Fons Iuris
Torna alla ricerca
Corte di giustizia UEsentenza

Corte di giustizia UE n. 412/2015

ECLI:EU:C:2015:791
Testo integrale del provvedimento

Testo integrale del provvedimento

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

1 December 2015 ( * ) (Appeal — [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice — Action for damages — Restrictive measures against certain persons and entities in view of the situation in Zimbabwe — Removal of the person in question from the list of persons and entities concerned — Compensation for the damage allegedly suffered)

[OSCURATO:PERSONA] C‑545/14 P,

APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 27 November 2014,

[OSCURATO:PERSONA],

residing in [OSCURATO:PERSONA] (Zimbabwe), [OSCURATO:PERSONA] (Private) Ltd, established in [OSCURATO:PERSONA], [OSCURATO:PERSONA] (Private) Ltd, established in [OSCURATO:PERSONA], represented by H. Mercer, QC, and

I. Quirk, Barrister, appellants, the other parties to the proceedings being: [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], represented by G. Étienne and B. Driessen, acting as Agents, and

[OSCURATO:PERSONA],

represented by S. Bartelt and M. Konstantinidis, acting as Agents, defendants at first instance,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]),

composed of C. [OSCURATO:PERSONA], [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], A. Rosas (Rapporteur) and A. Prechal, Judges, [OSCURATO:PERSONA]: M. Wathelet, Registrar: A. [OSCURATO:PERSONA], having decided, after hearing the [OSCURATO:PERSONA], to give a decision by reasoned order, pursuant to [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, makes the following

[OSCURATO:PERSONA]

1 By their appeal, [OSCURATO:PERSONA], [OSCURATO:PERSONA] (Private) Ltd and [OSCURATO:PERSONA] (Private) Ltd seek to have set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 18 September 2014 in [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (T‑168/12, EU:T:2014:781) (‘the judgment under appeal’), by which that court dismissed their action seeking compensation for the damage they claim they suffered as a result of the adoption of [OSCURATO:PERSONA] (EC) No 412/2007 of 16 April 2007 amending [OSCURATO:PERSONA] (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2007 L 101, p. 6).

Background to the dispute 2 Recitals 1 to 4 in the preamble to [OSCURATO:PERSONA] 2002/145/CFSP of 18 February 2002 concerning restrictive measures against Zimbabwe (OJ 2002 L 50, p. 1) are worded as follows: ‘(1) On 28 January 2002, the [OSCURATO:PERSONA] expressed its serious concern about the situation in Zimbabwe, in particular the recent escalation of violence and intimidation of political opponents and the harassment of the independent press.

It noted that the Government of Zimbabwe has not taken effective measures to improve the situation as called for by the [OSCURATO:PERSONA] in Laeken last December. (2) [OSCURATO:PERSONA] further expressed serious concern about recent legislation in Zimbabwe which, if enforced, would seriously infringe on the right to freedom of speech, assembly and association, mainly the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] (both of which violate the norms and standards for free and fair elections as agreed by [[OSCURATO:PERSONA] (SADC)] Parliamentarians in March 2001) and the proposed legislation to regulate the media. (3) Therefore, the [[OSCURATO:PERSONA]] decided it will close the consultations conducted under [OSCURATO:PERSONA] 96 of the ACP-EC [OSCURATO:PERSONA] and implement targeted sanctions if: – the Government of Zimbabwe prevents the deployment of an EU election observation mission starting by 3 February 2002, or if it later prevents the mission from operating effectively, or – the Government of Zimbabwe prevents the international media from having free access to cover the election, or – there is a serious deterioration on the ground, in terms of a worsening of the human rights’ situation or attacks on the opposition, or – the election is assessed as not being free and fair. (4) [OSCURATO:PERSONA] has assessed that the Government of Zimbabwe continues to engage in serious violations of human rights and of the freedom of opinion, of association and of peaceful assembly.

Therefore, for as long as the violations occur, the [OSCURATO:PERSONA] deems it necessary to introduce restrictive measures against the Government of Zimbabwe and those who bear a wide responsibility for such violations.’ 3 [OSCURATO:PERSONA] 3 and 4 of [OSCURATO:PERSONA] 2002/145, the [OSCURATO:PERSONA] imposed a travel ban within the territory of the [OSCURATO:PERSONA] and a measure freezing the funds of the persons listed in the annex to that common position ‘who are engaged in activities that seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe’.

Listed in that annex are, inter alia, the names of the [OSCURATO:PERSONA] of the Republic of Zimbabwe, the [OSCURATO:PERSONA] of the Parliament, nine [OSCURATO:PERSONA], [OSCURATO:PERSONA], Generals and a number of senior civil servants. 4 [OSCURATO:PERSONA] 2002/600/CFSP of 22 July 2002 amending [OSCURATO:PERSONA] 2002/145 (OJ 2002 L 195, p. 1), approximately 50 further persons were added to the list of persons subject to restrictive measures.

These were [OSCURATO:PERSONA], [OSCURATO:PERSONA] of [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA] and the wife of the [OSCURATO:PERSONA] of the Republic of Zimbabwe. 5 Following a government reshuffle in Zimbabwe, that list was replaced by the list in the annex to [OSCURATO:PERSONA] 2002/754/CFSP of 13 September 2004 implementing [OSCURATO:PERSONA] 2002/145 (OJ 2002 L 247, p. 56).

That list included 79 persons, including 23 [OSCURATO:PERSONA], 12 [OSCURATO:PERSONA], 23 [OSCURATO:PERSONA] or [OSCURATO:PERSONA] and various other political figures and military officers. 6 [OSCURATO:PERSONA] 2003/115/CFSP of 18 February 2003 amending and extending [OSCURATO:PERSONA] 2002/145 (OJ 2003 L 46, p. 30), [OSCURATO:PERSONA] 2002/145 was extended for a period of 12 months. 7 Following the adoption of each of the common positions and decisions referred to above, the [OSCURATO:PERSONA] adopted a regulation providing, inter alia, for the freezing of the funds of the persons on the list annexed to the regulation, which was drawn up in accordance with the lists annexed to those common positions and decisions. 8 [OSCURATO:PERSONA] 2004/161/CFSP of 19 February 2004 renewing restrictive measures against Zimbabwe (OJ 2004 L 50, p. 66) provided for the renewal of the restrictive measures introduced by [OSCURATO:PERSONA] 2002/145. 9 Recitals 2, 6 and 7 in the preamble to [OSCURATO:PERSONA] 2004/161 are worded as follows: ‘(2) [OSCURATO:PERSONA] [2002/14] the [OSCURATO:PERSONA] also imposed a travel ban and a freezing of funds on the Government of Zimbabwe and persons who bear a wide responsibility for serious violations of human rights and of the freedom of opinion, of association and of peaceful assembly. … (6) In view of the continued deterioration in the human rights situation in Zimbabwe, the restrictive measures adopted by the [OSCURATO:PERSONA] should be renewed for a further 12 months. (7) The objective of these restrictive measures is to encourage the persons targeted to reject policies that lead to the suppression of human rights, of the freedom of expression and of good governance.’ 10 [OSCURATO:PERSONA] 4(1) of [OSCURATO:PERSONA] 2004/161 provides as follows: ‘[OSCURATO:PERSONA] shall take the necessary measures to prevent the entry into, or transit through, their territories of the natural persons listed in the Annex, who are engaged in activities that seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe.’ 11 [OSCURATO:PERSONA] 5(1) of [OSCURATO:PERSONA] 2004/161 is worded as follows: ‘All funds and economic resources belonging to individual members of the Government of Zimbabwe and to any natural or legal persons, entities or bodies associated with them as listed in the Annex shall be frozen.’ 12 [OSCURATO:PERSONA] (EC) No 314/2004 of 19 February 2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2004 L 55, p. 1) was adopted, as stated in recital 5 in the preamble thereto, in order to implement the restrictive measures laid down by [OSCURATO:PERSONA] 2004/161. 13 Recital 2 in the preamble to that regulation reads as follows: ‘[OSCURATO:PERSONA] continues to consider that the Government of Zimbabwe is still engaging in serious violations of human rights.

