Aman Dimashq JSC v Council of the European Union (T-259/19)

Contents

Judgment of the General Court (Fourth Chamber)24 November 2021^note(Common foreign and security policy — Restrictive measures against Syria — Freezing of funds — Error of assessment — Proportionality — Right to property — Right to pursue an economic activity — Misuse of powers — Obligation to state reasons — Rights of the defence — Right to a fair trial — Right to effective judicial protection)In Case T‑259/19,Aman Dimashq JSC, established in Damascus (Syria), represented by L. Cloquet and J.‑P. Buyle, lawyers,vCouncil of the European Union, represented by S. Kyriakopoulou and V. Piessevaux, acting as Agents,THE GENERAL COURT (Fourth Chamber),composed of S. Gervasoni, President, L. Madise and J. Martín y Pérez de Nanclares (Rapporteur), Judges,Registrar: B. Lefebvre, Administrator,having regard to the written part of the procedure and further to the hearing on 21 October 2020,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 and events subsequent to the bringing of the action…

9By Council Implementing Decision (CFSP) 2019/87 of 21 January 2019 implementing Decision 2013/255 (OJ 2019 L 18 I, p. 13), and by Council Implementing Regulation (EU) 2019/85 of 21 January 2019 implementing Regulation No 36/2012 (OJ 2019 L 18 I, p. 4) (together, ‘the initial measures’), the applicant’s name was inserted at line 73 of Table B of the lists of the names of the natural and legal persons, entities or bodies subject to restrictive measures set out in Annex I to Decision 2013/255 and in Annex II to Regulation No 36/2012 (together, ‘the lists at issue’), with the following reasons being given:‘Aman [Dimashq] is a [18.9 million United States dollars (USD)] joint venture between Damascus Cham [Holding] and Aman [Holding]. Through its participation in the regime‐backed luxury development Marota City, Aman [Dimashq] supports and/or benefits from the Syrian regime.’…

11By letter of 26 March 2019, the applicant’s representatives objected to the inclusion of the applicant’s name on the lists at issue and asked the Council to disclose to them the documents supporting that listing. By letters of 2 and 12 April 2019, the applicant’s representatives reiterated their request to the Council for access to the documents supporting the inclusion of the applicant’s name on the lists at issue before lodging the application in the present case.

12By letter of 13 May 2019, first, the Council informed the applicant’s representatives that, in essence, the applicant’s observations were not such as to call into question the decision to include the applicant’s name on the lists at issue. Secondly, the Council provided them with the document bearing the reference WK 54/2019 INIT, dated 28 February 2019, containing the evidence in support of the reasons for that listing.

13On 17 May 2019, the Council adopted Decision (CFSP) 2019/806 amending Decision 2013/255 (OJ 2019 L 132, p. 36), which extended the application of the latter decision until 1 June 2020; on the same day, the Council also adopted Implementing Regulation (EU) 2019/798 implementing Regulation No 36/2012 (OJ 2019 L 132, p. 1) (together, ‘the 2019 maintaining acts’).…

Procedure and forms of order sought

18By application lodged at the Court Registry on 15 April 2019, the applicant brought the present action for annulment of the initial measures in so far as they concern the applicant.

19By separate document lodged at the Court Registry on 30 July 2019, the applicant modified the application under Article 86 of the Rules of Procedure of the General Court, with the result that the application also seeks annulment of the 2019 maintaining acts in so far as they concern the applicant. The applicant also reiterated the form of order set out in the application.

20On 8 August 2019, the Council lodged the defence and the observations on the first statement of modification at the Court Registry.

21The reply was lodged on 1 October 2019.

22By decision of 17 October 2019, the President of the General Court, pursuant to Article 27(3) of the Rules of Procedure, reassigned the case to a new Judge-Rapporteur, attached to the Fourth Chamber.

23The rejoinder was lodged on 8 January 2020.

24The written part of the procedure was closed on 8 January 2020.

25By way of measures of organisation of procedure provided for in Article 89(3)(a) and (d) of the Rules of Procedure, on 23 July 2020, the Court asked the parties to answer a series of questions and to produce certain documents. The parties answered the questions and complied with the request for production of documents within the prescribed period.

