Judgment of the General Court (Fourth Chamber) of 22 September 2021 (Extracts) — Maher Al-Imam v Council of the European Union (Case T-203/20)

Reports of Cases

JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

22 September 2021 *

(Common foreign and security policy – Restrictive measures adopted against Syria – Freezing of

funds – Rights of the defence – Right to effective judicial protection – Error of assessment –

Proportionality – Right to property – Damage to reputation)

In Case T-203/20,

Maher Al-Imam, residing in Damascus (Syria), represented by M. Brillat, lawyer,

applicant,

v

Council of the European Union, represented by V. Piessevaux and M.-C. Cadilhac, acting as

Agents,

defendant,

first, application under Article 263 TFEU for annulment of Council Decision 2013/255/CFSP of

31 May 2013 concerning restrictive measures against Syria (OJ 2013 L 147, p. 14), Council

Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the

situation in Syria and repealing Regulation (EU) No 442/2011 (OJ 2012 L 16, p. 1), Council

Implementing Decision (CFSP) 2020/212 of 17 February 2020 implementing Decision

2013/255/CFSP concerning restrictive measures against Syria (OJ 2020 L 43 I, p. 6), Council

Implementing Regulation (EU) 2020/211 of 17 February 2020 implementing Regulation (EU)

No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2020 L 43 I,

p. 1), Council Decision (CFSP) 2020/719 of 28 May 2020 amending Decision 2013/255/CFSP

concerning restrictive measures against Syria (OJ 2020 L 168, p. 66), and Council Implementing

Regulation (EU) 2020/716 of 28 May 2020 implementing Regulation (EU) No 36/2012

concerning restrictive measures in view of the situation in Syria (OJ 2020 L 168, p. 1), in so far as

those measures apply to the applicant, and, second, application under Article 268 TFEU seeking

compensation in respect of the harm allegedly suffered by the applicant as a result of those

measures,

THE GENERAL COURT (Fourth Chamber),

composed of S. Gervasoni, President, R. Frendo and J. Martín y Pérez de Nanclares (Rapporteur),

Judges,

* Language of the case: French.

EN

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Registrar: E. Coulon,

gives the following

Judgment 1

I. Background to the dispute and facts subsequent to the bringing of the action

…

A. On the initial inclusion of the applicant’s name on the lists appearing in Annex I to

Decision 2013/255 and Annex II to Regulation No 36/2012

12

By Council Implementing Decision (CFSP) 2020/212 of 17 February 2020 implementing Decision

2013/255 (OJ 2020 L 43 I, p. 6), and Council Implementing Regulation (EU) 2020/211 of

17 February 2020 implementing Regulation No 36/2012 (OJ 2020 L 43 I, p. 1) (together ‘the initial

measures’), the applicant’s name was inserted at line 289 of Table A of the lists of natural and legal

persons, entities or bodies subject to restrictive measures in Annex I to Decision 2013/255 and in

Annex II to Regulation No 36/2012 (together ‘the lists in question’), with the following grounds

being stated:

‘Leading businessperson operating in Syria with business interests in tourism,

telecommunications and real estate. As the chief executive officer of the regime-backed [Telsa

Group LLC] and Castro LLC, and because of his other financial interests, Mahir Burhan Eddine

Al-Imam benefits from the regime and supports its financing and lobbying policy as well as its

construction policy.’

…

B. On the retention of the applicant’s name on the lists in question

21

On 28 May 2020, the Council adopted Decision (CFSP) 2020/719 amending Decision 2013/255

(OJ 2020 L 168, p. 66) and Implementing Regulation (EU) 2020/716 implementing Regulation

No 36/2012 (OJ 2020 L 168, p. 1) (together, ‘the retention measures’). Under the retention

measures, the application of Decision 2013/255 was extended until 1 June 2021. The applicant’s

name was retained at line 289 of Table A of the lists in question on the basis of grounds identical

to those applying in the initial measures.

…

II. Procedure and forms of order sought

24

By application lodged at the Registry of the General Court on 18 April 2020, the applicant brought

the present action seeking the annulment of Decision 2013/255, Regulation No 36/2012 and the

initial measures, in so far as those measures apply to him.

1

2

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

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25

On the same day, the applicant lodged a request for priority treatment, under Article 67(2) of the

Rules of Procedure of the General Court, which was dismissed by a decision of the President of the

Fourth Chamber of the General Court of 4 June 2020.

26

On 23 April 2020, the applicant lodged an application for anonymity, under Article 66 of the Rules

of Procedure, which was dismissed by a decision of the General Court of 15 June 2020, on the basis

that the data in question, and specifically the identification details, were shown in the contested

decisions, which were themselves published in the Official Journal, and had therefore become

public. However, the decision to dismiss the application for anonymity was adopted without

prejudice to the application for the omission of financial data and data relating to third parties

being upheld.

27

By document lodged at the Registry of the General Court on 24 July 2020, the applicant modified

his application, in accordance with Article 86 of the Rules of Procedure, so as to extend his claim

to include the annulment of the retention measures, in so far as they apply to him.