Therefore, for as long as the violations occur, the [OSCURATO:PERSONA] deems it necessary to maintain restrictive measures against the Government of Zimbabwe and those who bear prime responsibility for such violations.’ 14 [OSCURATO:PERSONA] 6(1) of [OSCURATO:PERSONA] 314/2004 provides as follows: ‘All funds and economic resources belonging to individual members of the Government of Zimbabwe and to any natural or legal persons, entities or bodies associated with them as listed in Annex III shall be frozen.’ 15 [OSCURATO:PERSONA] is a Zimbabwean businessman.

He is the owner and chief executive of [OSCURATO:PERSONA] (Private) Ltd. [OSCURATO:PERSONA] (Private) Ltd is a subsidiary of that company. [OSCURATO:PERSONA] is also chief executive of [OSCURATO:PERSONA] (Private) Ltd. 16 On 29 November 2005, [OSCURATO:PERSONA] was appointed a non-constituency [OSCURATO:PERSONA] by the [OSCURATO:PERSONA] of the Republic of Zimbabwe.

On 6 February 2007, the [OSCURATO:PERSONA] of the Republic of Zimbabwe appointed [OSCURATO:PERSONA] for [OSCURATO:PERSONA] and

[OSCURATO:PERSONA].

17 [OSCURATO:PERSONA] 2007/235/CFSP of 16 April 2007 implementing [OSCURATO:PERSONA] 2004/161 (OJ 2007 L 101, p. 14) amended the annex to the latter to include, inter alia, the following entry as regards [OSCURATO:PERSONA]: ‘[OSCURATO:PERSONA], [OSCURATO:PERSONA]; [[OSCURATO:PERSONA]] [OSCURATO:PERSONA] for [OSCURATO:PERSONA], born 22.

6. 1935’. [OSCURATO:PERSONA] adopted, on the same day, [OSCURATO:PERSONA] (EC) No 412/2007, which amended Annex III to [OSCURATO:PERSONA] 314/2007.

The annex thus amended includes, inter alia, an entry in relation to [OSCURATO:PERSONA] which has the same wording as the original entry. 18 On 25 May 2007, [OSCURATO:PERSONA] arrived at [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) with a view to visiting family living in that [OSCURATO:PERSONA] and then, on the following day, to taking a flight to [OSCURATO:PERSONA] ([OSCURATO:PERSONA]).

He was refused leave to enter the [OSCURATO:PERSONA] or transit through [OSCURATO:PERSONA] airports on his way to [OSCURATO:PERSONA].

He was compelled to spend the night detained in [OSCURATO:PERSONA] and to take a return flight to [OSCURATO:PERSONA] (Zimbabwe) the following day. 19 [OSCURATO:PERSONA] 2007/455/CFSP of 25 June 2007 implementing [OSCURATO:PERSONA] 2004/161 (OJ 2007 L 172, p. 89) again amended the annex to that common position.

The following sentence was added to the entry relating to [OSCURATO:PERSONA] set out in paragraph 17 above: ‘[OSCURATO:PERSONA] of the Government and as such engaged in activities that seriously undermine democracy, respect for human rights and the rule of law’. 20 [OSCURATO:PERSONA] (EC) No 777/2007 of 2 July 2007 amending [OSCURATO:PERSONA] 314/2004 (OJ 2007 L 173, p. 3) amended Annex III to [OSCURATO:PERSONA] 314/2004 once more. [OSCURATO:PERSONA] remained listed with, now, an entry worded in the same terms as those set out in the preceding paragraph. 21 [OSCURATO:PERSONA] 2011/101/CFSP of 15 February 2011 concerning restrictive measures against Zimbabwe (OJ 2011 L 42, p. 6) repealed [OSCURATO:PERSONA] 2004/161.

That decision laid down, against the persons who were listed in the annex thereto, restrictive measures comparable to those laid down by [OSCURATO:PERSONA] 2004/161.

However, [OSCURATO:PERSONA] was not listed in that annex. [OSCURATO:PERSONA] (EU) No 174/2011 of 23 February 2011 amending [OSCURATO:PERSONA] 314/2004 (OJ 2011 L 49, p. 23), which was adopted subsequently, replaced Annex III to the latter regulation with a new annex in which [OSCURATO:PERSONA] was again not listed.

The judgment under appeal 22 [OSCURATO:PERSONA] and the two companies owned by him brought an action for damages before the [OSCURATO:PERSONA] seeking compensation for the damage caused to [OSCURATO:PERSONA] as a result of his detention at [OSCURATO:PERSONA], namely reimbursement in respect of, first, the medical costs incurred by him as a result of the deterioration in his state of health due to the ‘personal stress’ caused by the restrictive measures adopted against him and, second, the legal fees incurred by him, as well as compensation for the business losses suffered by the two companies because of the alleged ‘extraterritorial effects’ of [OSCURATO:PERSONA] 314/2004, which led some of their business partners no longer to trade with them. 23 With regard to the damage arising from [OSCURATO:PERSONA]’ detention at [OSCURATO:PERSONA], the [OSCURATO:PERSONA] considered that the immediate cause of the damage claimed was a decision of the competent [OSCURATO:PERSONA] authorities, which was taken in the exercise of those authorities’ sovereign powers, namely powers relating to controlling the entry of citizens of third countries to the territory of that [OSCURATO:PERSONA].

Accordingly, only between that decision and the damage claimed by [OSCURATO:PERSONA] can there be said to be a definite and direct causal nexus.

It follows that, even if it is the measure freezing [OSCURATO:PERSONA]’ assets which led the [OSCURATO:PERSONA] authorities to adopt that decision, the damage allegedly suffered is not a sufficiently direct consequence of that measure. 24 As regards the other heads of damage, the applicants put forward four pleas in law in support of their claim before the [OSCURATO:PERSONA], namely: (i) manifest error of assessment; (ii) insufficient statement of reasons in the contested regulations; (iii) misuse of powers; and (iv) breach of the rights of defence. [OSCURATO:PERSONA] rejected each of those pleas and dismissed the action.

Forms of order sought by the parties 25 The appellants claim that the [OSCURATO:PERSONA] should: – set aside the judgment of the [OSCURATO:PERSONA] in its entirety; – grant the relief sought by the appellants in the proceedings before the [OSCURATO:PERSONA], namely that: – the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] and/or the [OSCURATO:PERSONA] should make good the damage caused to the appellants by paying them compensation, such compensation to be determined by the [OSCURATO:PERSONA]; – if, and to the extent that the [OSCURATO:PERSONA] finds it necessary, there shall be an inquiry into the amount of damages suffered by the appellants, such inquiry to be supervised by the [OSCURATO:PERSONA]; and – the [OSCURATO:PERSONA] and/or the [OSCURATO:PERSONA] shall pay the appellants’ costs; – in the alternative, the case be referred back to the [OSCURATO:PERSONA]; and – in any event, the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] be ordered to pay the appellants’ costs. 26 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: – dismiss the appeal as unfounded; and – order the appellants to pay the costs. 27 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: – dismiss the fourth ground of appeal as inadmissible; – dismiss the first three grounds of the appeal as manifestly unfounded; and – order the appellants to pay the costs.

The appeal 28 [OSCURATO:PERSONA] 181 of its Rules of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss that appeal in whole or in part. 29 That provision should be applied in the present case.

