Alex Kande Mupompa v Council of the European Union (T-170/18)

Contents

Judgment of the General Court (Ninth Chamber, Extended Composition)12 February 2020^note(Common foreign and security policy — Restrictive measures adopted in view of the situation in the Democratic Republic of the Congo — Freezing of funds — Continued inclusion of the applicant’s name on the list of persons covered— Obligation to state reasons — Rights of the defence — Obligation on the Council to disclose new evidence justifying the renewal of restrictive measures — Error of law — Manifest error of assessment — Right to property — Right to respect for private and family life — Proportionality — Presumption of innocence — Plea of illegality — Modification of the form of order sought)In Case T‑170/18,Alex Kande Mupompa, residing in Kinshasa (Democratic Republic of the Congo), represented by T. Bontinck, P. De Wolf, M. Forgeois and A. Guillerme, lawyers,vCouncil of the European Union, represented by J.-P. Hix, S. Lejeune and H. Marcos Fraile, acting as Agents,THE GENERAL COURT (Ninth Chamber, Extended Composition),composed of S. Gervasoni, President, L. Madise, R. da Silva Passos (Rapporteur), K. Kowalik-Bańczyk and C. Mac Eochaidh, Judges,Registrar: L. Ramette, Administrator,having regard to the written part of the procedure and further to the hearing on 4 July 2019,gives the following

JudgmentOnly the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.

Background to the dispute

1The applicant, Mr Alex Kande Mupompa, is a national of the Democratic Republic of the Congo.

2The present case falls within the context of the restrictive measures imposed by the Council of the European Union with a view to establishing lasting peace in the Democratic Republic of the Congo and applying pressure on persons and entities acting in breach of the arms embargo against that State.

3On 18 July 2005, the Council adopted, on the basis of Articles 60, 301 and 308 EC, Regulation (EC) No 1183/2005 imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the Democratic Republic of the Congo (OJ 2005 L 193, p. 1).

4On 20 December 2010, the Council adopted, on the basis of Article 29 TEU, Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo and repealing Common Position 2008/369/CFSP (OJ 2010 L 336, p. 30).

5On 12 December 2016, the Council adopted, on the basis of Article 215 TFEU, Regulation (EU) 2016/2230 amending Regulation No 1183/2005 (OJ 2016 L 336 I, p. 1).

6On the same date, the Council adopted, on the basis of Article 29 TEU, Decision (CFSP) 2016/2231 amending Decision 2010/788 (OJ 2016 L 336 I, p. 7).

7Recitals 2 to 4 of Decision 2016/2231 read as follows:(2) On 17 October 2016, the Council adopted conclusions expressing deep concern at the political situation in the Democratic Republic of the Congo (DRC). In particular it strongly condemned the acts of extreme violence that took place on 19 and 20 September in Kinshasa, noting that those acts further exacerbated the deadlock in the country due to the failure to call the presidential elections by the constitutional deadline of 20 December 2016.(3) The Council stressed that, in order to create a climate conducive to dialogue and the holding of elections, the Government of the DRC must clearly commit to ensuring that human rights and the rule of law are respected and must cease all use of the justice system as a political tool. It also called on all stakeholders to reject the use of violence.(4) The Council also indicated its readiness to use all the means at its disposal, including restrictive measures against those responsible for serious human rights violations, those who promote violence and those who try to obstruct a consensual and peaceful solution to the crisis which respects the aspiration of the people of the DRC to elect their representatives.’

8Article 3(2) of Decision 2010/788, as amended by Decision 2016/2231, provides as follows:‘Restrictive measures as provided for in Articles 4(1) and 5(1) and (2) shall be imposed against persons and entities:(a) obstructing a consensual and peaceful solution towards elections in [the Democratic Republic of the Congo], including by acts of violence, repression or inciting violence, or by undermining the rule of law;(b) involved in planning, directing or committing acts that constitute serious human rights violations or abuses in [the Democratic Republic of the Congo];(c) associated with those referred to in points (a) and (b);as listed in Annex II.’

9Under Article 4(1) of Decision 2010/788, as amended by Decision 2016/2231, ‘Member States shall take the necessary measures to prevent the entry into or transit through their territories of the persons referred to in Article 3’. Article 4(2) thereof provides that ‘paragraph 1 shall not oblige a Member State to refuse its own nationals entry into its territory’.

