Samer Kamal Al-Assad v Council of the European Union (T-370/23)

Contents

Judgment of the General Court (Ninth Chamber)4 September 2024^note(Common foreign and security policy — Restrictive measures adopted against Syria — Freezing of funds and economic resources — List of persons, entities and bodies subject to the freezing of funds and economic resources — Inclusion of the applicant’s name on the list — Family membership criterion — Plea of illegality — Requirement that any limitation must be provided for by law — Error of assessment — Right to property)In Case T‑370/23,Samer Kamal Al-Assad, residing in Latakia (Syria), represented by W. Woll, lawyer,vCouncil of the European Union, represented by T. Haas, acting as Agent, and by E. Raoult, lawyer,THE GENERAL COURT (Ninth Chamber),composed of L. Truchot, President, H. Kanninen and R. Frendo (Rapporteur), Judges,Registrar: V. Di Bucci,having regard to the written part of the procedure,having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,gives the following

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

1By his action under Article 263 TFEU, the applicant, Mr Samer Kamal Al-Assad, seeks the annulment of (i) Council Implementing Decision (CFSP) 2023/847 of 24 April 2023 implementing Decision 2013/255/CFSP concerning restrictive measures in view of the situation in Syria (OJ 2023 L 109 I, p. 26) and (ii) Council Implementing Regulation (EU) 2023/844 of 24 April 2023 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2023 L 109 I, p. 1) (together, ‘the contested acts’), in so far as those acts concern him.

Background to the dispute and events subsequent to the bringing of the action…

7In view of the seriousness of the situation in Syria, as is apparent from recital 5 thereof, the Council adopted, on 12 October 2015, Decision (CFSP) 2015/1836 amending Decision 2013/255 (OJ 2015 L 266, p. 75) and Regulation (EU) 2015/1828 amending Regulation No 36/2012 (OJ 2015 L 266, p. 1) (together, ‘the 2015 acts’).

8In that regard, taking the view that the restrictive measures initially adopted by Decision 2011/273 had not brought an end to the violent repression against the civilian population pursued by the Syrian regime, the Council decided, as is apparent from recital 5 of Decision 2015/1836, that it was ‘necessary to maintain and ensure the effectiveness of the restrictive measures in place, by further developing them while maintaining its targeted and differentiated approach and bearing in mind the humanitarian conditions of the Syrian population [and] that certain categories of persons and entities [were] of particular relevance for the effectiveness of these restrictive measures, given the specific context prevailing in Syria’.

9Consequently, Decision 2015/1836 amended the wording of Articles 27 and 28 of Decision 2013/255. Those articles now provide for restrictions on the entry into, or transit through, the territories of the Member States and for the funds and economic resources of the persons falling within the categories of persons referred to in paragraph 2(a) to (g) of those articles, the list of which is set out in Annex I, to be frozen, unless, in accordance with paragraph 3 of those articles, there is ‘sufficient information that [those persons] are not, or are no longer, associated with the regime or do not exercise influence over it or do not pose a real risk of circumvention’.

10In particular, since, as is apparent from recital 7 of Decision 2015/1836, ‘power in Syria [is] traditionally … exercised on a family basis [and] power in the present Syrian regime is concentrated in influential members of the Assad and Makhlouf families’, it was appropriate to impose restrictive measures on certain members of those families, both to influence the Syrian regime directly through members of those families in order to have it change its policies of repression and to avoid the risk of circumvention of restrictive measures by members of those families.

11Thus, first, following the adoption of the 2015 acts, Article 27(2)(b) and Article 28(2)(b) of Decision 2013/255 now also make ‘members of the Assad or Makhlouf families’ subject to restrictive measures (‘the family membership criterion’). At the same time, Article 15 of Regulation No 36/2012 was supplemented by paragraph 1a(b), which provides for the assets of the members of those families to be frozen.

