John Arnold Bredenkamp and Others v Council of the European Union and European Commission, Common foreign and security policy - Restrictive measures imposed on certain persons and entities in view of the situation in Zimbabwe - Freezing of funds - Non-contractual liability, Case T-66/14.

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
21 July 2016 (*)
(Common foreign and security policy — Restrictive measures imposed on certain persons and entities in view of the situation in Zimbabwe — Freezing of funds — Non-contractual liability)
In Case T-66/14,
John Arnold Bredenkamp, residing in Harare (Zimbabwe),
Echo Delta (Holdings) PCC Ltd, established in Castletown, Isle of Man),
Scottlee Holdings (Private) Ltd, established in Harare,
Fodya (Private) Ltd, established in Harare,
represented by P. Moser, QC, and G. Martin, solicitor,
applicants,
v
Council of the European Union, represented by B. Driessen and E. Dumitriu-Segnana, acting as Agents,
and
European Commission, represented by S. Bartelt, D. Gauci and T. Scharf, acting as Agents,
defendants,
APPLICATION based on Article 268 TFEU for compensation for the loss allegedly suffered by the applicants following the adoption of Commission Regulation (EC) No 77/2009 of 26 January 2009 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2009 L 23, p. 5), Commission Regulation (EU) No 173/2010 of 25 February 2010 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2010 L 51, p. 13) and Commission Regulation (EU) No 174/2011 of 23 February 2011 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2011 L 49, p. 23),
THE GENERAL COURT (Eighth Chamber),
composed of D. Gratsias (Rapporteur), President, M. Kancheva and C. Wetter, Judges,
Registrar: L. Grzegorczyk, Administrator,
having regard to the written procedure and further to the hearing on 24 February 2016,
gives the following
Judgment (1)
Background to the dispute
1 In its Common Position 2002/145/CFSP of 18 February 2002 concerning restrictive measures against Zimbabwe (OJ 2002 L 50, p. 1), adopted on the basis of Article 15 EU, the Council of the European Union expressed its serious concern about the situation in Zimbabwe, in particular the serious infringements, committed by the Government of the Republic of Zimbabwe, of human rights and specifically of freedom of opinion, freedom of association and freedom of peaceful assembly. The Council therefore imposed restrictive measures for a renewable period of 12 months, to be kept under constant review.
2 Council Common Position 2004/161/CFSP of 19 February 2004, renewing restrictive measures against Zimbabwe (OJ 2004 L 50, p. 66), provided for the renewal of the restrictive measures established by Common Position 2002/145. Article 4(1) of Common Position 2004/161, as amended by Article 1(1) of Council Common Position 2008/632/CFSP of 31 July 2008 amending Common Position 2004/161 (OJ 2008 L 205, p. 53), stated that ‘Member States [were to] take the measures necessary to prevent the entry into, or transit through, their territories of members of the Government of [the Republic of] Zimbabwe and of physical persons associated with them, as well as of other physical persons whose activities seriously [undermined] democracy, respect for human rights and the rule of law in Zimbabwe’ and that ‘the individuals referred to in [that] paragraph [were] listed in the Annex’. Article 5(1) of Common Position 2004/161, as amended by Article 1(5) of Common Position 2008/632, provided that ‘all funds and economic resources belonging to individual members of the Government of [the Republic of] Zimbabwe or to any natural or legal persons, entities or bodies associated with them, or belonging to any other natural or legal persons whose activities seriously [undermined] democracy, respect for human rights and the rule of law in Zimbabwe, [were to] be frozen’ and that ‘the persons and entities referred to in [that] paragraph [were] listed in the Annex’. Common Position 2004/161, as amended, was subsequently extended until 20 February 2010 by Council Common Position 2009/68/CFSP of 26 January 2009 renewing restrictive measures against Zimbabwe (OJ 2009 L 23, p. 43), and then, until 20 February 2011, by Council Decision 2010/92/CFSP of 15 February 2010 extending restrictive measures against Zimbabwe (OJ 2010 L 41, p. 6). Articles 4(1) and 5(1) of Council Decision 2011/101/CFSP of 15 February 2011 concerning restrictive measures against Zimbabwe (OJ 2011 L 42, p. 6), which repealed Common Position 2004/161 and was applicable until 20 February 2012, laid down measures identical to those in Articles 4(1) and 5(1) of Common Position 2004/161.
