خلاصة الحكم التالي الذي يتعلق بحكم قضائي صادر من الاتحاد الأوروبي يلغي حكم سابق يتعلق بتجميد أصول يملكها الرئيس السابق مبارك وأسرته، حيث أن الحكم السابق اعتمد على ما قدمته السلطات المصرية من أدلة على احترام حقوق الدفاع في محاكمات مبارك، وهو ما اتضح عدم صحته
الدرس المستفاد، هو أن احترام سيادة القانون في الداخل له انعاكاساته في الخارج. وأن الثغرات التي انتهت بمسئول مصري كبير الي الاحتفاظ بأصوله المالية هو واسرته في الخارج مازالت قائمة تحت سمع وبصر المسئولين عن انفاذ القانون في مصر. وأن ما حدث في الماضي مازال قابلاً بل ويحدث بالفعل
JUDGMENT OF THE COURT (Seventh Chamber)
3 December 2020 (*)
(Appeal – Restrictive measures adopted in view
of the situation in Egypt – Freezing of funds and economic resources –
List of the persons, entities and bodies covered by the freezing of
funds and economic resources – Maintenance of the applicants’ names –
Decision of an authority of a third State – Obligation of the Council of
the European Union to verify that that decision was taken in accordance
with the rights of the defence and the right to effective judicial
protection – Obligation to state reasons)
In Joined Cases C‑72/19 P and C‑145/19 P,
TWO APPEALS under Article 56 of the Statute of
the Court of Justice of the European Union, lodged on 30 January and
20 February 2019 respectively,
Suzanne Saleh Thabet, residing in Cairo (Egypt),
Gamal Mohamed Hosni Elsayed Mubarak, residing in Cairo,
Alaa Mohamed Hosni Elsayed Mubarak, residing in Cairo,
Heddy Mohamed Magdy Hussein Rassekh, residing in Cairo,
Khadiga Mahmoud El Gammal, residing in Cairo,
represented by Lord Anderson QC, B. Kennelly
QC, J. Pobjoy, Barrister, and G. Martin, C. Enderby Smith and F. Holmey,
Solicitors,
appellants in Case C‑72/19 P,
the other party to the proceedings being:
Council of the European Union, represented initially by J. Kneale and V. Piessevaux, and subsequently by A. Antoniadis and V. Piessevaux, acting as Agents,
defendant,
and
Gamal Mohamed Hosni Elsayed Mubarak, acting in his own name and
on behalf of Ms Suzanne Saleh Thabet and Mr Alaa Mohamed Hosni Elsayed
Mubarak, all three heirs of Mr Mohamed Hosni Elsayed Mubarak, residing
in Cairo, represented by Lord Anderson QC, B. Kennelly QC, J. Pobjoy,
Barrister, and G. Martin, C. Enderby Smith and F. Holmey, Solicitors,
appellant in Case C‑145/19 P,
the other party to the proceedings being:
Council of the European Union, represented initially by J. Kneale and V. Piessevaux, and subsequently by M. Balta and V. Piessevaux, acting as Agents,
defendant,
THE COURT (Seventh Chamber),
composed of A. Kumin (Rapporteur), President of
the Chamber, A. Arabadjiev, President of the Second Chamber, and T. von
Danwitz, Judge,
Advocate General: E. Sharpston,
Registrar: A. Calot Escobar,
having regard to the written procedure,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 By their appeal in Case C‑72/19 P,
Ms Suzanne Saleh Thabet, Mr Gamal Mohamed Hosni Elsayed Mubarak, Mr Alaa
Mohamed Hosni Elsayed Mubarak, Ms Heddy Mohamed Magdy Hussein Rassekh
and Ms Khadiga Mahmoud El Gammal (‘Ms Suzanne Thabet, Mr Gamal, Mr Alaa
Mubarak, Ms Heddy Rassekh and Ms Khadiga El Gammal’ respectively), ask
the Court to set aside the judgment of the General Court of the European
Union of 22 November 2018, Saleh Thabet and Others v Council
(T‑274/16 and T‑275/16, not published, ‘the judgment under appeal in
Case C‑72/19 P’, EU:T:2018:826), by which the General Court dismissed
their action seeking the annulment of Council Decision (CFSP) 2016/411
of 18 March 2016 amending Decision 2011/172/CFSP concerning restrictive
measures directed against certain persons, entities and bodies in view
of the situation in Egypt (OJ 2016 L 74, p. 40), of Council Decision
(CFSP) 2017/496 of 21 March 2017 amending Decision 2011/172/CFSP
concerning restrictive measures directed against certain persons,
entities and bodies in view of the situation in Egypt (OJ 2017 L 76,
p. 22) (together ‘the acts at issue in Case C‑72/19 P’) and of Council
Implementing Regulation (EU) 2017/491 of 21 March 2017 implementing
Regulation (EU) No 270/2011 concerning restrictive measures directed
against certain persons, entities and bodies in view of the situation in
Egypt (OJ 2017 L 76, p. 10), in so far as those acts concern them.