10Article 5(1), (2) and (5) of Decision 2010/788, as amended by Decision 2016/2231, provides as follows:1. All funds, other financial assets and economic resources owned or controlled directly or indirectly by the persons or entities referred to in Article 3 or held by entities owned or controlled directly or indirectly by them or by any persons or entities acting on their behalf or at their direction, as identified in Annex I and II, shall be frozen.2. No funds, other financial assets or economic resources shall be made available, directly or indirectly, to or for the benefit of the persons or entities referred to in paragraph 1.…5.With regard to persons and entities referred to in Article 3(2), the competent authority of a Member State may authorise the release of certain frozen funds or economic resources, or the making available of certain funds or economic resources, under such conditions as it deems appropriate, after having determined that the funds or economic resources concerned are:(a) necessary to satisfy the basic needs of the persons and entities and dependent family members of such natural persons, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges;(b) intended exclusively for the payment of reasonable professional fees and the reimbursement of incurred expenses associated with the provision of legal services;…(d) necessary for extraordinary expenses, provided that the competent authority has notified the competent authorities of the other Member States and the Commission of the grounds on which it considers that a specific authorisation should be granted, at least two weeks prior to the authorisation.’

11Article 6(2) of Decision 2010/788, as amended by Decision 2016/2231, provides as follows:2. The Council, acting upon a proposal from a Member State or from the High Representative of the Union for Foreign Affairs and Security Policy, shall establish and amend the list in Annex II.’

12Article 7(2) and (3) of Decision 2010/788, as amended by Decision 2016/2231, provides as follows:2. The Council shall communicate the decision referred to in Article 6(2), 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.’

13Under Article 9(2) of Decision 2010/788, as amended by Decision 2016/2231, ‘the measures referred to in Article 3(2) shall apply until 12 December 2017’ and ‘they shall be renewed, or amended as appropriate, if the Council deems that their objectives have not been met’.

14As for Regulation No 1183/2005, Article 2b(1) thereof, as amended by Regulation 2016/2230, provides as follows:1.Annex Ia shall include the natural or legal persons, entities or bodies designated by the Council on any of the following grounds:…(b) planning, directing, or committing acts that constitute serious human rights violations or abuses in [the Democratic Republic of the Congo]’.

15On 29 May 2017, the Council adopted, on the basis of, inter alia, Article 31(2) TEU and Article 6(2) of Decision 2010/788, Implementing Decision (CFSP) 2017/905 implementing Decision 2010/788 (OJ 2017 L 138 I, p. 6). On the same date, the Council adopted Implementing Regulation (EU) 2017/904 implementing Article 9(2) of Regulation No 1183/2005 (OJ 2017 L 138 I, p. 1).

16Recital 2 of Implementing Regulation 2017/904 and Implementing Decision 2017/905 reads as follows:‘On 12 December 2016, the Council adopted Decision (CFSP) 2016/2231 in response to the obstruction of the electoral process and the related human rights violations in the Democratic Republic of the Congo (DRC). On 6 March 2017, the Council adopted conclusions expressing its deep concern at the political situation in DRC caused by the blockage in the implementation of the inclusive political agreement of 31 December 2016, as well as by the security situation in several parts of the country, where the disproportionate use of force has been observed.’

17The applicant’s name was added by Implementing Decision 2017/905 to the list of persons and entities set out in Annex II to Decision 2010/788 (‘the list at issue’) and by Implementing Regulation 2017/904 to the list of persons and entities set out in Annex Ia to Regulation No 1183/2005.

18In Annex II to Decision 2010/788, as amended by Implementing Decision 2017/905, and in Annex Ia to Regulation No 1183/2005, as amended by Implementing Regulation 2017/904, the Council justified adoption of the restrictive measures against the applicant on the following grounds:‘As Governor of Kasai Central, Alex Kande Mupompa is responsible for the ongoing disproportionate use of force, violent repression and extrajudicial killings committed by security forces and the PNC in Kasai Central from 2016, including the alleged unlawful killings of Kamiuna Nsapu militia members and civilians in Mwanza Lomba, Kasai Central, in February 2017.Alex Kande Mupompa was therefore involved in planning, directing, or committing acts that constitute serious human rights violations in DRC.’

19On 30 May 2017, the Council published in the Official Journal of the European Union a notice for the attention of the persons subject to the restrictive measures provided for in Decision 2010/788, as implemented by Implementing Decision 2017/905, and in Regulation No 1183/2005, as implemented by Implementing Regulation 2017/904, concerning restrictive measures against the Democratic Republic of the Congo (OJ 2017 C 169, p. 4). The notice stated, inter alia, that the persons concerned could submit a request to the Council before 1 October 2017, together with supporting documentation, to have it reconsider the decision to include them on the list at issue and on the list of persons and entities set out in Annex Ia to Regulation No 1183/2005. That notice also stated that any observations received would be taken into account for the purpose of the Council’s subsequent review, pursuant to Article 9 of Decision 2010/788.

20By application lodged at the Court Registry on 22 August 2017, the applicant and seven other persons brought an action for, in essence, annulment of Implementing Regulation 2017/904 and Implementing Decision 2017/905, in so far as those acts concerned them. That action was registered as Case T‑582/17.

