Judgment of the General Court (Ninth Chamber, Extended Composition) of 12 February 2020

Acts of the institutionsStatement of reasonsObligationScopeRestrictive measures directed against the Democratic Republic of the CongoFreezing of funds of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violationsMinimum requirements

(Art. 296 TFEU; Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2017/2282, Annex II)

(see paras 32, 34-36)

Common foreign and security policyRestrictive measures directed against the Democratic Republic of the CongoFreezing of funds of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violationsObligation to identify in the statement of reasons individual and specific reasons justifying such measuresDecision falling within a context known to the person concerned, enabling him to understand the scope of the measure taken against him

(Art. 296 TFEU; Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2017/2282, Annex II)

(see paras 33, 41-45)

EU lawPrinciplesRights of defenceRight to effective judicial protectionRestrictive measures directed against the Democratic Republic of the CongoFreezing of funds of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violationsObligation to disclose individual and specific grounds for the decisions adoptedObligation to enable the person concerned effectively to put forward his point of view on the grounds held against himScope

(Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2017/2282, Annex II)

(see paras 49, 50, 52)

Common foreign and security policyRestrictive measures directed against the Democratic Republic of the CongoFreezing of fundsRights of defenceSubsequent decision maintaining the name of the applicant on the list of persons covered by those measuresNo new groundsObligation for the Council to disclose to the person concerned new evidence taken into account during its periodic review of the restrictive measuresCommunication of new evidence to the person concerned in order to seek his observationsNoneInfringement of the rights of the defence

(Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2017/2282, Art. 9(2) and Annex II)

(see paras 54-61, 64, 67)

EU lawPrinciplesRights of defenceRestrictive measures directed against the Democratic Republic of the CongoObligation for the institutions to disclose to the person concerned new evidence taken into account during their periodic review of the restrictive measuresScopeUnlawfulness of the act depending on proving the procedural relevance of the infringement of that obligationNo effect in the present case

(Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2017/2282, Annex II)

(see paras 68-71, 73, 76)

Common foreign and security policyRestrictive measures directed against the Democratic Republic of the CongoScopePersons who have prevented a consensual and peaceful crisis exist strategy aimed at holding elections, in particular by acts of violence, repression, incitement to violence, or by undermining the rule of lawDefinitionPersons who have committed such acts in the past, notwithstanding the lack of evidence establishing current involvement in such actsIncludedInterpretation corroborated by the possibility of renewing the restrictive measuresEffectiveness

(Council Decision 2010/788/CFSP, as amended by Decisions (CFSP) 2016/2231 and (CFSP) 2017/2282, Arts 3(2)(a) and 9(2))

(see paras 81-84, 86)

European UnionJudicial review of the legality of the acts of the institutionsRestrictive measures directed against the Democratic Republic of the CongoScope of the reviewInclusion of the applicant’s name on the list annexed to the contested decision by virtue of his dutiesDocuments publicly available establishing serious human rights violationsProbative valuePrinciple of unfettered assessment of the evidence

(Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2017/2282, Annex II)

(see paras 90-93,102, 103)

Common foreign and security policyRestrictive measures directed against the Democratic Republic of the CongoFreezing of funds of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violationsRestrictions on the right to propertyBreach of principle of proportionalityNone

(Arts 3(5), 21(2)(b) and (c) and 29 TEU; Art. 215(2) TFEU; Charter of Fundamental Rights of the European Union, Arts 17(1) and 52(1); Council Decision 2010/788/CFSP, as amended by Decisions (CFSP) 2016/2231 and (CFSP) 2017/2282, Art. 5(1))

(see paras 109-122)

EU lawPrinciplesFundamental rightsPresumption of innocenceDecision to freeze funds taken against certain persons and entities in view of the situation in the Democratic Republic of the CongoCompatibility with that principleConditions

(Charter of Fundamental Rights of the European Union, Art. 48(1); Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2017/2282, Arts 5(1) and (9)

(see paras 125-130)

Plea of illegalityScopeMeasures the illegality of which may be pleadedGeneral measure providing the basis of the contested decisionNeed for a legal connection between the contested measure and the contested general measure –NoneInadmissibility

(Art. 277 TFEU; Council Decision 2010/788/CFSP, Art. 3(2)(a); Council Regulation No 1183/2005, Art. 2b(1)(a))

(see paras 134, 135)

European UnionJudicial review of the legality of the acts of the institutionsRestrictive measures directed against the Democratic Republic of the CongoScope of the reviewRestricted review for general rulesCriteria for adopting restrictive measuresObstruction of a consensual and peaceful crisis exist strategy aimed at holding elections, in particular by acts of violence, repression, incitement to violence, or by undermining the rule of lawScopeCompliance with the principle of legal certainty requiring clarity, precision and foreseeability of the effects of legal rules

(Arts 3(5) and 21(2)(b) and (c) TEU; Art. 275, second para. TFEU; Council Decisions 2010/788/CFSP, Art. 3(2)(a) and (CFSP) 2016/2231, Recitals 3 and 4; Council Regulation No 1183/2005)

(see paras 136-146)

Re:

Application based on Article 263 TFEU seeking annulment of Council Decision (CFSP) 2017/2282 of 11 December 2017 amending Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo (OJ 2017 L 328, p. 19), in so far as it concerns the applicant.

Operative part

The Court:

Dismisses the action;

Orders Mr John Numbi to pay the costs.