2 By his appeal in Case C‑145/19 P, Mr Gamal
Mubarak asks the Court to set aside the judgment of the General Court
of the European Union of 12 December 2018, Mubarak v Council
(T‑358/17, not published, ‘the judgment under appeal in Case
C‑145/19 P’, EU:T:2018:905), by which the General Court dismissed the
action of Mr Mohamed Hosni Elsayed Mubarak (‘Mr Hosni Mubarak’) seeking
the annulment of Decision 2017/496, of Implementing Regulation 2017/491,
of Council Decision (CFSP) 2018/466 of 21 March 2018 amending Decision
2011/172/CFSP concerning restrictive measures directed against certain
persons, entities and bodies in view of the situation in Egypt (OJ 2018
L 781, p. 3), and of Council Implementing Regulation (EU) 2018/465 of
21 March 2018 implementing Regulation (EU) No 270/2011 concerning
restrictive measures directed against certain persons, entities and
bodies in view of the situation in Egypt (OJ 2018 L 781, p. 1) (together
‘the acts at issue in Case C‑145/19 P’) in so far as those acts concern
Mr Hosni Mubarak.
Legal context and background to the dispute
3 On 21 March 2011, the Council of the
European Union adopted Decision 2011/172/CFSP concerning restrictive
measures directed against certain persons, entities and bodies in view
of the situation in Egypt (OJ 2011 L 76, p 63).
4 In accordance with Article 1(1) of that decision:
‘All funds and economic resources belonging to,
owned, held or controlled by persons having been identified as
responsible for misappropriation of Egyptian State funds, and natural or
legal persons, entities or bodies associated with them, as listed in
the annex, shall be frozen.’
5 Also on 21 March 2011, the Council adopted
Regulation (EU) No 270/2011 concerning restrictive measures directed
against certain persons, entities and bodies in view of the situation in
Egypt (OJ 2011 L 76, p. 4).
6 Under Article 2(1) of that regulation:
‘All funds and economic resources belonging to,
or owned, held or controlled by, persons who, as referred to in
Article 1(1) of Decision 2011/172/CFSP, have been identified as being
responsible for the misappropriation of Egyptian State funds, and
natural or legal persons, entities and bodies associated with them, as
listed in Annex I, shall be frozen.’
7 Article 3(1) of that regulation provides:
‘Annex I shall include the grounds for listing of listed natural or legal persons, entities and bodies concerned.’
8 The lists set out, respectively, in the
annex to Decision 2011/172 and Annex I to Regulation No 270/2011 (‘the
lists at issue’) included the names, in particular, of Mr Hosni Mubarak,
described as being a ‘former President of the Arab Republic of Egypt’,
Ms Suzanne Thabet, his wife, Mr Alaa Mubarak, the elder son of Mr Hosni
Mubarak, Ms [Heddy Rassekh], his wife, Mr Gamal Mubarak, the younger son
of Mr Hosni Mubarak, and Ms Khadiga El Gammal, his wife. The grounds
for their inclusion on those lists were identical and were worded as
follows:
‘Person subject to judicial proceedings by the
Egyptian authorities in respect of the misappropriation of State Funds
on the basis of the United Nations Convention against corruption.’
9 Subsequently, the names of those natural
persons were maintained on the lists at issue by the decisions which
successively amended Decision 2011/172, in particular by Decisions
2016/411, 2017/496 and 2018/466, and by the implementing regulations
which successively amended Regulation No 270/2011, in particular by
Implementing Regulations 2017/491 and 2018/465.
10 However, with effect from the adoption of
Decision 2017/496 and Implementing Regulation 2017/491, the reason for
the listing became the following:
‘Person subject to judicial proceedings or an
asset recovery process by the Egyptian authorities following a final
court ruling in respect of the misappropriation of State Funds on the
basis of the United Nations Convention against corruption.’