3 Council Regulation (EC) No 314/2004 of 19 February 2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2004 L 55, p. 1) was adopted, as stated in recital 5 thereof, to implement the restrictive measures provided for by Common Position 2004/161 in so far as they fall within the scope of the EC Treaty. It provided inter alia, in Article 6(1), that the funds and economic resources belonging to members of the Government of the Republic of Zimbabwe and to any natural or legal persons, entities or bodies associated with them as listed in Annex III to that regulation were to be frozen. Article 11(b) of that regulation states that the Commission of the European Communities was to be empowered to amend Annex III to that regulation on the basis of decisions taken in respect of the Annex to Common Position 2004/161.
4 The name of the first applicant, Mr John Arnold Bredenkamp, was added to the list of persons referred to in Articles 4 and 5 of Common Position 2004/161 under Article 2 and Part I of the Annex to Common Position 2009/68. The reasons for the inclusion of his name in item 7 of that annex are given as follows:
‘Businessman with strong ties to the Government of [the Republic of] Zimbabwe. He has provided, including through his companies, financial and other support to the regime (see also items [1 to 9], 12, 14, 20, 24, 25, 28, 29, 31 and 32 in part II).’
5 The name of the first applicant was added to the list of natural or legal persons, entities or bodies referred to in Article 6 of Regulation No 314/2004 by Article 1 of and the Annex to Commission Regulation (EC) No 77/2009 of 26 January 2009 amending Regulation No 314/2004 (OJ 2009 L 23, p. 5). The reasons for the inclusion of his name in item 7 of Part I of that annex are given as follows:
‘Businessman with strong ties to the Government of Zimbabwe. He has provided, including through his companies, financial and other support to the regime (see also items [1 to 9], 12, 14, 20, 24, 25, 28, 29, 31 and 32 in part II).’
6 The names of the second and third applicants, Echo Delta (Holdings) PCC Ltd and Scottlee Holdings (Private) Ltd, were also added to the list of persons referred to in Articles 4 and 5 of Common Position 2004/161 under Article 2 of and the Annex to Common Position 2009/68. Those names were also added to the list of natural or legal persons, entities or bodies referred to in Article 6 of Regulation No 314/2004 under Article 1 of and the Annex to Regulation No 77/2009. The reasons for their inclusion on the lists in question are given as follows: ‘owned by John Arnold Bredenkamp’ (Common Position 2004/161) and ‘owned by John Arnold Bredenkamp’ (Regulation No 77/2009). Moreover, the name ‘Breco International’ was added in item 7 of Part II of the list of persons referred to in Articles 4 and 5 of Common Position 2004/161 under Article 2 of and the Annex to Common Position 2009/68 and in item 7 of Part II of Annex III to Regulation No 314/2004 under Article 1 of and the Annex to Regulation No 77/2009. The reasons for the inclusion of that name on those lists are the same as those given for the inclusion of the names of the second and third applicants on those lists.
7 By application lodged at the Court Registry on 6 April 2009, Mr Bredenkamp and 18 legal persons, including the second and third applicants in the present case, brought an action for the annulment of Regulation No 77/2009 (Case T-145/09 Bredenkamp and Others v Commission).
8 The names of the first three applicants and Breco International were retained in the lists in question under Decision 2010/92, Commission Regulation (EU) No 173/2010 of 25 February 2010 amending Regulation No 314/2004 (OJ 2010 L 51, p. 13), Decision 2011/101 and Commission Regulation (EU) No 174/2011 of 23 February 2011 amending Regulation No 314/2004 (OJ 2011 L 49, p. 23).