The first three grounds of appeal 30 By the first three grounds of appeal, which it is appropriate to examine together, the appellants take issue with the [OSCURATO:PERSONA] interpretation of the legislation at issue and the conclusion drawn by the [OSCURATO:PERSONA] from that interpretation, namely that it was possible for [OSCURATO:PERSONA] to be listed in Annex III to [OSCURATO:PERSONA] 314/2004 on the sole basis of his status as [OSCURATO:PERSONA] of the Government, without there being any need to prove that his activities had seriously undermined democracy, respect for human rights and the rule of law in Zimbabwe. 31 By their first ground of appeal, the appellants submit that the [OSCURATO:PERSONA] was incorrect not to take account of [OSCURATO:PERSONA] 4 of [OSCURATO:PERSONA] 2004/161, which states that the persons listed in the annex thereto were also engaged in activities that seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe.

By their second ground of appeal, the appellants maintain that the [OSCURATO:PERSONA] erred in its interpretation of [OSCURATO:PERSONA] 5(1) of [OSCURATO:PERSONA] 2004/161 and, as a result, misapplied [OSCURATO:PERSONA] 314/2004.

By their third ground of appeal, the appellants claim that, at paragraph 58 of the judgment under appeal, the [OSCURATO:PERSONA] misinterpreted the addition of the words ‘as such’ to [OSCURATO:PERSONA]’ listing in Annex III to that regulation, by taking the view that the addition was a ‘mere clarification’ of the fact that status as member of the government was sufficient justification in itself for the person concerned to be included in the list in that annex. 32 The appellants essentially claim that [OSCURATO:PERSONA] 6(1) of [OSCURATO:PERSONA] 314/2004 — which provides that funds belonging to individual members of the Government of the Republic of Zimbabwe and to any natural or legal persons, entities or bodies associated with them are to be frozen — must be interpreted not only in the light of [OSCURATO:PERSONA] 5(1) of [OSCURATO:PERSONA] 2004/161, which provides for the freezing of such funds in accordance with the same general criteria, but also in the light of [OSCURATO:PERSONA] 4(1) of [OSCURATO:PERSONA] 2004/161, under which [OSCURATO:PERSONA] are to take the necessary measures to prevent the entry into, or transit through, their territories of the natural persons listed in the annex to that common position, who are engaged in activities that seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe.

In the appellants’ submission, the persons and entities concerned, who are on a single list, should satisfy the criteria laid down by the various relevant provisions and, in particular, fulfil the requirement that they have undermined democracy, respect for human rights and the rule of law in Zimbabwe. 33 In that regard, it should be noted that that argument is based on the assumption that the general criteria for inclusion on the lists at issue require, with regard to Members of the Government of the Republic of Zimbabwe, not only that their status be established by specific evidence but also the fact that they have undermined democracy, respect for human rights and the rule of law in Zimbabwe.

However, that assumption is at odds with the wording of [OSCURATO:PERSONA] 314/2004 and the interpretation of that regulation in the light of not only [OSCURATO:PERSONA] 2004/161 but also of the historical context in which the provisions were adopted by the [OSCURATO:PERSONA], [OSCURATO:PERSONA] 314/2004 being one such provision. 34 [OSCURATO:PERSONA] 5(1) of [OSCURATO:PERSONA] 2004/161 and [OSCURATO:PERSONA] 6(1) of [OSCURATO:PERSONA] 314/2004 provide that funds belonging to individual members of the Government of the Republic of Zimbabwe and to any natural or legal persons, entities or bodies associated with them are to be frozen.

The terms of those provisions are clear and there is nothing to indicate that they are to be interpreted as meaning that, as regards the members of that government, not only must their status be established by specific evidence but also the fact that they have seriously undermined democracy, respect for human rights and the rule of law in Zimbabwe. 35 On the contrary, the grounds for the restrictive measures adopted against the Government of the Republic of Zimbabwe are clear from the common positions and decisions taken under the common foreign and security policy since 2002.

It is apparent in particular from recital 4 in the preamble to [OSCURATO:PERSONA] 2002/145 that the [OSCURATO:PERSONA] had established that that government continued to engage in serious violations of human rights and of the freedom of opinion, of association and of peaceful assembly and that, as a consequence, for as long as the violations occurred, it was necessary to impose restrictive measures on that government and those who bore a wide responsibility for such violations. 36 In recital 6 in the preamble to [OSCURATO:PERSONA] 2004/161, the [OSCURATO:PERSONA] stated that, in view of the continued deterioration in the human rights situation in Zimbabwe, the restrictive measures adopted by the [OSCURATO:PERSONA] should be renewed and, in recital 7 thereto, that the objective of those restrictive measures was to encourage the persons targeted to reject policies that led to the suppression of human rights, of the freedom of expression and of good governance. 37 Recital 2 in the preamble to [OSCURATO:PERSONA] 314/2004 states that the [OSCURATO:PERSONA] continued to consider that the Government of the Republic of Zimbabwe was still engaging in serious violations of human rights.

Therefore, for as long as the violations occurred, the [OSCURATO:PERSONA] deemed it necessary to maintain restrictive measures against that government and those who bore prime responsibility for such violations. 38 An examination of the lists of persons who were subject to those restrictive measures shows that those lists are composed of political figures or persons holding positions such as [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA] or [OSCURATO:PERSONA]. 39 It is clear from both recital 7 in the preamble to [OSCURATO:PERSONA] 2004/161 and recital 2 in the preamble to [OSCURATO:PERSONA] 314/2004 that the [OSCURATO:PERSONA]’s objective was to adopt restrictive measures targeted at members of the Government of the Republic of Zimbabwe and other persons holding key positions who were likely to influence the policy of that [OSCURATO:PERSONA] and thereby exert pressure on those persons to reject policies that undermine human rights, freedom of expression and good governance. 40 [OSCURATO:PERSONA] 5(1) of [OSCURATO:PERSONA] 2004/161 and [OSCURATO:PERSONA] 6(1) of [OSCURATO:PERSONA] 314/2004 must therefore be interpreted as meaning that the natural persons associated with members of the Government of the Republic of Zimbabwe are precisely those who, according to [OSCURATO:PERSONA] 4 of that common position, are referred to in the annex thereto as also being engaged, in the same way as the members of that government, in activities that seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe. 41 As the [OSCURATO:PERSONA] observed in paragraph 51 of the judgment under appeal, [OSCURATO:PERSONA] 314/2004 was adopted on the base of [OSCURATO:PERSONA] 60 EC and 301 EC. [OSCURATO:PERSONA] 60(1) EC provides that ‘[i]f, in the cases envisaged in [OSCURATO:PERSONA] 301 [EC], action by the [OSCURATO:PERSONA] is deemed necessary, the [OSCURATO:PERSONA] may, in accordance with the procedure provided for in [OSCURATO:PERSONA] 301 [EC], take the necessary urgent measures on the movement of capital and on payments as regards the third countries concerned’.