12Secondly, the general listing criterion of benefiting from or supporting the Syrian regime is set out in Article 27(1) and Article 28(1) of Decision 2013/255, as amended by Decision 2015/1836, and in Article 15(1)(a) of Regulation No 36/2012, as amended by Regulation 2015/1828 (‘the general criterion of association with the Syrian regime’).

13On 24 April 2023, the Council adopted the contested acts. Recitals 2, 3 and 5 thereof state:(2) The Council remains deeply concerned about the situation in Syria. After more than a decade, the conflict in Syria is far from over and remains a source of suffering and instability.(3) The Council notes that the Syrian regime continues to pursue its policy of repression. In view of the gravity of the situation which persists, the Council considers it necessary to maintain and ensure the effectiveness of the restrictive measures in place by further developing them while maintaining their targeted and differentiated approach, and bearing in mind the humanitarian conditions of the Syrian population. The Council considers that certain categories of persons and entities are of particular relevance for the effectiveness of those restrictive measures, given the specific context prevailing in Syria.…(5) The Council is deeply concerned about the rise in narcotics trade originating in Syria. The Council has in particular assessed that the trade in amphetamines has become a regime-led business model, enriching the inner circle of the regime and providing it with revenue that contributes to its ability to maintain its policies of repression. The Council considers that it should provide for restrictive measures to freeze all funds and economic resources belonging to, owned, held or controlled by certain persons and entities involved in the production or trafficking of narcotics originating in Syria, as identified by the Council and listed in [as regards Implementing Decision 2023/847, Annex I to Decision 2013/255/CFSP, and, as regards Implementing Regulation 2023/844, Annex II to Regulation No 36/2012], and to impose restrictions on admission for such persons, in order to prevent them from providing support to the regime and increase pressure on the regime to change its policies of repression. These measures also aim to reduce the risk of undermining the effectiveness of restrictive measures by targeting the regime’s ability to resort to proceeds from narcotics trade to continue its policy of repression.’

14The Council put forward the following grounds to justify the inclusion of the applicant’s name on the lists at issue:‘… member of the Assad family.He operates in the context of the narcotics trade, in particular in its production. The Captagon trade has become a regime-led business model, enriching the inner circle of the regime and forming its lifeline. He therefore benefits from and supports the regime.’…

Forms of order sought

17The applicant claims that the Court should:– annul the contested acts in so far as they concern him;– order the Council to pay the costs.

18The Council contends that the Court should:– dismiss the action as unfounded;– order the applicant to pay the costs;– in the alternative, should the Court annul the contested acts in so far as they concern the applicant, order that the effects of Implementing Decision 2023/847 be maintained as regards the applicant until the annulment in part of Implementing Regulation 2023/844 takes effect.

Law…

The plea of illegality raised against the family membership criterion

26The applicant raises a plea of illegality under Article 277 TFEU against the family membership criterion set out in Article 27(2)(b) and Article 28(2)(b) of Decision 2013/255, as amended by Decision 2015/1836. He requests that that criterion be declared inapplicable to him and, consequently, that the inclusion of his name on the lists at issue resulting from the application of those provisions be annulled.

27The Council disputes both the admissibility of the plea of illegality raised by the applicant and its merits.

Admissibility of the plea of illegality

28Without formally raising a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court, the Council contends that the plea of illegality put forward by the applicant is inadmissible.

29According to the Council, the applicant fails to explain the consequences of the plea of illegality for the contested acts and for himself. That lack of clarity, which is at odds with the requirements of Article 76(d) of the Rules of Procedure, prevented the Council from preparing its defence and should, therefore, result in that plea being inadmissible.

30The applicant disputes that line of argument.

31In that regard, it must be recalled that, under Article 76(d) of the Rules of Procedure, the application must contain, inter alia, a summary statement of the pleas in law relied on. Furthermore, regardless of any question of terminology, that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without having to seek further information. For an action to be admissible, the essential elements of fact and law on which it is based must be apparent, at least summarily but in a coherent and comprehensible manner, from the text of the application itself, in order to guarantee legal certainty and the proper administration of justice (see judgment of 14 April 2021, Al-Tarazi v Council, T‑260/19, not published, EU:T:2021:187, paragraph 166 and the case-law cited).