21On 11 December 2017, at the end of the process of reviewing the measures at issue, the Council adopted, on the basis of Article 29 TEU, Decision (CFSP) 2017/2282 amending Decision 2010/788 (OJ 2017 L 328, p. 19). Article 1 of that decision thus replaced the text of Article 9(2) of Decision 2010/788 with the following text:‘The measures referred to in Article 3(2) shall apply until 12 December 2018. They shall be renewed, or amended as appropriate, if the Council deems that their objectives have not been met.’

Facts subsequent to the adoption of Decision 2017/2282

22By letter of 18 December 2017, the Council notified Decision 2017/2282 to the applicant. In doing so, the Council informed the applicant’s representatives of its intention to update the statement of reasons concerning him and gave him the opportunity to submit observations in that regard.

23On 12 April 2018, the Council adopted Implementing Decision (CFSP) 2018/569 implementing Decision 2010/788 (OJ 2018 L 95, p. 21) and Implementing Regulation (EU) 2018/566 implementing Article 9 of Regulation No 1183/2005 (OJ 2018 L 95, p. 9). The grounds for listing the applicant’s name were amended as follows.‘As Governor of Kasai Central until October 2017, Alex Kande Mupompa has been responsible for the disproportionate use of force, violent repression and extrajudicial killings committed by security forces and the PNC in Kasai Central from August 2016, including killings on the territory of Dibaya in February 2017.Alex Kande Mupompa was therefore involved in planning, directing, or committing acts that constitute serious human rights violations in DRC.’

24Furthermore, by judgment of 26 March 2019, Boshab and Others v Council (T‑582/17, not published, EU:T:2019:193), the Court dismissed the action mentioned in paragraph 20 above.

Procedure and forms of order sought

25By application lodged at the Court Registry on 8 March 2018, the applicant brought the present action.

26By separate document lodged at the Court Registry on 5 June 2018, the applicant, on the basis of Article 86 of the Rules of Procedure of the General Court, lodged a request for modification of the application with a view to extending the form of order sought in that application to cover Implementing Decision 2018/569 and Implementing Regulation 2018/566, in so far as those acts concerned him. The Council submitted observations on the statement of modification on 6 July 2018.

27By decision of 12 October 2018, the President of the Ninth Chamber of the General Court decided to join the present case with Cases T‑171/18 Boshab v Council, T‑172/18 Akili Mundos v Council, T‑173/18 Ramazani Shadary v Council, T‑174/18 Mutondo v Council, T‑175/18 Ruhorimbere v Council, T‑176/18 Mende Omalanga v Council and T‑177/18 Kazembe Musonda v Council, for the purpose of the written part and any oral part of the procedure.

28Acting upon a proposal of the Judge-Rapporteur, the Court decided to open the oral part of the procedure. On 15 May 2019, the Court assigned the case to the Ninth Chamber sitting in extended composition.

29At the hearing on 4 July 2019, the parties presented oral argument and replied to oral questions put by the Court.

30The applicant claims that the Court should:– annul Decision 2017/2282, in so far as it maintains the listing of his name in Annex II to Decision 2010/788 and Annex Ia to Regulation No 1183/2005, as amended, respectively, by Implementing Decision 2018/569 and Implementing Regulation 2018/566;– order the Council to pay the costs.

31The Council contends that the Court should:– dismiss the action;– in the alternative, in the event that Decision 2017/2282 or Implementing Decision 2018/569 is annulled, maintain the effects of the annulled decision in relation to the applicant until expiry of the period for bringing an appeal against the judgment of the Court or, if an appeal is brought within that period, until dismissal of that appeal;– order the applicant to pay the costs.…

Substance

39In support of his claims for annulment of Decision 2017/2282 and Implementing Decision 2018/569 (together, ‘the contested decisions’), the applicant raises four pleas in law, alleging: (i) infringement of the obligation to state reasons and of the right to be heard; (ii) an error of law and a manifest error of assessment; (iii) infringement of the right to respect for private and family life, the right to property and the principle of proportionality; and (iv) that Article 3(2)(b) of Decision 2010/788 and Article 2b(1)(b) of Regulation No 1183/2005 are unlawful.

First plea: infringement of the obligation to state reasons and of the right to be heard

40The first plea is in two parts: the first alleges infringement of the obligation to state reasons and the second alleges infringement of the right to be heard.

–First part of the first plea

41In the first part of the first plea, the applicant submits that the Council infringed the obligation to state the reasons for an act adversely affecting a person, as laid down in Article 296 TFEU. The applicant argues that the statement of reasons for the contested decisions is particularly concise, as the Council does not put forward any specific accusation or point to any particular and identifiable act that would, leaving no real doubt, bear out the complaints made against him in that statement of reasons. According to the applicant, the contested decisions are thus based on mere hypothetical assertions which are impossible to verify and place him under an obligation to adduce evidence, proving a negative, as to the non-existence of the general case against him, resulting in a reversal of the burden of proof.