For its part, [OSCURATO:PERSONA] 301 EC provides that ‘[w]here it is provided, in a common position or in a joint action adopted according to the provisions of the Treaty [EU, in the version prior to the Treaty of Lisbon] relating to the common foreign and security policy, for an action by the [OSCURATO:PERSONA] to interrupt or to reduce, in part or completely, economic relations with one or more third countries, the [OSCURATO:PERSONA] shall take the necessary urgent measures’. 42 According to the [OSCURATO:PERSONA] case-law, having regard to the wording of [OSCURATO:PERSONA] 60 EC and 301 EC, in particular the expressions ‘as regards the third countries concerned’ and ‘with one or more third countries’ used there, those provisions concern the adoption of measures vis-à-vis third countries, since that concept may include the rulers of such countries and also individuals and entities associated with or controlled, directly or indirectly, by them (judgments in Kadi and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] , C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 166, and

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, C‑376/10 P, EU:C:2012:138, paragraph 53). 43 However, the question raised by the first three grounds of appeal does not relate to whether the [OSCURATO:PERSONA] was entitled to include on the lists at issue persons who were not Members of the Government of the Republic of Zimbabwe but who held key positions within that [OSCURATO:PERSONA] unless it could be shown, by means of sufficient evidence, that those persons had personally undermined democracy, respect for human rights and the rule of law in Zimbabwe. 44 Indeed, [OSCURATO:PERSONA] takes issue with the [OSCURATO:PERSONA] in this appeal for endorsing the [OSCURATO:PERSONA]’s decision not to apply the criteria laid down in [OSCURATO:PERSONA] 4 and 5 of [OSCURATO:PERSONA] 2004/161 cumulatively for the purpose of justifying the listing of a person in Annex III to [OSCURATO:PERSONA] 314/2004. 45 It is not disputed that [OSCURATO:PERSONA] was a [OSCURATO:PERSONA] of the Government of the Republic of Zimbabwe.

In that capacity, he was a leading member of a third country to whom restrictive measures based on [OSCURATO:PERSONA] 60 EC and 301 EC could be applied, in accordance with the case-law cited in paragraph 42 above. 46 As indicated in paragraphs 39 and 40 above, the [OSCURATO:PERSONA]’s objective was to adopt restrictive measures targeted at Members of the Government of the Republic of Zimbabwe and other persons associated with those members performing important functions on the ground that, by carrying out those functions, those persons contributed to the undermining of democracy, respect for human rights and the rule of law in Zimbabwe. 47 It follows from all the foregoing that the [OSCURATO:PERSONA] did not err in law in finding, in paragraph 57 of the judgment under appeal, that the [OSCURATO:PERSONA] intended to freeze the assets of Members of the Government of the Republic of Zimbabwe on the sole basis of their status as members of that government, and, in paragraph 58 of that judgment, that the phrase ‘as such’ is a mere clarification. 48 Consequently, the first three grounds of appeal must be rejected as manifestly unfounded.

The fourth ground of appeal 49 By their fourth ground of appeal, the appellants maintain that the [OSCURATO:PERSONA] erred in law in finding that [OSCURATO:PERSONA] had not explained what arguments and evidence he would have relied on and how that evidence would have lead to his removal from the annex in question earlier if he had been given the opportunity to be heard.

By that ground of appeal, [OSCURATO:PERSONA] takes issue with paragraph 108 of the judgment under appeal. 50 [OSCURATO:PERSONA] argued before the [OSCURATO:PERSONA] that there had been a breach of his rights of defence, since [OSCURATO:PERSONA] 2004/161 provided for constant and regular review of the maintenance of sanctions against him.

First, he was not informed of the reasons and relevant evidence which justified renewal of the restrictive measures imposed on him; second, he was not given an opportunity to request a review of those measures; and, third, there was no evidence that a review of his situation had in fact taken place. 51 At paragraph 106 of the judgment under appeal, the [OSCURATO:PERSONA] referred to the established case-law of the [OSCURATO:PERSONA] of Justice to the effect that, in the context of an action for annulment, before an infringement of the rights of the defence can result in the annulment of the act at issue, it must be demonstrated that, had it not been for that irregularity, the outcome of the procedure might have been different (judgment in Belgium v

[OSCURATO:PERSONA]

, C‑142/87, EU:C:1990:125, paragraph 48, and order in

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, C‑241/00 P, EU:C:2001:556, paragraph 36). 52 [OSCURATO:PERSONA] observed, at paragraph 107 of the judgment under appeal, that, in a case in which the applicant seeks, by means of an action for damages, compensation for the damage which he claims to have suffered because of the adoption of an act or the extension of its validity, in breach of his rights of defence, and where that party has not brought an action for annulment of the act concerned, the claim of an alleged breach of his rights of defence is not by itself sufficient to establish that his action for damages is well founded.

It is also necessary to explain, according to the [OSCURATO:PERSONA], what arguments and evidence the person concerned would have relied on if his rights of defence had been respected and to demonstrate, where appropriate, that such arguments and evidence might have led in his case to a different result — in other words, in this case and as regards [OSCURATO:PERSONA], to the restrictive measure at issue, the freezing of his assets, not being renewed. 53 [OSCURATO:PERSONA] found, in paragraph 108 of the judgment under appeal, that ‘in this case, the applicants have not met that requirement’ and that ‘[t]hey do not explain, in their written pleadings, what arguments and evidence [[OSCURATO:PERSONA]] would have relied on if he had been heard before each annual renewal of the validity of [OSCURATO:PERSONA] 2004/161 and how such arguments and evidence would have led in his case to a different result, namely the removal, on a date earlier than 15 February 2011, of his name from the list of persons subject to a freezing of their assets’. 54 By their fourth ground of appeal, the appellants maintain that, when restrictive measures are due for renewal, the [OSCURATO:PERSONA] is required to grant the person concerned the opportunity properly to make known his views.

In the submission of the appellants, the case-law cited in paragraph 106 of the judgment under appeal requires ‘an exercise in speculation’ where the [OSCURATO:PERSONA] has failed in its fundamental obligation to abide by the rights of defence, so that [OSCURATO:PERSONA] is not required to prove that he would have been removed from the lists. 55 It should, however, be noted that the case-law cited by the [OSCURATO:PERSONA] in paragraph 106 of the judgment under appeal is established case-law of the [OSCURATO:PERSONA] of Justice (see, inter alia, the judgment in [OSCURATO:PERSONA] and [OSCURATO:PERSONA] , C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 79 and the case-law cited) and that the [OSCURATO:PERSONA] did not err in law in referring to that case-law. 56 The appellants also argue that the submissions made before the [OSCURATO:PERSONA] establish that the inclusion of [OSCURATO:PERSONA] on the list at issue was unlawful and that he had proven that, if he had been given the opportunity to put forward his arguments, he would have been removed from the list because, when he approached the [OSCURATO:PERSONA] for that purpose, he was immediately removed from the list. 57 It must be noted in that regard that the fact that it may be established that the inclusion on that list was unlawful does not prove that the requirements laid down by the case-law cited in paragraphs 51 and 55 above are met. 58 With regard to the letter sent to the [OSCURATO:PERSONA] by [OSCURATO:PERSONA] and the circumstances of his removal from the list at issue, it should be recalled that the [OSCURATO:PERSONA] addressed that question in paragraphs 115 et seq. of the judgment under appeal.

However, [OSCURATO:PERSONA] does not take issue with that part of that judgment and simply repeats the argument he put forward at first instance.

It follows that, on this point, his argument is inadmissible. 59 It follows from the foregoing considerations that the fourth ground of appeal is in part manifestly inadmissible and in part manifestly unfounded. 60 Accordingly, the appeal must be dismissed.

Costs 61 [OSCURATO:PERSONA] 137 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, applicable to the procedure on appeal by virtue of [OSCURATO:PERSONA] 184 of those rules, a decision as to costs is to be given in the order which closes the proceedings. 62 [OSCURATO:PERSONA] 138(1) of those rules, which apply to the procedure on appeal by virtue of [OSCURATO:PERSONA] 184(1) thereof, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 63 Since the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] have applied for costs to be awarded against [OSCURATO:PERSONA], [OSCURATO:PERSONA] (Private) Ltd and [OSCURATO:PERSONA] (Private) Ltd and the latter have been unsuccessful, they must be ordered, in addition to bearing their own costs, to pay the costs incurred by the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA].

On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders:

1. The appeal is dismissed.

2. [OSCURATO:PERSONA], [OSCURATO:PERSONA] (Private) Ltd and [OSCURATO:PERSONA] (Private) Ltd are ordered to bear their own costs and to pay the costs incurred by the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] and by the [OSCURATO:PERSONA]. [Signatures] * Language of the case: English.