32In the present case, the applicant, with admittedly summary arguments, submits that the family membership criterion lacks clarity and precision, making it impossible to identify the persons likely to be caught by that criterion. In addition, according to the applicant, the application of that criterion gives rise to discrimination vitiating the contested acts with illegality.

33In that regard, it is apparent from the documents before the Court that the Council was able to prepare its defence, as evidenced by the fact that it responded on the substance of the applicant’s arguments both in the defence and in the rejoinder.

34Furthermore, the Court takes the view that the plea of illegality is sufficiently detailed to enable it to exercise its power of review and thus to rule on the plea, without having to seek further information.

35Consequently, the plea of inadmissibility raised by the Council must be rejected and the plea of illegality in respect of the family membership criterion must be declared admissible.

The merits of the plea of illegality

36In support of the plea of illegality, the applicant puts forward, in essence, two complaints, alleging:– first, breach of the principle of legality, according to which any limitation on the exercise of rights must be provided for by law, and, in consequence, infringement of the rights to property and to respect for private and family life guaranteed, respectively, by Article 17(1) and Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and by Article 8(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), and Article 1 of the First Additional Protocol to the ECHR;– secondly, breach of the principle of non-discrimination enshrined in Article 21(1) of the Charter and Article 14 of the ECHR.

37As a preliminary point, it should be borne in mind that whilst, as Article 6(3) TEU confirms, fundamental rights enshrined in the ECHR constitute general principles of EU law and whilst Article 52(3) of the Charter provides that the rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law (see judgment of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 45 and the case-law cited).

38Therefore, the present plea of illegality must be examined solely in the light of the provisions of the Charter relied on by the applicant.

39In that regard, it should be recalled that, under Article 277 TFEU, any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the European Union is at issue, plead the grounds specified in the second paragraph of Article 263 TFEU in order to invoke before the Court of Justice of the European Union the inapplicability of that act.

40Article 277 TFEU gives expression to the general principle conferring upon any party to proceedings the right to challenge indirectly, in seeking annulment of a decision addressed to that party, the validity of acts of general application which form the basis of such a decision, if that party was not entitled under Article 263 TFEU to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that they be annulled. The general measure claimed to be illegal must be applicable, directly or indirectly, to the issue with which the action is concerned and there must be a direct legal connection between the contested individual decision and the general measure in question (see judgments of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraphs 67 and 68 and the case-law cited, and of 15 November 2023, OT v Council, T‑193/22, EU:T:2023:716, paragraph 33 and the case-law cited).

41The Council enjoys a broad discretion as regards the general and abstract definition of the legal criteria and procedures for adopting restrictive measures (see judgment of 28 April 2021, Sharif v Council, T‑540/19, not published, EU:T:2021:220, paragraph 167 and the case-law cited).

42Thus, the rules of general application defining those criteria and procedures are subject to a limited judicial review, restricted to checking that the rules governing procedure and the statement of reasons have been complied with, that the facts are materially accurate, that there has been no error of law, and that there has been no manifest error of assessment of the facts or misuse of power (see judgment of 28 September 2022, LAICO v Council, T‑627/20, not published, EU:T:2022:590, paragraph 59 and the case-law cited).

43In addition, according to settled case-law, the Courts of the European Union must, in accordance with the powers conferred on them by the FEU Treaty, ensure the review, in principle the full review, of the lawfulness of all EU acts in the light of the fundamental rights forming an integral part of the EU legal order (see judgment of 9 September 2016, Farahat v Council, T‑830/14, not published, EU:T:2016:462, paragraph 27 and the case-law cited).

44It is in the light of those principles that the merits of the plea of illegality must be examined.