26By separate document lodged at the Court Registry on 13 August 2020, the applicant, under Article 86 of the Rules of Procedure, modified the application a second time, with the result that the application also seeks annulment of the 2020 maintaining acts in so far as they concern the applicant. The applicant also reiterated the form of order set out in the application and in the first statement of modification and put forward new arguments.

27By way of measures of organisation of procedure provided for in Article 89(3)(d) of the Rules of Procedure, on 30 September 2020, the Court asked the Council to produce a document. The Council complied with the request for production of that document within the prescribed period. The applicant did not submit observations on the Council’s response to that measure of organisation of procedure.

28The parties presented oral argument and replied to the questions put by the Court at the hearing on 21 October 2020, at which the Council also submitted its observations on the second statement of modification. In particular, the Council referred to the pleas and arguments contained in the defence and the rejoinder.

29The applicant claims that the Court should:– annul the initial measures, the 2019 maintaining acts and the 2020 maintaining acts (together, ‘the contested measures’) in so far as they concern the applicant;– order the Council to pay the costs.

30The Council contends that the Court should:– dismiss the action;– order the applicant to pay the costs;– in the alternative, should the Court annul the contested measures in so far as they concern the applicant, order that the effects of Implementing Decision 2019/87 and of Decisions 2019/806 and 2020/719 be maintained in so far as they concern the applicant, until the annulment of Implementing Regulations 2019/85, 2019/798 and 2020/716 takes effect in so far as they concern the applicant.

Law…

The sixth plea, alleging infringement of the rights of the defence, the right to a fair trial and the right to effective judicial protection

51The applicant submits, in essence, that the contested measures infringe its rights of the defence and its right to a fair trial, as provided for in Article 48(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 6(3) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, in so far as the Council failed to hear it before those measures were adopted, as well as its right to effective judicial protection, as enshrined in Article 47 of the Charter.

52First, the applicant claims, in that regard, that, in view of the fact that it was not heard prior to the adoption of the contested measures, it was unable to exercise its rights of the defence effectively. Specifically, the applicant claims that the right to be heard requires that it be able to make known its point of view on whether the alleged facts are true and relevant as well as on the evidence adduced against it before the adoption of the measure in question. Furthermore, according to the applicant, there was no urgency or any risk that the applicant would compromise the effectiveness of the measure by being heard prior to the adoption of the contested measures, whereas the loss to the applicant after those measures were adopted was certain and foreseeable. The Council voluntarily refused the applicant access to the file of evidence in support of the inclusion of its name on the lists at issue and, therefore, infringed its rights of the defence.

53Secondly, the applicant submits, in essence, that, in accordance with its right to effective judicial protection, it requested access from the Council, as soon as possible, to all the information and documents on which it relied to adopt the initial measures in respect of the applicant. It had not received the file of evidence relating to it before bringing the present action, despite having made that request to the Council on 26 March 2019 and repeating it twice, on 2 and 12 April 2019. In that regard, the applicant claims that the failure to produce the file of evidence relating to it shows that, prior to the adoption of the initial measures, the Council was not in possession of any document or factual evidence supporting the statement of reasons contained in those measures, even though the Council is required to compile a file before deciding to impose restrictive measures. It adds that the fact that document WK 54/2019 INIT was provided to it after the present action had been brought shows that it had been artificially created for the purposes of the present proceedings. Accordingly, the reasons for including its name on the lists at issue are unfounded and, consequently, unlawful. At the hearing, the applicant maintained that the Council had sent document WK 54/2019 INIT late and even though the application in the present case had already been lodged.

54The Council disputes the applicant’s arguments.

55It should be borne in mind that observance of the rights of the defence includes, inter alia, the right to be heard and the right to have access to the file, subject to legitimate interests in maintaining confidentiality, which are enshrined in Article 41(2)(a) and (b) of the Charter (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 99 and the case-law cited).

