in paragraphs 96 and 97 above, the General Court examined pleas or complaints which were based on an alleged failure by the Council to carry out further verifications after the applicants had presented it with evidence which they considered to be capable of proving infringements of the rights protected by the principle of effective judicial protection, enshrined in Article 47 of the Charter. Those pleas or complaints did not therefore raise, as such, the question whether the Council was required to carry out verifications of its own motion, without waiting for the persons concerned to submit observations capable of justifying such verifications, or, a fortiori, the question whether it was required to give express reasons for the conclusions it drew from those verifications.
100Those considerations are not called into question by the Council’s analysis of the case-law in its written response of 16 January 2020.
101Indeed, in the first place, the comparison drawn by the Council between the case-law established in the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), and the case-law arising from the judgments of 18 February 2016, Council v Bank Mellat (C‑176/13 P, EU:C:2016:96), and of 21 April 2016, Council v Bank Saderat Iran (C‑200/13 P, EU:C:2016:284), is unconvincing.
102In that regard, it is sufficient to point out, first, that paragraphs 88 to 91 of the judgment of 18 February 2016, Council v Bank Mellat (C‑176/13 P, EU:C:2016:96), and paragraphs 81 to 84 of the judgment of 21 April 2016, Council v Bank Saderat Iran (C‑200/13 P, EU:C:2016:284), relied on by the Council, concern the question whether the Council is required to verify the relevance and validity of the evidence regarding the entity concerned before adopting the acts imposing restrictive measures on it and to indicate, in the statements of reasons for those acts, that it has carried out such verifications. However, unlike paragraphs 25 to 37 of the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), those paragraphs do not concern the question whether the Council has the obligation to verify, before adopting such acts, whether the applicant’s rights of defence and right to effective judicial protection were respected in the context of the proceedings on which those acts are based and, consequently, to indicate the result of those verifications in the statements of reasons for those acts. It should be pointed out, accordingly, that in the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), the Court of Justice did not hold that the Council was required, before adopting the acts at issue, to verify systematically the relevance and validity of the proceedings initiated by the third countries on which the acts are based, and to refer to those verifications in the statements of reasons for those acts.
103Secondly, in the cases which gave rise to the judgments of 18 February 2016, Council v Bank Mellat (C‑176/13 P, EU:C:2016:96), and of 21 April 2016, Council v Bank Saderat Iran (C‑200/13 P, EU:C:2016:284), the restrictive measures, the legality of which had been examined by the General Court in the judgments which were the subject of the appeals at issue, were based on evidence provided by the Member States concerning the support of entities involved in Iran’s proliferation-sensitive nuclear activities, which was intended to support their proposal to include those entities on the list of persons, entities or bodies to whom those measures applied. Those measures were therefore not based on decisions of an administrative or judicial nature, such as the opening of criminal proceedings, unlike in the case giving rise to the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031).
104In the second place, and contrary to what the Council contends, it is not clear from the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), that the obligation to verify whether the rights of defence and right to effective judicial protection of the person concerned were respected in the context of the judicial proceedings initiated against him in a third country exists only if the applicant submits observations prior to the adoption of the measures at issue. Rather, it follows from paragraphs 25 to 37 of that judgment, summarised in paragraphs 89 to 92 above, that the Court of Justice intended such an obligation to be unconditional. As is clear, in particular, from paragraph 28 of that judgment, the Court held, in essence, that observance of the rights of the defence and the right to effective judicial protection in the context of judicial proceedings serving as a basis for restrictive measures adopted by the Council was a component of the factual basis for those measures. However, it is clear from settled case-law, recalled in that same paragraph, that the Council must systematically verify, in advance, whether there is a sufficiently solid factual basis for the measures.
105That interpretation of the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), is not called into question by paragraph 39 thereof, cited by the Council, which recalls the settled case-law according to which it is the task of the competent EU 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 (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 121, and of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 66).