9 The names of the first three applicants and Breco International were removed from the lists in question by Council Decision 2012/97/CFSP of 17 February 2012 amending Decision 2011/101 (OJ 2012 L 47, p. 50) and Commission Implementing Regulation (EU) No 151/2012 of 21 February 2012 amending Regulation No 314/2004 (OJ 2012 L 49, p. 2).
10 Following the adoption of Decision 2012/97 and Implementing Regulation No 151/2012, the Court concluded, in the order of 6 September 2012 in Bredenkamp and Others v Commission (T-145/09, not published, EU:T:2012:407), that there was no need to rule on the action lodged on 6 April 2009.
Procedure and forms of order sought by the parties
11 By application lodged at the Court Registry on 24 January 2014, the applicants brought the present action.
12 The applicants claim that the Court should:
- order the Council and the Commission to pay the damages and interest specified in the application;
- order the Council and the Commission to pay compound interest at the Euribor rate + 2% from the date of the final judgment;
- order the Council and the Commission to pay the costs.
13 The Council and the Commission contend that the Court should:
- dismiss the action;
- order the applicants to pay the costs.
14 The parties have submitted a number of written pleadings lodged in Case T-145/09 Bredenkamp and Others v Commission. As there is no valid reason why those pleadings should not be accepted in the present case, they are definitively included in the case file. Moreover, none of the parties objects to the production of those pleadings by any of the other parties.
Law
15 In support of their action, the applicants claim to have suffered five different heads of damage, material and non-material, caused by a series of unlawful conduct affecting the initial inclusion and the retention of their names in the list of persons referred to in Article 6 of Regulation No 314/2004. That unlawful conduct is set out in four heads of claim.
16 The Council considers, as a preliminary point, that the application must be dismissed as manifestly inadmissible or as manifestly unfounded, owing to the manifest inadequacy of the evidence adduced in the chapter relating to the heads of damage which the applicants claim to have suffered.
17 It should be noted in that regard that, in order for the European Union to incur non-contractual liability under the second paragraph of Article 340 TFEU for unlawful conduct on the part of its institutions, a number of conditions must be satisfied: the institutions’ conduct must be unlawful; actual damage must have been suffered; and there must be a causal link between the conduct alleged and the damage pleaded. The cumulative nature of those three conditions governing the establishment of non-contractual liability means that, if one of them is not satisfied, the action for damages must be dismissed in its entirety, and there is no need to examine the other conditions (see judgment of 23 November 2011 in Sison v Council, T-341/07, EU:T:2011:687, paragraphs 28 and 29 and the case-law cited).
18 With regard to the first applicant’s claim for compensation for the non-material damage he claims to have suffered, it is necessary to examine, first of all, the problems raised by the issue of whether the conduct adopted by the Council and the Commission towards that applicant was lawful. The Council’s arguments concerning whether the action is inadmissible or manifestly unfounded in the light of the evidence annexed to the application must be rejected, at the very least in so far as concerns the non-material damage alleged by the first applicant, as sufficient evidence describing circumstances that could justify such a claim has been put forward in the case. In that context, if it is established that those institutions have not acted unlawfully vis-à-vis the first applicant, the action will have to be dismissed in its entirety in relation to all the applicants, because the reason for the listings at issue is the inclusion of the first applicant on the list of persons referred to in Article 6 of Regulation No 314/2004.
19 The Commission, for its part, makes the preliminary point that the fourth applicant has never been subject to restrictive measures, so that the application must be dismissed as inadmissible as regards that applicant.