Anonimizzato ex art. 52 D.Lgs. 196/2003
[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 1 December 2015 ( * ) (Appeal — [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice — Action for damages — Restrictive measures against certain persons and entities in view of the situation in Zimbabwe — Removal of the person in question from the list of persons and entities concerned — Compensation for the damage allegedly suffered) [OSCURATO:PERSONA] C‑545/14 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 27 November 2014, [OSCURATO:PERSONA], residing in [OSCURATO:PERSONA] (Zimbabwe), [OSCURATO:PERSONA] (Private) Ltd, established in [OSCURATO:PERSONA], [OSCURATO:PERSONA] (Private) Ltd, established in [OSCURATO:PERSONA], represented by H. Mercer, QC, and I. Quirk, Barrister, appellants, the other parties to the proceedings being: [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], represented by G. Étienne and B. Driessen, acting as Agents, and [OSCURATO:PERSONA], represented by S. Bartelt and M. Konstantinidis, acting as Agents, defendants at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of C. [OSCURATO:PERSONA], [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], A. Rosas (Rapporteur) and A. Prechal, Judges, [OSCURATO:PERSONA]: M. Wathelet, Registrar: A. [OSCURATO:PERSONA], having decided, after hearing the [OSCURATO:PERSONA], to give a decision by reasoned order, pursuant to [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, makes the following [OSCURATO:PERSONA] 1 By their appeal, [OSCURATO:PERSONA], [OSCURATO:PERSONA] (Private) Ltd and [OSCURATO:PERSONA] (Private) Ltd seek to have set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 18 September 2014 in [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (T‑168/12, EU:T:2014:781) (‘the judgment under appeal’), by which that court dismissed their action seeking compensation for the damage they claim they suffered as a result of the adoption of [OSCURATO:PERSONA] (EC) No 412/2007 of 16 April 2007 amending [OSCURATO:PERSONA] (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2007 L 101, p. 6). Background to the dispute 2 Recitals 1 to 4 in the preamble to [OSCURATO:PERSONA] 2002/145/CFSP of 18 February 2002 concerning restrictive measures against Zimbabwe (OJ 2002 L 50, p. 1) are worded as follows: ‘(1)      On 28 January 2002, the [OSCURATO:PERSONA] expressed its serious concern about the situation in Zimbabwe, in particular the recent escalation of violence and intimidation of political opponents and the harassment of the independent press. It noted that the Government of Zimbabwe has not taken effective measures to improve the situation as called for by the [OSCURATO:PERSONA] in Laeken last December. (2)      [OSCURATO:PERSONA] further expressed serious concern about recent legislation in Zimbabwe which, if enforced, would seriously infringe on the right to freedom of speech, assembly and association, mainly the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] (both of which violate the norms and standards for free and fair elections as agreed by [[OSCURATO:PERSONA] (SADC)] Parliamentarians in March 2001) and the proposed legislation to regulate the media. (3)      Therefore, the [[OSCURATO:PERSONA]] decided it will close the consultations conducted under [OSCURATO:PERSONA] 96 of the ACP-EC [OSCURATO:PERSONA] and implement targeted sanctions if: –      the Government of Zimbabwe prevents the deployment of an EU election observation mission starting by 3 February 2002, or if it later prevents the mission from operating effectively, or –      the Government of Zimbabwe prevents the international media from having free access to cover the election, or –      there is a serious deterioration on the ground, in terms of a worsening of the human rights’ situation or attacks on the opposition, or –      the election is assessed as not being free and fair. (4)      [OSCURATO:PERSONA] has assessed that the Government of Zimbabwe continues to engage in serious violations of human rights and of the freedom of opinion, of association and of peaceful assembly. Therefore, for as long as the violations occur, the [OSCURATO:PERSONA] deems it necessary to introduce restrictive measures against the Government of Zimbabwe and those who bear a wide responsibility for such violations.’ 3 [OSCURATO:PERSONA] 3 and 4 of [OSCURATO:PERSONA] 2002/145, the [OSCURATO:PERSONA] imposed a travel ban within the territory of the [OSCURATO:PERSONA] and a measure freezing the funds of the persons listed in the annex to that common position ‘who are engaged in activities that seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe’. Listed in that annex are, inter alia, the names of the [OSCURATO:PERSONA] of the Republic of Zimbabwe, the [OSCURATO:PERSONA] of the Parliament, nine [OSCURATO:PERSONA], [OSCURATO:PERSONA], Generals and a number of senior civil servants. 4 [OSCURATO:PERSONA] 2002/600/CFSP of 22 July 2002 amending [OSCURATO:PERSONA] 2002/145 (OJ 2002 L 195, p. 1), approximately 50 further persons were added to the list of persons subject to restrictive measures. These were [OSCURATO:PERSONA], [OSCURATO:PERSONA] of [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA] and the wife of the [OSCURATO:PERSONA] of the Republic of Zimbabwe. 5 Following a government reshuffle in Zimbabwe, that list was replaced by the list in the annex to [OSCURATO:PERSONA] 2002/754/CFSP of 13 September 2004 implementing [OSCURATO:PERSONA] 2002/145 (OJ 2002 L 247, p. 56). That list included 79 persons, including 23 [OSCURATO:PERSONA], 12 [OSCURATO:PERSONA], 23 [OSCURATO:PERSONA] or [OSCURATO:PERSONA] and various other political figures and military officers. 6 [OSCURATO:PERSONA] 2003/115/CFSP of 18 February 2003 amending and extending [OSCURATO:PERSONA] 2002/145 (OJ 2003 L 46, p. 30), [OSCURATO:PERSONA] 2002/145 was extended for a period of 12 months. 7 Following the adoption of each of the common positions and decisions referred to above, the [OSCURATO:PERSONA] adopted a regulation providing, inter alia, for the freezing of the funds of the persons on the list annexed to the regulation, which was drawn up in accordance with the lists annexed to those common positions and decisions. 8 [OSCURATO:PERSONA] 2004/161/CFSP of 19 February 2004 renewing restrictive measures against Zimbabwe (OJ 2004 L 50, p. 66) provided for the renewal of the restrictive measures introduced by [OSCURATO:PERSONA] 2002/145. 9 Recitals 2, 6 and 7 in the preamble to [OSCURATO:PERSONA] 2004/161 are worded as follows: ‘(2)      [OSCURATO:PERSONA] [2002/14] the [OSCURATO:PERSONA] also imposed a travel ban and a freezing of funds on the Government of Zimbabwe and persons who bear a wide responsibility for serious violations of human rights and of the freedom of opinion, of association and of peaceful assembly. … (6)      In view of the continued deterioration in the human rights situation in Zimbabwe, the restrictive measures adopted by the [OSCURATO:PERSONA] should be renewed for a further 12 months. (7)      The objective of these restrictive measures is to encourage the persons targeted to reject policies that lead to the suppression of human rights, of the freedom of expression and of good governance.’ 10 [OSCURATO:PERSONA] 4(1) of [OSCURATO:PERSONA] 2004/161 provides as follows: ‘[OSCURATO:PERSONA] shall take the necessary measures to prevent the entry into, or transit through, their territories of the natural persons listed in the Annex, who are engaged in activities that seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe.’ 11 [OSCURATO:PERSONA] 5(1) of [OSCURATO:PERSONA] 2004/161 is worded as follows: ‘All funds and economic resources belonging to individual members of the Government of Zimbabwe and to any natural or legal persons, entities or bodies associated with them as listed in the Annex shall be frozen.’ 12 [OSCURATO:PERSONA] (EC) No 314/2004 of 19 February 2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2004 L 55, p. 1) was adopted, as stated in recital 5 in the preamble thereto, in order to implement the restrictive measures laid down by [OSCURATO:PERSONA] 2004/161. 