–First complaint, alleging that the family membership criterion breaches the principle of legality and, consequently, infringes the rights to property and to respect for private and family life

45The applicant submits that, although fundamental rights may, in accordance with Article 52(1) of the Charter, be the subject of interference by public authorities, any limitation in that regard must be provided for by law and meet the requirements of clarity, precision and foreseeability.

46According to the applicant, the family membership criterion infringes Article 52(1) of the Charter in that it is ‘singularly lacking in precision’. Thus, that lack of precision makes it impossible to identify the persons likely to be caught, in essence, by the basic legislation.

47It follows that the family membership criterion infringes the right to property guaranteed by Article 17(1) of the Charter and the right to respect for reputation, which is a component of the right to respect for private and family life, within the meaning of Article 7 of the Charter.

48The Council disputes those arguments.

49In that regard, it must be recalled that the right to property and the right to respect for private life, of which the right to respect for reputation forms part, are not absolute rights and their exercise may be subject to restrictions, under the conditions laid down in Article 52(1) of the Charter, according to which ‘any limitation on the exercise of the rights and freedoms recognised by [the Charter] must be provided for by law and respect the essence of those rights and freedoms’ and ‘subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’.

50It follows that, in order to comply with EU law, an interference with a right or freedom enshrined in the Charter must satisfy four conditions. First, the limitation in question must be ‘provided for by law’, in the sense that the EU institution adopting measures liable to restrict a natural or legal person’s right or freedom must have a legal basis for its actions. Secondly, the limitation in question must respect the essence of the right or freedom at issue. Thirdly, it must effectively meet an objective of general interest, recognised as such by the European Union. Fourthly, the limitation in question must be proportionate (see judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 145 and the case-law cited).

51As is clear from paragraph 46 above, the applicant merely claims that the family membership criterion is not sufficiently precise to satisfy the first condition laid down in Article 52(1) of the Charter, under which any limitation on fundamental rights must be provided for by law. However, the applicant does not put forward any arguments as regards the other three conditions referred to in paragraph 50 above.

52In that regard, the Court has held that the principle of legality, established by the words ‘provided for by law’ in Article 52(1) of the Charter, means that any limitation on the rights and freedoms enshrined in the Charter must have a legal basis which itself defines, clearly and precisely, the scope of the limitation on their exercise (Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraph 139; judgments of 16 July 2020, Facebook Ireland and Schrems, C‑311/18, EU:C:2020:559, paragraph 175, and of 8 September 2020, Recorded Artists Actors Performers, C‑265/19, EU:C:2020:677, paragraph 86).

53It should be added that, although it is a requirement of the principle of legality that the act permitting the interference with fundamental rights must itself define the scope of the limitation on the exercise of the right concerned, that requirement does not preclude, on the one hand, the limitation in question from being formulated in terms which are sufficiently open to be able to adapt to different scenarios and keep pace with changing circumstances and, on the other hand, the Court from, where appropriate, specifying, by means of interpretation, the actual scope of the limitation in the light of the very wording of the EU legislation in question as well as its general scheme and the objectives it pursues, as interpreted in view of the fundamental rights guaranteed by the Charter (see judgment of 21 June 2022, Ligue des droits humains, C‑817/19, EU:C:2022:491, paragraph 114 and the case-law cited).

54Against that background, the principle of legal certainty, which is one of the general principles of EU law, requires inter alia that rules of law be clear, precise and predictable in their effects, in particular where they may have negative consequences on individuals and undertakings (see judgment of 15 September 2021, Ilunga Luyoyo v Council, T‑101/20, not published, EU:T:2021:575, paragraph 201 and the case-law cited). Such a principle applies to restrictive measures such as those at issue in the present case, which have an impact on the rights and freedoms of the persons concerned (see judgment of 15 September 2021, Mutondo v Council, T‑103/20, not published, EU:T:2021:578, paragraph 205 and the case-law cited).