20 As stated in paragraph 6 above, the fourth applicant claims to be the legal successor to Breco International (Private), which was added, under the name ‘Breco International’, to the list of legal persons, entities or bodies referred to in Article 6 of Annex III to Regulation No 314/2004 under Article 1 of and the Annex to Regulation No 77/2009. It should be noted in that regard that item 7 of Part II of that annex indicates that Breco International is a legal person established in St Helier (Jersey). According to the explanations given by the Council at the hearing, the existence of such an entity based in Jersey was ascertained from a report by a company search agency annexed to the Council’s rejoinder. According to a change of name certificate issued by the Zimbabwean Register of Companies on 29 September 2010, which was produced by the applicants in connection with the regularisation of the application, the fourth applicant is the Zimbabwean company Breco International (Private) Ltd, which then became Fodya (Private) Ltd. Against that background, first, it is clear that the inclusion of Breco International on the lists in question was not based on evidence of the existence in law of that entity emanating from the Zimbabwean Register of Companies. Second, there is no evidence from which it may be inferred that, by including Breco International on those lists, the institutions concerned intended to add to the lists the name of the fourth applicant, which is established in Harare (Zimbabwe) and whose identification details therefore differ significantly from those of Breco International. Accordingly, the applicants are incorrect to claim that the name of the fourth applicant was included on the lists in question.
21 However, contrary to what is claimed by the Commission, the fact that the fourth applicant has failed to prove that its name was included on the lists at issue has no bearing on the admissibility of the present claim for damages, in so far as such a claim is made by that applicant. Indeed, the question whether the inclusion of the name of Breco International or the names of the first three applicants on the lists at issue caused the fourth applicant to suffer harm for which redress must be made in accordance with the rules set out in paragraph 17 above has no bearing on the admissibility of the action, but is linked to whether that applicant suffered actual harm and whether there is a causal link between the alleged unlawful conduct vitiating the inclusion of the first three applicants on the lists at issue and that harm.
22 As a consequence, while it is true that the applicants’ argument is not correct, in so far as they claim that the name of the fourth applicant was included on the lists in question, the fact nevertheless remains that the action is admissible as regards the fourth applicant.
23 As regards the claim that the Council, and the Commission acted unlawfully, it should be noted, first of all, that even though in the introduction to the application the applicants refer both to common positions and decisions adopted on the basis of provisions of the EU Treaty relating to common foreign and security policy (CFSP) and imposing restrictive measures on them, and to regulations adopted on the basis of EC and FEU Treaty provisions, in their complaints alleging unlawful conduct they refer only to those regulations. Accordingly, it must be concluded that the action seeks to establish the non-contractual liability of the European Union on the sole basis of the regulations in question, not on the basis of the common positions and decisions adopted under the CFSP.
24 In order to satisfy the condition for the European Union to incur non-contractual liability for the unlawfulness of the conduct of the institutions that is objected to, it is necessary to establish a sufficiently serious breach of a rule of law intended to confer rights on individuals. That is by definition the case where the fundamental right to property is at stake (judgment of 23 November 2011 in Sison v Council, T-341/07, EU:T:2011:687, paragraphs 33 and 75).
25 In the present case, the applicants contend that, insofar as Regulations No 77/2009, No 173/2010 and No 174/2011 concern them, those regulations (i) lack any proper legal basis, (ii) are vitiated by errors of law and of fact, (iii) are vitiated by breaches of essential procedural requirements and (iv), in view of the unlawful conduct referred to above, constitute a breach of the right to property.
26 It should be observed, as a preliminary point, that, with regard to the requirement that the legal rule alleged to have been infringed must be intended to confer rights on individuals, the purpose of restrictive measures is to limit the exercise of certain rights by certain targeted persons, primarily their right to property. However, in the light of the objectives which a system of restrictive measures such as the system in question seeks to attain, the limitation on the right to property satisfies the criteria laid down in Article 52(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) (judgment of 27 February 2014 in Ezz and Others v Council, T-256/11, EU:T:2014:93, paragraphs 195 to 205). Moreover, the applicants do not claim that that system infringes their right to property as such. It should, however, be recalled that the right to restrict the right to property must be exercised in accordance with the procedural and substantive rules laid down for that purpose. If those rules are not adhered to, the court will find that there has been an unjustified restriction on the right to property in a given case (see, to that effect, judgment of 3 September 2008 in Kadi and Al Barakaat International Foundation v Council and Commission, C-402/05 P and C-415/05 P, EU:C:2008:461, paragraphs 352, 353 and 368 to 370). In consequence, insofar as the pleas raised in support of the action seek to establish that the regulations which froze the assets of the first three applicants are vitiated by unlawful application of the procedural and substantive rules governing the power to restrict their right to property, they are based on rules conferring rights on individuals.
