ECJ rejects Faqih / Sanabel appeal

We previously reported on the General Court’s Kadi(2) type judgment (link here) rejecting the application for annulment brought by the Sanabel Relief Agency Ltd and 3 people connected with it (Al-Faqih, Abdrabbah, & Nasuf) on the grounds that the Commission had complied with its Kadi (2) duties of independently assessing the evidence for EU implementations of UN terrorist sanctions listings, the applicants had been sent narrative summaries, the EU had assessed their responses and the UN’s reasons, and the applicants had eventually been de-listed.  The Sanabel Relief Agency had ceased to exist so the Court also held that it had no continuing interest in the proceedings. The Court of Justice has just affirmed that judgment on appeal in Case C-19/16 P Faqih & Ors v Commission (Council intervening) – link to the appeal judgment here.  The ECJ has held that the Court below was entitled to have held that:

  1. Sanabel Relief agency no longer existed in law and therefore did not have capacity to bring legal proceedings before the EU court;
  2. the applicants’ proportionality plea was insufficiently particularised; and
  3. the Commission had properly discharged its Kadi (2) duties.

EU court rejects free speech challenge by Kiselev to Russia designation

The General Court of the EU has rejected an application to annul the inclusion of Dmitrii Kiselev on the EU’s restrictive measures. Judgment here; Case T-262/15 Kiselev v Council.  Mr Kiselev was included in March 2014 on the EU’s asset freezing & travel ban measures for being a State-appointed propagandist supporting the deployment of Russian forces in Ukraine. The Court has held (in summary) that:

  1. The EU’s Russia sanctions do not breach the EU / Russia Partnership Agreement because Russia’s actions in Ukraine fall within the exceptions for “war or serious international tension constituting threat of war”.
  2. The phrase “active support” for the Russian Government’s actions in Ukraine should be interpreted as referring to “persons who – without being themselves responsible for the actions and policies of the Russian Government destabilising Ukraine and without themselves implementing those actions or policies – provide support for those policies or actions” and covers only forms of support which are significant enough to “contribute to the continuance of” Russia’s “actions and policies destabilising Ukraine”.
  3. Including Mr Kiselev was a justified and proportionate restriction on his freedom of expression. He had given active support by portraying events in Ukraine in a light favourable to the Russian Government. Less restrictive measures such as a system of prior authorisation would not  have been as effective in pursuing the aim of “bringing pressure to bear on Russia’s decision-makers responsible for the situation in Ukraine”.

Safa Nicu – EU appeal court judgment on damages for sanctions listings

The European Court of Justice has given its judgment on an appeal brought by Safa Nicu, an Iranian company that successfully applied in 2014 to have its listing on the EU’s sanctions against Iran annulled, and on a cross-appeal brought by the EU Council. Case C-45/15 P Safa Nicu v Council [2017].

Safa Nicu appealed against the General Court’s decision to dismiss most of its €7.7m claim for damages resulting from the imposition of EU sanctions, awarding it €50,000 for reputational damage. The Council’s cross-appeal called for the Court to set-aside the decision to award Safa Nicu non-pecuniary damages.  The General Court judgment was the first awarding damages in a sanctions case (see previous blog), and the Court of Justice has upheld the judgment below on all points.  The main points are as follows:

  1. The ECJ upheld the General Court’s reasoning that the Council’s failure to substantiate the reasons for Safa Nicu’s listing with evidence for 3 years was a “sufficiently serious breach” of EU law (the pre-condition for an award of damages from an EU institution). The Court rejected the Council’s argument that the obligations on the Council had not been clear at the relevant time – the principles had been clear from the court’s case law since at least Kadi I.
  2. The ECJ also said the General Court had been correct to have considered all circumstances of the case in deciding whether to award damages, including whether annulment provided sufficient reparation, the gravity of the breach, its duration, the Council’s conduct, and the effect of listing Safa Nicu on third parties.
  3. The Court held that the General Court had also been justified in dismissing Safa Nicu’s claims for material damage, because the company had not provided sufficient evidence on the damage caused by the sanctions or the causal link between the imposition of sanctions and its losses.