28

On 27 July 2020, the Council lodged its defence at the Registry of the General Court.

29

The Council submitted its observations on the statement of modification to the Registry of the

General Court on 10 September 2020.

30

The reply and the rejoinder were lodged on 14 September and 26 October 2020, respectively.

31

The written part of the procedure was closed on 26 October 2020.

32

In the context of the measures of organisation of procedure provided for in Article 89(3)(a) of the

Rules of Procedure, on 10 March 2021, the Court requested the parties to answer a series of

questions. The parties complied with that request within the period prescribed.

33

Given that no request for a hearing was submitted by the parties within the specified period, on

26 May 2021 the General Court (Fourth Chamber) decided, on the basis of a proposal from the

Judge-Rapporteur, to rule on the action without an oral hearing.

34

The applicant claims that the Court should:

– declare the application admissible;

– establish that Decision 2013/255, Regulation No 36/2012, the initial measures and the retention

measures are unlawful, in so far as they concern him;

– consequently, annul Decision 2013/255, Regulation No 36/2012, the initial measures and the

retention measures, in so far as they concern him;

– first, order the Council to pay him (i) the sum of EUR 10 000 and (ii) the sum of EUR 15 000 per

week from 18 February 2020 as compensation for the material and non-material loss,

respectively, suffered as a result of the adoption of the restrictive measures taken against him,

and then, second, order the Council to compensate him for any future loss that he suffers as a

result of the adoption of the restrictive measures taken against him;

– order the Council to pay the costs.

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35

With regard to the three requests for compensation made by the applicant, the latter stated, in his

reply, that the date of the end of the relevant period used to determine the amount of

compensation requested should be the date on which the General Court’s judgment is given.

36

The Council contends that the Court should:

– dismiss the action in its entirety;

– in the alternative, if the initial measures and retention measures (together, ‘the contested

measures’) are annulled in so far as they apply to the applicant, order that Implementing

Decision 2020/212 and Decision 2020/719 continue to have effect in so far as they apply to the

applicant until the date of effect of the partial annulment of Implementing Regulations

2020/211 and 2020/716;

– order the applicant to pay the costs.

III. Law

…

B. The claim for annulment

…

2. Substance

…

(a) The first plea, alleging infringement of the rights of defence

…

(1) The first limb, alleging an infringement of the right to be heard and of the right of access to the

file

…

(ii) Following publication of the initial measures

– The review of the initial measures

84 First, with regard to the initial measures, the applicant is essentially asserting that the time limit

for the submission of an application for review and for observations was too short, and thus did

not allow him to be heard in a meaningful and effective way. That time limit commenced on the

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day of publication in the Official Journal of the notice described in paragraph 13 above, namely

18 February 2020, and ended on the final date indicated in that notice for the submission of such

applications, namely 1 March 2020.

85 Furthermore, the applicant claims that there is an imbalance between the period allowed for the

submission of an application for review and for observations and the period for consideration of

such applications and observations by the Council. That period for consideration commenced on

the final date of the submission period, namely 1 March 2020, and ended on the expiry date of the

final extension of Decision 2013/255 imposed in accordance with Council Decision

(CFSP) 2019/806 of 17 May 2019 (OJ 2019 L 132, p. 36), namely 1 June 2020.

86 Second, with regard to the retention measures, the applicant argues essentially that the fact that,

according to the notice published in the Official Journal on 29 May 2020, any observations

submitted by him would be considered for the purposes of the following annual review of the

lists in question, rather than being analysed immediately, is not consistent with the right to be

heard.

87 Third, the applicant claims that the fact that the Council decides to examine the lists in question

once a year does not comply with Decision 2013/255, as amended by Decision 2015/1836, and

with Regulation No 36/2012, as amended by Regulation No 2015/1828. The applicant asserts

that, in accordance with Article 32(4) of Regulation No 36/2012, as amended by Regulation

No 2015/1828, the Council is required to review the lists in question at regular intervals and at

least every 12 months. Thus, the annual review is only part of the review obligation under those

texts.

88 The Council challenges the applicant’s arguments.

89 First, with regard to whether the applicant’s right to be heard has been infringed because the time

limit for lodging an application for review was too short, it should be noted first of all that the time

limit in question, which is common ground between the parties, was eight working days from the

day of publication in the Official Journal of the notice described in paragraph 13 above, namely

18 February 2020, until the deadline indicated by that notice for the submission of such

applications, namely 1 March 2020.

90 It must be observed, according to Article 32(3) of Regulation No 36/2012, ‘where observations are

submitted, or where substantial new evidence is presented, the Council shall review its decision

and inform the natural or legal person, entity or body accordingly.’ Furthermore, paragraph 4 of

that article adds that ‘the lists in Annexes II and IIa shall be reviewed at regular intervals and at

least every 12 months.’ Therefore, it follows that Regulation No 36/2012 does not set a time limit

for the submission of an application for review or for observations.

