Ben Ali v Council (Common foreign and security policy - Restrictive measures - Tunisia : Judgment) [2017] EUECJ T-149/15 (05 October 2017)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

(Common foreign and security policy — Restrictive measures directed against certain persons and entities in view of the situation in Tunisia — Freezing of funds — Action for annulment – Admissibility — Legal basis — Reinclusion of the applicant’s name on the basis of new grounds — Obligation to state reasons — Factual basis — Right to property — Proportionality)

Sirine Bent Zine El Abidine Ben Haj Hamda Ben Ali, residing in Tunis (Tunisia), represented by S. Maktouf, lawyer,

Council of the European Union, represented initially by Á. de Elera-San Miguel Hurtado and G. Étienne, and subsequently by Á. de Elera San‑Miguel Hurtado, acting as Agents,

APPLICATION pursuant to Article 263 TFEU for annulment of Council Decision (CFSP) 2015/157 of 30 January 2015 amending Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2015 L 26, p. 29) and Council Implementing Regulation (EU) 2015/147 of 30 January 2015 implementing Regulation (EU) No 101/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia (OJ 2015 L 26, p. 3), in so far as those acts concern the applicant,

composed of D. Gratsias (Rapporteur), President, I. Labucka and I. Ulloa Rubio, Judges,

having regard to the written part of the procedure and further to the hearing on 7 December 2016,

1 On 31 January 2011, following political developments in Tunisia during the months of December 2010 and January 2011, the Council of the European Union adopted, on the basis of, in particular, Article 29 TEU, Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2011 L 28, p. 62).

‘(1) On 31 January 2011, the Council reaffirmed its full solidarity and support with Tunisia and its people in their efforts to establish a stable democracy, the rule of law, democratic pluralism and full respect for human rights and fundamental freedoms.

(2) The Council further decided to adopt restrictive measures against persons responsible for misappropriation of Tunisian State funds and who are thus depriving the Tunisian people of the benefits of the sustainable development of their economy and society and undermining the development of democracy in the country.’

‘1. All funds and economic resources belonging to, owned, held or controlled by persons responsible for misappropriation of Tunisian State funds, and natural or legal persons or entities associated with them, as listed in the Annex, shall be frozen.

2. No funds or economic resources shall be made available, directly or indirectly, to, or for the benefit of, natural or legal persons or entities listed in the Annex.

3. The competent authority of a Member State may authorise the release of certain frozen funds or economic resources, or the making available of certain funds or economic resources, under such conditions as it deems appropriate …’

‘1. The Council, acting upon a proposal by a Member State or the High Representative of the Union for Foreign Affairs and Security Policy, shall establish and amend the list in the Annex.

2. The Council shall communicate its decision, including the grounds for the listing, to the person or entity concerned, either directly, if the address is known, or through the publication of a notice, providing such person or entity with an opportunity to present observations.

3. Where observations are submitted, or where substantial new evidence is presented, the Council shall review its decision and inform the person or entity concerned accordingly.’

5 Article 3(1) of Decision 2011/72 provides that ‘the Annex shall include the grounds for listing the persons and entities’.

‘This Decision shall apply for a period of 12 months. It shall be kept under constant review. It shall be renewed, or amended as appropriate, if the Council deems that its objectives have not been met.’

7 The list initially annexed to Decision 2011/72 featured only the names of two natural persons, namely Mr Zine el-Abidine Ben Hamda Ben Ali, former President of the Republic of Tunisia, and Mrs Leïla Bent Mohammed Trabelsi, his wife.

8 Pursuant to ‘Decision 2011/72 … and in particular Article 2(1) thereof in conjunction with Article 31(2) [TEU]’, the Council adopted, on 4 February 2011, Implementing Decision 2011/79/CFSP implementing Decision 2011/72 (OJ 2011 L 31, p. 40).

9 Article 1 of Implementing Decision 2011/79 stated that the list annexed to Decision 2011/72 was to be replaced by a new list. That list covered 48 natural persons. The entry ‘Sirine Bent Zine El Abidine Ben Haj Hamda BEN ALI’ in the column entitled ‘Name’ was the twenty-seventh entry in that new list. The column headed ‘Identifying information’ stated as follows: ‘Tunisian, born in Le Bardo 21 August 1971, daughter of Naïma EL KEFI, married to Mohamed Marouene MABROUK, adviser at the Ministry of Foreign Affairs, holder of NIC No 05409131’. Lastly, the column headed ‘Grounds’ stated as follows: ‘Person subject to judicial investigation by the Tunisian authorities in respect of the acquisition of movable and immovable property, the opening of bank accounts and the holding of financial assets in several countries as part of money-laundering operations.’

10 By virtue of Article 2 thereof, Implementing Decision 2011/79 entered into force on the date of its adoption, namely 4 February 2011.

11 Pursuant to Article 215(2) TFEU and Decision 2011/72, the Council adopted on 4 February 2011, that is the same day as the adoption of Implementing Decision 2011/79, Regulation (EU) No 101/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia (OJ 2011 L 31, p. 1). As is apparent from recital 2 thereof, that regulation was adopted because the measures introduced by Decision 2011/72 ‘[fell] within the scope of the [TFEU] and regulatory action at the level of the Union [was] therefore necessary in order to implement them.’

12 Article 2(1) and (2) of Regulation No 101/2011 essentially reproduces the provisions of Article 1(1) and (2) of Decision 2011/72, whereas Articles 4 and 6 of that regulation reproduce, in essence, paragraphs 3 and 5 of Article 1 of that decision, respectively. Moreover, the content of Annex I to that regulation was, at the time of its adoption, identical to that of the annex to Decision 2011/72, as amended by Implementing Decision 2011/79.

13 On 27 January 2012, the Council adopted Decision 2012/50/CFSP amending Decision 2011/72 (OJ 2013 L 27, p. 11). Article 1 of Decision 2012/50 amended Article 5 of Decision 2011/72, with the result that the application of the restrictive measures set out in the annex to that latter decision, as amended by Implementing Decision 2011/79, was extended until 31 January 2013. Article 2 of Decision 2012/50 stated that it was to enter into force on the date of its adoption.

14 On 31 January 2013, the Council adopted Decision 2013/72/CFSP amending Decision 2011/72 (OJ 2013 L 32, p. 20). Article 1 of Decision 2013/72 amended Article 5 of Decision 2011/72, with the result that the application of the restrictive measures set out in the annex to the latter decision, as amended by Implementing Decision 2011/79 and by Decision 2012/50, was extended to 31 January 2014. Article 2 of Decision 2013/72 stated that it was to enter into force on the date of its publication.

15 On 30 January 2014, the Council adopted Decision 2014/49/CFSP amending Decision 2011/72 (OJ 2014 L 28, p. 38). Article 1 of Decision 2014/49 extended the application of the restrictive measures referred to in paragraph 14 above until 31 January 2015. In addition, Article 1(2) thereof provided that the annex to Decision 2011/72, as last amended by Decision 2013/72, was to be replaced by the text contained in its annex. Article 2 of Decision 2014/49 stated that it was to enter into force on the date of its publication.

16 The entry ‘Sirine Bent Zine El Abidine Ben Haj Hamda BEN ALI’, in the column entitled ‘Name’, is the twenty-seventh entry in the annex to Decision 2011/72, as replaced by the annex to Decision 2014/49. The column headed ‘Identifying information’ states as follows: ‘Tunisian, born in Le Bardo 21 August 1971, daughter of Naïma EL KEFI, married to Mohamed Marouene MABROUK, adviser at the Ministry of Foreign Affairs, holder of NIC No 05409131’. Lastly, the column headed ‘Grounds’ states as follows: ‘Person subject to judicial investigations by the Tunisian authorities for complicity in the misappropriation of public monies by a public office-holder, complicity in the misuse of office by a public office-holder to procure an unjustified advantage for a third party and to cause a loss to the administration, and complicity in exerting wrongful influence over a public office-holder with a view to obtaining directly or indirectly an advantage for another person.’

17 On the same day, the Council adopted Implementing Regulation (EU) No 81/2014 implementing Regulation No 101/2011 (OJ 2014 L 28, p. 2). Pursuant to Article 1 of that implementing regulation, the annex to Regulation No 101/2011, as amended in respect of persons other than the applicant by the annex to Council Implementing Regulation (EU) No 735/2013 of 30 July 2013 implementing Regulation No 101/2011 (OJ 2013 L 204, p. 23), was replaced. Article 2 of Implementing Regulation No 81/2014 stated that it was to enter into force on the day of its publication.

18 On the twenty-seventh line of the annex to Regulation No 101/2011, as replaced by the annex to Implementing Regulation No 81/2014, are entries identical to those in the annex to Decision 2011/72, as replaced by the annex to Decision 2014/49.

19 On 26 November 2014, the applicant contacted the Council in order to request access to the case file containing all the non-confidential documentation relied upon by the Council in adopting the contested measure.

20 On 17 December 2014, in reply to that request, the Council furnished the applicant with a letter, dated 29 January 2011, addressed by the Tunisian Ministry of Foreign Affairs to the Delegation of the European Union to Tunisia. A list was enclosed with that letter setting out the names of a number of natural persons under judicial investigation by the Tunisian authorities ‘in respect of the acquisition of movable and immovable property abroad, the opening of bank accounts and the holding of financial assets in several countries in connection with money-laundering resulting from the abuse of official positions and professional and social activities’.