55In the present case, contrary to what the applicant claims, the family membership criterion does not allow the Council to impose restrictive measures on all persons with the surname Assad, whether or not they are associated with that family, which is currently in power in Syria.

56First, under Article 27(4) and Article 28(4) of Decision 2013/255, as amended by Decision 2015/1836, all listing decisions are to be made on an individual and case-by-case basis taking into account the proportionality of the measure.

57Secondly, the family membership criterion forms part of a legal framework that is clearly delineated by the objectives pursued, in particular, by the basic regulation.

58Thus, in accordance with the case-law cited in paragraph 53 above, the family membership criterion must inter alia be interpreted in the light of the objectives of the restrictive measures adopted in view of the situation in Syria. In this instance, it is apparent from recital 7 of Decision 2015/1836 that the power of the Syrian regime ‘is concentrated in influential members of the Assad and Makhlouf families’ and that the Council therefore imposed restrictive measures on certain members of those families ‘both to directly influence the regime through members of those families to change its policies of repression, as well as to avoid the risk of circumvention of restrictive measures through family members’ (see paragraph 8 above).

59In the present case, the applicant submits, in the first place, that the family membership criterion is directed at persons with the name Assad – which is very common in Syria – but who are not associated with the Assad family in power in that country. He also states that that criterion excludes from its scope persons who have lost that surname through marriage.

60In that regard, it should be noted that the scope of the family membership criterion, although worded in open terms, is circumscribed by recital 7 of Decision 2015/1836 (see paragraph 58 above) and therefore is capable of targeting only a clearly identifiable circle of persons, namely those associated with the Assad family currently in power in Syria.

61It follows that persons with the surname Assad – irrespective of how common that name may be in Syria – fall within the scope of the family membership criterion only if they have family ties to the Assad family currently governing Syria.

62Furthermore, as the Council points out, persons with family ties to the Assad family in power in Syria may have their names included on the lists at issue on the basis of the family membership criterion, even if they do not have the surname Assad.

63In the second place, the applicant maintains that the family membership criterion is imprecise, in so far as it is directed at all members of the Assad family without drawing any distinction between those who are leading members of that family and those who are not.

64In that regard, it must be observed that the family membership criterion does not lay down any condition relating to the nature of Assad family members as leading members. By contrast, that condition expressly appears in the wording of Article 27(2)(a) and Article 28(2)(a) of Decision 2013/255, as amended by Decision 2015/1836, and of Article 15(1a)(a) of Regulation No 36/2012, as amended by Regulation 2015/1828, which is directed at ‘leading businesspersons operating in Syria’.

65It follows that the family membership criterion is not directed only at ‘leading’ members of the Assad family who are in power in Syria. The Council seeks, by means of the restrictive measures adopted under that criterion, to prompt certain members of that family to put pressure on the Syrian regime in order to have it bring an end to the repression of the civilian population and to avoid the risk of circumvention of restrictive measures by members of that family (see paragraph 58 above).

66In the third place, the applicant states that the principle of personal responsibility, enshrined in the constitutional traditions of the Member States, precludes any automatic listing which ‘penal[ises]’ a person simply because he or she belongs to the Assad family, since no one can be held responsible for the actions of his or her relatives.

67In that regard, it does indeed follow from the case-law that, in accordance with the principle that penalties must be specific to the offender, a natural or legal person may be penalised only for acts imputed to that person individually (see judgment of 7 June 2023, Skryba v Council, T‑581/21, not published, EU:T:2023:321, paragraph 27 and the case-law cited).

68However, restrictive measures constitute targeted preventive measures which fall strictly within the framework of the legal conditions established by a decision adopted on the basis of Article 29 TEU and by a regulation founded on Article 215(2) TFEU implementing that decision within the scope of the FEU Treaty. They are intended inter alia to combat threats to international peace and security, in accordance with the provisions relating to the Common Foreign and Security Policy (CFSP). Therefore, by their precautionary nature and their preventive purpose, restrictive measures can be distinguished from criminal or administrative penalties (see, to that effect, judgment of 7 June 2023, Skryba v Council, T‑581/21, not published, EU:T:2023:321, paragraph 28 and the case-law cited).