106Indeed, first, the considerations in paragraph 39 of the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), set out an additional reason, but are not decisive in the Court’s reasoning, unlike the considerations in paragraphs 25 to 37 of that judgment. Secondly, the principle recalled in that case by the Court was set out, for the first time, in circumstances where, when the person affected by restrictive measures brought a challenge in the context of proceedings before the General Court, the Court of Justice had ruled that it was for the Council to produce information or evidence to enable the General Court to examine whether the reasons underlying those measures were substantiated (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 119 and 120). It cannot therefore be inferred from that case-law that the principle thus defined, relating to the burden of proof and taking of evidence before the EU Courts, applies only where, in an administrative procedure, the applicant has submitted observations disputing the factual basis for the measures he is challenging before those measures have been adopted.
107In the present case, although the applicant has not raised any pleas alleging infringement of the obligation to state reasons as regards Decisions 2018/141 and 2019/135, the second and third parts of the second plea do raise the question, first, concerning the Council’s assessment of the observance of his right to have his case heard within a reasonable time, which is a component of the right to effective judicial protection, and secondly, concerning the verifications carried out by the Council in that regard. It is therefore necessary to examine those parts in the light of the principles set out in paragraphs 83 to 106 above.
(b)The second part of the second plea, alleging that the Council made an error of assessment relating to the observance, by the Tunisian authorities, of the applicant’s right to have his case heard within a reasonable time
108The applicant submits that, since 2011, no procedural steps have been taken in the judicial proceedings concerning him, even though his address is known to the Tunisian authorities and he remains at the disposal of the authorities. He states that he has never been heard or invited to a hearing, or been the subject of any investigative measures. He submits that, as a consequence, in the light of paragraph 172 of the judgment of 30 June 2016, CW v Council (T‑516/13, not published, EU:T:2016:377), and of paragraphs 64, 65, 71, 222 and 223 of the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694), the General Court must find that the Council made an error of assessment as regards the observance of his right to have his case heard within a reasonable time. In his reply, he submits, furthermore, that the veracity and credibility of the documents sent by the Tunisian authorities to the Council on 1 August 2019 are questionable. He submits, in conclusion, that the Council has not carried out the necessary verifications since 2011, even though he, for his part, has duly submitted observations to the Council calling into question the basis for the judicial proceedings concerning him.
109The Council contends that, when it adopted Decisions 2018/141 and 2019/135, there was no objective, reliable, specific and consistent evidence such as to raise legitimate questions, within the meaning of paragraphs 64 and 65 of the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694), concerning the observance of the applicant’s right to have his case heard within a reasonable time by the Tunisian authorities in the context of the judicial proceedings they had initiated against him. In particular, it contends that, before the adoption of those decisions, the applicant did not submit any evidence of a complete absence of procedural activity in the context of the judicial investigation concerning him. Moreover, it states that the applicant’s argument relating to that absence of activity cannot, in itself, lead to the conclusion that it made an error of assessment concerning the Tunisian authorities’ observance of the applicant’s right to have his case heard within a reasonable time, in the light of the circumstances that may justify the length of the investigation, set out in paragraphs 221 and 222 of the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694), and in paragraph 52 of the judgment of 15 November 2018, Mabrouk v Council (T‑216/17, not published, EU:T:2018:779). It adds that the activity report of 1 August 2019 sent by the Tunisian authorities confirms that Tunisian Decree-Law No 2011-13 of 14 March 2011 on confiscation of assets and movable and immovable property is still applicable to the applicant, and shows that he has been involved in a number of offences.
110In the rejoinder, the Council responds to the applicant’s claims relating to the credibility of the documents provided by the Tunisian authorities. It produces, inter alia, as an annex, a table of international letters rogatory in order to illustrate the complexity of the procedure, and notes that, in the light of the table of cases pending, also attached in annex, the applicant is considered to be a fugitive.
111As a preliminary point, it should be borne in mind that the principle that proceedings should be concluded within a reasonable time forms part of the right to effective judicial protection which is safeguarded by the second paragraph of Article 47 of the Charter and by the provisions of a number of binding instruments of international law safeguarding the right to a fair trial, the substance of which is similar. That is, notably, the case with regard to Article 14(3)(c) of the International Covenant on Civil and Political Rights adopted by the United Nations General Assembly on 16 December 1966, to which the Tunisian Republic, among others, is a party (see, to that effect, judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694, paragraph 64).