21 By letter of 5 January 2015, the applicant requested the Council to refrain from renewing the restrictive measures against her. On 12 January 2015, the Council informed the applicant by letter of its intention to renew the restrictive measures and enclosed with the letter an attestation, dated 19 December 2014, from the office of the first investigating judge of the tribunal de première instance de Tunis (Court of First Instance, Tunis), which was signed by the chief registrar of that court.

22 The attestation in question, which is annexed to the application, concerns Case No 19592/1, which was ongoing in respect of the applicant, who was being ‘prosecuted, inter alia, for complicity in misappropriation by a public official of public funds; complicity in the misrepresentation by a public official to procure an unjustified advantage for a third party and to cause a loss to the administration and complicity in exerting undue influence over a public official with a view to obtaining directly or indirectly an advantage for another person.’

23 According to the applicant, on 22 January 2015 her representatives replied to the Council ‘arguing, inter alia, that no substantive investigative procedure has been initiated in the domestic criminal proceedings since 2012’.

24 On 30 January 2015, the Council adopted Decision (CFSP) 2015/157 amending Decision 2011/72 (OJ 2015 L 26, p. 29). By Article 1 thereof, Article 5 of Decision 2011/72 was amended to provide for an extension of the restrictive measures set out in the annex to that decision until 31 January 2016. In addition, three entries in the annex to Decision 2011/72, concerning persons other than the applicant, were amended. Last, by virtue of Article 2 thereof, Decision 2015/157 entered into force on the day of its publication.

25 On the same day, the Council adopted Implementing Regulation (EU) 2015/147 implementing Regulation No 101/2011 (OJ 2015 L 26, p. 3). Under Article 1 of that implementing regulation, the Annex to Regulation No 101/2011 was amended to take account of the amendments to the annex to Decision 2011/72 made by Decision 2015/157. Pursuant to Article 2 thereof, Implementing Regulation 2015/147 entered into force on the day of its publication.

26 According to the applicant, on 4 February 2015 the Council ‘replied denying her petition of 5 January 2015 and giving reasons for its decision’.

27 As is apparent from the documents annexed to the rejoinder, which the applicant does not contest, on 16 November 2015 the Council notified the applicant’s representatives of its intention to renew the contested measure and specified the period within which they were to submit their observations. A similar letter was sent by the Council to the applicants’ representatives on 18 December 2015. An attestation from the office of the first investigating judge of the Court of First Instance, Tunis, dated 20 October 2015, which was signed by the chief registrar of that court and contained the same information as that set out in paragraph 22 above, was enclosed with that letter.

28 On 28 January 2016, the Council adopted Decision (CFSP) 2016/119 amending Decision 2011/72 (OJ 2016 L 23, p. 65). Article 1 of that decision amended Article 5 of Decision 2011/72, with the result that the restrictive measures set out in the Annex to the latter decision were extended until 31 January 2017. Moreover, while the Annex to Decision 2011/72 was replaced by virtue of that article, the details concerning the applicant and the grounds for the inclusion of her name on the list remained unchanged. Last, by virtue of Article 2 thereof, Decision 2016/119 entered into force on the day of its publication.

29 On the same day, the Council adopted Implementing Regulation (EU) 2016/111 implementing Regulation No 101/2011 (OJ 2016 L 23, p. 1). Pursuant to Article 1 of that implementing regulation, the Annex to Regulation No 101/2011 was amended in order to take account of amendments made to the Annex to Decision 2011/72 by Decision 2016/119. Implementing Regulation 2016/111 entered into force on the day of its publication, that is, on 29 January 2016.

30 By application lodged at the Registry of the General Court on 26 March 2015, the applicant brought the present action. The applicant claims that the Court should:

– annul the ‘contested decisions’, in so far as they apply to the applicant;

31 On 2 September 2015, the Council lodged its defence. It contends that the Court should:

32 Following a change in the composition of the Chambers of the General Court, the case was reassigned to the Fifth Chamber by decision of 3 October 2016.

33 It should be noted, first, that pursuant to Article 44(1)(c) of the Rules of Procedure of the General Court of 2 May 1991, which were applicable when the present action was lodged, and Article 76 of the Rules of Procedure of the General Court, an application must state the subject-matter of the proceedings and be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible, the application must therefore indicate with a certain degree of precision the measures which the applicant seeks to have set aside (see judgment of 3 July 2014, Alchaar v Council, T‑203/12, not published, EU:T:2014:602, paragraph 73 and the case-law cited). Furthermore, according to case-law, the contested measure can be identified by implication from the content of the application (see, to that effect, judgment of 13 April 2011, Planet v Commission, T‑320/09, EU:T:2011:172, paragraph 23 and the case-law cited).

34 As is apparent from paragraph 30 above, when indicating the form of order sought, the applicant refers generally to the ‘contested decisions’, without formally identifying the measures which she seeks to have annulled.

35 However, according to paragraphs 5 to 9 of the application (see paragraphs 19 to 26 above), it is only after the renewal of the contested measure by Decision 2015/157, which the applicant’s representatives had requested the Council to refrain from proceeding with, that the applicant brought the present action before the General Court. More specifically, as is clear from the actual wording of the application, the present action was lodged after the applicant became aware of that renewal, on 30 January 2015, and after she had received, on 4 February 2015, notification of the Council’s express rejection of that request.

36 Moreover, in her first plea the applicant submits, in essence, repeating the comments made by the United Kingdom Minister for Europe on 19 January 2015, that, following the legislative elections held in October 2014, Tunisia must be regarded as having successfully completed its transition to democracy. According to the applicant, that fact should have led the Council to the conclusion that there was no longer any need to adopt measures such as the contested measure. However, such a plea may be raised only in respect of the extension of that measure by Decision 2015/157, not by previous decisions. Accordingly, as no precise indications are given in the application specifically concerning the scope of the first plea, it must be concluded that the present action seeks the annulment of Decision 2011/172, as extended most recently by Decision 2015/157, and of Regulation No 101/2011, as amended most recently by Implementing Regulation 2015/147, in so far as those measures concern the applicant.

37 That is also how the Council interpreted the application in its defence. The applicant did not dispute that reading of the application in the reply, lodged on 29 October 2015. Indeed, she confirmed it. The first page of the reply states that the action seeks the annulment of Decision 2011/72 and of Regulation No 101/2011, as amended by Decision 2015/157 and Implementing Regulation 2015/147, in so far as those acts concern the applicant.

38 Lastly, the applicant has not made any comment on the Report for the Hearing, which was sent to her by the Court on 24 October 2016 and the first page of which expressly indicates that the present action seeks the annulment of Decision 2011/72, as extended most recently by Decision 2015/157, and of Regulation No 101/2011, as amended most recently by Implementing Regulation 2015/147.

39 Nonetheless, at the hearing the applicant indicated to the Court that she was seeking, in essence, the annulment of Decision 2011/72, of Regulation No 101/2011 and of all the measures that have extended or amended those acts since 2011, in so far as they concern her. In particular, her representative stated at the hearing that the action contested both the first inclusion of the applicant’s name in the annex in question and all the instances in which the freezing of her funds was renewed, that is to say, not only the renewal that occurred in 2015 but also the previous and subsequent renewals.

40 Such a broad interpretation of the application is not apparent from the applicant’s written submissions and is also, as indicated in paragraph 37 above, directly contradicted by the reply.

41 In any event, even if, by the form of order sought in the application, the applicant intended to refer to all the measures identified in paragraph 39 above, the form of order sought must be considered inadmissible, in so far as concerns the measures adopted by the Council in relation to the applicant both before and after 30 January 2015, for the reasons set out below.

The measures adopted by the Council in respect of the applicant before Decision 2015/157 and Implementing Regulation 2015/147

42 Under the sixth paragraph of Article 263 TFEU, proceedings for annulment must be instituted within two months of the publication of the measure, or of its notification to the applicant or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. In accordance with Article 102(1) of the Rules of Procedure of the General Court of 2 May 1991, where the period of time allowed for commencing proceedings against a measure adopted by an institution runs from the publication of that measure, that period is to run from the end of the 14th day after publication of the measure in the Official Journal of the European Union. In accordance with the provisions of Article 102(2) of those rules, that period must also be extended on account of distance by a single period of 10 days.

43 It is settled case-law that the period for bringing actions prescribed in the sixth paragraph of Article 263 TFEU is a matter of public policy, since it was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice (see order of 7 January 2015, Cham v Council, T‑627/14, not published, EU:T:2015:10, paragraph 13 and the case-law cited).

44 In particular, the period for bringing an action for annulment of a measure imposing restrictive measures starts to run only from the date on which the person concerned was given notification of the measure, not the date on which the measure was published, as the latter forms part of a series of individual decisions (see order of 7 January 2015, Cham v Council, T‑627/14, not published, EU:T:2015:10, paragraph 14 and the case-law cited).

45 Accordingly, while it is true that a measure enters into force as soon as it is published, the period for bringing an action for annulment of that measure starts to run, under the fourth paragraph of Article 263 TFEU, for each of the persons and entities referred to in that provision, from the date of the communication which they must receive (see order of 7 January 2015, Cham v Council, T‑627/14, not published, EU:T:2015:10, paragraph 16 and the case-law cited).

46 According to Article 12(2) of Regulation No 101/2011, in the version applicable in the present case, ‘the Council shall communicate its decision, including the grounds for the listing, to the natural or legal person, entity or body referred to in paragraph 1, either directly, if the address is known, or through the publication of a notice, providing such natural or legal person, entity or body with an opportunity to present observations.’