42The Council disputes those arguments.

43In that regard, first of all, it should be borne in mind that the purpose of the obligation to state the reasons for an act adversely affecting a person, as laid down in the second paragraph of Article 296 TFEU, is, first, to provide the person concerned with sufficient information to make it possible to determine whether the act is well founded or whether it is vitiated by an error which may permit its validity to be contested before the Courts of the European Union and, second, to enable those Courts to review the lawfulness of the act. The obligation to state reasons thus laid down constitutes an essential principle of EU law which may be derogated from only for compelling reasons. The statement of reasons must therefore in principle be notified to the person concerned at the same time as the act adversely affecting him and a failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the act during the proceedings before the Courts of the European Union (judgment of 7 December 2011, HTTS v Council, T‑562/10, EU:T:2011:716, paragraph 32).

44Next, the statement of reasons must be appropriate to the act at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the act, the nature of the reasons given and the interest which the addressees of the act, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. In particular, the reasons given for an act adversely affecting a person are sufficient if that act was adopted in a context which was known to that person and which enables him to understand the scope of the measure concerning him (judgments of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 54, and of 14 October 2009, Bank Melli Iran v Council, T‑390/08, EU:T:2009:401, paragraph 82).

45The obligation on the Council to state reasons relates to indicating the legal basis of the measure adopted and to the circumstances which enable it to hold that one or other of the listing criteria is satisfied in the case of the parties concerned (judgment of 18 September 2014, Central Bank of Iran v Council, T‑262/12, not published, EU:T:2014:777, paragraph 86).

46Consequently, it is necessary to examine whether the statement of reasons for the contested act contains explicit references to the listing criterion at issue and whether, if that is the case, the statement of reasons may be regarded as sufficient to enable the applicant to determine whether the contested act is well founded and to state a defence before the General Court, and to enable the latter to exercise its power of review (see, to that effect, judgment of 18 September 2014, Central Bank of Iran v Council, T‑262/12, not published, EU:T:2014:777, paragraph 88).

47Lastly, the statement of reasons for an act of the Council which imposes a restrictive measure must identify not only the legal basis of that measure but also the actual and specific reasons why the Council considers, in the exercise of its discretion, that that measure must be adopted in respect of the person concerned (judgments of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 52, and of 25 March 2015, Central Bank of Iran v Council, T‑563/12, EU:T:2015:187, paragraph 55).

48In the instant case, it should be noted that the purpose of Decision 2017/2282 is to ensure the continued inclusion of the applicant’s name on the list at issue, while retaining the grounds relied on by the Council in Implementing Decision 2017/905, which amended Decision 2010/788, when his name was initially included on the list. By Implementing Decision 2018/569, the Council updated the grounds for including the applicant’s name on the list at issue.

49According to the applicant, the grounds relied on are particularly concise, as the Council does not put forward any specific complaint that would bear out the allegations made against him in those grounds.

50It must be borne in mind that Article 3(2)(b) of Decision 2010/788, which was inserted by Decision 2016/2231, establishes that Annex II is to include persons and entities considered by the Council to be ‘involved in planning, directing or committing acts that constitute serious human rights violations or abuses in [the Democratic Republic of the Congo]’.

51It should also be observed that the statement of reasons adopted by the Council in Decision 2010/788, as amended by Decision 2017/2282, for the inclusion of the applicant’s name on the list at issue refers to his capacity as Governor of Kasai Central (Democratic Republic of the Congo) and to the involvement of the law enforcement authorities, in that province, in the disproportionate use of force, violent repression and extrajudicial killings from 2016. In that connection, the Council mentions the killing of militia members and civilians in Mwanza Lomba in February 2017 (see paragraph 18 above). Furthermore, by Implementing Decision 2018/569, the Council amended the abovementioned ground for listing, stating that the applicant had been Governor of Kasai Central until October 2017 and referring to killings that had occurred in February 2017, not in Mwanza Lomba, as before, but in Dibaya (see paragraph 23 above).

52Thus, the statement of reasons for including the applicant’s name on the list at issue identifies actual and specific matters, relating both to the professional duties of the applicant and the type of act concerned, and indicates that the applicant was involved in serious human rights violations in the Democratic Republic of the Congo. It makes it possible to ascertain the reasons that led the Council to adopt restrictive measures against the applicant in respect of his alleged responsibility, in the performance of his duties as Governor of Kasai Central until October 2017, for the disproportionate use of force, for violent repression and for extrajudicial killings involving the security forces and the Congolese national police (PNC) in Kasai Central from August 2016, including killings committed in that province in February 2017.