112In that regard, it must also be stated that, in the light of the case-law of the European Court of Human Rights, the observance of the right to a hearing within a reasonable time, as enshrined in international law, must be examined in the light of the particular circumstances of the case, which call for an overall assessment on the basis, in particular, of criteria relating to the complexity of the case, the conduct of the applicant and the conduct of the relevant authorities. In the case-law of the EU Courts, similar principles are applied to the examination of the observance of the right to a hearing within a reasonable time, as enshrined in Article 47 of the Charter (see judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 71 and the case-law cited).
113Moreover, as found in paragraph 104 above, paragraphs 25 to 37 of the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), the content of which is set out in paragraphs 89 to 92 above, must be interpreted as meaning that the obligation to ensure that the applicant’s rights of defence and right to effective judicial protection have been respected, in the context of the judicial investigation concerning him, is unconditional. Consequently, the Council may decide to renew the designation of a person on the list at issue only if it has been able to ascertain beforehand that those rights – and in particular the right to a hearing within a reasonable time – have been respected, albeit of its own motion and without waiting for the person concerned to present objective, reliable, specific and consistent evidence such as to raise legitimate questions concerning the observance of those rights.
114Furthermore, as regards, more specifically, verification of the observance of the right to a hearing within a reasonable time, the longer the judicial proceedings forming the factual basis for a restrictive measure are, the greater the need for the Council to carry out that verification before it decides whether or not that measure should be renewed again (see, to that effect and by analogy, judgment of 30 January 2019, Stavytskyi v Council, T‑290/17, EU:T:2019:37, paragraph 132).
115In particular, it is appropriate to bear in mind, in the present case, the precautionary nature of freezing the applicant’s assets and the purpose thereof, which is to assist the Tunisian authorities with establishing any misappropriation of State funds that has taken place, on conclusion of the judicial proceedings, and to ensure that it remains possible for those authorities, ultimately, to recover the proceeds of that misappropriation (see, to that effect, judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 33 and the case-law cited). It therefore falls to the Council to ensure that that measure is not extended unnecessarily, to the detriment of the applicant’s rights and freedoms, on which it has a significant negative impact, merely because the judicial proceedings on which it is based have been left open indefinitely, without any real justification (see, to that effect, judgments of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 48, and of 27 September 2018, Ezz and Others v Council, T‑288/15, EU:T:2018:619, paragraph 71).
116It is true that the Council cannot be required to bring an end to the freezing of the applicant’s assets merely because there is evidence such as to raise legitimate questions concerning the observance, by the Tunisian authorities, of the applicant’s right to have his case heard within a reasonable time and, in particular, evidence that the length of the criminal proceedings was justified (see, to that effect, judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraphs 67 to 75). However, before renewing the freezing of the applicant’s assets, the Council is required, at least, first, to ensure that it has sufficient evidence concerning the state and progress of those proceedings to assess the risk of an infringement of that right occurring and, secondly, to carry out that assessment carefully and impartially in order, where necessary, to draw the appropriate conclusions from it (see, to that effect and by analogy, judgments of 27 September 2018, Ezz and Others v Council, T‑288/15, EU:T:2018:619, paragraphs 71 and 79).
117The present part of the second plea must be examined in the light of those principles.
118In the first place, it should be noted at the outset that the documents produced by the Tunisian authorities which the Council annexed to the defence and the rejoinder cannot be taken into account by the Court for the purposes of assessing whether the Council has fulfilled its obligation to verify the Tunisian authorities’ observance of the right to a hearing within a reasonable time.
119In that regard, it must be borne in mind that, according to settled case-law, in an action for annulment, the legality of the contested act must be assessed on the basis of the facts and the law as they stood at the time when the act was adopted (see judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraph 37 and the case-law cited).
120In the present case, it is not clear from the documents before the Court that the documents at issue came to the knowledge of the Council prior to the adoption of Decision 2018/141 or Decision 2019/135.
121First, as regards the documents annexed to the defence, it is apparent from the letter from the Embassy of the Tunisian Republic in Brussels (Belgium) dated 10 August 2019 that they were enclosed with that letter. Secondly, as regards those annexed to the rejoinder, it is apparent from their cover page that they were sent by the European External Action Service (EEAS) during the period between October and December 2019.