The proceedings before the General Court and the judgments under appeal
Case C‑72/19 P
11 By applications lodged at the General
Court Registry on 27 May 2016, Ms Saleh Thabet, of the one part (Case
T‑274/16), and Mr Gamal Mubarak, Mr Alaa Mubarak, Ms Heddy Rassekh and
Ms Khadiga El Gammal, of the other part (Case T-275/16), brought an
action seeking the annulment of Decision 2016/411 in so far as it
concerned them, advancing six pleas in law, first, raising a plea of
illegality alleging a lack of legal basis and infringement of the
principle of proportionality; second, alleging infringement of Article 6
TEU, read in conjunction with Articles 2 and 3 TEU, and of Articles 47
and 48 of the Charter of Fundamental Rights of the European Union (‘the
Charter’), in that the Council took the view that the judicial
proceedings in Egypt involving them were conducted in accordance with
fundamental rights; third, alleging infringement of the general criteria
of Article 1(1) of Decision 2011/172 and of Article 2(1) of Regulation
No 270/2011; fourth, alleging infringement of the obligation to state
reasons; fifth, alleging infringement of the rights of the defence, the
right to sound administration and the right to effective judicial
protection; and, sixth, alleging infringement of the right to property
and damage to their reputations.
12 By documents lodged at the Registry of the
General Court on 31 May 2017 the applicants requested leave to amend
their applications, in order also to have Decision 2017/496 and
Implementing Regulation 2017/491 annulled, in so far as those acts
concerned them.
13 By the judgment under appeal in Case
C‑72/19 P, the General Court joined Cases T‑274/16 and T‑275/16 and
dismissed the actions.
14 After rejecting as inadmissible the claims
seeking the annulment of Implementing Regulation 2017/491, the General
Court rejected all the pleas raised in support of the claims seeking the
annulment of Decisions 2016/411 and 2017/496 and, consequently,
rejected those claims as unfounded.
Case C‑145/19 P
15 By application lodged at the General Court
Registry on 31 May 2017, Mr Hosni Mubarak brought an action seeking the
annulment of Decision 2017/496 and Implementing Regulation 2017/491 in
so far as those acts concerned him, advancing five pleas in law, first,
raising a plea of illegality alleging a lack of legal basis and
infringement of the principle of proportionality; second, alleging
infringement of Article 6 TEU, read in conjunction with Articles 2 and 3
TEU, and of Articles 47 and 48 of the Charter, in so far as the Council
took the view that the judicial proceedings in Egypt involving him were
conducted in accordance with fundamental rights; third, alleging
infringement of the general criteria of Article 1(1) of Decision
2011/172 and Article 2(1) of Regulation No 270/2011; fourth, alleging
infringement of the rights of the defence, the right to sound
administration and the right to effective judicial protection; and
fifth, alleging infringement of the right to property and damage to his
reputation.
16 By document lodged at the Registry of the
General Court on 31 May 2018, Mr Hosni Mubarak requested leave to amend
his application in order also to have Decision 2018/466 and Implementing
Regulation 2018/465 annulled, in so far as those acts concerned him.
17 By the judgment under appeal in Case C‑145/19 P, the General Court rejected each of those pleas and dismissed the action.
Procedure before the Court of Justice and forms of order sought
18 By applications lodged at the Registry of
the Court of Justice on 30 January and 20 February 2019, the appellants
in Case C‑72/19 P and Mr Hosni Mubarak brought their respective appeals
in Cases C‑72/19 P and C‑145/19 P.
19 Mr Hosni Mubarak died on 25 February 2020.
20 By letter lodged at the Registry of the
Court on 17 April 2020, Mr Hosni Mubarak’s representative produced to
the Court a certificate attesting to the death of Mr Hosni Mubarak and
stated that Mr Gamal Mubarak, also one of the appellants in Case
C‑72/19 P, intended, as the successor to Mr Hosni Mubarak, to pursue the
proceedings in Case C‑145/19 P in his own name and in the names of
Ms Saleh Thabet and Mr Alaa Mubarak, who were also successors to
Mr Hosni Mubarak, as evidenced by the document signed by each of those
successors and annexed to that letter. That representative nevertheless
stated that the Egyptian family courts had not yet issued the
certificate of succession designating Mr Hosni Mubarak’s legal
successors.
21 By decision of the President of the Court
of 27 April 2020, adopted under Article 55(1)(b) of the Rules of
Procedure of the Court of Justice, the proceedings in Case C‑145/19 P
were stayed until the appointment of Mr Hosni Mubarak’s legal
successors.
22 By letter lodged at the Registry of the
Court on 30 April 2020, the late Mr Hosni Mubarak’s representative
forwarded the certificate of succession issued by the Egyptian family
courts. That certificate stated that Ms Saleh Thabet, Mr Alaa Mubarak
and Mr Gamal Mubarak were the only heirs of Mr Hosni Mubarak.
23 By letter of 8 May 2020, the Registry of
the Court informed the parties in Case C‑145/19 P that the proceedings
had been resumed and requested them to submit their observations on the
possible joinder of that case with Case C‑72/19 P, by virtue of
Article 54(2) of the Rules of Procedure of the Court of Justice. The
parties stated that they did not object to that joinder.