13 Recital 2 in the preamble to that regulation reads as follows: ‘[OSCURATO:PERSONA] continues to consider that the Government of Zimbabwe is still engaging in serious violations of human rights. Therefore, for as long as the violations occur, the [OSCURATO:PERSONA] deems it necessary to maintain restrictive measures against the Government of Zimbabwe and those who bear prime responsibility for such violations.’ 14 [OSCURATO:PERSONA] 6(1) of [OSCURATO:PERSONA] 314/2004 provides as follows: ‘All funds and economic resources belonging to individual members of the Government of Zimbabwe and to any natural or legal persons, entities or bodies associated with them as listed in Annex III shall be frozen.’ 15 [OSCURATO:PERSONA] is a Zimbabwean businessman. He is the owner and chief executive of [OSCURATO:PERSONA] (Private) Ltd. [OSCURATO:PERSONA] (Private) Ltd is a subsidiary of that company. [OSCURATO:PERSONA] is also chief executive of [OSCURATO:PERSONA] (Private) Ltd. 16 On 29 November 2005, [OSCURATO:PERSONA] was appointed a non-constituency [OSCURATO:PERSONA] by the [OSCURATO:PERSONA] of the Republic of Zimbabwe. On 6 February 2007, the [OSCURATO:PERSONA] of the Republic of Zimbabwe appointed [OSCURATO:PERSONA] for [OSCURATO:PERSONA] and [OSCURATO:PERSONA]. 17 [OSCURATO:PERSONA] 2007/235/CFSP of 16 April 2007 implementing [OSCURATO:PERSONA] 2004/161 (OJ 2007 L 101, p. 14) amended the annex to the latter to include, inter alia, the following entry as regards [OSCURATO:PERSONA]: ‘[OSCURATO:PERSONA], [OSCURATO:PERSONA]; [[OSCURATO:PERSONA]] [OSCURATO:PERSONA] for [OSCURATO:PERSONA], born 22. 6. 1935’. [OSCURATO:PERSONA] adopted, on the same day, [OSCURATO:PERSONA] (EC) No 412/2007, which amended Annex III to [OSCURATO:PERSONA] 314/2007. The annex thus amended includes, inter alia, an entry in relation to [OSCURATO:PERSONA] which has the same wording as the original entry. 18 On 25 May 2007, [OSCURATO:PERSONA] arrived at [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) with a view to visiting family living in that [OSCURATO:PERSONA] and then, on the following day, to taking a flight to [OSCURATO:PERSONA] ([OSCURATO:PERSONA]). He was refused leave to enter the [OSCURATO:PERSONA] or transit through [OSCURATO:PERSONA] airports on his way to [OSCURATO:PERSONA]. He was compelled to spend the night detained in [OSCURATO:PERSONA] and to take a return flight to [OSCURATO:PERSONA] (Zimbabwe) the following day. 19 [OSCURATO:PERSONA] 2007/455/CFSP of 25 June 2007 implementing [OSCURATO:PERSONA] 2004/161 (OJ 2007 L 172, p. 89) again amended the annex to that common position. The following sentence was added to the entry relating to [OSCURATO:PERSONA] set out in paragraph 17 above: ‘[OSCURATO:PERSONA] of the Government and as such engaged in activities that seriously undermine democracy, respect for human rights and the rule of law’. 20 [OSCURATO:PERSONA] (EC) No 777/2007 of 2 July 2007 amending [OSCURATO:PERSONA] 314/2004 (OJ 2007 L 173, p. 3) amended Annex III to [OSCURATO:PERSONA] 314/2004 once more. [OSCURATO:PERSONA] remained listed with, now, an entry worded in the same terms as those set out in the preceding paragraph. 21 [OSCURATO:PERSONA] 2011/101/CFSP of 15 February 2011 concerning restrictive measures against Zimbabwe (OJ 2011 L 42, p. 6) repealed [OSCURATO:PERSONA] 2004/161. That decision laid down, against the persons who were listed in the annex thereto, restrictive measures comparable to those laid down by [OSCURATO:PERSONA] 2004/161. However, [OSCURATO:PERSONA] was not listed in that annex. [OSCURATO:PERSONA] (EU) No 174/2011 of 23 February 2011 amending [OSCURATO:PERSONA] 314/2004 (OJ 2011 L 49, p. 23), which was adopted subsequently, replaced Annex III to the latter regulation with a new annex in which [OSCURATO:PERSONA] was again not listed. The judgment under appeal 22 [OSCURATO:PERSONA] and the two companies owned by him brought an action for damages before the [OSCURATO:PERSONA] seeking compensation for the damage caused to [OSCURATO:PERSONA] as a result of his detention at [OSCURATO:PERSONA], namely reimbursement in respect of, first, the medical costs incurred by him as a result of the deterioration in his state of health due to the ‘personal stress’ caused by the restrictive measures adopted against him and, second, the legal fees incurred by him, as well as compensation for the business losses suffered by the two companies because of the alleged ‘extraterritorial effects’ of [OSCURATO:PERSONA] 314/2004, which led some of their business partners no longer to trade with them. 23 With regard to the damage arising from [OSCURATO:PERSONA]’ detention at [OSCURATO:PERSONA], the [OSCURATO:PERSONA] considered that the immediate cause of the damage claimed was a decision of the competent [OSCURATO:PERSONA] authorities, which was taken in the exercise of those authorities’ sovereign powers, namely powers relating to controlling the entry of citizens of third countries to the territory of that [OSCURATO:PERSONA]. Accordingly, only between that decision and the damage claimed by [OSCURATO:PERSONA] can there be said to be a definite and direct causal nexus. It follows that, even if it is the measure freezing [OSCURATO:PERSONA]’ assets which led the [OSCURATO:PERSONA] authorities to adopt that decision, the damage allegedly suffered is not a sufficiently direct consequence of that measure. 24 As regards the other heads of damage, the applicants put forward four pleas in law in support of their claim before the [OSCURATO:PERSONA], namely: (i) manifest error of assessment; (ii) insufficient statement of reasons in the contested regulations; (iii) misuse of powers; and (iv) breach of the rights of defence. [OSCURATO:PERSONA] rejected each of those pleas and dismissed the action. Forms of order sought by the parties 25 The appellants claim that the [OSCURATO:PERSONA] should: –        set aside the judgment of the [OSCURATO:PERSONA] in its entirety; –        grant the relief sought by the appellants in the proceedings before the [OSCURATO:PERSONA], namely that: –        the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] and/or the [OSCURATO:PERSONA] should make good the damage caused to the appellants by paying them compensation, such compensation to be determined by the [OSCURATO:PERSONA]; –        if, and to the extent that the [OSCURATO:PERSONA] finds it necessary, there shall be an inquiry into the amount of damages suffered by the appellants, such inquiry to be supervised by the [OSCURATO:PERSONA]; and –        the [OSCURATO:PERSONA] and/or the [OSCURATO:PERSONA] shall pay the appellants’ costs; –        in the alternative, the case be referred back to the [OSCURATO:PERSONA]; and –        in any event, the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] be ordered to pay the appellants’ costs. 26 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: –        dismiss the appeal as unfounded; and –        order the appellants to pay the costs. 27 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: –        dismiss the fourth ground of appeal as inadmissible; –        dismiss the first three grounds of the appeal as manifestly unfounded; and –        order the appellants to pay the costs. The appeal 28 [OSCURATO:PERSONA] 181 of its Rules of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss that appeal in whole or in part. 29 That provision should be applied in the present case. The first three grounds of appeal 30 By the first three grounds of appeal, which it is appropriate to examine together, the appellants take issue with the [OSCURATO:PERSONA] interpretation of the legislation at issue and the conclusion drawn by the [OSCURATO:PERSONA] from that interpretation, namely that it was possible for [OSCURATO:PERSONA] to be listed in Annex III to [OSCURATO:PERSONA] 314/2004 on the sole basis of his status as [OSCURATO:PERSONA] of the Government, without there being any need to prove that his activities had seriously undermined democracy, respect for human rights and the rule of law in Zimbabwe. 