122Secondly, the Council does not contend that it had, at an earlier date, even a partial knowledge of the information contained in those documents.
123In that regard, it is apparent from the Council’s written response of 16 March 2020 that, in October 2017 and October 2018, the Council obtained information from the Tunisian authorities on the state of progress of the case bearing the reference 19592/1, which relates to the judicial investigation concerning the applicant. That information took the form of a data sheet giving the name of the applicant and containing a table which listed, inter alia, the proceedings and the measures taken. The information was supplemented by comments stating, inter alia, that a number of international letters rogatory had been issued, that the case had required several measures concerning the other accused persons, and that the investigations were still underway. However, although the procedural steps referred to in those data sheets related to other persons covered by the same investigation, none specifically concerned the applicant.
124Moreover, at the hearing, the Council confirmed that information relating to procedural acts specifically concerning the applicant had come to its knowledge only in connection with the documents sent by the Tunisian authorities following the adoption of Decision 2019/135, after it had put questions to the authorities in that regard.
125Therefore, since the Council acquainted itself with the information contained in those documents after the adoption of Decisions 2018/141 and 2019/135, both its own arguments and those of the applicant relating to those documents must be dismissed.
126In the second place, it should be noted that, in support of the present part of this plea, the applicant submits that, since 2011, no procedural steps have been taken in the judicial proceedings concerning him and that, in particular, he has never been heard or invited to a hearing and has never been the subject of any investigative measures.
127The Council does not dispute those claims, but merely contends that, when Decisions 2018/141 and 2019/135 were adopted, there was no objective, reliable, specific and consistent evidence such as to raise legitimate questions concerning the observance, by the Tunisian authorities, of the applicant’s right to have his case heard within a reasonable time, since the applicant had not provided any such evidence in that connection.
128In that regard, first, as held in paragraph 113 above, the Council’s obligation to ensure that the applicant’s right to have his case heard within a reasonable time has been respected by the Tunisian authorities before renewing his designation on the list at issue is unconditional and must be fulfilled, where necessary, of the Council’s own motion, without waiting for the person concerned to submit objective, reliable, specific and consistent evidence such as to raise legitimate questions concerning the observance of that right. Consequently, the Council cannot rely, in response to the applicant’s claims, on the fact that he never submitted such evidence prior to the adoption of Decisions 2018/141 and 2019/135.
129Secondly, the evidence on which the Council based the decision to maintain the applicant’s designation on the list at issue since 2011 did not enable it to rule out any risk of an infringement of the applicant’s right to have his case heard within a reasonable time.
130In that regard, it should be noted that, in order to maintain the applicant on the list at issue, the Council relied, in particular, on the statements of the Tunisian authorities of 4 November 2013, 19 December 2014, 20 October 2015, 2 September 2016, 18 October 2017 and 13 September 2018, which it communicated to the applicant when it adopted, successively, Decisions 2014/49, 2015/157, 2016/119, 2017/153, 2018/141 and 2019/135.
131However, those statements merely confirm that the investigation of the case bearing the reference 19592/1, which concerns the applicant, is still underway, and list the offences for which he is being prosecuted. That information is clearly insufficient to enable the Council to assess the risk of an infringement of the applicant’s right to have his case heard within a reasonable time, and hence is incapable of supporting the Council’s assertion that there is no objective, reliable, specific and consistent evidence such as to raise legitimate questions in that regard.
132In any event, even if the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), were to be interpreted as meaning that the Council’s obligation to ensure that the applicant’s rights of defence and right to effective judicial protection are respected is not unconditional, the Council had objective, reliable, specific and consistent evidence such as to raise legitimate questions as to whether the length of judicial investigation concerning the applicant in Tunisia was justified when it adopted Decisions 2018/141 and 2019/135. The length of judicial proceedings is an important factor, although not the only one, for assessing whether the right to a hearing within a reasonable time has been respected.