24 By decision of the President of the Second
Chamber of 1 July 2020, acting at that time as President of the Seventh
Chamber, Cases C‑72/19 P and C‑145/19 P were joined for the purposes of
the judgment.
25 By their appeal in Case C‑72/19 P, the appellants in that case claim that the Court should:
– set aside the judgment under appeal in Case C‑72/19 P;
– itself give final judgment in this case, annulling the acts at issue in Case C‑72/19 P, in so far as they concern them;
– in the alternative, remit the case to
the General Court for judgment, in line with the legal assessment of the
Court of Justice; and
– order the Council to pay the costs relating to the present appeal and the actions for annulment.
26 By his appeal in Case C‑145/19 P, the appellant in that case claims that the Court should:
– set aside the judgment under appeal in Case C‑145/19 P;
– itself give final judgment in the
matter, annulling the acts at issue in Case C‑145/19 P, in so far as
they concerned Mr Hosni Mubarak;
– in the alternative, remit the case to
the General Court for judgment, in line with the legal assessment of the
Court of Justice; and
– order the Council to pay the costs relating to the present appeal and the action for annulment.
27 In its responses in Cases C‑72/19 P and C‑145/19 P, the Council contends that the Court should:
– dismiss the appeals in those cases;
– order the appellants to pay the costs.
The appeal in Case C‑72/19 P
28 The appellants raise six grounds in
support of their appeal. By their first ground of appeal, which is
divided into four parts, they allege that the General Court made an
error of assessment in finding that the Council was not required to
ensure that the Egyptian authorities had acted in accordance with their
fundamental rights. By their second ground of appeal, they allege that
the General Court erred in finding that the Council was not required to
verify that the judicial proceedings and investigations involving the
appellants concerned acts that are such as to undermine the rule of law
in Egypt. By the third to sixth grounds of appeal, they allege that the
General Court vitiated the judgment under appeal in Case C‑72/19 P by a
number of errors of law in holding that the Council had not committed a
manifest error of assessment in relying on Cases No 10427 (allegations
relating to Al Watany Bank), No 8897 (renovation of a private dwelling),
No 756 (allegations relating to the gifts from the Al-Ahram
newspaper), No 53 (allegations relating to the gifts from the newspaper
Dar El Tahrir) and No 44 (allegation of money laundering).
29 Moreover, and as is expressly stated in
paragraph 1 of the appeal, the appellants must be deemed to be seeking
to have the judgment under appeal set aside in Case C‑72/19 P only in so
far as, by that judgment, the General Court rejected their claims for
annulment of the acts at issue in that case. As to the remainder, the
appellants have not raised any ground of appeal or argument against the
rejection as inadmissible by the General Court of the claims for
annulment of Implementing Regulation 2017/491, made in their pleadings
amending the form of order sought in Cases T‑274/16 and T‑275/16.
Arguments of the parties
30 By the first part of the first ground of
appeal, the appellants submit that the General Court made a manifest
error of law as regards the burden of proof in finding, in
paragraphs 99, 100, 114, 126, 128, 131, 137, 315, 316, 328, 329 and 366
of the judgment under appeal in Case C‑72/19 P, that, since they had not
put forward objective, reliable, specific and consistent evidence such
as to raise legitimate questions concerning the observance of their
fundamental rights by the Egyptian authorities, the Council was not
required to carry out further checks in that regard with those
authorities.
31 The Council is of the view that the first
part of the first ground of appeal is unfounded. It points out that, in
accordance with the settled case-law of the Court of Justice, it is not
for the General Court to verify whether or not the investigations or
procedures concerning the appellants in Egypt were well founded, but
only to verify whether that was the case as regards the decisions to
adopt restrictive measures in the light of the evidence on which those
decisions were based (see, to that effect, judgments of 19 October 2017,
Yanukovych v Council, C‑599/16 P, not published, EU:C:2017:785, paragraph 69, and of 19 October 2017, Yanukovych v Council,
C‑598/16 P, not published, EU:C:2017:786, paragraph 72). Moreover, in a
situation where, as in the present case, a person covered by a
restrictive measure has not put forward any evidence capable of
demonstrating that his particular situation was affected by the alleged
problems in the judicial system of the third State concerned, the
Council is not bound to require additional verification on the part of
the third State concerned as to the facts alleged against that person
(see, to that effect, judgment of 19 October 2017, Yanukovych v Council,
C‑598/16 P, not published, EU:C:2017:786, paragraph 64). Lastly, where
such a person relies on general information relating to the human rights
situation in a third State, in order to demonstrate that the General
Court erred in law in finding that the Council had discharged its burden
of proof as regards the conformity of the relevant decision of the
third State concerned with that person’s fundamental rights, it is for
that person to provide concrete evidence of the effect of that general
situation on his particular situation (see, to that effect, judgment of
19 October 2017, Yanukovych v Council, C‑598/16 P, not published, EU:C:2017:786, paragraph 75.
Findings of the Court
32 In accordance with the case-law of the
Court, in a review of restrictive measures, the Courts of the European
Union must ensure the review, in principle a full review, of the
lawfulness of all Union acts in the light of the fundamental rights
forming an integral part of the EU legal order, which include, in
particular, observance of the rights of the defence and the right to
effective judicial protection (see, to that effect, judgment of
19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraphs 20 and 21 and the case-law cited, and judgment of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 22).
