EU Court upholds Mabrouk’s Tunisia sanctions re-listings

CJEU1The EU General Court has upheld Mohamed Mabrouk’s 2017 and 2018 renewed listings under the EU’s Tunisia sanctions, targeting those responsible for the misappropriation of Tunisian state funds – judgment here: T-216/17.

The Court rejected (inter alia) the applicant’s claim that the duration of the judicial proceedings in Tunisia (since the beginning of 2011) infringed his right to be tried within a reasonable time and that on account of its duration the freezing of his EU assets was now producing effects equivalent to a criminal penalty. In October 2017, the same Court rejected Mr Mabrouk’s application to annul his 2015 and 2016 Tunisia sanctions listings – see previous blog.

EU renews all listings under Tunisia sanctions regime

Tunisia1.jpgThe EU has renewed the listings of all persons and entities (and amended one entry) under its Tunisia sanctions list until 31 January 2019, namely, all those appearing in the Annex to Council Decision 2011/72/CFSP (as amended by Council Decision (CFSP) 2018/141) and in Annex I to Council Regulation (EU) 101/2011 (as implemented by Council Implementing Regulation (EU) 2018/137). The EU Notice explains that those affected may submit a request to the EU Council for a reconsideration of the decision before 31 October 2018. The EU announced its intention to renew these restrictive measures on 8 December 2017 (previous blog here).

The EU has also published a Notice notifying 3 people listed under its Egypt sanctions list that it holds “new elements” relating to their designation, and that it intends to amend the statement of reasons in relation to 2 of them. The Notice explains that the affected persons may submit a request to the EU Council to obtain the new information before 2 February 2018.

EU intends to renew Tunisia sanctions

EU3The EU has announced its intention to renew the restrictive measures provided for in its Tunisia sanctions regime, see: Council Decision 2011/72/CFSP and Council Regulation (EU) 101/2011.

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.

EU Court rejects 2 Tunisia cases

The General Court has rejected 2 applications to annul listings on the EU’s Tunisia sanctions, brought by Sirine Ben Ali and Mohamed Mabrouk. Links to judgments here: T-149/15 and T-175/15, both of 5 October 2017.  These are the regimes the EU imposed in 2011 on those said to have misappropriated Tunisian state funds.

The Court rejected both cases, finding that it was sufficient for the applicants’ inclusion in these measures that there are ongoing judicial proceedings against them in Tunisia for misappropriation offences.  The Court rejected arguments that those proceedings were taking unreasonably long, unlikely to lead to trial and politically motivated, and that the EU sanctions had run their course given that Tunisia was now a democracy.  The Court did say that by analogy with the counter-terrorism Kadi case law the EU had to examine the evidence sent to it by the Tunisian authorities, but that it had done so sufficiently in these cases.  The judgments cover many other points about admissibility, confirmatory decisions etc too, and also consider whether less onerous alternatives were possible in the proportionality analysis.

 

EU renews Tunisia sanctions

tunisia-1The 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.

EU to renew Tunisia sanctions

tunisia-1The 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.

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.

EU court rejects Mehdi Ben Ali’s application

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 [2016] (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).