133In that regard, first, as the applicant had, moreover, stated in his letter to the Council of 20 December 2018, the judicial investigation concerning him conducted by the Tunisian authorities, which forms the basis for his designation on the list at issue, has been open since 2011 and has not so far given rise to any court ruling. Indeed, that fact alone constitutes evidence such as to raise questions as to why that investigation has not been concluded, in so far as it concerns the applicant, after a period of seven or eight years.
134Secondly, as stated in paragraph 123 above, it follows from the Council’s written response of 16 March 2020 that, in October 2017 and October 2018, the Council obtained information from the Tunisian authorities on the state of progress of the case bearing the reference 19592/1 which relates to the judicial investigation concerning the applicant.
135However, as also stated in paragraph 123 above, although the procedural steps referred to in the data sheet sent by the Tunisian authorities related to other persons covered by the same investigation, none of them related specifically to the applicant. That information, which, according to the Council’s own statements, was not communicated to the applicant, was therefore such as to raise questions as to whether, since 2011, any procedural steps had been taken with specific regard to the applicant and, if not, the reasons for that.
136Consequently, the Council did, in any event, have evidence such as to raise legitimate questions on its part concerning the length of the investigation and whether the Tunisian authorities had taken effective procedural steps with specific regard to the applicant and, therefore, such as to justify carrying out the appropriate verifications.
137In the third place, as recalled in paragraph 105 above, according to settled case-law, as far as concerns restrictive measures, it is the task of the competent EU 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.
138In the present case, it is true, as the Council contends, that the applicant’s argument that the Tunisian authorities have not taken any procedural steps concerning him since 2011 cannot, in itself, support the conclusion that those authorities have infringed his right to have his case heard within a reasonable time.
139However, the fact remains that none of the documents relating to the state of the proceedings in Tunisia which were communicated to the Council before it adopted Decisions 2018/141 and 2019/135 shows that there was any procedural activity relating specifically to the applicant. The absence of such activity over a period of seven or eight consecutive years must be justified by particular circumstances specific to the case in which the applicant is involved, or indeed specific to the applicant himself. In particular, it is necessary to determine whether, as the applicant asserts, he has never been heard, or invited to a hearing, and never been the subject of any investigative measures, and if that were the case, why he has not been the subject of such measures until now. Indeed, without such justification, that absence of progress in the judicial proceedings, as far as the applicant is concerned, for such a long period cannot, as already noted in paragraph 133 above, fail to raise to legitimate questions concerning the observance of his right to have his case heard within a reasonable time.
140Consequently, since the Council did not prove that it had information of the type described in paragraph 139 above when Decisions 2018/141 and 2019/135 were adopted, it must be found that the Council was not, accordingly, in a position to assess properly whether the Tunisian authorities had respected the applicant’s right to have his case heard within a reasonable time. Therefore, in considering that, when those decisions were adopted, there was no objective, reliable, specific and consistent evidence such as to raise legitimate questions in that regard, the Council committed an error of assessment such as to lead to the annulment of those decisions.
141It is true that, in its response to the third part of the second plea in the application, the Council refers to the findings made in paragraph 224 of the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694), and in paragraph 55 of the judgment of 15 November 2018, Mabrouk v Council (T‑216/17, not published, EU:T:2018:779), based on documents concerning the state and progress of the judicial proceedings in the case bearing the reference 19592/1, which concerns a large number of persons, including the applicant in the cases which gave rise to those judgments and the applicant in the present case.
142In that regard, the findings at issue therein, according to which the Council had carried out a thorough verification of the state of the judicial investigation concerning the applicant in those cases before renewing the latter’s designation on the list at issue, were based, inter alia, on the fact that the Council produced documents issued by the Tunisian authorities showing that those authorities had taken procedural steps relatively recently in relation to the date of the contested decisions in those cases, and specifically concerning that person.
143Accordingly, in paragraph 204 of the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694), the General Court found that the documents issued by the Tunisian authorities indicated that the applicant in that case was questioned by the competent investigating magistrate on 15 and 21 February 2012 and on 14 May 2014.
144Similarly, in paragraph 54 of the judgment of 15 November 2018, Mabrouk v Council (T‑216/17, not published, EU:T:2018:779), the General Court found that it followed from the documents that were in the Council’s possession before it adopted the contested decisions in that case that the applicant in the case had been heard, at a hearing on 27 September 2016, by the competent Tunisian investigating magistrate after the French authorities had sent, on 23 May 2016, the procedural steps taken by them in the context of letters rogatory, in response to the requests of the Tunisian authorities of 19 January 2011 and 10 January 2012.