47 According to the case-law of the Court of Justice on restrictive measures, where the legislative framework in question contains such a provision and the address of one of the persons concerned is unknown and it is therefore impossible to communicate directly with that person, the period available to that person to challenge the measure in so far as it concerns him must be calculated from the date of publication of notices such as those referred to in Article 12(2) of Regulation No 101/2011, that is, from the date of the indirect communication of the Council’s decision to the person concerned (see order of 10 December 2015, NICO v Council, C‑153/15 P, not published, EU:C:2015:811, paragraphs 48 and 49 and the case-law cited and judgment of 3 July 2014, Alchaar v Council, T‑203/12, not published, EU:T:2014:602, paragraphs 50 to 52 and the case-law cited).

48 The Council indicated at the hearing that its departments did not know the applicant’s address and that notices such as those referred to in Article 12(2) of Regulation No 101/2011 were published in the Official Journal.

49 The applicant has made no comment on that particular point. In particular, she has not denied that the Council’s departments did not have her address, at least not until her representatives got in touch with those departments on 26 November 2014 (see paragraph 19 above).

50 It should be noted in that regard, first, that there is nothing in the case-file to suggest that the Council’s departments were aware of the applicant’s address, which does not appear in any of the Council’s acts concerning her. Second, the Council did in fact publish notices of the type referred to in Article 12(2) of Regulation No 101/2011 both after the first listing of the applicant in the Annex in question (OJ 2011 C 37, p. 6) and after each renewal of the listing during the period concerned (OJ 2012 C 26, p. 2; OJ 2013 C 31, p. 7; OJ 2014 C 28, p. 7). As a consequence, it must be concluded in the present case that, on 30 January 2015, the Council communicated indirectly measures adopted by it regarding the applicant, for the purposes of the case-law cited in paragraph 47 above.

51 In the light of the foregoing, the Court concludes that, for each of the measures adopted by the Council regarding the applicant before 30 January 2015, the period for bringing proceedings started to run on the date of publication of the corresponding notice in the Official Journal. Thus, also with regard to the last measures adopted by the Council before 30 January 2015, that is, Decision 2014/49 and Regulation No 81/2014, the period for bringing proceedings started to run on 31 January 2014, the date on which the notice referred to in Article 12(2) of Regulation No 101/2011 was published in the Official Journal, which means that the present application, lodged on 26 March 2015, namely more than a year after 31 January 2014, is clearly inadmissible in so far as it is directed against those two measures. The same applies, a fortiori, as regards the measures adopted by the Council before 31 January 2014.

52 It is clear that the applicant has neither established nor indeed claimed the existence of unforeseeable circumstance or force majeure within the meaning of Article 45 of the Statute of the Court of Justice of the European Union, which would allow her to avoid forfeiture of her right based on the expiry of the period for bringing an action for annulment of measures adopted by the Council in respect of the applicant before 30 January 2015.

53 It is true that, at the hearing, the applicant’s representative referred to the fragile psychological state his client had been in since 2011. Nonetheless, even if that fact had been put forward by way of justification for the late lodging of the application as regards the measures adopted by the Council in respect of the applicant before 30 January 2015, it has not been established that the applicant’s condition was so serious as to prevent her from managing her affairs with care and exercising due diligence in order to comply with the time-limit for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU (see, to that effect, order of 3 October 2012, Tecnimed v OHIM — Ecobrands (ZAPPER-CLICK), T‑360/10, not published, EU:T:2012:517).

54 Lastly, it should be noted that the date on which the applicant actually became aware of the measures adopted by the Council in her regard before 30 January 2015 is relevant, in a case such as the present, only in a subsidiary sense, where the measure in question has not been published and no notification has been given of it (see, to that effect, judgment of 1 July 2009, ISD Polska and Others v Commission, T‑273/06 and T‑297/06, EU:T:2009:233, paragraph 55 and the case-law cited).

55 As indicated in paragraph 46 above, the legislation applicable in the present case provides that notification must be given, either directly or indirectly, of the measures in question. It is also apparent from the foregoing that the Council gave indirect notification of the measures adopted before 20 January 2015, in accordance with Article 12(2) of Regulation No 101/2011, by publishing the notices referred to in paragraph 50 above.

56 As a consequence, having regard to the case-law cited in paragraph 54 above, the date on which the applicant actually had knowledge of the measures in question is irrelevant in the present case for the purpose of calculating the period available to her for instigating proceedings for annulment of the measures adopted by the Council in her regard before 30 January 2015.

The measures adopted by the Council in respect of the applicant after Decision 2015/157 and Implementing Regulation 2015/147

57 In reply to a question put by the Court at the hearing, the applicant, while acknowledging that there was no reference in her written pleadings to measures adopted by the Council in her regard after 30 January 2015, stated that she intended, in the present proceedings, also to challenge each renewal of the contested measure after that date.

58 The Council submitted at the hearing that the challenge to the renewal of the measure for 2016 was inadmissible, as no request had been made by the applicant to amend the form of order sought, for the purpose of Article 86 of the Rules of Procedure.

59 It should be noted at the outset that only actions for annulment of an act in existence adversely affecting the applicant may be brought before the Court. An action for annulment cannot seek the speculative review of hypothetical acts which have not yet been adopted (see judgment of 3 July 2014, Alchaar v Council, T‑203/12, not published, EU:T:2014:602, paragraph 72 and the case-law cited).

60 It is clear from Article 86(1) and (2) of the Rules of Procedure that, where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter, the applicant may, before the oral part of the procedure is closed, modify the application to take account of that new factor. The modification of the application must be made by a separate document within the time limit laid down in the sixth paragraph of Article 263 TFEU, within which the annulment of the measure justifying the modification of the application may be sought. At the hearing, the Court reminded the applicant’s representative of the content of those provisions.

61 It is therefore necessary to ascertain whether the clarifications provided by the applicant at the hearing may be said to amount to an amendment of the form of order sought for the purpose of Article 86 of the Rules of Procedure and whether such an amendment may be considered admissible.

62 It is clear that, even if the applicant intended to amend the form of order sought in such a way that it also covered the measures adopted by the Council in her regard in 2016, that is to say, simply the measures adopted after the present application was lodged and before the hearing was held, she sought such a modification of the application only orally at the hearing. Accordingly, as no request to modify the application was made in a separate document, in accordance with the requirements laid down in Article 86(2) of the Rules of Procedure, the request must be dismissed as inadmissible (judgment of 2 June 2016, HX v Council, T‑723/14, under appeal, EU:T:2016:332, paragraph 29), irrespective of whether such a modification could be regarded as having been submitted within the period laid down by Article 86 of those rules.

63 In the light of the foregoing, it must be concluded that, even if the applicant sought in the application not only the annulment of the measures adopted by the Council in her regard on 30 January 2015, but also the annulment of the measures adopted by the Council in her regard after that date, the present application is admissible only in so far as it seeks the annulment of Decision 2011/72, as extended most recently by Decision 2015/157, and of Regulation No 101/2011, as amended most recently by Implementing Regulation 2015/147.

64 It is true that, with regard in particular to Implementing Regulation 2015/147, it is apparent from paragraphs 24 and 25 above that that regulation simply made amendments to the Annex to Regulation No 101/2011 in relation to persons other than the applicant, without replacing the Annex to the latter regulation with a new Annex.

65 Nevertheless, it is appropriate in the present case to examine the substance of the case as regards Regulation No 101/2011, as amended most recently by Implementing Regulation 2015/147, without there being any need to adjudicate on whether the applicant had an interest in bringing proceedings for the annulment of that regulation (see, to that effect and by analogy, judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 54 and the case-law cited).

66 The applicant relies, in essence, on five pleas in law in support of her application. Those pleas allege: (i) illegality, on the basis of the claim that there is no legal basis for Decision 2011/72, as extended most recently by Decision 2015/157, or for Regulation No 101/2011, as amended most recently by Implementing Regulation 2015/147; (ii) infringement of the obligation to state reasons; (iii) failure to have due regard for the criteria laid down in Article 1(1) of Decision 2011/72 and Article 2(1) of Regulation No 101/2011; (iv) lack of sufficient factual basis for the contested measure; and (v) infringement of the right to property.

67 Before examining the five pleas, it should be noted that, at the hearing, the applicant’s representative referred to an alleged infringement of the applicant’s rights of defence. That plea, which was raised neither directly nor by implication in the application and has no direct connection with the other pleas raised in the application, is a new plea within the meaning of Article 84(1) of the Rules of Procedure. It follows that it is inadmissible unless it is based on matters of law or of fact which have come to light in the course of the procedure (see judgment of 6 July 2000, AICS v Parliament, T‑139/99, EU:T:2000:182, paragraph 62 and the case-law cited).

68 In the present case, the applicant’s representative simply referred to the applicant’s psychological condition since 2011 and stated that the applicant had informed him that she had received notification from the Council of the contested measures only at their last meeting.

69 In that regard, according to case-law, in order for a new fact to be classified as a matter of fact that came to light in the course of the procedure within the meaning of Article 84(1) of the Rules of Procedure, it is not sufficient that the applicant became aware of it in the course of the procedure before the Court. What is also required is that the applicant was not in a position to be aware of that matter previously (judgment of 9 December 2010, Tresplain Investments v OHIM — Hoo Hing (Golden Elephant Brand), T‑303/08, EU:T:2010:505, paragraphs 162 to 169). It follows that the time the applicant’s representative was in a position to be aware of the matter of fact relied on is irrelevant in so far as concerns the classification of that matter as a matter of fact that came to light in the course of the procedure within the meaning of the provision referred to above.