31 By their first ground of appeal, the appellants submit that the [OSCURATO:PERSONA] was incorrect not to take account of [OSCURATO:PERSONA] 4 of [OSCURATO:PERSONA] 2004/161, which states that the persons listed in the annex thereto were also engaged in activities that seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe. By their second ground of appeal, the appellants maintain that the [OSCURATO:PERSONA] erred in its interpretation of [OSCURATO:PERSONA] 5(1) of [OSCURATO:PERSONA] 2004/161 and, as a result, misapplied [OSCURATO:PERSONA] 314/2004. By their third ground of appeal, the appellants claim that, at paragraph 58 of the judgment under appeal, the [OSCURATO:PERSONA] misinterpreted the addition of the words ‘as such’ to [OSCURATO:PERSONA]’ listing in Annex III to that regulation, by taking the view that the addition was a ‘mere clarification’ of the fact that status as member of the government was sufficient justification in itself for the person concerned to be included in the list in that annex. 32 The appellants essentially claim that [OSCURATO:PERSONA] 6(1) of [OSCURATO:PERSONA] 314/2004 — which provides that funds belonging to individual members of the Government of the Republic of Zimbabwe and to any natural or legal persons, entities or bodies associated with them are to be frozen — must be interpreted not only in the light of [OSCURATO:PERSONA] 5(1) of [OSCURATO:PERSONA] 2004/161, which provides for the freezing of such funds in accordance with the same general criteria, but also in the light of [OSCURATO:PERSONA] 4(1) of [OSCURATO:PERSONA] 2004/161, under which [OSCURATO:PERSONA] are to take the necessary measures to prevent the entry into, or transit through, their territories of the natural persons listed in the annex to that common position, who are engaged in activities that seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe. In the appellants’ submission, the persons and entities concerned, who are on a single list, should satisfy the criteria laid down by the various relevant provisions and, in particular, fulfil the requirement that they have undermined democracy, respect for human rights and the rule of law in Zimbabwe. 33 In that regard, it should be noted that that argument is based on the assumption that the general criteria for inclusion on the lists at issue require, with regard to Members of the Government of the Republic of Zimbabwe, not only that their status be established by specific evidence but also the fact that they have undermined democracy, respect for human rights and the rule of law in Zimbabwe. However, that assumption is at odds with the wording of [OSCURATO:PERSONA] 314/2004 and the interpretation of that regulation in the light of not only [OSCURATO:PERSONA] 2004/161 but also of the historical context in which the provisions were adopted by the [OSCURATO:PERSONA], [OSCURATO:PERSONA] 314/2004 being one such provision. 34 [OSCURATO:PERSONA] 5(1) of [OSCURATO:PERSONA] 2004/161 and [OSCURATO:PERSONA] 6(1) of [OSCURATO:PERSONA] 314/2004 provide that funds belonging to individual members of the Government of the Republic of Zimbabwe and to any natural or legal persons, entities or bodies associated with them are to be frozen. The terms of those provisions are clear and there is nothing to indicate that they are to be interpreted as meaning that, as regards the members of that government, not only must their status be established by specific evidence but also the fact that they have seriously undermined democracy, respect for human rights and the rule of law in Zimbabwe. 35 On the contrary, the grounds for the restrictive measures adopted against the Government of the Republic of Zimbabwe are clear from the common positions and decisions taken under the common foreign and security policy since 2002. It is apparent in particular from recital 4 in the preamble to [OSCURATO:PERSONA] 2002/145 that the [OSCURATO:PERSONA] had established that that government continued to engage in serious violations of human rights and of the freedom of opinion, of association and of peaceful assembly and that, as a consequence, for as long as the violations occurred, it was necessary to impose restrictive measures on that government and those who bore a wide responsibility for such violations. 36 In recital 6 in the preamble to [OSCURATO:PERSONA] 2004/161, the [OSCURATO:PERSONA] stated that, in view of the continued deterioration in the human rights situation in Zimbabwe, the restrictive measures adopted by the [OSCURATO:PERSONA] should be renewed and, in recital 7 thereto, that the objective of those restrictive measures was to encourage the persons targeted to reject policies that led to the suppression of human rights, of the freedom of expression and of good governance. 37 Recital 2 in the preamble to [OSCURATO:PERSONA] 314/2004 states that the [OSCURATO:PERSONA] continued to consider that the Government of the Republic of Zimbabwe was still engaging in serious violations of human rights. Therefore, for as long as the violations occurred, the [OSCURATO:PERSONA] deemed it necessary to maintain restrictive measures against that government and those who bore prime responsibility for such violations. 38 An examination of the lists of persons who were subject to those restrictive measures shows that those lists are composed of political figures or persons holding positions such as [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA] or [OSCURATO:PERSONA]. 39 It is clear from both recital 7 in the preamble to [OSCURATO:PERSONA] 2004/161 and recital 2 in the preamble to [OSCURATO:PERSONA] 314/2004 that the [OSCURATO:PERSONA]’s objective was to adopt restrictive measures targeted at members of the Government of the Republic of Zimbabwe and other persons holding key positions who were likely to influence the policy of that [OSCURATO:PERSONA] and thereby exert pressure on those persons to reject policies that undermine human rights, freedom of expression and good governance. 40 [OSCURATO:PERSONA] 5(1) of [OSCURATO:PERSONA] 2004/161 and [OSCURATO:PERSONA] 6(1) of [OSCURATO:PERSONA] 314/2004 must therefore be interpreted as meaning that the natural persons associated with members of the Government of the Republic of Zimbabwe are precisely those who, according to [OSCURATO:PERSONA] 4 of that common position, are referred to in the annex thereto as also being engaged, in the same way as the members of that government, in activities that seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe. 41 As the [OSCURATO:PERSONA] observed in paragraph 51 of the judgment under appeal, [OSCURATO:PERSONA] 314/2004 was adopted on the base of [OSCURATO:PERSONA] 60 EC and 301 EC. [OSCURATO:PERSONA] 60(1) EC provides that ‘[i]f, in the cases envisaged in [OSCURATO:PERSONA] 301 [EC], action by the [OSCURATO:PERSONA] is deemed necessary, the [OSCURATO:PERSONA] may, in accordance with the procedure provided for in [OSCURATO:PERSONA] 301 [EC], take the necessary urgent measures on the movement of capital and on payments as regards the third countries concerned’. For its part, [OSCURATO:PERSONA] 301 EC provides that ‘[w]here it is provided, in a common position or in a joint action adopted according to the provisions of the Treaty [EU, in the version prior to the Treaty of Lisbon] relating to the common foreign and security policy, for an action by the [OSCURATO:PERSONA] to interrupt or to reduce, in part or completely, economic relations with one or more third countries, the [OSCURATO:PERSONA] shall take the necessary urgent measures’. 42 According to the [OSCURATO:PERSONA] case-law, having regard to the wording of [OSCURATO:PERSONA] 60 EC and 301 EC, in particular the expressions ‘as regards the third countries concerned’ and ‘with one or more third countries’ used there, those provisions concern the adoption of measures vis-à-vis third countries, since that concept may include the rulers of such countries and also individuals and entities associated with or controlled, directly or indirectly, by them (judgments in Kadi and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] , C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 166, and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑376/10 P, EU:C:2012:138, paragraph 53). 43 However, the question raised by the first three grounds of appeal does not relate to whether the [OSCURATO:PERSONA] was entitled to include on the lists at issue persons who were not Members of the Government of the Republic of Zimbabwe but who held key positions within that [OSCURATO:PERSONA] unless it could be shown, by means of sufficient evidence, that those persons had personally undermined democracy, respect for human rights and the rule of law in Zimbabwe. 