27 It is necessary, first of all, to examine the complaint that there is no legal basis for the contested acts, then the complaint alleging breach of essential procedural requirements and, lastly, the two other complaints concerning the substantive legality of those acts.
The claim that there is no legal basis for the contested acts
28 The applicants state that Articles 60 and 301 EC, on which Regulation No 314/2004 is based, concern, at most, third countries and their leaders as well as individuals and entities associated with those leaders or controlled by them. However, none of the applicants falls into any of those categories, even if it were accepted that the first applicant had strong ties with the Zimbabwean Government, which the applicants dispute. It is not any type of association at all, irrespective of personal conduct, that warrants the inclusion of the name of a Zimbabwean business man on the list of persons referred to in Article 6 of that regulation. According to the applicants, the right to effective judicial protection means that they may seek reparation for the harm suffered as a result of the fact that there was no legal basis for the contested acts, which were therefore unlawful. At all events, they submit that even if the first applicant were to be considered to have links with the Zimbabwean Government, that would not entitle the institutions concerned automatically to add the names of the second and third applicants and that of Breco International to the lists in question.
29 By that line of argument, the applicants claim, in essence, that, interpreted in the light of Articles 60 and 301 EC, which form its legal basis, Article 6 of Regulation No 314/2004 is directed at third countries and their leaders and, insofar as concerns natural or legal persons, at most those directly associated with or controlled by those leaders, not business men and undertakings such as the applicants.
30 Article 60(1) EC provides that, if, in the cases envisaged by Article 301 EC, action by the Community is deemed necessary, the Council may take the necessary urgent measures on the movement of capital and on payments as regards the third countries concerned. According to Article 301 EC, where provision is made, in a common position or in a joint action adopted according to the Treaty on European Union relating to the CFSP, for action by the Community to interrupt or to reduce, in part or completely, economic relations with one or more third countries, the Council is to take the necessary urgent measures.
31 Having regard to the wording of Articles 60 and 301 EC, especially to the expressions ‘as regards the third countries concerned’ and ‘with one or more third countries’ used there, those provisions concern the adoption of measures vis-à-vis third countries, since that concept may cover the leaders of such a country and also individuals and entities associated with or controlled, directly or indirectly, by them. The possibility cannot be ruled out that those in charge of certain businesses may be subject to restrictive measures adopted on the basis of Articles 60 and 301 EC, provided it is established that they are associated with the leaders of the third country targeted (see, to that effect, judgment in Tay Za v Council, C-376/10 P, EU:C:2012:138, paragraphs 53 and 55).
32 Regulation No 314/2004 and the contested regulations amending it cited in paragraph 25 above concern the adoption of restrictive measures against the Republic of Zimbabwe.
33 According to recital 2 of Regulation No 314/2004, in view of the serious violations of human rights perpetrated by the government of that country, it was necessary to maintain the restrictive measures that had been in place since February 2002.
34 The restrictive measures in question took the form of the freezing of all the funds and economic resources belonging to the persons falling within the categories described in Article 6 of Regulation No 314/2004. Those persons are members of the Zimbabwean Government and natural or legal persons, entities and bodies associated with those members.
35 In the present case, it is apparent from the Annex to Regulation No 77/2009 that the name of the first applicant was included on the list of natural and legal persons, entities and bodies referred to in Article 6 of Regulation No 314/2004 on the ground that he had ‘strong ties to the Government of Zimbabwe’ and had ‘provided, including through his companies, financial and other support to the regime’ (see paragraph 5 above). The inclusion of that name was made under the power conferred on the Commission by Article 11(b) of that regulation and following the adoption of Common Position 2009/68.