69Specifically, as is clear from paragraph 58 above, the objective pursued by the restrictive measures adopted in view of the situation in Syria is not to penalise the persons or entities which they target, but to exert pressure, through those measures, on the Syrian regime in order to have it bring an end to the policy of violent repression against the civilian population in Syria.

70Moreover, as stated in paragraph 56 above, all listing decisions are to be made on an individual and case-by-case basis taking into account the proportionality of the measure concerned, with the result that there can be no automatic listing on the basis of the family membership criterion.

71Therefore, the applicant cannot invoke the principle of personal responsibility in order to challenge the lawfulness of the family membership criterion.

72It follows from the foregoing that the family membership criterion, read in conjunction with the objective of applying pressure on the Syrian regime in order to force it to put an end to its policy of repression, defines, in an objective and sufficiently precise manner, a limited category of persons liable to be subject to restrictive measures.

73Consequently, the Court finds that the family membership criterion establishes a clear and precise provision which meets the requirements flowing from the principle of legality within the meaning of the case-law cited in paragraph 52 above.

74In those circumstances, since the family membership criterion complies with the principle of legality, the applicant’s argument alleging infringement of the rights to property and to respect for reputation must also be rejected.

75The first complaint must therefore be rejected.

–Second complaint, alleging breach of the principle of non‑discrimination

76In the second complaint, the applicant claims that ‘penalising’ an individual solely because he or she belongs to a family, however that concept may be construed, constitutes discrimination within the meaning of Article 21(1) of the Charter. He maintains that the application of the family membership criterion leads to a result which is disproportionate to the aim pursued in that, as second cousin of the Syrian President Bashar Al-Assad (‘the Syrian President’), he will never be able to challenge the merits of the first ground for listing.

77The Council disputes those arguments.

78In that regard, it should be recalled that, under Article 21(1) of the Charter, ‘any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation’ is to be prohibited.

79According to the case-law, the principle of equal treatment, which is a general principle of EU law and of which the principle of non-discrimination is a particular expression, prohibits comparable situations from being treated differently or different situations from being treated in the same way, unless such difference in treatment is objectively justified (judgments of 31 May 2018, Kaddour v Council, T‑461/16, EU:T:2018:316, paragraph 152 and the case-law cited, and of 23 November 2022, Bowden and Young v Europol, T‑72/21, not published, EU:T:2022:720, paragraph 151 and the case-law cited).

80A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment (see judgment of 16 June 2021, Krajowa Izba Gospodarcza Chłodnictwa i Klimatyzacji v Commission, T‑126/19, EU:T:2021:360, paragraph 86 and the case-law cited).

81Furthermore, the principle of proportionality, which is reproduced in Article 5(4) TEU, requires that measures implemented through provisions of EU law be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve them (see judgment of 16 December 2020, Haswani v Council, T‑521/19, not published, EU:T:2020:608, paragraph 171 and the case-law cited).

82In matters concerning restrictive measures, as is clear from paragraph 41 above, the Council has a broad discretion as regards the definition and adoption of the listing criteria. Therefore, the legality of restrictive measures is not dependent on their being found to have immediate effects; all that is required is that they are not manifestly inappropriate in regard to the objective that the competent institution seeks to pursue (see, to that effect, judgment of 17 September 2020, Rosneft and Others v Council, C‑732/18 P, not published, EU:C:2020:727, paragraph 97).

83In the present case, the applicant argues that the family membership criterion is discriminatory because it permits the imposition of ‘penalties’ on a ‘multitude of individuals who have nothing to do with the Syrian President’, so that it leads to a result which is disproportionate to the aim pursued.