44 Indeed, [OSCURATO:PERSONA] takes issue with the [OSCURATO:PERSONA] in this appeal for endorsing the [OSCURATO:PERSONA]’s decision not to apply the criteria laid down in [OSCURATO:PERSONA] 4 and 5 of [OSCURATO:PERSONA] 2004/161 cumulatively for the purpose of justifying the listing of a person in Annex III to [OSCURATO:PERSONA] 314/2004. 45 It is not disputed that [OSCURATO:PERSONA] was a [OSCURATO:PERSONA] of the Government of the Republic of Zimbabwe. In that capacity, he was a leading member of a third country to whom restrictive measures based on [OSCURATO:PERSONA] 60 EC and 301 EC could be applied, in accordance with the case-law cited in paragraph 42 above. 46 As indicated in paragraphs 39 and 40 above, the [OSCURATO:PERSONA]’s objective was to adopt restrictive measures targeted at Members of the Government of the Republic of Zimbabwe and other persons associated with those members performing important functions on the ground that, by carrying out those functions, those persons contributed to the undermining of democracy, respect for human rights and the rule of law in Zimbabwe. 47 It follows from all the foregoing that the [OSCURATO:PERSONA] did not err in law in finding, in paragraph 57 of the judgment under appeal, that the [OSCURATO:PERSONA] intended to freeze the assets of Members of the Government of the Republic of Zimbabwe on the sole basis of their status as members of that government, and, in paragraph 58 of that judgment, that the phrase ‘as such’ is a mere clarification. 48 Consequently, the first three grounds of appeal must be rejected as manifestly unfounded. The fourth ground of appeal 49 By their fourth ground of appeal, the appellants maintain that the [OSCURATO:PERSONA] erred in law in finding that [OSCURATO:PERSONA] had not explained what arguments and evidence he would have relied on and how that evidence would have lead to his removal from the annex in question earlier if he had been given the opportunity to be heard. By that ground of appeal, [OSCURATO:PERSONA] takes issue with paragraph 108 of the judgment under appeal. 50 [OSCURATO:PERSONA] argued before the [OSCURATO:PERSONA] that there had been a breach of his rights of defence, since [OSCURATO:PERSONA] 2004/161 provided for constant and regular review of the maintenance of sanctions against him. First, he was not informed of the reasons and relevant evidence which justified renewal of the restrictive measures imposed on him; second, he was not given an opportunity to request a review of those measures; and, third, there was no evidence that a review of his situation had in fact taken place. 51 At paragraph 106 of the judgment under appeal, the [OSCURATO:PERSONA] referred to the established case-law of the [OSCURATO:PERSONA] of Justice to the effect that, in the context of an action for annulment, before an infringement of the rights of the defence can result in the annulment of the act at issue, it must be demonstrated that, had it not been for that irregularity, the outcome of the procedure might have been different (judgment in Belgium v [OSCURATO:PERSONA] , C‑142/87, EU:C:1990:125, paragraph 48, and order in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑241/00 P, EU:C:2001:556, paragraph 36). 52 [OSCURATO:PERSONA] observed, at paragraph 107 of the judgment under appeal, that, in a case in which the applicant seeks, by means of an action for damages, compensation for the damage which he claims to have suffered because of the adoption of an act or the extension of its validity, in breach of his rights of defence, and where that party has not brought an action for annulment of the act concerned, the claim of an alleged breach of his rights of defence is not by itself sufficient to establish that his action for damages is well founded. It is also necessary to explain, according to the [OSCURATO:PERSONA], what arguments and evidence the person concerned would have relied on if his rights of defence had been respected and to demonstrate, where appropriate, that such arguments and evidence might have led in his case to a different result — in other words, in this case and as regards [OSCURATO:PERSONA], to the restrictive measure at issue, the freezing of his assets, not being renewed. 53 [OSCURATO:PERSONA] found, in paragraph 108 of the judgment under appeal, that ‘in this case, the applicants have not met that requirement’ and that ‘[t]hey do not explain, in their written pleadings, what arguments and evidence [[OSCURATO:PERSONA]] would have relied on if he had been heard before each annual renewal of the validity of [OSCURATO:PERSONA] 2004/161 and how such arguments and evidence would have led in his case to a different result, namely the removal, on a date earlier than 15 February 2011, of his name from the list of persons subject to a freezing of their assets’. 54 By their fourth ground of appeal, the appellants maintain that, when restrictive measures are due for renewal, the [OSCURATO:PERSONA] is required to grant the person concerned the opportunity properly to make known his views. In the submission of the appellants, the case-law cited in paragraph 106 of the judgment under appeal requires ‘an exercise in speculation’ where the [OSCURATO:PERSONA] has failed in its fundamental obligation to abide by the rights of defence, so that [OSCURATO:PERSONA] is not required to prove that he would have been removed from the lists. 55 It should, however, be noted that the case-law cited by the [OSCURATO:PERSONA] in paragraph 106 of the judgment under appeal is established case-law of the [OSCURATO:PERSONA] of Justice (see, inter alia, the judgment in [OSCURATO:PERSONA] and [OSCURATO:PERSONA] , C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 79 and the case-law cited) and that the [OSCURATO:PERSONA] did not err in law in referring to that case-law. 56 The appellants also argue that the submissions made before the [OSCURATO:PERSONA] establish that the inclusion of [OSCURATO:PERSONA] on the list at issue was unlawful and that he had proven that, if he had been given the opportunity to put forward his arguments, he would have been removed from the list because, when he approached the [OSCURATO:PERSONA] for that purpose, he was immediately removed from the list. 57 It must be noted in that regard that the fact that it may be established that the inclusion on that list was unlawful does not prove that the requirements laid down by the case-law cited in paragraphs 51 and 55 above are met. 58 With regard to the letter sent to the [OSCURATO:PERSONA] by [OSCURATO:PERSONA] and the circumstances of his removal from the list at issue, it should be recalled that the [OSCURATO:PERSONA] addressed that question in paragraphs 115 et seq. of the judgment under appeal. However, [OSCURATO:PERSONA] does not take issue with that part of that judgment and simply repeats the argument he put forward at first instance. It follows that, on this point, his argument is inadmissible. 59 It follows from the foregoing considerations that the fourth ground of appeal is in part manifestly inadmissible and in part manifestly unfounded. 60 Accordingly, the appeal must be dismissed. Costs 61 [OSCURATO:PERSONA] 137 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, applicable to the procedure on appeal by virtue of [OSCURATO:PERSONA] 184 of those rules, a decision as to costs is to be given in the order which closes the proceedings. 62 [OSCURATO:PERSONA] 138(1) of those rules, which apply to the procedure on appeal by virtue of [OSCURATO:PERSONA] 184(1) thereof, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 63 Since the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] have applied for costs to be awarded against [OSCURATO:PERSONA], [OSCURATO:PERSONA] (Private) Ltd and [OSCURATO:PERSONA] (Private) Ltd and the latter have been unsuccessful, they must be ordered, in addition to bearing their own costs, to pay the costs incurred by the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA]. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed. 2. [OSCURATO:PERSONA], [OSCURATO:PERSONA] (Private) Ltd and [OSCURATO:PERSONA] (Private) Ltd are ordered to bear their own costs and to pay the costs incurred by the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] and by the [OSCURATO:PERSONA]. [Signatures] * Language of the case: English.
Sentenza Corte di giustizia UE n. 412/2015 — Fons Iuris — Fons Iuris