33 The effectiveness of the judicial review
guaranteed by Article 47 of the Charter requires, as the General Court
correctly pointed out in paragraph 112 of the judgment under appeal in
Case C‑72/19 P, that, as part of the review of the lawfulness of the
grounds which are the basis of the decision to include or to maintain a
person’s name on the lists of persons subject to restrictive measures,
the EU Courts are to ensure that that decision, which affects that
person individually, is taken on a sufficiently solid factual basis.
That entails a verification of the factual allegations in the summary of
reasons underpinning that decision, with the consequence that judicial
review cannot be restricted to an assessment of the cogency in the
abstract of the reasons relied on, but must concern whether those
reasons, or, at the very least, one of those reasons, deemed sufficient
in itself to support that decision, are substantiated (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 119; of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 42; of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 22; and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 23).
34 In the present case, as the General Court
noted in paragraphs 24, 143 and 337 of the judgment under appeal in Case
C‑72/19 P, the restrictive measures against the appellants were
maintained by the acts at issue in Case C‑72/19 P on the basis of the
listing criterion set out in Article 1(1) of Decision 2011/172. That
criterion provides for the freezing of the funds and economic resources
belonging to, owned, held or controlled by persons having been
identified as responsible for misappropriation of Egyptian State funds,
and natural or legal persons, entities or bodies associated with them.
35 In that regard, it is clear from
paragraphs 163, 166, 242, 244, 256, 339, 392 and 410 of the judgment
under appeal in Case C‑72/19 P that, in order to maintain the
restrictive measures to which the appellants were subject, the Council
took as its basis the existence of judicial proceedings against them in
Egypt for misappropriation of State funds. More specifically, the
Council relied on a set of documents sent to it by the Egyptian
authorities, which it then sent to those appellants, that is to say,
asset freezing orders (referred to in the letters from the Council sent
to them on 12 and 25 February 2016, 21 March 2016, 27 January 2017, 6
and 22 February 2017 and 22 March 2017), letters from the Egyptian
Prosecutor General’s Office of 2 January, 22 February and 5 December
2016 and 6 February 2017, and a memorandum from the National Committee
for the recovery of assets abroad.
36 It follows that the maintenance, by the
acts at issue in Case C‑72/19 P, of the restrictive measures taken
against the appellants is based on the decision of an authority of a
third State, which was competent to make it, to initiate and conduct
criminal investigation procedures concerning an offence of
misappropriation of public funds.
37 It is for the Council, before acting on
the basis of a decision of an authority of a third State with a view to
adopting or maintaining restrictive measures, to verify whether that
decision was adopted in accordance with the rights of the defence and
the right to effective judicial protection (judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 24; of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 26; and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 27).
38 In accordance with settled case-law, the
Council is obliged, when adopting restrictive measures, to act in
accordance with the fundamental rights that form an integral part of the
EU legal order, which include, as has been pointed out in paragraph 32
of the present judgment, observance of the rights of the defence and the
right to effective judicial protection (see, to that effect, 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, paragraphs 97 and 98; of 26 July 2017, Council v LTTE, C‑599/18 P, EU:C:2017:583, paragraph 25; of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 27; and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 28).
39 In that regard, the requirement for the
Council to verify that the decisions of third States on which it bases
the entry of a person or entity on a list of persons or entities whose
assets are to be frozen have been taken in accordance with those rights
is designed to ensure that they are included on that list only on a
sufficiently solid factual basis and, thus, to protect the persons or
entities concerned (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/18 P, EU:C:2017:583, paragraph 26; judgments of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 28, and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 29).
40 The Council cannot conclude that a listing
decision is taken on a sufficiently solid factual basis before having
itself verified that the rights of the defence and the right to
effective judicial protection were observed at the time of the adoption
of the decision by the third State in question on which it intends to
base the adoption of restrictive measures (judgments of 19 December
2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 34, and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 35).