91 There is therefore nothing to preclude the applicant from submitting an application for review or

observations at any time, in accordance with Article 32(3) of Regulation No 36/2012, as amended

by Regulation No 2015/1828. In that regard, the Council noted that it responded to those

observations without waiting for the annual review phase.

92 Moreover, it must be observed that compliance with a reasonable time requirement in the

conduct of administrative procedures constitutes a general principle of EU law, the observance of

which is ensured by the EU Courts and is laid down as a component of the right to good

administration in Article 41(1) of the Charter (see, by analogy, judgments of 11 April 2006,

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Angeletti v Commission, T-394/03, EU:T:2006:111, paragraph 162, and of 6 December 2012,

Füller-Tomlinson v Parliament, T-390/10 P, EU:T:2012:652, paragraph 115). The case-law also

suggests that where the duration of a procedure is not set by a provision of EU law, the

‘reasonableness’ of the period of time is to be appraised in the light of all of the circumstances

specific to each case and, in particular, the importance of the case for the person concerned, its

complexity and the conduct of the parties to the case (see, by analogy, judgment of

28 February 2013, Review Arango Jaramillo and Others v EIB, C-334/12 RX-II, EU:C:2013:134,

paragraph 28 and the case-law cited).

93 On that point, the Council notes, first, that it needed a period of three months, from 1 March 2020

until the expiry date of the final extension of Decision 2013/255 under Decision 2019/806, namely

1 June 2020, to carry out the annual review. According to the Council, that review involves an

analysis of the individual situation of nearly 350 persons and bodies whose names appear on the

lists in question. Second, the Council asserts that it responds to the observations submitted and

offers the possibility of submitting new comments, such that a process of exchange between it

and the persons and bodies that have submitted observations takes place over that three-month

period.

94 It is worth noting that a period of three months to examine the individual situation of nearly 350

persons and bodies is relatively short. Under those circumstances, setting a final date for the

submission of applications for review is a legitimate means for the Council to ensure that it

receives the observations and evidence submitted by the persons and bodies concerned before

the end of the review phase and has sufficient time to examine those elements with the necessary

diligence. Admittedly, the time limit of 12 days resulting from the final date set in the present case

was a short period, in that it required the applicant to examine the content of the notice and the

grounds to be relied on and to draft observations that could be accompanied by evidence.

Nonetheless, there are no formal requirements laid down for the submission of an application for

review. Furthermore, contrary to the applicant’s contention, there is no requirement to be

represented by a lawyer in order to file such an application. Moreover, the lodging of an

application for review establishes a dialogue between the Council and the person or body

concerned that is not subject to any limitations in terms of time frame or the number of letters

exchanged. That means that there is nothing to prevent an application for review containing

summary observations from being lodged within the prescribed time limit and then being

supplemented, where applicable, by additional observations or evidence as part of a subsequent

adversarial process of exchange with the Council. Thus, in itself, the time limit of 12 days

provided by the Council in the notice published in the Official Journal on 18 February 2020

(described in paragraph 13 above) for the submission of applications for review does not

constitute grounds for considering that the applicant’s right to be heard has been infringed.

95 In any event, as has been established in paragraph 91 above and, further, acknowledged by the

Council, there is nothing to prevent the applicant from submitting an application, or

observations, at any time, even after that deadline, in accordance with Article 32(3) of Regulation

No 36/2012. In this respect, the final date set by the Council in the notice published in the Official

Journal of 18 February 2020 (described in paragraph 13 above) was merely indicative. Indeed, such

an indication is useful in order to allow the persons and bodies concerned to submit their

applications for review before the review phase – an internal Council event they can have no

knowledge of – is completed, and before new instruments are adopted by the Council.

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96 Second, with respect to the arguments put forward by the applicant whereby, on the one hand, any

observations submitted are not examined immediately and, on the other hand, the Council

decides to examine the lists in question only once a year, it should be noted – as stated in

paragraphs 91 and 95 above – that the applicant can submit observations at any time, to which

the Council will provide a response without waiting for the annual review phase.

97 It should also be noted, on the basis of Article 34 of Decision 2013/255, as amended by Decision

2015/1836, that that decision is under constant review, such that it can be extended, or amended if

applicable, if the Council believes that its objectives are not being achieved. That is demonstrated,

as the Council rightly points out, by the fact that the initial measures were adopted not as a result

of an annual review carried out in accordance with Article 32(4) of Regulation No 36/2012, as

amended by Regulation No 2015/1828, but in February 2020.

98 The arguments put forward by the applicant based on the limited period allowed for the

submission of an application for review of the initial measures and the fact that the Council, by

examining the lists only once a year, did not immediately examine his observations, should be

dismissed.

…

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby:

1. Dismisses the action.

2. Orders Maher Al-Imam to pay the costs.

Gervasoni

Frendo

Martín y Pérez de Nanclares

Delivered in open court in Luxembourg on 22 September 2021.

[Signatures]

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حكم من المحكمة العامة الأوروبية في دعوى ماهر الإمام ضد إدراجه في عقوبات سورية.