EU Court rejects Syria annulment application by Rami Makhlouf

The General Court of the EU has dismissed the annulment application brought by Rami Makhlouf, a cousin of President Assad, in respect of his listing on the EU’s sanctions against Syria. He is listed for being a member of the Makhlouf family, having close ties to and supporting the Assad regime, and being an influential businessman in Syria.  See Case T-410/16 Makhlouf v Council [2017]. His case failed because the EU’s Syria sanctions now include influential businessmen in Syria and members of the Assad or Makhlouf families as criteria on the basis of which the EU can include people for designation.

The EU’s current Syria sanctions (including the listing criteria) and all judgments of this kind in the European Court are on this blog here.

EU Court annuls 2 Syrian sanctions listings

The General Court of the EU has just annulled the sanctions listings of Ahmad Barqawi and Mouhamad Abdulkarim from the EU’s sanctions on Syria – Cases T-303/15 Barqawi and T-304/15 Abdulkarim.  Mr Barqawi was listed for supporting and benefitting from the Syrian regime in his capacity as Managing Director of listed entity Pangates, and director of its parent company Al Karim Group. Mr Abdulkarim was included as Executive Director of Pangates International and for his position in the Al Karim Group. Al Karim group’s sanctions listing was annulled by the General Court last month (see previous blog).

As in the case of Al Karim, the Court found that the news articles and US government press releases cited by the Council contained insufficient evidence to establish a connection between Pangates and the Syrian government. Therefore, the applicants’ management positions in Pangates and Al Karim, which was listed solely on the basis that it was the parent company of Pangates and whose listing was previously annulled by the Court, could not justify their inclusion on the EU’s sanctions against Syria.  The Court also found that the applicants could not rely on the fact that Pangates had subsequently gone into liquidation, because the relevant facts were those at the time they were listed.

Sharif University’s ECJ appeal rejected

The European Court of Justice has dismissed the appeal brought by Sharif University of Technology against the General Court’s judgment declining to annul its listing on the EU’s sanctions against Iran (see previous blog). SUT was listed for providing support for the government of Iran. See Case C-385/16 P Sharif University of Technology v Council [2017].

The Court dismissed SUT’s first argument, that the General Court had not considered one of SUT’s grounds for annulment, because the ECJ said the University had not raised it before the General Court. The ECJ upheld the General Court’s interpretation of the listing criterion of providing “support, such as material, logistical, or financial support, to the Government of Iran” as not requiring any connection with Iran’s nuclear activities.  It held that the General Court had been correct to find that SUT provided support to the Iranian government for these purposes because it had been involved with the government in military (as opposed to nuclear) or military-related fields, evidenced by agreements between SUT and the government of Iran involving the production of satellites, participation in smart boat competitions, and work for Iran’s air force.

EU annuls listing of Alkarim on Syria sanctions

The General Court of the EU has annulled a listing of Alkarim for Trade and Industry LLC, a Syrian firm involved in trading lubricants and base oils, from the EU’s sanctions on Syria.  Alkarim remains listed for reasons given in subsequent listings that it did not challenge.

The challenged reasons for Alkarim’s listing were “Parent company of Pangates with operational control of it. As such it is providing support to and benefiting from the Syrian regime. It is also associated with listed Syrian oil company Sytrol”. See Case T-35/15 Alkarim for Trade and Industry LLC v Council [2017]. The Council said these reasons showed that Alkarim benefited from and supported the regime, and was associated with a listed entity, Sytrol.

The Court found that the Council had not provided sufficient evidence to support its assertions that Alkarim was the parent company of Pangates, a listed firm, and that it was associated with Sytrol, or that it was associated with the Syrian regime. The judgment contains comments about the circumstances in which applicants can rely on evidence submitted late. The Council was ordered to pay Alkarim’s costs.

EU court annuls Libya sanctions on Quaddafi’s daughter

The General Court of EU has today held that the re-inclusion of Aisha Quaddafi on the EU’s targeted Libya sanctions in 2014 (implementing UN listings) was unlawful because the EU institutions had not explained why being Colonel Quaddafi’s daughter and alleged closeness to his regime justified her re-inclusion in 2014.  See Case T-681/14. She was out of time to challenge her original 2011 listing.  The Court said that even if it were relevant that supporters of the former regime continued to play “a role in the current situation in Libya and were involved in attacks against civilians”, the EU had not explained her “individual, specific and concrete role” in those events that could have justified her re-listing.