2 EU Court judgments defining misappropriation of Tunisian state funds; Matri and CW

In October 2015 Mr Matri won his case (in which Maya Lester QC appeared) challenging his original inclusion in 2011 on the EU’s Tunisian measures, which freeze the assets of people “responsible for the misappropriation of State funds” and those associated with them – see previous blog.  The measures themselves are on the ’sanctions in force’ section of this blog and take the same form as the EU’s sanctions relating to Egypt and Ukraine.

Mr Matri has just lost his challenge to his re-listing in Case T-545/13 Matri v Council (link to the judgment here), because it was sufficient for the EU Council in its revised reasons to have relied on certificates from the Tunisian Ministry of Justice showing that he is subject to judicial investigations for offences amounting to misappropriation of state funds.  The General Court (8th Chamber) has given a detailed and interesting judgment. Some of the key points are:

  1. The EU Council did not have to perform its own investigation, but could rely on the certificates from the Tunisian authorities. Even though the Court recognised that this was inconsistent with the Council’s duties to verify third country information when it comes to terrorist sanctions, it said the difference is justified because the object of these foreign policy measures is to support the Tunisian authorities not penalise misconduct.  The EU could seek clarification or further information but had no obligation to do so in this case, even though the applicant denied that there was any basis for the Tunisian investigations and challenged the independence of the Tunisian judicial system.
  2. Being under a judicial investigation is an additional category which might justify a finding of being responsible for misappropriating state funds, to add to the categories set out in the Ezzjudgment (on which see previous blog).
  3. That the phrase ‘misappropriation of State funds’ must be interpreted broadly and autonomously and could include the conduct of which Mr Matri was accused. It involves (a) the use of State resources for unintended purposes, in particular to obtain an advantage for a private person, and must (b) prejudice the public person concerned, causing quantifiable harm in so far as it results from the unlawful use of office involving the management of public assets.
  4. It did not matter that the Council had not said whether Mr Matri was himself alleged to be so responsible, or associated with those responsible, because the treatment of the two listing criteria is the same (query whether this point too is in line with previous sanctions case law).
  5. The Council also does not have to assess whether the person is in fact in possession of public funds or their quantum, or that he obtained a benefit as a result.

On the same day (30 June 2016) the same chamber of the General Court handed down 2 judgments in similar Tunisian cases for an anonymous applicant, T-224/14 CW and T-516/13 CW,  rejecting her annulment and damages claims.  The judgments are along the same lines as Matri. A few additional comments from the Court; the EU council does not need to show that the misappropriation contravenes Tunisian criminal law, that the applicant held a public function, and does not need to designate the beneficiaries of the misappropriation.

This entry was posted in European Court Cases, Tunisia by Maya Lester QC. Bookmark the permalink.

About Maya Lester QC

Maya Lester QC has a wide ranging practice in public law, European law, competition law, international law, human rights & civil liberties. She has a particular expertise in sanctions. As the most recent (2016) Chambers & Partners directory put it, she "owns the world of sanctions". She spent 2011-12 in New York at Columbia Law School lecturing and writing on sanctions. She represents and advises hundreds of companies and individuals before the European and English courts and has acted in most of the leading cases, including Kadi, Tay Za, Central Bank of Iran, NITC and IRISL.

Please Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s