41 Lastly, and while the decision to
maintain, by the acts at issue in Case C‑72/19 P, the freezing of the
appellants’ assets affects them individually, it must be added that, in
accordance with the case-law cited in paragraph 33 of the present
judgment, the EU Court must be satisfied, in the context of its review
of the lawfulness of the grounds on which such a decision is based,
that, at the very least, one of those grounds is sufficiently detailed
and specific, that it is substantiated and that it constitutes in itself
sufficient basis to support that decision (see, to that effect,
judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 72; judgments of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 38, and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 39).
42 Thus, although it is true that the listing
criterion referred to in paragraph 34 of the present judgment allows
the Council to base restrictive measures on a decision of a third State,
such as those referred to in the letters and memorandum of the Egyptian
authorities referred to in paragraph 35 of this judgment, the fact
remains that the obligation, on that institution, to observe the rights
of the defence and the right to effective judicial protection means that
it must satisfy itself that those rights were observed by the
authorities of the third State which adopted that decision (see, to that
effect, judgments of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 35, and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 36).
43 Consequently, as is clear from the
case-law cited in the preceding paragraph, it was for the General Court
to review whether the Council had itself verified that the rights of the
defence and the right to effective judicial protection had been
observed by the Egyptian authorities when those authorities adopted the
decisions which that institution took as its basis in order to maintain
the restrictive measures.
44 In the present case, the mere reference by
the Council to letters and a memorandum from the Egyptian authorities,
in which those authorities set out the manner in which the applicants’
fundamental rights had been observed and gave assurances in that regard,
while it did not dispute that it did not itself verify whether those
rights had been observed and even stated that further checks on its part
were not necessary in that respect, cannot suffice for the view to be
taken that the decision by the Council to maintain the appellants on the
lists at issue rests on a sufficiently solid factual basis, within the
meaning of the case-law cited in paragraphs 33, 39 and 40 of this
judgment.
45 That conclusion cannot be called into
question by the Council’s argument that the appellants have not put
forward any evidence capable of demonstrating that their particular
situation had been affected by the alleged problems of the Egyptian
judicial system. Indeed, in accordance with the settled case-law, it is
the task of the competent EU authority to establish, in the event of
challenge, that the reasons relied on against the person concerned are
well founded, and not the task of that person to adduce evidence of the
negative, that those reasons are not well founded (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 121; of 28 November 2013, Council v Fulmen and Mahmoudian, C-280/12 P, EU:C:2013:775, paragraph 66); of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 39; and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 40).
46 Moreover, the Court has stated that, in
the light of the settled case-law cited in paragraphs 38, 39 and 45
above, it cannot be inferred from the judgments of 19 October 2017, Yanukovych v Council (C‑598/16 P, not published, EU:C:2017:786), and of 19 October 2017, Yanukovych v Council
(C‑599/16 P, not published, EU:C:2017:785), to which the Council
referred, that the Council is not required to verify that the decision
of a third State on which it intends to base the adoption or maintenance
of restrictive measures has been taken in accordance with the rights of
the defence and the right to effective judicial protection (see, to
that effect, judgments of 19 December 2018, Azarov v Council, C‑530/17 P, EU:C:2018:1031, paragraph 40, and of 11 July 2019, Azarov v Council, C‑416/18 P, not published, EU:C:2019:602, paragraph 41).
47 It follows from the foregoing that the
General Court erred in law in finding, in paragraphs 126, 128, 131, 315,
316, 319, 328, 329 and 366 of the judgment under appeal in Case
C‑72/19 P, that the Council was not required, before relying on the
decisions of the Egyptian authorities in order to maintain the
restrictive measures to which the appellants were subject, to verify
that those decisions had been adopted in accordance with the rights of
the defence and the right to effective judicial protection, since the
appellants had not produced objective, reliable, specific and
consistent evidence such as to raise legitimate questions concerning the
observance of those rights.
48 It follows that the first part of the first ground of appeal must be upheld.
49 In the light of the foregoing
considerations, the judgment under appeal in Case C‑72/19 P must be set
aside in so far as, by that judgment, the General Court rejected the
forms of order sought in Cases T‑274/16 and T‑275/16 seeking the
annulment of the acts at issue in Case C‑72/19 P, without it being
necessary to rule on the other parts of that first ground of appeal or
on the other grounds of appeal.
The appeal in Case C‑145/19 P
50 The appellant raises four grounds in
support of his appeal. By his first ground of appeal, which is divided
into three parts, he alleges that the General Court made an error of
assessment in finding that the Council was not required to satisfy
itself that the Egyptian authorities had acted in accordance with
Mr Hosni Mubarak’s fundamental rights. By his second ground of appeal,
he alleges that the General Court erred in finding that the Council was
not required to verify that the judicial proceedings and investigations
involving Mr Hosni Mubarak concerned facts that are such as to undermine
the rule of law in Egypt. By his third and fourth grounds of appeal, he
alleges that the General Court wrongly held that the Council had not
committed a manifest error of assessment in relying on Cases No 8897
(renovation of a private home), No 756 (allegations relating to the
gifts from the Al-Ahram newspaper) and No 53 (allegations relating to
gifts from the newspaper Dar El Tahrir).
