European Union

Makhlouf v Council of the European Union

The applicant was an officer of Syrian nationality, with the rank of lieutenant-colonel. He was an officer of the Syrian General Intelligence Directorate. The Council of the European Union, in condemnation of the violent repression of peaceful protects in various locations across Syria, adopted on 9 May 2011, Decision 2011/273/CFSP, concerning restrictive measures against Syria.

The names of the persons responsible for the violent repression against the civilian population in Syria and of the persons associated with them were listed in the annex to Decision 2011/273. The applicant’s name was included in that list. By implementing Decision 2011/273/CFSP, the Council amended Decision 2011/273, with a view to applying restrictive measures, including the freezing of funds, financial assets 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 were imposed.

By Decision 2011/522/CFSP of 2 September 2011, amending Decision 2011/, the Council provided that the scope of its application, including that of its annex, should also cover ‘persons… benefiting from or supporting the regime, and persons associated with them, as listed in the annex’. The applicant was included on the list at issue and restrictive measures were imposed upon him. He applied, among other things, for the annulment of Council Implementing Decision 2011/302, implementing Decision 2011/273/CFSP, and of Council Decision 2012/739/CFSP of 29 November 2012 concerning restrictive measures against Syria.

The applicant alleged: (i) breach of the rights of defence, the right to a fair hearing and to effective judicial protection (the first plea); (ii) breach of the obligation to state reasons (the second plea); (iii) a manifest error of assessment (the third plea); and (iv) breach of the principle of proportionality, the right to property and the right to respect for private life (the fourth plea). The applicant contended that the ground put forward by the Council relating to his status as officer of the General Intelligence Directorate was factually incorrect because he had never belonged to the Syrian security or general intelligence services.  

In respect of issue (i), the applicant contended that he had had sanctions imposed on him without his having previously been heard, having the opportunity to defend himself or having any knowledge of the basis on which the measures at issue had been taken. He further contended that the Council had failed to comply with its obligation to notify him of its decision.

The Court ruled:

(1) Due to the precautionary nature and the purpose of the asset freezing measures, their adoption could not be the subject of a preliminary hearing of the persons concerned without thereby running the risk of jeopardising the effectiveness of those measures and, consequently, of the objective pursued by the European Union. In accordance with the case-law concerning the rights of defence, the European Union authorities could not be required to communicate those grounds before the name of a person or entity was entered on the list imposing restrictive measures. It was apparent that the applicant had been enabled to defend himself effectively against the contested measures following their publication in the official journal since he had brought an action before the court within the prescribed period (see [27], [28], [38] of the judgment).

The applicant’s arguments in respect of the first plea were rejected (see [27] of the judgment)

(2) It was settled law that the purpose of the obligation to state the reasons on which an act adversely affecting an individual was based, which was a corollary of the principle of respect for the rights of defence, was, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act was well founded or whether it was vitiated by a defect which might permit its legality to be contested before the European Union Courts and, second, to enable those Courts to review the legality of that act (see [60] of the judgment).

The plea alleging breach of the obligation to state reasons was rejected. The applicant, as an officer of the General Intelligence Directorate, had full knowledge of the general and specific context in which the measures relating to him had been adopted. It should be noted that the first three recitals in the preamble to Decision 2011/273 set out clearly the general reasons for the adoption of restrictive measures against Syria by the European Union. The statement of reasons in the annex to Implementing Decision 2011/302 complied with the rules of the case-law and was capable of allowing the applicant to defend himself and the Courts of the European Union to exercise their powers of review (see [57], [67], [71], [72] of the judgment).

The second plea was rejected as unfounded (see [56], [75] of the judgment).

Corus UK Ltd v European Commission: C-199/99 P [2003] All ER (D) 36 (Oct) considered; Elf Aquitaine SA v European Commission: T-299/08 [2011] ECR I-8947 considered; Council for the European Union v Bamba (French Republic and European Commission, intervening) [2013] 1 CMLR 1434 considered.

(3) The applicant had not provided any material evidence to justify a finding that the Council had committed a manifest error of assessment (see [84] of the judgment).

 The third plea alleging a manifest error of assessment had to be rejected (see [85] of the judgment).

(4) It was settled law that the fundamental rights to property and private and family life did not enjoy, under European Union law, absolute protection, but had to be viewed in relation to their function in society. Consequently, the exercise of those rights might be restricted, provided that those restrictions corresponded to objectives of public interest pursued by the European Union and did not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the rights thus guaranteed (see [97[ of the judgment).

Concerning the appropriateness of the measures at issue with reference to an objective of general interest as fundamental to the international community as the protection of civilian populations, the freezing of the funds, financial assets 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 could not, in themselves, be regarded as inappropriate. Given the overriding importance of the protection of civilian populations in Syria and the derogations provided for by the contested decisions, the restrictions on the applicant’s right to property and respect for private life caused by the contested decisions are not disproportionate (see [100], [106] of the judgment).

The fourth plea was rejected and the action would be dismissed (see [89], [107] of the judgment).

Kadi (Spain, interveners) Al Barakaat International Foundation v EU Council: C-402/05P and C-415/05P [2010] All ER (EC) 1105 considered; Bosphorus Hava Yollari Turizm Ticaret AS v Minister for Transport, Energy and Communications, Ireland: C-84/95 [1996] ECR I-3953 considered.