70 Therefore, the circumstances relied on by the applicant’s representative at the hearing cannot justify the late submission of the plea alleging infringement of the applicant’s rights of defence.

The first plea in law, alleging illegality on the basis of the claim that there was no legal basis for Decision 2011/72, as extended most recently by Decision 2015/157, or for Regulation No 101/2011, as amended most recently by Implementing Regulation 2015/147

71 The applicant submits, first, that Decision 2011/72 infringes Article 29 TEU in that its stated objective no longer falls within the framework of the common foreign and security policy (CFSP), as defined in Articles 24(1) and 21(1)(b) and (d) TEU. According to the applicant, the rationale for that decision and, as a consequence, the measures imposed by it, are no longer valid, because, of all ‘the countries which have experienced the changes wrought by the so-called “Arab Spring”’, the Tunisian Republic has today ‘quite uniquely transformed itself into a fully flourishing and stable democratic society’. In support of her claims, the applicant refers to the comments of the UK Minister for Europe on the subject, who, with reference in particular to the legislative elections held in October 2014, stated that the transition to democracy was successfully completed in Tunisia in 2014. The applicant therefore submits that there is no longer any need to demonstrate the existence of a nexus between the alleged misappropriation of funds and the thwarting of economic or social development in the country in question.

72 Next, in her fourth plea, the applicant maintains, in particular, that the true underlying purpose of the contested measure is to ensure that her assets are confiscated in the event that the persons under investigation in the proceedings before the national courts are convicted and that such a ‘confiscatory’ objective is not permissible under the CFSP.

73 Lastly, in the reply, the applicant argues that while, pursuant to Article 29 TEU, the Council is ‘empowered to support the social movements of foreign peoples in their quest for democracy and freedom’, it is not entitled, under the provisions of the EU Treaty, to impose economic and financial sanctions on individuals or entities who are nationals of third States.

75 It should be noted first of all that it has previously been held that as the legislative provisions of Decision 2011/72, in particular those in Article 1 of that decision, fulfil the three criteria arising from the provisions of Articles 21, 23, 24(1), 25 and the first subparagraph of Article 28(1) TEU on the one hand, in conjunction with Article 29 TEU on the other hand, that decision was lawfully adopted on the basis of Article 29 TEU and its application extended on that same basis (see judgment of 30 June 2016, CW v Council, T‑224/14, not published, EU:T:2016:375, paragraphs 66 to 73 and the case-law cited).

76 In particular, it has been held that Decision 2011/72 is fully based on the CFSP and satisfies the objectives referred to in Article 21 TEU. As is apparent from recital 1 thereof, that decision was intended to support the Tunisian people ‘in their efforts to establish a stable democracy, the rule of law, democratic pluralism and full respect for human rights and fundamental freedoms’. That decision therefore forms part of a policy of providing support to the new Tunisian authorities to promote both economic and political stability in the Tunisian Republic. It also sought, as stated in recital 2 thereof, to assist the Tunisian authorities in combating the misappropriation of Tunisian State funds by freezing the assets of persons ‘responsible’ for misappropriation of such funds, who are thus depriving the Tunisian people of the benefits of the sustainable development of their economy and society and undermining the development of democracy in the country (see judgment of 30 June 2016, CW v Council, T‑224/14, not published, EU:T:2016:375, paragraph 67 and the case-law cited).

77 It is clear from the foregoing that the sole purpose of the measures adopted by the Council in Decision 2011/72 was, contrary to what is claimed by the applicant (see paragraph 72 above), to promote both political and economic stability in Tunisia by ensuring that it was possible for the Tunisian authorities to recover misappropriated public funds that may be held by persons responsible for such acts. As a consequence, by adopting those measures, intended simply to preserve assets, in respect of those persons, the Council sought to assist in both establishing acts committed to the detriment of the Tunisian authorities and in restoring the proceeds of misappropriation (see, by analogy, judgments of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraphs 78 and 206, and of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 68). As previously held, those measures do not carry any criminal law connotations and cannot be regarded as sanctions imposed on the persons concerned (see judgment of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraphs 78 to 84 and 155 and the case-law cited).

78 This Court has also previously held that Article 2(1) of Regulation No 101/2011, which identifies the extent of the funds to be frozen under that regulation, reiterates the provisions of Article 1(1) of Decision 2011/72. As a consequence, provision was made for the freezing of funds instigated by the regulation in a decision adopted under the CFSP, namely Decision 2011/72, as subsequently extended, and fulfils the requirements laid down in Article 215(2) (see judgment of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraphs 73 and 74 and the case-law cited).

79 Those findings cannot be called into question by the arguments put forward by the applicant, who, by claiming that the Tunisian Republic has successfully completed its transition to democracy since 2011, is in fact seeking — though she does not expressly invoke Article 277 TFEU — to dispute the legality in general of the decision made in 2015 to continue with the regime of which the contested measure forms part. In particular, the applicant claims, in essence, that that decision no longer satisfies the objective laid down in Article 21 TEU (see paragraph 76 above) and therefore lacks a proper legal basis.

80 As a preliminary point, it should be noted that, according to case-law, the Union legislature must be allowed a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. The Court of Justice has concluded from this that the legality of a measure adopted in those fields can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 120).

81 In the present case, as the Council observed with reference to its conclusions of 19 January 2015, it did not consider, contrary to what the applicant claims, that the process of transition to democracy in Tunisia had been successfully completed. The various developments referred to by the applicant do not show that the Council made a manifest error in its assessment of that process. While those developments are indicative of progress, it is obviously not possible to conclude, on the basis of such developments, that that process has been successfully completed, such completion being dependent, inter alia, as the Council indicated in those conclusions, on the consolidation of the rule of law and the democratic achievements of the new Tunisian constitution.

82 It is clear that, in the present case, none of the submissions made by the applicant is capable of showing that the continuation of the regime of which the contested measure forms part is manifestly inappropriate, having regard to the objective which the Council seeks to attain, that is, to assist in both establishing acts committed to the detriment of the Tunisian authorities and in restoring the proceeds of misappropriation, with the ultimate goal of promoting both political and economic stability in Tunisia (see paragraph 77 above).

83 Next, even if, as the applicant claims, the transition to democracy in Tunisia, which was taking place between 2011 and the decision to maintain the regime in question in 2015, was in the process of being successfully completed, the objective stated by the Council in Decision 2011/72, as set out in paragraph 76 above, still remains valid, contrary to what is stated in the application. That objective will indeed remain valid for as long as the persons responsible for acts entailing the misappropriation of Tunisian State funds, within the meaning of that decision, committed before 14 January 2011, are able to retain those funds and thus continue to deprive the Tunisian people of the benefits of the sustainable development of their economy and society and, as a knock-on effect, to undermine the future development of democracy in the country. As a consequence, as support for the process of transition to democracy in Tunisia is one of the ultimate objectives of the policy of which a freezing measure adopted on the basis of Decision 2011/72 forms part (see, to that effect and by analogy, judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 143), the decision as to whether such a measure should be renewed cannot be dependent on the successful outcome of the process in question, but on the successful outcome of judicial proceedings for the recovery of misappropriated funds by the Tunisian State. It must therefore be concluded that the decision made in 2015 to maintain the regime of which the contested measure forms part is justified in the light of the objectives pursued by the CFSP.

84 Lastly, with regard to the applicant’s argument set out in paragraph 73 above, it is sufficient to observe that, where a decision adopted in accordance with Title V, Chapter 2, TFEU so provides, as in the present case, the Council may adopt restrictive measures, such as the contested measure, in respect of any ‘natural or legal person’ or ‘non-State entity’ or any ‘group’, including third-country nationals (see judgment of 30 June 2016, CW v Council, T‑224/14, not published, EU:T:2016:375, paragraph 77 and the case-law cited).

85 It follows from the foregoing that the first plea put forward by the applicant must be rejected.

86 In paragraph 15 of the application, the applicant contends that the Council failed to have regard to its obligation to state sufficient reasons. She submits, in that regard, that the statement of reasons for the adoption of the contested measure is not substantively different from the formula employed in recital 2 of Decision 2011/72. Lastly, the applicant maintains that there is nothing in that statement of reasons to clarify the identity of the public official whom, the Tunisian authorities allege, she aided and abetted.

88 It should be noted, first, that the second paragraph of Article 296 TFEU states that ‘legal acts [adopted by the EU institutions] shall state the reasons on which they are based’.

89 Moreover, according to Article 41(2)(c) of the Charter of Fundamental Rights of the European Union, the right to good administration includes, inter alia, ‘the obligation of the administration to give reasons for its decisions’.

90 It has consistently been held that the statement of reasons required by Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights must be appropriate to the contested act and to the context in which it was adopted. It must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. The requirement to state reasons must be assessed by reference to the circumstances of the individual case (see judgment of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraph 94 and the case-law cited).

91 It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. Accordingly, the reasons given for a measure adversely affecting a person are sufficient if it was adopted in circumstances known to that person which enable him to understand the scope of the measure concerning him. In addition, the degree of precision of the statement of the reasons for a decision must be weighed against practical realities and the time and technical facilities available for making the decision (see judgment of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraph 95 and the case-law cited).

92 In particular, the statement of reasons for an asset-freezing measure cannot, in principle, consist merely of a general, stereotypical formulation. Subject to the reservations set out in the preceding paragraph, such a measure must, on the contrary, indicate the actual and specific reasons why the Council considers that the relevant rules are applicable to the party concerned (see judgment of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraph 96 and the case-law cited).