51 It is appropriate to examine the first part of the first ground of appeal.
Arguments of the parties
52 By the first part of the first ground of
appeal, the appellant complains that the General Court committed a
manifest error of law with regard to the burden of proof in finding, in
paragraphs 68, 69, 77, 81, 85, 95 and 97 of the judgment under appeal in
Case C‑145/19 P, that, since Mr Hosni Mubarak did not put forward
objective, reliable, specific and consistent evidence such as to raise
legitimate questions concerning the observance of his fundamental rights
by the Egyptian authorities, the Council was not required to carry out
that additional verification.
53 In response, the Council advances
arguments similar to those which it put forward in the appeal in Case
C‑72/19 P, as set out in paragraph 31 of the present judgment, and
submits that the first part of the first ground of appeal must be
rejected as unfounded.
Findings of the Court
54 In support of the first part of the first
ground of appeal, the appellant repeats, in similar terms, the arguments
put forward by the appellants in Case C‑72/19 P in the context of the
first part of the first ground of appeal in that case.
55 In the present case, as the General Court
noted in paragraphs 22, 36 and 101 of the judgment under appeal in Case
C‑145/19 P, the restrictive measures taken against Mr Hosni Mubarak were
maintained by the acts at issue in Case C‑145/19 P on the basis of the
listing criterion set out in Article 1(1) of Decision 2011/172. That
criterion provides, inter alia, for the freezing of funds and economic
resources belonging to persons who have been identified as responsible
for misappropriation of Egyptian State funds.
56 In that regard, it is apparent from
paragraphs 15, 17, 56, 147, 156 and 160 of the judgment under appeal in
Case C‑145/19 P that, in order to adopt those restrictive measures, the
Council took as its basis the existence of judicial proceedings in Egypt
against Mr Hosni Mubarak for misappropriation of State funds. More
specifically, the Council relied on a set of documents sent to it by the
Egyptian authorities, which it then sent to the person concerned,
namely asset freezing orders (referred to in the letters from the
Council sent to him on 9 February 2017, 22 March 2017 and 21 March
2018), and on the memoranda of the Egyptian authorities of 12 March
2015, 5 December 2016, 29 August 2017 and 20 February 2018.
57 It follows that the maintenance, by the
acts at issue in Case C‑145/19 P, of the restrictive measures taken
against Mr Hosni Mubarak is based on the decision of an authority of a
third State, which was competent to make it, to initiate and conduct
criminal investigation procedures concerning an offence of
misappropriation of public funds.
58 While it is true that the listing
criterion referred to in paragraph 55 of this judgment allows the
Council to base restrictive measures on the decision of a third State,
such as that referred to in the memoranda of the Egyptian authorities
sent to the Council, referred to in paragraph 56 of this judgment, it
follows from the case-law cited in paragraph 42 above that it was for
the General Court to verify that the Council had itself ascertained that
Mr Hosni Mubarak’s rights of the defence and right to effective
judicial protection had been observed by the Egyptian authorities when
adopting the decisions which the Council took as its basis to maintain
the restrictive measures.
59 In the present case, the mere reference by
the Council to memoranda from the Egyptian authorities in which they
explained the manner in which Mr Hosni Mubarak’s fundamental rights had
been observed and gave assurances in that regard, while the Council did
not dispute that it did not itself verify observance of those rights and
even stated that further checks on its part were not necessary in that
respect, cannot suffice for the view to be taken that the Council’s
decision to maintain Mr Hosni Mubarak on the lists at issue rests on a
sufficiently solid factual basis, within the meaning of the case-law
cited in paragraphs 33, 39 and 40 of the present judgment.
60 It follows from the foregoing that, in the
light of the case-law set out in paragraphs 32, 33, 37 to 42, 45 and 46
of the present judgment, the General Court erred in law in finding, in
paragraphs 68, 69, 77, 81, 85, 95 and 97 of the judgment under appeal in
Case C‑145/19 P, that the Council was not required, before relying on
the decisions of the Egyptian authorities to maintain the restrictive
measures to which Mr Hosni Mubarak was subject, to verify that those
decisions had been adopted in observance of the rights of the defence
and the right to effective judicial protection, since Mr Hosni Mubarak
had not put forward objective, reliable, specific and consistent
evidence such as to raise legitimate questions concerning the observance
of those rights.
61 It follows that the first part of the first ground of appeal must be upheld.
62 Having regard to the foregoing
considerations, it is appropriate to set aside the judgment under appeal
in Case C‑145/19 P, without it being necessary to rule on the other
parts of the first ground of appeal or on the other grounds of appeal.