36 As submitted by the Council and the Commission, the reasons for the inclusion of that name are wholly consistent with the concept of a person ‘associated with’ the leaders of the country affected by the restrictive measures. Indeed, in the light of the objectives of the restrictive measures, namely to prevent any assistance being given to the government targeted, the concept of a person ‘associated with’ must also include persons engaged in activities such as those described in paragraph 35 above. As a consequence, the inclusion of the name of the first applicant by Regulation No 77/2009 on the list of natural and legal persons, entities and bodies referred to in Article 6 of Regulation No 314/2004 is legitimately based on Articles 60 and 301 EC, on which Regulation No 77/2009 is itself, in turn, based.
37 That conclusion is also applicable with regard to the legal persons whose names are included on the list of persons referred to in Article 6 of Regulation No 314/2004 which are owned by the first applicant. As the Council argued, in order for restrictive measures to be effective, it clearly must be possible to adopt such measures in respect of any legal person owned by a natural person associated with the leaders of the country concerned. It follows that, as the names of the second and third applicants were included on the lists in question on the basis that they were owned by the first applicant, the inclusion of those names is legitimately based on Articles 60 and 301 EC. The same applies with regard to the inclusion of Breco International, which is based on exactly the same reason, so that Regulation No 314/2004 was legitimately based on those articles as regards the inclusion of that company.
38 The Court therefore finds that the legal basis for the inclusion of the first three applicants and Breco International on the list of persons referred to in Article 6 of Regulation No 314/2004 was not unlawful.
39 Furthermore, insofar as the applicants’ argument that their conduct does not warrant them being classified as being associated with the Government of Zimbabwe may be interpreted as a submission that they are not associated with that government within the meaning of Article 6 of Regulation No 314/2004, as interpreted in paragraph 34 above, such an argument is essentially the same as the plea alleging errors in the assessment of the facts, which will be examined in paragraphs 65 to 94 below.
The alleged breach of essential procedural requirements
40 The applicants maintain that the measures by which the names of the first three applicants and that of Breco International were included on the list of persons referred to in Article 6 of Regulation No 314/2004 do not contain concrete, specific reasons such as to enable them to ascertain whether the inclusion of those names is well founded, having regard to the relevant legal requirements, or, therefore, to contest those measures on the ground that they are unlawful. According to the applicants, the statement of reasons for the measures in question should have been provided to them at the time the measures were adopted and failure to do so cannot be remedied once proceedings have been commenced. In any event, evidence substantiating those reasons should have been produced and the applicants given an opportunity to be heard before the first decision to renew the listings was made. They were given no such evidence or opportunity, the correspondence with the Council being limited to procedural question.
41 By those arguments, the applicants raise two complaints. The first alleges failure to state adequate reasons and the second breach of the rights of the defence on the ground that (i) none of the evidence relied on against them was provided and (ii) it was not possible for them to address their arguments to the Council and the Commission. The alleged breach of the right to be heard also compromised their right to effective judicial protection.
[]
The alleged infringement of the right to be heard
48 In view of the surprise effect necessary for a measure freezing funds (see paragraph 45 above), the right to be heard, which must be observed in cases involving restrictive measures, does not require, according to established case-law, either the European Union authorities to communicate to the person or entity concerned the grounds for the inclusion of his or its name on the list imposing restrictive measures before the name of the person or entity is entered in the list for the first time (see judgment of 4 February 2014 in Syrian Lebanese Commercial Bank v Council, T-174/12 and T-80/13, EU:T:2014:52, paragraph 137 and the case-law cited) or the Council to hear that person or entity of its own motion (judgment of 14 October 2009 in Bank Melli Iran v Council, T-390/08, EU:T:2009:401, paragraph 93 and 98).
49 On the other hand, where the Council initially froze assets for a fixed period, it must, in principle, give the persons concerned an opportunity to be heard before extending the application of such a measure. In order for them to be effective, acts extending the application of such a measure are not necessarily required to have a surprise effect (see, to that effect, judgment of 12 March 2014 in Al Assad v Council, T-202/12, EU:T:2014:113, paragraph 70).