145However, in this case, the Council does not contend that it was able to acquaint itself, before the adoption of Decisions 2018/141 and 2019/135, with documents referring to similar procedural steps specifically concerning the applicant. In particular, as has been repeatedly held (see paragraphs 123, 135 and 139 above), the documents sent by the Tunisian authorities in October 2017 and October 2018, submitted in the proceedings by the Council in the context of its written response of 16 March 2020, do not show any specific procedural activity concerning that person.
146It is true that the findings made in paragraph 224 of the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694), and in paragraph 55 of the judgment of 15 November 2018, Mabrouk v Council (T‑216/17, not published, EU:T:2018:779), relied on by the Council, were also based on account being taken of the procedural activity carried out, in general, in the judicial investigation concerning the applicant in that case, which also concerned a large number of other persons, and not only procedural steps relating specifically to that applicant. The General Court concluded, inter alia, that the documents brought to the Council’s attention by the Tunisian authorities tended to show that procedural steps were in fact being taken in the investigation of the case involving the applicant in question, and that that case was complex due to the number of persons concerned and the necessary measures of investigation, which included international letters rogatory (see, to that effect, judgments of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 205 and 222, and of 15 November 2018, Mabrouk v Council, T‑216/17, not published, EU:T:2018:779, paragraph 52).
147That being so, it is not only the procedural activity carried out, in general, by the Tunisian authorities which led the General Court to conclude that effective procedural steps were in fact taken, but also the procedural steps specific to the applicant in the cases at issue. For reasons which have been set out repeatedly above, the absence of any reference to such specific procedural steps, in the present case, does not permit a similar conclusion to be reached.
148It must therefore be found that, as regards the question whether the applicant’s right to have his case heard within a reasonable time had been respected, the Council made an error of assessment such as to lead to the annulment of Decisions 2018/141 and 2019/135. It is, however, also necessary to examine the third part of the second plea.
(c)The third part of the second plea, alleging that the Council failed to carry out additional verifications
149The applicant submits that the successive decisions renewing his designation on the list at issue were based on statements from the Tunisian authorities which were cursory and incomplete, and, in some case, unsigned. He submits that, despite his observations that the judicial proceedings concerning him were not formally underway, the Council has not carried out any verifications on the state of the investigation or asked for any additional information since 2011. According to him, there is a risk, in such a situation, of the restrictive measures being extended indefinitely. Furthermore, the Tunisian authorities’ repetition of the same information every year, providing nothing new on the progress of the judicial proceedings at issue, undermines the reliability of that information. In particular, according to the applicant, the Council should have requested information on the reasons for suspending those proceedings and for the length of the proceedings. He concludes that the Council committed a manifest error of assessment in considering that it was not required to carry out additional verifications. In the reply, he puts forward the same arguments as those relied on in support of the second part of the third plea.
150The Council considers that it carried out the necessary verifications, in particular as regards the existence of an ongoing judicial investigation against the applicant for acts that may be classified as misappropriation of Tunisian State funds, within the meaning of Article 1(1) of Decision 2011/72. It contends that the applicant does not dispute the existence of such an investigation. Furthermore, it contends that it relied on the Tunisian authorities’ statements relating to such investigations as the basis for adopting Decisions 2018/141 and 2019/135. Moreover, it states that, in paragraph 224 of the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694), and in paragraph 55 of the judgment of 15 November 2018, Mabrouk v Council (T‑216/17, not published, EU:T:2018:779), the General Court found that it had carried out a thorough verification regarding the state of the investigation in the case bearing the reference 19592/1, which also concerned the applicant. Lastly, it reiterates the arguments put forward in its response to the second part of the third plea.
151As a preliminary point, it should be noted that, although the applicant and the Council have addressed both the second and the third parts of the third plea of the application in the reply and the rejoinder, respectively, those parts nevertheless refer to two different errors of assessment. First, the error relating to the assessment of the Tunisian authorities’ observance of the applicant’s right to have his case heard within a reasonable time, and secondly, the error relating, in essence, to whether the Council, when adopting Decisions 2018/141 and 2019/135, had a sufficient factual basis for maintaining the applicant’s designation.