93 In the present case, it should be noted that the annexes to Decision 2011/72 and to Regulation No 101/2011, as amended by Decision 2015/157 and Implementing Regulation 2015/147, set out, unequivocally, the legal considerations on which they are based. First, recital 1 of Decision 2015/157 refers to Decision 2011/72 and its annex refers to Article 1 of that decision. Second, Regulation No 101/2011, ‘in particular Article 12 thereof’, is referred to by Implementing Regulation 2015/147, the annex to which refers to Article 2(1) of Regulation No 101/2011.

94 Furthermore, it is apparent from both the annex to Decision 2011/72 and the annex to Regulation No 101/2011, as amended, respectively, most recently by Decision 2015/157 and Implementing Regulation 2015/147, that the applicant’s assets were frozen on the ground that she was the subject of judicial investigations by the Tunisian authorities for complicity in the misappropriation of public monies by a public office-holder, complicity in the misuse of office by a public office-holder to procure an unjustified advantage for a third party and to cause a loss to the administration, and complicity in exerting wrongful influence over a public office-holder with a view to obtaining directly or indirectly an advantage for another person. The factual considerations which form the basis of the Council’s view that the applicant’s assets should be frozen, as provided for in Article 1(1) of Decision 2011/72 and Article 2(1) of Regulation No 101/2011, are thus sufficiently detailed to enable the applicant to question the accuracy of those considerations before the Council and, subsequently, before the EU judicature (see judgment of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraph 98 and the case-law cited). Moreover, contrary to what the applicant maintains (see paragraph 86 above), those considerations are fundamentally different from the formula used in recital 2 of Decision 2011/72 (see paragraph 2 above).

95 Furthermore, the statement of reasons for the contested decision is not stereotypical. It does not consist merely in a general formula. It is true that some of the considerations are similar to those on the basis of which natural persons other than the applicant were included in the annexes to Decision 2011/72 and Regulation No 101/2011, as amended, and had their assets frozen. However, those considerations seek to describe the particular situation of the applicant, who has, like others, according to the Council, been subject of judicial proceedings linked to investigations concerning the offences described in paragraph 94 above (see judgment of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraph 99 and the case-law cited).

96 That conclusion cannot, moreover, be called into question by the arguments put forward by the applicant, who claims that there is nothing in the statement of reasons concerning her ‘to enlighten [her] as to the identity of the public official who she is alleged to have aided and abetted’ (see paragraph 86 above), given that, in the present case, the measures at issue enable the applicant to understand the scope of the measures adopted in her regard, namely that her assets were frozen by the Council because judicial proceedings for, inter alia, complicity in the misappropriation by a public official of Tunisian State funds were being conducted in her regard in Tunisia.

97 In order to comply with the obligation to state reasons, the Council was required to specify neither the offences which she is alleged to have committed by the Tunisian authorities nor, even less, the identity of other persons suspected of involvement in those offences. The simple reference to the nature of the offences which the Tunisian authorities claim the applicant committed, in the context of ‘judicial investigations’, was sufficient to enable her to challenge effectively Decision 2011/72 and Regulation No 101/2011, as amended most recently by Decision 2015/157 and Implementing Regulation 2015/147 (see, by analogy, judgment of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraph 100 and the case-law cited).

The third ground, alleging failure to have due regard for the criteria laid down in Article 1(1) of Decision 2011/72 and Article 2(1) of Regulation No 101/2011

99 Part of the argument put forward by the applicant in the plea for annulment alleging a manifest error of assessment seeks, in fact, to challenge the Council on the basis that, in adopting the contested measures, it failed to have due regard for the criteria laid down in Article 1(1) of Decision 2011/72 and Article 2(1) of Regulation No 101/2011. The applicant refers, in particular, to the letter of 29 January 2011 (see paragraph 20 above), from the Tunisian Ministry for Foreign Affairs to the EU delegation in Tunisia, commenting that that letter mentioned nothing concerning an alleged misappropriation of State funds but rather ‘money-laundering deriving from abuse of an official position and professional and social activities’. In the reply, the applicant contends that it is on the basis of that Note Verbale of 29 January 2011 that the Council relied in adopting the contested measure, even though she has never been heard by a court in connection with money-laundering or been charged with such an offence. In the light of the above and of the principle that penalties must fit the offence, the applicant submits that Decision 2011/72 should be deemed null and void.

100 While not disputing that she is under judicial investigation for complicity in the misappropriation of State funds by a public official, the applicant nevertheless argues that the other offences with which she is charged by the Tunisian authorities, punishable under Articles 87 and 96 of the Tunisian Criminal Code, ‘do not contemplate, necessarily, the subsequent diversion of “State funds”’. The applicant notes, also, that legislative provisions imposing administrative penalties must be interpreted strictly, in accordance with the principle of the presumption of innocence.

101 The applicant argues that, in any event, it has not been proved that she herself performed a public function or that she facilitated acts entailing misappropriation of State funds by a public official. She also states that she has been deprived of her assets for more than four years, which is equivalent to a sentence that the Council has no right to impose, in particular in the absence of any final conviction. According to the applicant, the adoption of the contested measure is, as a result, contrary to the principle of the presumption of innocence.

103 With regard, first, to the applicant’s argument set out in paragraph 99 above, it is clear, as the Council contends, that the latter did not, by Decision 2015/157, renew the contested measure on the basis of the letter from the Tunisian Ministry for Foreign Affairs of 29 January 2011, but on the basis of the attestation provided by the office of the first investigating judge of the Court of First Instance, Tunis, which was signed by the chief registrar of that court, of 19 December 2014, as referred to in paragraphs 21 and 22 above, and which states that the applicant was being investigated in Tunisia ‘for complicity in the misappropriation of public monies by a public office-holder, complicity in the misuse of office by a public office-holder to procure an unjustified advantage for a third party and to cause a loss to the administration, [and] complicity in exerting wrongful influence over a public office-holder with a view to obtaining directly or indirectly an advantage for another person’. Accordingly, the claims made in that letter cannot, irrespective of the nature and accuracy of those claims, be considered relevant in the present case.

104 Second, the applicant’s argument that the Tunisian authorities claim that she committed offences other than misappropriation of State funds must be rejected. It is settled case-law that it is sufficient for just one of the reasons given by the Council to be valid in order for the applicant’s continued listing in the annexes to the contested acts to be legally justified (judgments of 21 April 2015, Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 45, and of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 100).

105 That would appear to be the case here, with regard to the first reason given for listing the applicant, which is based, as the applicant acknowledges in paragraph 20 of the application, on her alleged involvement in acts classified by the Tunisian authorities as ‘misappropriation of public monies’, within the meaning of Article 99 of the Tunisian Criminal Code, cited by the applicant in paragraph 10 of the application.

106 The concept of misappropriation of State funds, as used in Article 1(1) of Decision 2011/72 and in Article 2 of Regulation No 101/2011, is clear and precise and is generally understood to mean the illegal use of funds or assets belonging to, or under the control of, a public person for a purpose contrary to that for which those funds or assets were intended, particularly for private purposes. That definition excludes in particular any criminal activities linked to the unlawful handling of private funds (judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 94).

107 Nevertheless, it should be noted in that regard that, given the objectives of the asset freeze imposed by Article 1(1) of Decision 2011/72, as referred to in paragraph 77 above, the provisions of that article, which determine the category of persons covered by that asset freeze, must be interpreted broadly. Furthermore, contrary to what the applicant claims (see paragraph 100 above), in view of the purely precautionary nature of the asset freeze, the general principle of EU law of legality of criminal offences and penalties, enshrined in the first sentence of Article 49(1) of the Charter of Fundamental Rights, on the one hand, and the principle of the presumption of innocence, enshrined in Article 48(1) of the Charter, on the other, are not applicable in the present case and cannot, therefore, preclude such a broad interpretation (see, to that effect and by analogy, judgments of 27 February 2014, Ezz and Others v Council, EU:T:2014:93, paragraphs 70 to 84, and of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 85).

108 While it may thus be necessary, having regard to the objectives of the contested acts, to freeze the assets of persons responsible for unlawful acts which have not been categorised, under criminal law, by the Tunisian authorities as misappropriation of State funds but which nonetheless have had the effect of unduly depriving Tunisian public authorities of funding, the concept of misappropriation of State funds does cover, at the very least, actions capable of being characterised, under Tunisian criminal law, as misappropriation of State monies (judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraphs 97 and 95).

109 Accordingly, the applicant’s argument set out in paragraph 100 above must be rejected, without there being any need to consider whether the two other categories of acts into which fall those allegedly committed by the applicant may be classified as ‘misappropriation of Tunisian State funds’ within the meaning of Decision 2011/72.

110 The same applies with regard to the applicant’s argument that, even if she had been involved in acts entailing misappropriation of State funds, ‘she cannot be deemed presently responsible for withholding State funds’ and that she was therefore included on the list at issue in breach of Decision 2011/72. It must be stated in that regard that the fact that a person is no longer, at the time her name is included on such a list, actively involved in acts entailing misappropriation of State funds is not sufficient to call into question the characterisation of that person as responsible, within the meaning of Decision 2011/72, for previous acts of misappropriation. Accordingly, having regard to the objectives of Decision 2011/72, as indicated in paragraph 76 above, the Council did not commit the error of law alleged by the applicant.