53As the Council rightly submits, such a statement of reasons sets out the actual and specific reasons why the listing criteria were applicable to the applicant and, in particular, first, mentions a clearly identified legal basis referring to the listing criteria and, second, is founded on grounds relating to the applicant’s activities enabling him to determine the reasons justifying the inclusion of his name on the list at issue. Furthermore, the context in which the contested decisions were adopted was known to the applicant, given that he disputed, in essence, before the Court, the lawfulness of the first listing of his name, as indicated in paragraphs 20 and 24 above, and the grounds for the listing are broadly similar in the contested decisions. In addition, his knowledge of that context is borne out by the letter which he sent to the Council on 31 October 2017, attached to the application as Annex A.3.

54Consequently, the applicant could not reasonably have been unaware that when, by the contested decisions, the Council essentially confirmed the grounds for the initial inclusion of his name on the list at issue, decided upon in Implementing Decision 2017/905, it referred to the fact that, in the light of his duties as Governor of Kasai Central until October 2017, he had de facto power to influence directly the security forces and the PNC in that province, which were said to have been involved in the acts of violence mentioned above.

55In the light of the grounds for including his name on the list at issue, the applicant was in a position effectively to challenge the validity of the restrictive measures adopted against him. That is, moreover, what he has done in the second part of the second plea, alleging a manifest error of assessment.

56It follows that the statement of reasons for the contested decisions was sufficient to enable the applicant to challenge the decisions’ validity and for the Court to exercise its power of review. The first part of the first plea must therefore be rejected.

–Second part of the first plea

57By the second part of his first plea, the applicant contends that the Council infringed his right to be heard. He argues that, although it is true that the surprise effect necessary for a fund freezing measure means that the Council is not required to conduct a hearing prior to the initial inclusion of a person or entity on a list imposing restrictive measures, the fact remains that, in the context, as here, of a review of such an initial listing decision, that effect is no longer needed and the adversarial principle must be complied with as regards both the disclosure of the grounds prior to the decision to maintain the listing and the right to a hearing. He adds that he requested that a hearing take place before the Council but that, on the date when the present action was brought, the Council had not ruled on his request.

58In the reply, the applicant submits that he was never heard by the United Nations Joint Human Rights Office (UNJHRO) at the time of the preparation of the various reports used by the Council to support the contested decisions, a situation which fails to comply with the criteria established in the case-law and demonstrates that he should have been heard prior to the adoption of the contested decisions, particularly since he provided the Council, on 31 October 2017 and 15 February 2018, with evidence liable to call into question the validity of the grounds relied on. The applicant also contends in the reply that, as compared with the initial decision to include his name on the list at issue, the Council relied on new evidence against him in order to adopt the contested decisions.

59The Council disputes those arguments, stating that Decision 2017/2282 is based on the same grounds as those justifying the initial inclusion of the applicant’s name on the list at issue, under Implementing Decision 2017/905. It follows that the Council was under no obligation to hear the applicant before adopting Decision 2017/2282. Furthermore, in its observations on the statement of modification, the Council submits that the arguments put forward by the applicant in the application cannot be transposed to the request for modification since, during the procedure leading to the adoption of Implementing Decision 2018/569, correspondence was exchanged between the Council and the applicant’s representative, giving the applicant the opportunity to comment on the new statement of grounds that was proposed by the Council for the inclusion of his name on the list at issue.

60It should be pointed out at the outset that, under Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’), everyone has the right to be heard before any individual measure which would affect him adversely is taken.

61According to the case-law, in a procedure relating to the adoption of the decision to list or maintain the listing of the name of an individual in an annex to an act containing restrictive measures, respect for the rights of the defence and the right to effective judicial protection requires that the competent EU authority disclose to the individual concerned the evidence against that person available to that authority and relied on as the basis of its decision, so that that individual is in a position to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in bringing an action before the Courts of the European Union. In addition, when that disclosure takes place, the competent EU authority must ensure that that individual is placed in a position in which he may effectively make known his views on the grounds advanced against him (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, paragraphs 111 and 112, and of 12 December 2006, Organisation des Modjahedines du peuple d’Iran v Council, T‑228/02, EU:T:2006:384, paragraph 93).

62In the case of an initial act freezing a person’s or entity’s funds, the Council is not obliged to disclose to the person or entity concerned beforehand the grounds on which it intends to base the first entry of their name on the list of persons and entities whose funds are frozen. So that its effectiveness may not be jeopardised, such a measure must, by its very nature, be able to take advantage of a surprise effect and to apply immediately. In such a case, it is as a rule sufficient if the institution discloses the grounds to the person or entity concerned and affords the latter the right to be heard at the same time as, or immediately after, the decision to freeze funds is adopted (judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 61).

63By contrast, in the case of a subsequent decision to freeze funds by which the name of a person or entity already appearing on the list of persons and entities whose funds are frozen is retained on the list, that surprise effect is no longer necessary in order to ensure that the measure is effective, with the result that the adoption of such a decision must, in principle, be preceded by notification of the incriminating evidence and by an opportunity for the person or entity concerned to be heard (judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 62).