56Furthermore, the right to effective judicial protection, which is affirmed in Article 47 of the Charter, requires that the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him or her is based, either by reading the decision itself or by requesting and obtaining disclosure of those reasons, without prejudice to the power of the court having jurisdiction to require the authority concerned to disclose that information, so as to make it possible for him or her to defend his or her rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in applying to the court having jurisdiction, and in order to put the latter fully in a position to review the lawfulness of the decision in question (see 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 100 and the case-law cited, and of 21 January 2016, Makhlouf v Council, T‑443/13, not published, EU:T:2016:27, paragraph 38).

57Article 52(1) of the Charter nevertheless allows limitations on the exercise of the rights enshrined in the Charter, provided that the limitation concerned respects the essence of the fundamental right in question and, subject to the principle of proportionality, that it is necessary and genuinely meets objectives of general interest recognised by the European Union (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 101 and the case-law cited).

58Lastly, the question whether there is an infringement of the rights of the defence and of the right to effective judicial protection 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).…

60In the first place, as regards the first complaint, alleging that the applicant was not heard prior to the adoption of the contested measures and that it was unable to exercise its rights of the defence effectively, it should be borne in mind that the EU judicature distinguishes between, on the one hand, the initial entry of an entity’s name on the lists imposing restrictive measures and, on the other, the maintenance of that entity’s name on those lists (judgment of 30 April 2015, Al-Chihabi v Council, T‑593/11, EU:T:2015:249, paragraph 40).…

67Secondly, as regards the 2019 maintaining acts and the 2020 maintaining acts, it should be borne in mind that, in the case of acts by which the name of a person or entity already included on the lists imposing restrictive measures is maintained, a surprise effect is no longer necessary in order to ensure that those measures are effective, with the result that the adoption of such acts must, in principle, be preceded by notification of the incriminating evidence and by affording the person or entity concerned an opportunity to be heard (see, to that effect, judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 62).

68In that regard, the Court of Justice 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 decisions maintaining the name of a person or entity 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).

69The purpose of the rule that the addressee of a decision affecting that person or entity adversely must be placed in a position to make representations before that decision is adopted is to enable the authority concerned effectively to take into account all relevant information. In order to ensure that the addressee is in fact protected, the object of that rule is, in particular, to enable it to correct an error or produce such information relating to its personal circumstances as will tell in favour of the decision’s being adopted or not, or of its having this content or that (judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 65).

70However, where maintaining the name of the person or entity concerned on a list of persons or entities subject to restrictive measures is based on the same reasons as those which justified the adoption of the initial measure without new evidence being adduced, the Council is not obliged, in order to respect the right of that person or entity to be heard, to notify it again of the evidence against it (see, to that effect, judgment of 7 April 2016, Central Bank of Iran v Council, C‑266/15 P, EU:C:2016:208, paragraphs 32 and 33 and the case-law cited). There is a requirement to notify incriminating evidence, however, where there is new evidence on which the Council relies in order to update the information concerning the personal situation of the person or entity concerned or the political and security situation in the country against which the restrictive measures regime was adopted (see, to that effect, judgment of 12 February 2020, Kande Mupompa v Council, T‑170/18, EU:T:2020:60, paragraph 72).

71In the present case, first, as regards the 2019 maintaining acts, it should be borne in mind, as indicated in paragraph 67 above, that their adoption must, in principle, be preceded by notification of the incriminating evidence and by affording the applicant the opportunity to be heard.

72In that regard, it should be noted that, by letter of 26 March 2019, the applicant submitted a first request for access to the document containing the evidence supporting the reasons for including its name on the lists at issue. It repeated its request on 2 and 12 April 2019. The Council granted that request on 13 May 2019, being one month and three weeks after the first request for access and four days before the adoption of the 2019 maintaining acts.

73It should be recalled that, at the request of the party concerned, the Council is required to provide access to all non-confidential official documents within a reasonable period (see, to that effect, judgment of 16 September 2013, Bank Kargoshaei and Others v Council, T‑8/11, not published, EU:T:2013:470, paragraphs 68 and 93).