84In the first place, it must be observed that, according to settled case-law, the restrictive measures adopted by the European Union do not entail confiscation of the assets of the persons concerned as the proceeds of crime, but rather a freezing of such assets as a precautionary measure, so that those measures do not constitute a criminal penalty. Nor do they imply any accusation of a criminal nature (see judgments of 21 July 2016, Hassan v Council, T‑790/14, EU:T:2016:429, paragraph 77 (not published) and the case-law cited, and of 12 December 2018, Makhlouf v Council, T‑409/16, not published, EU:T:2018:901, paragraph 129 and the case-law cited).

85As regards the restrictive measures adopted in view of the situation in Syria, the objective pursued is not to penalise the Syrian regime or the persons whose names appear on the lists at issue, but to put pressure on that regime to bring an end to the policy of violent repression against the civilian population (see paragraph 58 above).

86That objective is therefore one which forms part of a more general framework of endeavours linked to the maintenance of international peace and security, laid down in Article 21 TEU, which refers to provisions of EU external action, and is, therefore, legitimate (see, to that effect, judgment of 23 September 2020, Kaddour v Council, T‑510/18, EU:T:2020:436, paragraph 176 (not published)).

87As the Council points out, the adoption of restrictive measures against the applicant is appropriate, since it is a step taken in pursuit of an objective of general interest as fundamental to the international community as the protection of civilian populations. Therefore, the freezing of the funds and other economic resources, and the prohibition of entry into the territory of the European Union, of persons identified as being involved in supporting the Syrian regime cannot, in themselves, be regarded as inappropriate (see judgment of 16 January 2019, Haswani v Council, T‑477/17, not published, EU:T:2019:7, paragraph 75 and the case-law cited).

88Accordingly, the restrictive measures adopted on the basis of the family membership criterion cannot under any circumstances be treated in the same way as penalties and, moreover, they pursue an objective of general interest recognised by the European Union.

89In the second place, contrary to what the applicant claims, the family membership criterion is directed at a specific category of persons, namely persons who have family ties to the Assad family in power in Syria and who are thus members of that family (see paragraphs 60, 61 and 72 above).

90In the third place, the applicant does not specify how or in relation to whom the application of the family membership criterion is discriminatory. Nor does he provide specific examples of other persons who are in a situation comparable to his own and who are treated differently within the meaning of the case-law cited in paragraph 79 above (see, to that effect and by analogy, judgment of 30 November 2016, Export Development Bank of Iran v Council, T‑89/14, not published, EU:T:2016:693, paragraph 120). In those circumstances, the Court is not in a position to ascertain whether his claims are well founded in fact.

91In the fourth place, the Court must also reject the applicant’s argument that the family membership criterion leads to a result which is disproportionate to the objective pursued by the restrictive measures at issue, since, as the Syrian President’s second cousin, it is impossible for him to rebut the presumption that he has ties to the Syrian regime.

92Suffice it to note in that regard that, under Article 27(3) and Article 28(3) of Decision 2013/255, as amended by Decision 2015/1836, and Article 15(1b) of Regulation No 36/2012, as amended by Regulation 2015/1828, the names of the persons caught by the various listing criteria, including, in particular, members of the Assad family, are not to be included or retained on the lists at issue if there is sufficient information that they are not, or are no longer, associated with the regime or do not exercise influence over it or do not pose a real risk of circumvention of the restrictive measures.

93Therefore, any person, notwithstanding the capacity or status by virtue of which his or her name was included on the lists at issue, may adduce evidence to challenge the inclusion or retention of his or her name on those lists. That also applies, in the present case, to the applicant in his capacity as second cousin of the Syrian President.

94In the light of all the foregoing, the Court must reject the second complaint and, therefore, the plea of illegality in its entirety.…

Operative part

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

1.Dismisses the action;

2.Orders Mr Samer Kamal Al-Assad to pay the costs.

Delivered in open court in Luxembourg on 4 September 2024.