64In that regard, the Court has made clear that the element of protection afforded by the requirement of notification of incriminating evidence and the right to make representations before the adoption of acts maintaining a person’s or entity’s name on a list of persons or entities subject to restrictive measures is fundamental and essential to the rights of the defence. This is all the more the case because the restrictive measures in question have a considerable effect on the rights and freedoms of the persons and groups concerned (judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 64).

65That right to be heard prior to the adoption of such acts is necessary where, in the decision maintaining a person’s name on that list, the Council has included new evidence against him, namely evidence which was not taken into account in the initial decision to include his name on the list (see, to that effect, judgments of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 26 and the case-law cited, and of 7 April 2016, Central Bank of Iran v Council, C‑266/15 P, EU:C:2016:208, paragraph 33).

66In the instant case, it is true, as the Council points out, that the continued inclusion of the applicant’s name on the list at issue, decided upon in Decision 2017/2282, is essentially based on the same grounds as those that justified the adoption of the initial act imposing the restrictive measures in question.

67However, this alone cannot mean that the Council was not required to respect the applicant’s rights of defence and, in particular, to give him the opportunity effectively to make known his views on the facts on the basis of which it adopted Decision 2017/2282 maintaining his name on the list at issue.

68Indeed, the question of whether there is an infringement of the rights of the defence must be examined in relation to the specific circumstances of each particular case, including the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question (see 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, paragraph 102 and the case-law cited).

69In that regard, it must be pointed out that restrictive measures are measures of a precautionary and, by definition, provisional nature, the validity of which always depends on whether the factual and legal circumstances which led to their adoption continue to apply and on the need to persist with them in order to achieve their objective (see, to that effect, judgment of 21 March 2014, Yusef v Commission, T‑306/10, EU:T:2014:141, paragraphs 62 and 63). Accordingly, Article 9(2) of Decision 2010/788, as amended by Decision 2016/2231, provides that the restrictive measures against the Democratic Republic of the Congo are to apply until 12 December 2017 and are to ‘be renewed, or amended as appropriate, if the Council deems that their objectives have not been met’.

70It follows that, in the course of its periodic review of those restrictive measures, it is for the Council to conduct an updated assessment of the situation and to appraise the impact of such measures, in order to determine whether they have made it possible to attain the objectives pursued by the initial inclusion of the names of the persons and entities concerned on the list at issue or whether the same conclusion in respect of those persons and entities can still be drawn.

71In its judgment of 27 September 2018, Ezz and Others v Council (T‑288/15, EU:T:2018:619, paragraph 316 and the case-law cited), the Court held that respect for the rights of the defence meant that the Council was required to disclose to the applicants, before adopting a decision renewing restrictive measures against them, the evidence it had relied on during the periodic review of the measures at issue in order to update the information that had justified the initial inclusion of their names on the list of persons subject to such measures.

72Thus, in the instant case, in the light of the initial objective pursued by the restrictive measures against the Democratic Republic of the Congo, namely, in essence, to create a climate conducive to the holding of elections and to bring an end to all human rights violations (see paragraph 7 above), the Council was required, during the periodic review of the restrictive measures imposed on the applicant, to disclose to him, as the case may be, the new evidence which it had relied on in order to update the information concerning not only his personal situation, but also the political and security situation in the Democratic Republic of the Congo.

73It is apparent from the documents in the case that the Council, as it confirmed at the hearing in response to a question put by the Court, adopted Decision 2017/2282 while taking into account — in addition to the information already available to it when the applicant’s name was initially included on the list at issue — the information contained in the internal document of 23 October 2017 bearing the reference COREU CFSP/1492/17. First, that document of 23 October 2017 stated that no electoral timetable had been published as of that date and referred to the announcement by the Independent National Electoral Commission on 11 October 2017 that at least 504 days were needed in order to organise elections. Second, that document also stated that the United Nations Organisation Mission in the Democratic Republic of the Congo (Monusco) had reported a deterioration of the security situation in many parts of the Democratic Republic of the Congo and increased regional instability following the departure of civilians fleeing the conflict zones. Third, that document mentioned that the freedoms of assembly, opinion and expression were still being suppressed, as evidenced by the ban on demonstrations against the failure to publish an electoral timetable and, in August 2017, the blocking of social media following the announcement of a general strike.

74Similarly, it is apparent from the Council’s conclusions of 11 December 2017 that the Council was aware, when it adopted Decision 2017/2282, of another updated item of information, namely the announcement of an electoral timetable on 5 November 2017 scheduling presidential elections for 23 December 2018. However, that announcement did not prevent the Council from taking the view that the situation remained unchanged in the Democratic Republic of the Congo.