50 While it is true that where, as in the present case (see paragraphs 43 to 46 above), sufficiently precise information enabling the person concerned to state his point of view effectively on the evidence adduced against him by the institutions concerned has been communicated, observance of the rights of the defence does not mean that the institutions are obliged spontaneously to grant access to the documents in their file, the fact nonetheless remains that, on the request of the party concerned, the institutions are required to provide access to all non-confidential official documents concerning the measure at issue (see, to that effect, judgment of 14 October 2009 in Bank Melli Iran v Council, T-390/08, EU:T:2009:401, paragraph 97).
51 Furthermore, the right to be heard prior to the adoption of decisions maintaining restrictive measures against persons already covered by such measures presupposes that the Council has new incriminating evidence against those persons (see, to that effect, judgment of 12 March 2014 in Al Assad v Council, T-202/12, EU:T:2014:113, paragraph 71).
52 In the present case, it is apparent from the documents before the Court that, on 5 February 2009, a lawyer made an application to the Commission for access to the documents relied on to justify the initial inclusion of the first applicant, pursuant to Regulation No 77/2009, on the list of persons referred to in Article 6 of Regulation No 314/2004. The application was made on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). By letter of 5 March 2009, the Commission acknowledged that it was in possession of two documents relevant to the application. In particular, it acknowledged that it had two documents emanating from the ‘European correspondence’ (COREU) system containing, inter alia, information on the inclusion of the first applicant and the companies owned by him on the list of persons referred to in Article 6 of Regulation No 314/2004. However, the Commission refused to grant access to those documents on the basis of the third indent of Article 4(1)(a) of Regulation No 1049/2001, concerning the public interest as regards international relations.
53 By letter of 9 March 2009, a ‘confirmatory application’ was submitted, this time on behalf of the first applicant and 16 companies, including the second and third applicants and Breco International. By letter of 3 July 2009, the Commission refused to grant access to the documents in question on the same ground as that relied on in its first refusal.
54 Moreover, by letter of 6 June 2012, the first applicant submitted an application to the Council for access to information concerning the inclusion of his name, that of several of his companies, including the second and third applicants, and of Breco International on the list of persons referred to in Article 6 of Regulation No 314/2004. That application was made on the basis of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2000 L 8, p. 1). By letter of 18 September 2012, the Council answered that letter, providing copies of four documents from the General Secretariat of the Council to the Delegations of the Member States. Those documents contained, essentially, information concerning the identity of the first three applicants and Breco International. One of the documents, entitled ‘Coreu CFSP/0053/09’, refers to restrictive measures imposed on the first applicant by the Federal authorities of the United States of America on account of the financial support which he provided to the Zimbabwean Government through his web of companies. That document also states that the first applicant is an associate of a Minister in that government and of the President of Zimbabwe, Mr Robert Mugabe.
55 It is apparent from the above that the first three applicants and Breco International approached the Commission, no later than 9 March 2009, requesting access to evidence relied on to justify the inclusion of the first three applicants and Breco International on the list of persons referred to in Article 6 of Regulation No 314/2004. However, the Commission, which adopted both Regulation No 77/2009, under which the applicants were first included on the lists in question, and Regulations No 173/2010 and No 174/2011, did not comply with that request.
56 Even if that failure to comply on the part of the Commission may be regarded as capable of having prevented the first three applicants from stating their point of view effectively on the measure which the Commission had adopted in their regard, it must nonetheless be ascertained whether, given the circumstances of the case, that simply amounts, in any event, to an immaterial error on the basis that, had there been no error, the applicants would not have been better able to defend themselves (judgment of 4 February 2014 in Syrian Lebanese Commercial Bank v Council, T-174/12 and T-80/13, EU:T:2014:52, paragraph 146).
57 In that regard, it should be noted that the applicants state that, on 19 February 2009, they submitted to the Foreign & Commonwealth Office (FCO), pursuant to the Freedom of Information Act 2000, an application for access to documents concerning the inclusion of the first three applicants and Breco International on the list of persons referred to in Article 6 of Regulation No 314/2004. In answer to that request, on 2 June 2009 the FCO provided a list of 17 documents and copies of 2 other documents, all of which were available to the public. Those documents included a report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo (‘the Panel of Experts’) of 8 October 2002, endorsed by the United Nations Security Council (UN) (‘the report of 8 October 2002’), a series of press articles concerning the first applicant and a number of internet links to information on the companies in question.
