The EU Notice states that the Council holds on its file “new elements” concerning all persons listed under the regime, and that they may submit a request to obtain the information that relates to them before 15 December 2017.
The EU has renewed its asset freezing measures on people “responsible for the misappropriation of Tunisian state funds” for a year, until 31 January 2018. Currently, there are 48 people listed on these sanctions, which were first introduced on 31 January 2011. It has also updated the information relating to 2 listed people, Sirine Ben Ali and Mohamed Mabrouk.
See Implementing Regulation 2017/149 implementing Regulation 101/2011 and Decision 2017/153 amending Decision 2011/72/CFSP. The EU’s notices to the listed people are here and here. They may submit a request to the Council before 31 October 2017, together with supporting information, that the decision to list them on the sanctions be reconsidered.
The EU has said that it intends to renew the asset freezing measures imposed on the 48 people listed on its sanctions relating to Tunisia on the grounds of their “responsibility for misappropriating state funds”. These measures were last renewed in January, until 31 January 2017 (see previous blog). The EU’s notices to the listed people are here and here.
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:
- 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.
- 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).
- 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.
- 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).
- 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.
The General Court of the EU has dismissed Mehdi Ben Ali’s application challenging his re-listing on the EU’s Tunisia sanctions freezing the EU assets of people said to be responsible for misappropriating Tunisian state funds, which have been in place since 2011. The judgment is here – Case T-200/14 Ben Ali v Council  (so far published only in French), and the Tunisia measures are on the ‘sanctions in force’ section of this blog. In 2014 he won his original challenge to his designation on the grounds that (see previous blog) accusations of money laundering were not necessarily misappropriations of state funds. The reasons for his re-listing were that he was subject to judicial investigations by the Tunisian authorities for misappropriation of public monies, misuse of office by a public office-holder, and exerting wrongful influence over a public office-holder (former President Ben Ali). The Court rejected his grounds for annulment (legal base, reasons, rights of defence, errors of fact etc) and his claim for damages and costs. It did so largely applying the Ezz judgment (see previous blog).
The EU Council has extended its targeted asset freezes against Tunisia for one year, until 31 January 2017. Currently, 48 people are subject to the asset freeze, having been deemed responsible for misappropriating Tunisian state funds or to be associated with those who have.
In order to implement decisions by the UN Security Council to amend its sanctions listings, the EU has added Torek Agha to its Afghanistan list and deleted Ali Ahmed Nur Jim’ale from its Somalia list.
The US sanctioned Torek Agha in October for being “a long-standing Taliban member”, who had “been central to spearheading brutal military attacks and raising millions of dollars to support the Taliban’s ruthless acts of terrorism” (see previous blog), allegations echoed by the UN in its reasons. Ali Ahmed Nur Jim’ale was said by the UN to have supported al-Shabaab, listed itself for threatening the peace, security, or stability of Somalia. HM Treasury’s notice is here.
The Afghanistan update is made by Council Implementing Regulation (EU) 2015/2043 implementing Council Regulation 753/2011 and Council Implementing Decision (CFSP) 2015/2054 implementing Council Decision 2011/486/CFSP. The Somalia update is made by Council Implementing Regulation (EU) 2015/2044 implementing Council Regulation 356/2010 and Council Implementing Decision (CFSP) 2015/2053 implementing Council Decision 2010/231/CFSP. The UN’s press releases on the Afghanistan and Somalia updates are here and here.
The EU has also published a notice for the attention of people and entities listed in its Tunisia sanctions, informing them that, following a review, the Council has concluded that they should all remain on the list of those designated, and that they may request reconsideration of that decision and present observations to the Council before 1 December 2015.