74It must be held that, in the circumstances of the present case, the Council failed to provide document WK 54/2019 INIT within a reasonable period. By providing the applicant with that document only four days before the adoption of the 2019 maintaining acts, the Council allowed it too short a period of time to enable it effectively to submit any observations. Thus, it did not ensure that the applicant was properly heard. Moreover, even if the applicant had time to submit its observations to the Council in the time available to it before the adoption of those acts, the Council was left with insufficient time to analyse those observations with the requisite care and attention. Thus, the fundamental and essential element of the protection of the rights of the defence consisting in the notification of incriminating evidence and the right to submit observations on that evidence before the adoption of the 2019 maintaining acts, as referred to in the case-law cited in paragraphs 67 and 69 above, was compromised by the late disclosure to the applicant of the file containing that evidence.

75It follows that the document containing the evidence in support of the reasons for including the applicant’s name on the lists at issue was provided too late in view of the date on which the 2019 maintaining acts were adopted, with the result that the applicant’s rights of the defence were infringed in that regard.

76That said, it cannot be inferred from all of the foregoing that the late disclosure by the Council to the applicant of the evidence referred to in paragraph 74 above, before the Council adopted the 2019 maintaining acts, entails the annulment of those acts. It is for the EU judicature 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 in so far as the applicant could have been better able to defend itself had there been no irregularity (see, to that effect, judgments of 22 September 2015, First Islamic Investment Bank v Council, T‑161/13, EU:T:2015:667, paragraph 84; of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 153; and of 13 September 2018, VTB Bank v Council, T‑734/14, not published, EU:T:2018:542, paragraphs 120 and 121).

77In the present case, the applicant has not specified the arguments or information it could have put forward if it had received the documents at issue earlier nor has it demonstrated that those arguments or that information could have led to a different outcome in its case.

78Accordingly, the infringement of the applicant’s rights of the defence does not entail, in the circumstances of the present case, the annulment of the 2019 maintaining acts.…

81Accordingly, the applicant’s first complaint must be rejected.

82In the second place, the applicant relies, in essence, on a second complaint, alleging that the Council, by not allowing it access ‘in a timely fashion’ to the file containing the information and evidence on which the inclusion of its name on the initial measures and the 2019 maintaining acts was based, infringed its right to effective judicial protection.

83First, the applicant claims that the failure to disclose in good time the file containing the information and evidence in support of the inclusion and maintenance of its name on the lists at issue shows that, before the adoption of the initial measures, the Council was not in possession of any document or factual evidence supporting the reasons for the listing.

84In the present case, the first page of document WK 54/2019 INIT, which contains the evidence in support of the reasons for including the applicant’s name on the lists at issue, bears the date 28 February 2019, whereas the initial measures, which included the applicant’s name on those lists for the first time, were adopted on 21 January 2019. In other words, the first page of document WK 54/2019 INIT bears a date subsequent to the date on which the initial measures were adopted.

85In response to the measures of organisation of procedure adopted by the Court aimed at confirming the existence of a file of evidence at the time of adoption of the initial measures, the Council contends that document WK 54/2019 INIT bears the date 28 February 2019 due to a technical issue linked to the fact that the document was placed in electronic archives on that date. The Council stated that the evidence in document WK 54/2019 INIT formed part of the proposal for the inclusion of the applicant’s name on the lists annexed to the initial measures. The Council produced in that respect document ST 10250/20 of 15 September 2020, containing the proposal for listing the applicant’s name, bearing the reference COREU CFSP/0195/18 and dated 4 December 2018, on which it relied in order to adopt the initial measures. At the hearing, the applicant disputed that that document had been used as a basis for the initial entry of its name on the lists at issue, on account of the format of the document and the fact that the evidence is set out through a series of hyperlinks did not make the document, in the absence of any articulated reasoning, accessible and intelligible.