111 Furthermore, the applicant appears to take the view that, by adopting the contested measure, the Council disregarded the criteria laid down in Article 1 of Decision 2011/72 and in Article 2 of Regulation No 101/2011 because, first, there has been no final judgment convicting her and, second, she is accused of being merely complicit in acts of misappropriation.

112 As regards the lack of any final judgment convicting the applicant of the offences it is alleged she committed, it is sufficient to note that, in view of the objectives of Decision 2011/72 (see paragraph 77 above) and in accordance with the considerations set out in paragraph 107 above, Article 1(1) of that decision must be interpreted as being directed not only at persons found guilty of misappropriation of Tunisian State funds but also persons who are the subject of ongoing judicial proceedings to establish whether they are responsible for the perpetration of specific acts constituting such misappropriation. Indeed, it is case-law that if the adoption of restrictive measures were made subject to the criminal convictions of persons suspected of having misappropriated funds, the effectiveness of the measure in question would be seriously undermined, as those persons would have enough time during the criminal proceedings to transfer their assets outside the European Union (see, to that effect and by analogy, judgment of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraphs 71 and 72). For the same reasons, as it is established that the person in question has been the subject of investigations conducted, in the context of criminal proceedings, by the judicial authorities to establish whether she perpetrated specific acts constituting misappropriation of State funds, the precise stage actually reached by those proceedings is not a factor that could justify her exclusion from the category of persons in question (judgment of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 80).

113 It should be noted in that regard that if the investigations being conducted by the judge in charge of the proceedings in question were ultimately to conclude that the applicant has no responsibility for the acts in question, the Council would then be obliged to put an end to the contested measure. Thus, for the reasons set out in paragraph 112 above, given the precautionary nature of that measure and the fact that it is temporary and reversible, its application at such a stage in the judicial proceedings, as in the present case, is not vitiated by an error of law (see judgment of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 81 and the case-law cited).

114 The same may be said as regards the applicant’s assertion that the Tunisian authorities claim that she was merely complicit in acts entailing misappropriation of State funds. Article 1(1) of Decision 2011/72 is not directed only at persons who have been found guilty of acts entailing misappropriation of State funds or persons who are the subject of judicial proceedings for such acts but also persons who are the subject of such proceedings or have been convicted as the accomplices of such persons. Even though the extent of the responsibility for an offence of an accomplice may be regarded, under the law applicable and in certain cases, as less than that of the principal or the other perpetrators, the fact nonetheless remains that such responsibility, however minor, is likely to lead to a criminal conviction (judgment of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 110).

115 In the present case, it is apparent from the reasons given for the inclusion of the applicant on the list at issue that she was the subject of criminal proceedings, as evidenced in the attestation referred to in paragraphs 21 and 22 above, brought by the Tunisian authorities to establish, inter alia, her complicity in the perpetration of acts entailing the misappropriation of public monies by a public official, on the basis of Article 32 of the Tunisian Criminal Code, cited by the applicant in paragraph 10 of the application.

‘The following shall be regarded as accomplices and punished as such: 1. Any person who, by means of gifts, promises, threats, misuse of authority or power, machinations or deception, has caused or instructed another to commit an offence; 2. any person who, in full knowledge of the purpose to be achieved, procures arms, instruments or any other means capable of facilitating the commission of the offence; 3. any person who, with full knowledge of the aforesaid purpose, assists the principal in acts preparatory to or which facilitate the commission of the offence or which ensure its accomplishment; 4. any person who has knowingly provided assistance to the perpetrators to ensure, by concealment or any other means, that the perpetrators profit from the offence or go unpunished; 5. any person who, with full knowledge of the criminal conduct of the perpetrators, entailing robbery, threats to State security, public order, persons or property, has provided them with accommodation, a hiding place or a meeting place.’

117 In the light of the scope of the term ‘accomplice’, as defined in Article 32 of the Tunisian Criminal Code, no error can be attributed to the Council on the ground that it considered that an accomplice in the misappropriation of State funds could be regarded as responsible within the meaning of Article 1(1) of Decision 2011/72.

118 Moreover, with regard to persons who are the subject of criminal proceedings charged with complicity in acts that may be classified as misappropriation of State funds within the meaning of Decision 2011/72, even if it were not possible to regard such persons as responsible for such acts within the meaning of that decision, they fall, in the light of the objective of that decision, at the very least, within the category of persons associated with those responsible for misappropriation of Tunisian State funds within the meaning of that decision. The latter expression covers a particularly broad category which may encompass any person, entity or body with a sufficiently close connection with a person responsible for misappropriation of State funds that the assets of that person, entity or body may have benefited from the proceeds of the misappropriation. A more restrictive interpretation would undermine the effectiveness of the provision in question, whose purpose is to avoid circumvention of the asset freeze by the persons deemed responsible for the misappropriation of State funds by means of transfer to the assets of persons or entities associated with them. Even if the expression ‘persons associated with’ were to be interpreted strictly, it should, at the very least, include the persons considered to be the accomplices of the perpetrators of misappropriation of State funds, in view of the particularly close degree of their association with the perpetrators of the crime or offence. Accordingly, given that, as regards the circle of persons covered by the asset freeze imposed in Article 1(1) of that decision, that provision does not provide that the persons responsible for misappropriation of State funds and the persons and entities associated with them should be treated differently, it is, in principle, irrelevant whether the applicant is included in one of those categories or the other (see judgment of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 112 and the case-law cited).

119 In the light of the foregoing, it must be concluded that whether the applicant actually acted in the role of adviser at the Tunisian Ministry of Foreign Affairs, as indicated in line 27 of the Annex in question (see paragraphs 9 and 16 above), is irrelevant.

120 Lastly, it is true, as the applicant maintains, that the statement of reasons for the adoption of the contested measure does not cast any light on the identity of the public official whose accomplice she was, according to the Tunisian authorities. Nevertheless, the absence of that name is not sufficient, in the present case, to justify a finding that the adoption of that measure does not comply with the criteria laid down by Decision 2011/72 and by Regulation No 101/2011. As previously stated in connection with the first plea, the fact that judicial proceedings are being brought by the Tunisian authorities against the applicant for complicity in the misappropriation of State funds within the meaning of that decision is sufficient for it to be concluded that those criteria are met.

121 Accordingly, in the light of all the foregoing considerations, the applicant’s third pleas must be rejected.

The fourth plea, alleging a lack of a sufficient factual basis for the contested measure

122 By the arguments put forward in the second and fifth pleas, the applicant appears to be claiming that there is nothing in the information provided by the Tunisian authorities on which the Council relied in adopting the contested measure that may be regarded as precise, concrete evidence, thus meeting the requisite standard of proof in the present case.

123 The applicant also argues, in essence, that in view of the nature of the criminal proceedings to which she is subject in Tunisia and of the content of the attestation referred to in paragraph 21 above, the Council should not have adopted the contested measure. She thus contends that there was no sufficient factual basis for that measure.

124 Furthermore, the applicant appears to argue that, in view of the circumstances of the judicial proceedings being conducted by the Tunisian authorities in her regard, the Council should not have placed reliance on the evidence provided by those authorities and should have carried out its own checks.

125 Thus, according to the applicant, the fact that she has been heard only once in the judicial proceedings concerning her shows that the proceedings are ‘in fact, a politically motivated sham’. The applicant also states that she does not know the particulars of the offences with which she is charged, such as the dates on which the offences occurred, the various modes of offending and the injured parties. With regard in particular to those dates, she claims that the offences with which she is charged by the Tunisian authorities ‘can be considered to be purely and simply time-barred and may not give rise to legal action being taken against [her] in any capacity whatsoever’.

126 Lastly, the applicant submits, in the reply, that the Council cannot ‘endorse legal steps taken under the internal law of a State that is not a Member of the European Union and, consequently, consider them as the basis for one of its decisions’. According to the applicant, the Council has not shown any inclination to ask ‘the Tunisian diplomatic or judicial authorities to provide sufficient information on her criminal status’.

128 It should be stated at the outset that, contrary to what the applicant claims (see paragraph 122 above), in renewing the contested measure the Council relied on the attestation referred to in paragraph 21 above, which meets the requisite standard of proof in the present case.

129 According to case-law, the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights requires, inter alia, that, as part of the review of the lawfulness of the reasons forming the basis of the decision to include or to maintain a given person on the list of persons subject to restrictive measures, the Courts of the European Union are to ensure that that decision is taken on a sufficiently solid factual basis. That entails, in this instance, a verification of the factual allegations in the summary of reasons underpinning the decision, in order to review whether those reasons are sufficient in themselves to support the decision (see judgment of 21 April 2015, Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 45 and the case-law cited, and judgment of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 129).

130 In particular, the review as to whether the inclusion of an applicant’s name on the list of persons subject to restrictive measures is well founded must be carried out by assessing whether the factual allegations in the summary of reasons justifying the inclusion constitute sufficient evidence that the applicant meets the general criteria laid down by the Council in the contested measures to limit the group of persons who may be subject to those measures. Such an appraisal must be carried out by examining the evidence, not in isolation but in its context. Moreover, according to case-law, in assessing the nature, form and degree of the proof that the Council may be asked to provide, account must be taken of the specific nature and scope of the restrictive measures and of their purpose (see judgment of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 130 and the case-law cited).

131 Accordingly, when adopting a decision under Article 1(1) of Decision 2011/72, the Council must carry out an assessment of the evidence available to it in order to determine whether a person falls within the definition of a person ‘responsible for misappropriation of State funds’ or within the category of persons ‘associated with’ those responsible. In the present case, the Council carried out an assessment of the facts set out in the attestation referred to in paragraph 21 above and concluded that it was necessary to extend the contested measure.