75Therefore, although, by means of Decision 2017/2282, the Council renewed the restrictive measures against the applicant on grounds identical to those relied on in Implementing Decision 2017/905 for the initial inclusion of his name on the list at issue, the updated information referred to in paragraphs 73 and 74 above amounts to new evidence that was taken into account by the Council when it adopted Decision 2017/2282. Consequently, the Council should have sought the applicant’s observations on that information before adopting such a decision, in accordance with what has been stated in paragraph 72 above. However, it is common ground that it did not do so.

76It is irrelevant, first, that the initial inclusion of the applicant’s name on the list at issue was followed by the publication in the Official Journal of a notice to the persons concerned by the aforesaid measures, inviting them to submit a request for reconsideration to the Council before 1 October 2017, and second, that the applicant availed himself of that opportunity only belatedly. The Council cannot be relieved of its obligation to respect the rights of the defence on the ground that a person subject to restrictive measures is able to request that such measures cease to be applied to him.

77Nor is it apparent from the documents in the case that the applicant was able to foresee that the Council would find that the situation in the Democratic Republic of the Congo remained unchanged, taking account of the matters described in paragraphs 73 and 74 above concerning the failure to publish an electoral timetable, the worsening of the security situation and the continued suppression of public freedoms in numerous regions of the country, matters on which the applicant was not given an opportunity to submit observations before Decision 2017/2282 was adopted. It should be borne in mind in that regard that restrictive measures are provisional in nature (see paragraph 69 above), which is guaranteed by the very provisions of Decision 2017/2282 (see paragraph 21 above).

78Accordingly, it must be held that Decision 2017/2282 was adopted at the end of a procedure during which the applicant’s rights of defence were not observed.

79Such a conclusion also applies in the case of Implementing Decision 2018/569. While it is true that, prior to the adoption of that decision, the Council informed the applicant of its intention to update the grounds for the inclusion of his name on the list at issue, it is not apparent from the file that, on the date of adoption of that decision, the applicant had been provided with the new evidence mentioned in the internal document of 23 October 2017, bearing the reference COREU CFSP/1492/17, and in the Council’s conclusions of 11 December 2017.

80That said, it cannot be inferred from the foregoing that the contested decisions should be annulled on account of the Council’s failure to disclose to the applicant the new evidence referred to in paragraph 79 above and of the fact that the applicant was not given an opportunity to submit observations on that evidence before the Council adopted the contested decisions.

81It is for the Courts of the European Union to verify, where an irregularity affecting the rights of the defence has occurred, whether, in the light of the specific factual and legal circumstances of the case, the procedure at issue could have resulted in a different outcome since the applicant could have been better able to defend himself had there been no irregularity (see, to that effect, judgments of 1 October 2009, Foshan Shunde Yongjian Housewares & Hardware v Council, C‑141/08 P, EU:C:2009:598, paragraphs 81, 88, 92, 94 and 107, and of 27 September 2018, Ezz and Others v Council, T‑288/15, EU:T:2018:619, paragraph 325 and the case-law cited).

82In the instant case, there is nothing in the file to suggest that, if the new evidence that the Council relied on to update its assessment of the political and security situation in the Democratic Republic of the Congo had been disclosed to the applicant, the restrictive measures concerned might not have been maintained against him.

83It should be noted that the applicant has not given any specific indication that, if he had been given the opportunity, before the adoption of the contested decisions, to submit observations on the new evidence described in paragraphs 73 and 74 above, he would have been able to call into question its content or relevance for the purpose of the continued inclusion of his name on the list at issue.

84Moreover, in response to a question put by the Court at the hearing, the applicant did not deny that the situation in the Democratic Republic of the Congo in fact remained unchanged between the initial inclusion of his name on the list at issue, decided upon on 29 May 2017, and the adoption of the contested decisions maintaining the restrictive measures in question.

85That being so, it cannot be considered that, even if the evidence mentioned in paragraphs 73 and 74 above had been disclosed to the applicant prior to the adoption of the contested decisions, the outcome of the procedure might have been different. Thus, the fact that the Council relied on new evidence when it renewed the restrictive measures against the applicant is not such as to render the contested decisions unlawful.

86Furthermore, in so far as the applicant invokes in support of the second part of the first plea the fact that he was not heard by the UNJHRO when it was preparing reports relied on by the Council in support of the contested decisions, suffice it to note that the Courts of the European Union do not have jurisdiction to review whether investigations conducted by bodies of the United Nations (UN) comply with fundamental rights (see, to that effect, judgment of 20 July 2017, Badica and Kardiam v Council, T‑619/15, EU:T:2017:532, paragraph 65).

87Lastly, the applicant’s argument that the Council should have conducted a hearing for him must be rejected, as neither the legislation in question nor the general principle of respect for the rights of the defence gives him the right to a formal hearing (see, by analogy, judgment of 6 September 2013, Bank Melli Iran v Council, T‑35/10 and T‑7/11, EU:T:2013:397, paragraph 105 and the case-law cited).