86However, it should be pointed out that, first, the proposal for listing COREU CFSP/0195/18 is dated 4 December 2018, that is to say, it predates the adoption of the initial measures. Secondly, the proposal for listing COREU CFSP/0195/18 contains a series of hyperlinks to the evidence produced in document WK 54/2019 INIT, with the exception of the document relating to an article from the website ‘The Syria Report’, headed ‘Samer Foz, Syria’s Most Powerful Businessman’, published on 19 April 2018 (see paragraph 111 below). Thus, contrary to the applicant’s assertion, the Council has demonstrated that it was in possession of a body of evidence before the adoption of the initial measures which supported the reasons for listing set out in those measures. It is therefore necessary to reject as unfounded the applicant’s argument that the disclosure of document WK 54/2019 INIT after the present action had been brought shows that that document was artificially created for the purposes of the present proceedings. Furthermore, the applicant’s argument that the document is unintelligible and inaccessible has no factual basis, since the hyperlinks are to articles that were reproduced in document WK 54/2019 INIT.

87Next, the applicant submits that the failure to disclose the evidence in support of the inclusion of its name on the lists at issue, even though it requested access to that evidence in good time, that is to say, before the present action was brought, entails an infringement of its right to effective judicial protection.

88As stated in paragraph 73 above, at the request of the party concerned, the Council is required to provide access to all non-confidential official documents within a reasonable period.

89When assessing the reasonableness of the period for disclosure, it should be borne in mind that, in so far as the person or entity concerned is not afforded the opportunity to be heard before the initial inclusion of its name on the lists at issue, the access to the file referred to above is the first opportunity for it to be made aware of the documents used by the Council in support of that listing and, accordingly, is of particular interest for its defence (see, to that effect, judgment of 22 September 2015, First Islamic Investment Bank v Council, T‑161/13, EU:T:2015:667, paragraph 80 and the case-law cited).

90In the present case, as pointed out in paragraph 72 above, the applicant asked the Council on 26 March 2019 for access to the file of evidence supporting the reasons for the initial inclusion of its name on the lists at issue. The applicant twice reiterated its request for access, citing the need to have those documents as soon as possible in order to take a decision on the exercise of its rights before the Court. Document WK 54/2019 INIT was sent to the applicant on 13 May 2019, that is to say, after the present action had been brought. In the reply, the applicant confirms that it received document WK 54/2019 INIT.

91It should be noted that document WK 54/2019 INIT, which seeks to support the reasons for including the applicant’s name on the lists at issue, supplements, in essence, the statement of reasons set out in the initial measures, but was disclosed to the applicant only after a period of one month and three weeks, which cannot be regarded as a negligible period of time. In that regard, contrary to the Council’s contention, the period which elapsed between the date of adoption of the initial measures and the date of the applicant’s request for access cannot justify the Council’s failure to reply within a reasonable period. The Council cannot rely on the period which elapsed before the applicant requested access to the documents concerning it in order to justify the period within which it itself actually granted the request for access. However, as the Council stated at the hearing, there are internal deadlines within the Council for obtaining approval from various bodies in order to send documents. It is true that those internal deadlines must be in line with the case-law referred to in paragraphs 73 and 89 above, in order for the evidence which has been produced and which seeks to support the restrictive measures against a person or entity to be disclosed to that person or entity in sufficient time to enable it to assert its rights before the EU judicature.

92Nevertheless, it should be pointed out that the applicant waited 21 days before the expiry of the time limit for bringing the present action before it sent, on 26 March 2019, the first request for access to the file. Thus, the applicant contributed to shortening the period of time that the Council had available to it to disclose document WK 54/2019 INIT to the applicant before the expiry of that time limit.

93Consequently, the fact that the Council was not in a position to disclose document WK 54/2019 INIT to the applicant before its action was brought cannot be attributable entirely to the Council.

94In any event, it is clear that the applicant had access to document WK 54/2019 INIT on 13 May 2019, that is to say, before the Council lodged its defence. It was thus able to state its views on the evidence in that document both in the reply and at the hearing.

95Accordingly, it must be held that the disclosure of document WK 54/2019 INIT on 13 May 2019 was sufficient to enable the applicant to exercise its right to an effective judicial remedy.

96In the light of the foregoing, the second complaint and, therefore, the sixth plea in its entirety must be rejected.…

Operative part

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

1.Dismisses the action;

2.Orders Aman Dimashq JSC to pay the costs.

Delivered in open court in Luxembourg on 24 November 2021.