132 It will be recalled that the attestation in question refers to criminal proceedings being conducted in Tunisia against the applicant for acts entailing ‘complicity in the misappropriation of public monies by a public office-holder, complicity in the misuse of office by a public office-holder to procure an unjustified advantage for a third party and to cause a loss to the administration, and complicity in exerting wrongful influence over a public office-holder with a view to obtaining directly or indirectly an advantage for another person’. It is clear from the examination of the third plea that, by taking the view that the applicant thus falls within the definition of persons ‘responsible for misappropriation of Tunisian State funds and persons … associated with them’ within the meaning of Decision 2011/72, the Council did not err in law.

133 That being established, it should be noted that the attestation in question provides an adequate factual basis to justify the inclusion of the applicant on the list at issue. That attestation mentions the case to which it relates and the number under which it is registered, the fact that the person or persons involved are public officials of whom, the Tunisian authorities alleged, the applicant was an accomplice, the criminal law categorisation of the offences which those persons are alleged to have committed, the fact those offences were committed before 14 January 2011 and the provisions of the Tunisian Criminal Code under which those offences are punishable. Therefore, in the light of all the evidence in that attestation, the lack of information as to the precise dates on which the offences with which the applicant is charged were committed cannot call into question the nature of the attestation as one providing a sufficient factual basis for the renewal of the contested measure.

134 Clearly, the applicant has failed to provide any concrete evidence capable of calling into question the accuracy of the factual information in the attestation at issue, in particular the existence of the criminal proceedings referred to. On the contrary, the applicant appears to confirm that she is the subject of such proceedings (see paragraph 125 above). Similarly, there is nothing in the file to establish that those proceedings were abandoned before Decision 2015/157 was adopted or that the applicant has never been or is no longer the subject of those proceedings. Lastly, it should be noted that there is nothing in the case-file that raises any doubt as to the authenticity of that attestation, which, as indicated in paragraph 133 above, contains specific concrete information concerning at least one set of criminal proceedings being conducted against the applicant by the Tunisian authorities and bears the signature and seal of the registrar of the first investigating judge of the Court of First Instance, Tunis, as well as the signature of the chief registrar of that court, which is not called into question by the applicant.

135 Moreover, the arguments by which the applicant contends that the offences identified in the attestation in question lack precision (see paragraph 125 above) must be rejected. It is true that the attestation does not describe in detail the offences to which the criminal proceedings referred to therein relate. Nevertheless, that does not alter the fact that that attestation provided a sufficient factual basis for the adoption of the contested measure.

136 In that regard, as stated in paragraph 77 above, the contested measure does not carry any criminal law connotation and is purely precautionary in nature. As a consequence, in the light of the case-law cited in paragraph 129 above, the evidential requirements to be met by the Council in the present case cannot be said to be strictly the same as those to be met by the national judicial authority of a Member State in criminal proceedings as regards the safeguards provided by those proceedings.

137 Thus, it was necessary, in the present case, for the Council to verify, first, the extent to which it was possible to establish, on the basis of the attestation referred to in paragraph 21 above, that the applicant was the subject of criminal proceedings for acts covered by the term ‘misappropriation of State funds’ within the meaning of Decision 2011/72 and, second, whether those proceedings entitled the Council to find that the applicant satisfied the criteria laid down in Article 1(1) of that decision.

138 As stated in paragraph 132 above, the proceedings referred to in the attestation in question entitled the Council to classify the applicant as a person responsible for misappropriation of Tunisian State funds or, at the very least, as being associated with such a person, within the meaning of Article 1(1) of Decision 2011/72 and, as a consequence, to include her name in the annex to that decision. Moreover, as indicated in paragraphs 134 and 135 above, there is nothing in the case-file to challenge the content of that attestation, namely that the applicant is the subject of the proceedings referred to therein.

139 Furthermore, as stated in paragraph 126 above, the applicant maintains that, in view of the evidence set out in the attestation in question and the conduct of the proceedings referred to therein, the Council should have carried out its own verifications and investigations and not simply been satisfied with the information supplied to it by the Tunisian authorities.

140 In the context of the cooperation governed by the measures at issue, the Council cannot endorse in all circumstances the findings of the Tunisian judicial authorities in the documents supplied by those authorities. Nonetheless, it is not, in principle, for the Council itself to examine and assess the accuracy and relevance of the evidence on which those authorities have relied in conducting, in this instance, the criminal proceedings referred to in the second attestation. Indeed, the Council is not seeking to impose penalties itself in respect of the misappropriation of State funds being investigated by the Tunisian authorities, but to keep the possibility open for those authorities to establish the misappropriations in question and recover the proceeds. Moreover, that interpretation is confirmed by the judgment of 5 March 2015 (Ezz and Others v Council, C‑220/14 P, EU:C:2015:147), in which the Court of Justice held that the task of the Council or the General Court was not to verify whether the investigations to which the appellants in that case were subject were justified, but only to verify whether that was the case as regards the decision to freeze funds.

141 It may, admittedly, be inferred by analogy from the case-law on restrictive measures adopted with a view to combating terrorism that it fell, in the present case, to the Council, which is obliged to have due regard for the principle of sound administration, to examine carefully and impartially the evidence provided to it by the Tunisian authorities, in the light, in particular, of the observations and any exculpatory evidence that may have been submitted by the applicant (see judgment of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 142 and the case-law cited).

142 Thus, it was for the Council, when adopting the measures at issue, to assess, in the light, inter alia, of the content of any observations submitted by the person concerned and the particular circumstances of the case, whether it is necessary to carry out further verifications and in particular to request the Tunisian authorities to provide additional evidence if that already supplied proved to be insufficient. Furthermore, when exercising the right, which must be available to the persons concerned, to submit observations on the grounds which the Council intends to rely on as justification for maintaining their name in the annex to those measures, those persons may submit such evidence or indeed exculpatory evidence, which will require the Council to carry out further verifications (judgment of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 143: see also, to that effect and by analogy, judgment 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 115).

143 In the present case, it should be noted, first, that, as stated in paragraphs 134 to 136 above, the applicant has neither produced nor alluded to any evidence capable of calling into question the existence of the proceedings being conducted against her before the Court of First Instance, Tunis, which is confirmed by the attestation referred to in paragraph 21 above. Similarly, at the hearing the applicant simply voiced doubts as to the legal value of that attestation, without specifying the reasons for those doubts, and repeated, without providing or referring to the slightest evidence in support of her claims, that in the proceedings being conducted in her regard in Tunisia she has no legal status and has been heard only as a witness against a third party.

144 More generally, there is nothing at all in the documents before the Court to suggest that the applicant has brought to the Council’s attention evidence of such a nature as to justify a request for further clarification by that institution to the Tunisian authorities. The same applies as regards the letter which the applicant sent to the Council on 5 January 2015 (see paragraph 21 above), by which she challenged the Council’s decision to renew the contested measure, using arguments very similar to those she has put forward in the present proceedings, notwithstanding the fact that, between that date and the date on which the present action was lodged, she received further information from the Council (see paragraphs 21 and 22 above).

145 Admittedly, according to case-law, it is the task of the competent European Union 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 is, that those reasons are not well founded (judgment 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). Nevertheless, in the present case, as the Council produced evidence of the existence of criminal proceedings being conducted against the applicant, as borne out by the attestation referred to in paragraph 21 above, it was for the applicant to indicate the specific evidence on which she relies in order to call into question the justification given for the renewal of the contested measure.

146 Case-law does not require the Council to carry out systematically its own investigations or checks for the purpose of obtaining additional information, when it already has information provided by the authorities of a third country in taking restrictive measures against nationals of that country who are the subject of judicial proceedings there (judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 57, and of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 149).

147 It may, nonetheless, be inferred by analogy from the case-law cited in paragraph 142 above that, in a case like the present, the Council is required, in order to discharge its duty of careful and impartial examination, to assess, on the basis of the observations submitted by the person concerned and any factual evidence provided by that person, whether it is necessary to carry out further verifications. However, as indicated in paragraph 144 above and contrary to what the applicant appears to claim in paragraph 31 of the reply, on the basis of the evidence before the Court, there cannot be said to have been any such need in the present case.

148 Moreover, as regards her claim that it was impossible for her to gain access to the case-file for the proceedings to which she is subject in Tunisia, and even if, by that claim, the applicant meant that she was unable to gain access to evidence that might indicate that the Council was required to carry out further verifications, that claim, which was raised for the first time at the hearing, must be rejected as the applicant has not produced the slightest evidence capable of substantiating it, and there is no need to rule on its admissibility.

149 Lastly, with regard to the applicant’s claim that the fact that she was heard only once in the proceedings to which she is subject proves that those proceedings are ‘a politically motivated sham’ (see paragraph 125 above), it is clear that that claim is not sufficient, in itself, to call into question the justification given for the contested measure.

150 With regard, in particular, to the applicant’s claim that she has been heard only once by the Tunisian authorities, she has not provided, neither in the course of the administrative procedure nor before this Court, any evidence capable of establishing that that claim, assuming it was proved, would have had such an effect on the conduct of the ongoing proceedings against her that the Council would have been obliged to take it into account and carry out further investigations in that regard.

151 The same is true with regard to the claim that the offences with which the applicant is charged by the Tunisian authorities are time-barred. It is sufficient to note that the applicant does no more than assert that the offences in question may be regarded as time-barred (see paragraph 125 above), without providing any further details.