58 Furthermore, following the adoption of Decision 2011/101 and Regulation No 174/2011, the first applicant submitted a further request to the FCO on 4 November 2011 relating to documents concerning his inclusion on the list of persons referred to in Article 6 of Regulation No 314/2004. In reply to that request, the FCO provided the first applicant with a list of 15 documents, including, inter alia, the report of 8 October 2002 and a series of press articles.
59 It should also be noted that, as observed by the Council, the Commission informed the first applicant that his name had been included on the list of persons referred to in Article 6 of Regulation No 314/2004 by letter of 27 January 2009 and invited him, by letter of 18 December 2009, to submit his observations and any request to remove his name from the list to the Council. The first applicant also wrote, by letters of 26 October and 26 November 2009 and 10 February 2010, to all the members of the Council, setting out his observations on the inclusion of his name and the names of his companies on the lists in question. By letter of 16 February 2010, the Council disputed the first applicant’s arguments, referring, inter alia, to the evidence contained in the second report drawn up under the aegis of the UN on 15 October 2003 (‘the report of 15 October 2003’) by the Panel of Experts. The Council informed the first applicant that those names would be maintained on the lists in question under Decision 2010/92. The first applicant replied to that letter by letter of 19 April 2010, to which the Council replied by letter of 7 June 2010. Lastly, by letter of 13 May 2011, the first applicant submitted his observations to the High Representative of the Union for Foreign Affairs and Security Policy and received a reply from the European External Action Service dated 29 June 2011. Moreover, in reply to two letters from the first applicant of 11 October and 3 November 2011, the Council pointed out, by letter of 9 November 2011, that he could at any time submit a request, with supporting documentation, for the restrictive measures to be reconsidered.
60 First, it is clear from the foregoing that the first three applicants and Breco International were given access, through the FCO, to a body of data, comprising the main evidence and information that served as the basis for their inclusion on the list of persons referred to in Article 6 of Regulation No 314/2004. On the one hand, the applicants repeatedly claim, in paragraphs 52.3 and 55 of the application, that the name of the first three applicants and Breco International was included on the lists in question at the initiative of the United Kingdom and that it is unlikely that the Council or the Commission have in their possession any evidence other than that provided to them by the FCO. On the other hand, the Council states that the evidence obtained by the applicants from the FCO comprises the bulk of the evidence taken into account.
61 Second, it is apparent that, after being given access to that evidence, the first three applicants and Breco International established and maintained regular contact with the Council concerning the substantive issues relating to the inclusion and maintenance of their names on the list of persons referred to in Article 6 of Regulation No 314/2004.
62 In the light of the above considerations, it is clear that the fact that the Commission did not disclose to the first three applicants the evidence relied on for the inclusion of their names on the list of persons referred to in Article 6 of Regulation No 314/2004 did not have the effect of infringing their rights of defence. Indeed, that did not prevent them from putting their case, after being apprised of a body of evidence which they themselves regard as comprising the bulk of the information used by the institutions concerned as the basis for a statement of reasons which, moreover, did not change throughout the period of their inclusion on the lists in question. Furthermore, in view of the considerations set out in paragraph 20 above, from which it is apparent that the fourth applicant was not included on the lists in question, there can have been no infringement of that applicant’s rights of defence.
[]
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1. Dismisses the action;
2. Orders John Arnold Bredenkamp, Echo Delta (Holdings) PCC Ltd, Scottlee Holdings (Private) Ltd and Fodya (Private) Ltd to pay the costs of the Council of the European Union and the European Commission.
Gratsias
Kancheva
Wetter
Delivered in open court in Luxembourg on 21 July 2016.
[Signatures]
* Language of the case: English.
1 - Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.
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