152That being so, as regards, in particular, the considerations set out in paragraphs 25 to 30, 34, and 37 of the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), recalled in paragraph 113 above, those two questions are closely connected and, for reasons similar to those set out in paragraphs 118 to 147 above, the present part of the second plea is well founded.
153In that regard, it is sufficient to note that it follows, in particular, from paragraph 28 of the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), that, in order to ensure that the applicant is designated on the list at issue on a sufficiently solid factual basis, the Council must verify not only that there are ongoing judicial proceedings concerning the applicant in respect of acts that may be classified as misappropriation of State funds, but also whether, in the context of those proceedings, the applicant’s rights of defence and right to effective judicial protection have been respected.
154In particular, as regards the right to a hearing within a reasonable time, it has been pointed out in paragraph 116 above that it was for the Council to ensure that it had sufficient evidence regarding the state and progress of the judicial proceedings concerning the applicant to assess the risk of any infringement of that right occurring.
155Yet, in the context of the present part of the second plea, the applicant complains specifically that the Council did not carry out any verifications regarding the state and progress of the judicial proceedings concerning him, although, according to the applicant, those proceedings did not exist in so far as he was concerned and had been in progress since 2011.
156Consequently, in this case, the Council cannot merely contend, in response to the applicant’s claims, that it is required only to verify that there is an ongoing judicial investigation concerning the applicant in respect of acts that may be classified as misappropriation of State funds, within the meaning of Article 1(1) of Decision 2011/72, and such an argument must be rejected at the outset.
157As regards the reference to the findings made in paragraph 224 of the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694), and in paragraph 55 of the judgment of 15 November 2018, Mabrouk v Council (T‑216/17, not published, EU:T:2018:779), it is sufficient to note that, for reasons similar to those set out in paragraphs 142 to 147 above, it is not capable of establishing that the Council carried out sufficient verifications regarding the state and progress of the judicial proceedings concerning the applicant.
158Consequently, it is clear from the foregoing that the Council did not show that, when it adopted Decisions 2018/141 and 2019/135, it had a sufficiently solid factual basis for renewing the applicant’s designation, since there was no evidence regarding the state and progress of the judicial proceedings specifically concerning the applicant. It must therefore be found that the Council committed an error of assessment in considering that it was not required to carry out additional verifications in that regard. The third part of the second plea is therefore well founded.
159The examination of the second and third parts of the second plea in the application leads to the conclusion that those parts are well founded as regards both Decision 2018/141 and Decision 2019/135. Consequently, without there being any need for the Court to examine the first part of the second plea or the first and third pleas, or to verify, of its own motion, in the light of the principles set out in paragraphs 83 to 106 above, whether the obligation to state reasons for those decisions was fulfilled, those decisions must be annulled in so far as they concern the applicant.
160It is now necessary to examine the Council’s request that the Court maintain the effects of the contested decisions, at least in so far as that request concerns Decisions 2018/141 and 2019/135, since that request is, moreover, devoid of purpose as regards Decision 2020/117, given the Court’s finding, in paragraph 76 above, that the action must be dismissed in so far as it was directed against that decision.
2.The Council’s request that the Court maintain the effects of the contested decisions as regards the applicant until the expiry of the time limit for bringing an appeal or, if an appeal is lodged, until its dismissal, in so far as that request concerns Decisions 2018/141 and 2019/135
161The Council contends that, should Decisions 2018/141 and 2019/135 be annulled, the immediate effect of that would risk undermining irreversibly the effectiveness of any subsequent freezing of the applicant’s assets by allowing him to transfer all or part of his assets outside the European Union. Furthermore, it considers that it cannot be ruled out that the applicant’s designation on the list at issue may be justified again in the future. In the rejoinder, it contends that there is a risk that legal certainty may be undermined due to the fact that the dates of the partial annulment of Decisions 2018/141 and 2019/135 and the partial annulment of Regulation No 101/2011 are different.