The action before the General Court
63 In accordance with the first paragraph of
Article 61 of the Statute of the Court of Justice of the European Union,
if the Court of Justice quashes the decision of the General Court, it
may itself give final judgment in the matter, where the state of the
proceedings so permits.
64 In the present case, the Court has the
necessary information to give final judgment in the actions for
annulment in Joined Cases T‑274/16 and T‑275/16, in so far as, by those
actions, the appellants in Case C‑72/19 P sought annulment of the acts
at issue in Case C‑72/19 P and in the action for annulment in Case
T‑358/17, by which Mr Hosni Mubarak sought annulment of the acts at
issue in Case C‑145/19 P.
65 In that regard, as is apparent from
paragraphs 44 and 59 of the present judgment, the Council did not fulfil
its obligation to verify that the Egyptian authorities acted in
accordance with the rights of the defence and the right to judicial
protection of the appellants in Cases C‑72/19 P and C‑145/19 P before
relying on the decisions of those authorities in order to adopt the
restrictive measures against those appellants.
66 In those circumstances, on the grounds set
out in paragraphs 34 to 43, 45 to 47, 55 to 58 and 60 of the present
judgment, the second pleas in law in each of the actions in Joined Cases
T‑274/16 and T‑275/16 and in Case T‑358/17 must be upheld, without it
being necessary to examine the other pleas in those actions, and,
consequently, the acts at issue in Case C‑72/19 P, in so far as they
concern the appellants in that case, and the acts at issue in Case
C‑145/19 P, in so far as they concern Mr Hosni Mubarak, must be
annulled.
Costs
67 Under Article 184(2) of the Rules of
Procedure of the Court of Justice, where the appeal is well founded and
the Court itself gives final judgment in the case, the Court is to make a
decision as to costs.
68 Under Article 138(1) of those rules, which
applies to appeal proceedings by virtue of Article 184(1) thereof, the
unsuccessful party is to be ordered to pay the costs if they have been
applied for in the successful party’s pleadings.
69 Since the appellants in Joined Cases
C‑72/19 P and C‑145/19 P have applied for an order that the Council pay
the costs and the Council has been unsuccessful, the Council must be
ordered to bear its own costs and to pay those incurred by those
appellants relating both to the proceedings before the General Court and
to the present appeals.
On those grounds, the Court (Seventh Chamber) hereby:
1. Sets aside the judgment of the General Court of the European Union of 22 November 2018, Saleh Thabet and Others v Council (T‑274/16 and T‑275/16,
not published, EU:T:2018:826), in so far as, by that judgment, the
General Court dismissed the actions seeking the annulment of Council
Decision (CFSP) 2016/411 of 18 March 2016 amending Decision
2011/172/CFSP concerning restrictive measures directed against certain
persons, entities and bodies in view of the situation in Egypt and of
Council Decision (CFSP) 2017/496 of 21 March 2017 amending Decision
2011/172/CFSP concerning restrictive measures directed against certain
persons, entities and bodies in view of the situation in Egypt;
2. Sets aside the judgment of the General Court of the European Union of 12 December 2018, Mubarak v Council (T‑358/17, not published, EU:T:2018:905);
3. Annuls Decisions 2016/411 and
2017/496, in so far as they concern Ms Suzanne Saleh Thabet, Mr Gamal
Mohamed Hosni Elsayed Mubarak, Mr Alaa Mohamed Hosni Elsayed Mubarak,
Ms Heddy Mohamed Magdy Hussein Rassekh and Ms Khadiga Mahmoud El Gammal;
4. Annuls Decision 2017/496, Council
Implementing Regulation (EU) 2017/491 of 21 March 2017 implementing
Regulation (EU) No 270/2011 concerning restrictive measures directed
against certain persons, entities and bodies in view of the situation in
Egypt, Council Decision (CFSP) 2018/466 of 21 March 2018 amending
Decision 2011/172/CFSP concerning restrictive measures directed against
certain persons, entities and bodies in view of the situation in Egypt,
and Council Implementing Regulation (EU) 2018/465 of 21 March 2018
implementing Regulation (EU) No 270/2011 concerning restrictive measures
directed against certain persons, entities and bodies in view of the
situation in Egypt, in so far as those acts concern Mr Mohamed Hosni
Elsayed Mubarak;
5. Orders the Council of the European
Union to pay the costs incurred both in the proceedings at first
instance and in the present appeals.
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Kumin
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Arabadjiev
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von Danwitz
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Delivered in open court in Luxembourg on 3 December 2020.
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A. Calot Escobar
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A. Kumin
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Registrar
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President of the Seventh Chamber
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