88In the light of all the foregoing, the second part of the first plea and, therefore, the plea in its entirety must be dismissed as unfounded.

Second plea: error of law and manifest error of assessment

89By his second plea, the applicant submits that the Council erred in finding that he had been ‘involved in planning, directing or committing acts that constitute serious human rights violations in the Democratic Republic of the Congo’.

90This plea is divided into two parts. In the first part, the applicant submits, in essence, that the Council erred in law by maintaining his name on the list at issue on the basis of conduct which, when the contested decisions were adopted, had come to an end. In the second part, the applicant contests the Council’s assessment of his functions and duties and the fact that there were sufficiently precise and specific facts to support the continued inclusion of his name on the list at issue.

–First part of the second plea

91By the first part of the second plea, the applicant submits that the conduct cited by the Council in the grounds for including his name on the list at issue occurred during a period of time that is now in the past. It is apparent from the use of the present participle in [the French language version of] Article 3(2) of Decision 2010/788, as amended by Decision 2016/2231, that the conduct ascribed to the persons or entities subject to restrictive measures should be ongoing when those measures are renewed. The fact that the applicant was not, at the time when the contested decisions were adopted, involved in the conduct ascribed to him means that the restrictive measures in question are obsolete.

92The applicant adds that, by maintaining those measures in respect of past conduct, the Council actually imposed a disguised criminal penalty, even though restrictive measures are solely precautionary in nature, their aim being to prompt the addressees of those measures to alter their conduct.

93It is to be noted that, as recalled in paragraph 8 above, Article 3(2)(b) of Decision 2010/788, as amended by Decision 2016/2231, provides that restrictive measures are to be imposed on persons and entities ‘involved in planning, directing or committing acts that constitute serious human rights violations or abuses in [the Democratic Republic of the Congo]’. That is the basis on which Implementing Decision 2017/905 initially included the applicant’s name on the list at issue, on the ground that, as Governor of Kasai Central, he was responsible for the disproportionate use of force, violent repression and extrajudicial killings committed by security forces and the PNC in Kasai Central in 2016, including killings in that province in February 2017 (see paragraph 18 above). By Decision 2017/2282, the Council renewed the restrictive measures against the applicant until 12 December 2018, relying on exactly the same grounds as for the initial inclusion of his name on the list at issue (see paragraph 21 above), and the grounds were broadly similar after the adoption of Implementing Decision 2018/569 (see paragraph 23 above).

94First, it cannot be considered that the use, in Article 3(2)(b) of Decision 2010/788, as amended by Decision 2016/2231, of the present participle in the definition of the criteria for inclusion on the list at issue means that the conduct giving rise to the entry of a person’s or entity’s name on that list must be ongoing when the decision is taken to list or maintain the listing. It has already been held that, as regards inclusion on a list of the names of persons and entities subject to restrictive measures, the present participle refers to the general meaning particular to legal definitions, not to a given period of time (see, to that effect, judgment of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraph 108).

95Second, the fact that the grounds for including the applicant’s name on the list at issue refer to conduct which occurred before the adoption of the contested decisions and which had ended on those dates does not necessarily mean that the restrictive measures maintained against him by those decisions are obsolete. Clearly, in so far as the Council decided to refer, in the grounds for including the applicant’s name on the list at issue, to specific situations involving the police forces operating in Kasai Central, of which he was Governor, there could be no question of anything other than past conduct. Such a reference cannot therefore be considered to be of no relevance solely because the conduct in question dates from the more or less remote past (see, to that effect, judgment of 22 April 2015, Tomana and Others v Council and Commission, T‑190/12, EU:T:2015:222, paragraph 236).

96That interpretation is borne out by the second sentence of Article 9(2) of Decision 2010/788, as amended by Decision 2017/2282, according to which the restrictive measures at issue are to be renewed, or amended as appropriate, if the Council deems that their objectives have not been met. If that provision is not to be rendered redundant, it must be considered to allow the continued inclusion on the list at issue of the names of persons and entities not having committed any further human rights violations during the period preceding the review, if that continued inclusion is still justified in the light of all the relevant circumstances and, in particular, of the fact that the objectives pursued by the restrictive measures have not been achieved (see, by analogy, judgment of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraph 108).

97Consequently, contrary to what the applicant submits, the grounds for including his name on the list at issue do not make the restrictive measures to which he was subject, and which were renewed by the contested decisions, criminal in nature.

98Accordingly, the first part of the second plea must be dismissed.…

Operative part

On those grounds,THE GENERAL COURT (Ninth Chamber, Extended Composition)hereby:

1.Dismisses the action;

2.Orders Mr Alex Kande Mupompa to pay the costs.

Delivered in open court in Luxembourg on 12 February 2020.