162The applicant is opposed to the effects of annulment of Decisions 2018/141 and 2019/135 being limited by the Court as requested by the Council. He submits that he has been challenging the freezing of his assets since 2011 and that, in the light of the length of the proceedings and his precarious financial situation, he has applied for an expedited procedure. Maintaining the effects of those decisions in the event of their annulment would undermine his right to be heard within a reasonable time and extend the measures themselves without justification. Furthermore, he states that he has no assets to transfer and that he is not in a position to leave the European Union himself.
163In that regard, the question arises whether, as the Council contends, the consequences of annulling Decisions 2018/141 and 2019/135 are capable of undermining irreversibly the effectiveness of any subsequent freezing of the applicant’s assets in the event that the Council should consider it justified to impose such a measure again.
164Judgments by which the General Court annuls a decision of an institution or body of the European Union take, in principle, immediate effect unless, on the basis of Article 264, second paragraph, TFEU, the General Court decides to maintain provisionally the effects of the annulled decision. Accordingly, if those provisions do not apply, the annulled decision is removed retroactively from the legal order of the European Union and is deemed never to have existed (judgment of 2 April 2014, Ben Ali v Council, T‑133/12, not published, EU:T:2014:176, paragraph 83).
165However, in the present case, only Decisions 2018/141 and 2019/135 must be annulled and, since the action is to be dismissed in so far as it concerns Decision 2020/117 for the reasons set out in paragraphs 68 to 76 above, the latter decision will remain in force after the present judgment has been delivered.
166Decision 2020/117 did not merely renew the applicant’s inclusion in the contested list, but, as stated in paragraph 14 above, replaced the annex to Decision 2011/72 and therefore, in particular, that list, with a new annex. Therefore, the annulment of Decisions 2018/141 and 2019/135 will not lead, with immediate effect as of the delivery of the judgment, to the removal of the applicant’s name from the list of persons and entities in Article 1 of Decision 2011/72, inserted in part A of that new annex.
167It is true, as regards the grounds of the present judgment which constitute the necessary support for the annulment of Decisions 2018/141 and 2019/135, set out in paragraphs 111 to 158 above, that on the date this judgment is delivered, the Council must, in accordance with Article 266 TFEU, take the necessary measures to comply with the judgment, namely, in this case, to review the applicant’s inclusion on the list in the annex to Decision 2011/72 in the light of that reasoning. Accordingly, following that review, the Council may remove him from the list, if it has not already remedied the deficiencies identified by the Court in its reasoning.
168However, first, the present judgment cannot automatically result in the removal of the applicant’s name from the list, and it is for the Council to remove it, if appropriate. Secondly, if, before the adoption of Decision 2020/117, the Council has already remedied the deficiencies identified in the grounds of the present judgment, it could, following the same review, decide to maintain the applicant on the list in the annex to Decision 2011/72. It is true that such a decision, which, moreover, the Council is required to communicate to the applicant and for which it must provide reasons to the requisite legal standard, does not constitute a purely confirmatory measure and is therefore open to challenge (see, to that effect, judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 155 and the case-law cited). That being said, it is only in the context of a possible new action against that decision that the applicant could be removed from that list.
169It follows from the foregoing that the Council has not shown that the annulment of Decisions 2018/141 and 2019/135, with immediate effect, is capable of irreversibly undermining the effectiveness of the freezing of the applicant’s assets. Therefore, maintaining the effects of those decisions does not appear to be justified. Consequently, there is no need to grant the Council’s request in that regard.
Costs
170Under Article 134(1) 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.
171In the present case, as the Council has essentially been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
Operative part
On those grounds,THE GENERAL COURT (Ninth Chamber, Extended Composition),hereby:
1.Annuls Council Decision (CFSP) 2018/141 of 29 January 2018 amending Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia and Council Decision (CFSP) 2019/135 of 28 January 2019 amending Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia to the extent they concern Mr Slim Ben Tijani Ben Haj Hamda Ben Ali;
2.Dismisses the action as to the remainder;
3.Orders the Council of the European Union to bear its own costs and to pay those incurred by Mr Ben Ali.
Delivered in open court in Luxembourg on 28 October 2020.
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