153 According to the applicant, since the Council has not shown the extent to which there is ‘a real risk that the assets [she holds] will be dissipated’, the contested measure is not proportionate and therefore infringes her right to property. The applicant claims that a more proportionate solution ‘may and will be proffered, such as the provision of a personal and/or credit-worthy third party financial guarantee’.

154 In the reply, the applicant also argues that whereas Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, guarantees the right to be tried within a reasonable period of time, for four years, she has neither been questioned nor tried in Tunisia, nor is her trial on the agenda. She claims that she cannot ‘wait indefinitely for the good will of the judges of her country while her assets have been frozen by Council decisions for almost four years’.

‘Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.’

157 It is therefore necessary to consider whether the inclusion of the applicant on the list at issue limited the exercise of her right to property and, if so, whether that limitation is lawful.

158 In the present case, the Council froze the applicant’s assets by Decision 2011/72, as extended, for limited periods. That measure is a precautionary measure not intended to deprive the applicant of her property. However, it unquestionably entails a restriction on the right to use the property, a restriction which must, moreover, be considered considerable, in view of the general scope of the freezing measure and the fact that that measure has been applicable since the entry into force of Implementing Decision 2011/79 and Regulation No 101/2011. Thus, the Council must be regarded as having limited the exercise by the applicant of the right conferred by Article 17(1) of the Charter of Fundamental Rights (see judgment of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 162 and the case-law cited).

159 Nevertheless, that right is not an absolute right and may, therefore, be subject to limitations, under the conditions laid down in Article 52(1) of the Charter of Fundamental Rights (see judgment of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 163 and the case-law cited).

160 Article 52(1) of the Charter on Fundamental Rights provides, first, that ‘[an]y limitation on the exercise of the rights and freedoms recognised by [the Charter on Fundamental Rights] must be provided for by law and respect the essence of those rights and freedoms’, and, second, that ‘[s]ubject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the [European] Union or the need to protect the rights and freedoms of others.’

161 Consequently, in order to comply with EU law, a limitation on the exercise of the right to property must, in any event, satisfy three conditions. First, the limitation must be ‘provided for by law’. In other words, the measure in question must have a legal basis. Secondly, the limitation must refer to an objective of general interest, recognised as such by the European Union. Those objectives include those pursued under the CFSP, as referred to in Article 21(2)(b) and (d) TEU, namely supporting democracy, the rule of law and human rights as well as sustainable development of developing countries with the essential objective of eradicating poverty. Thirdly, the limitation may not be excessive. On the one hand, it must be necessary and proportionate to the end pursued. On the other, the ‘essential content’, that is, the substance of the right or freedom in question must not be undermined (see judgment of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 168 and the case-law cited).

163 In the first place, the limitation on the exercise of the right to property at issue must be regarded as being ‘provided for by law’, within the meaning of Article 52(1) of the Charter of Fundamental Rights, as the criteria listed in Article 1(1) of Decision 2011/72 are met (see paragraphs 99 to 121 above).

164 In the second place, Decision 2015/157, by which the contested measure was renewed, on the basis of Decision 2011/72, pursues the same objectives as Decision 2011/72, namely those set out in Article 21(2)(b) and (d) TEU (see paragraphs 85 and 76 above). Therefore, that measure must be regarded as contributing to the effective attainment of objectives of general interest.

165 In the third place, in view of the nature of the reasons justifying the adoption of the contested measure and the derogating mechanism provided for in Decision 2011/72, the restriction on the applicant’s exercise of her right to property is not, contrary to what she claims, disproportionate (see, by analogy, judgment of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 172).

166 The principle of proportionality, as one of the general principles of EU law, requires that measures adopted by the EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued by the legislation in question. Thus, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 205 and the case-law cited, and judgment of June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 173).

167 In that connection, as indicated in paragraph 80 above, with regard to judicial review of compliance with the principle of proportionality, the Court of Justice has held that the EU legislature must be allowed a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. The legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institutions are seeking to pursue.

168 In the present case, given the importance of the ultimate objectives of the contested measure, the negative consequences of its application are not, prima facie, manifestly disproportionate (see, by analogy, judgments of 14 October 2009, Bank Melli Iran v Council, T‑390/08, EU:T:2009:401, paragraph 71, and of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 175).

169 The contested measure assists effectively with establishing misappropriation of State funds to the detriment of the Tunisian State and its people and makes it easier for the authorities of that State to obtain restitution of the proceeds of such misappropriation. As stated in connection with the examination of the third plea, the applicant is the subject of criminal proceedings in which the Tunisian authorities are carrying out investigations in order to establish whether she is guilty of complicity in acts of ‘misappropriation of Tunisian State funds’ within the meaning of Decision 2011/71 (see, by analogy, judgments of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 206, and of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 176).

170 There is nothing in the documents before the Court to suggest that the Council could have envisaged adopting measures that are less onerous than, but as appropriate as those imposed on the applicant by Decision 2011/72, as amended by Decision 2015/157. Moreover, the applicant has failed to establish the such a measure could have been envisaged (see, by analogy, judgments of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 207, and of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 177). Indeed, the applicant merely makes the assertions set out in paragraph 153 above and claims that, instead of applying the contested measure, it would have been possible for her to provide ‘a personal and/or credit-worthy third party financial guarantee’.

171 However, contrary to what the applicant appears to claim, in the absence of any judicial decision as to whether the charges against her in Tunisia are well founded, the Council was not in a position, at the time it adopted Decision 2015/157, either to ascertain the nature or itself indicate the amount of the State funds allegedly misappropriated in the case in which she is the subject of an investigation. It would not therefore have been possible, at the time when it adopted that decision, to set an appropriate amount for a ‘personal’ or ‘third party’ guarantee.

172 For the same reasons, the Council was not in a positon, at the time it adopted Decision 2015/157, to distinguish between the assets that may have become part of the applicant’s estate consequent upon such misappropriation and the remainder of the property comprising her estate. In those circumstances, the Council was not in a position to adopt a decision imposing, for example, a partial freezing of the applicant’s funds (see, by analogy, judgments of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 208, and of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 178).

173 Furthermore, first, the contested measure is by nature temporary and reversible (see paragraph 113 above) and does not therefore infringe the ‘essential content’ of the right to property. Second, pursuant to Article 1(3) of Decision 2011/72, as amended, derogations from the fund freezing measures at issue may be authorised in order to cover, for example, the ‘basic needs’ of the persons concerned, the payment of fees for the provision of legal services or indeed ‘extraordinary expenses’ (see, by analogy, judgments of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 209, and of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 179).

174 Lastly, as indicated in paragraph 154 above, the applicant takes issue with the Council, in essence, for taking into account, when adopting the contested measure, legal proceedings that have gone on for too long, giving rise to an infringement of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. However, that plea, which was formulated for the first time in the reply, as the applicant acknowledged at the hearing, must be regarded as a new plea within the meaning of Article 84(1) of the Rules of Procedure and, as it is not based on a matter which came to light in the course of the procedure within the meaning of that provision, it must be rejected as inadmissible.

175 In any event, even if such matters were invoked in support of the applicant’s claims regarding the alleged infringement of the principle of proportionality, those claims cannot succeed. It should be noted in that connection that, according to case-law, restrictions on the use of the right to property of persons targeted by a restrictive measure, such as the asset freeze at issue in the present case, stem not only from the general scope of the measure in question but also, as the case may be, from the actual duration of their application (judgment 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 132). Thus, the length of the period during which a measure such as the measure at issue is applied is a factor that must be taken into account by the EU judicature when examining whether that measure is proportionate (judgment of 30 June 2016, CW v Council, T‑516/13, not published, EU:T:2016:377, paragraph 172; see also, to that effect, judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 79).

176 However, in the present case, first, it is apparent from the documents before the Court that the contested measure has been based on the judicial proceedings to which the attestation referred to in paragraph 21 above relates only since the adoption of Implementing Decision 2014/49 and Implementing Regulation No 81/2014, that is since 30 January 2014. Moreover, even if those proceedings had been under way at the time of the first listing of the applicant in the annex to Decision 2011/72 and the annex to Regulation No 101/2011, which does not appear to be the case from the material in the file, those proceedings could not be regarded as having lasted an excessively long period as at the time of the most recent extension of Decision 2011/72, which is at issue in the present action, namely the extension introduced by Decision 2015/157 of 30 January 2015 (see, by analogy, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 91). Furthermore, it is clear that the applicant has failed to establish that there exists, under Tunisian criminal law, a rule that a judicial investigation may not last more than three years, irrespective of whether the assertions made by her in that regard, which were formulated for the first time at the hearing, should be regarded as out of time.

177 Having regard to all the foregoing, the fifth plea must be rejected and, in consequence, the action dismissed in its entirety.

178 Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

179 In the present case, since the applicant has been unsuccessful, she must be ordered to pay the costs.

2. Orders Sirine Bent Zine El Abidine Ben Haj Hamda Ben Ali to bear her own costs and to pay the costs incurred by the Council of the European Union.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Ben Ali v Council (Common foreign and security policy - Restrictive measures - Tunisia : Judgment) [2017] EUECJ T-149/15 (05 October 2017) URL: http://www.bailii.org/eu/cases/EUECJ/2017/T14915.html Cite as: EU:T:2017:693, ECLI:EU:T:2017:693, [2017] EUECJ T-149/15

Court of Justice of the European Communities (including Court of First Instance Decisions)