Mubarak and Others v Council (Common foreign and security policy - Restrictive measures adopted in view of the situation in Egypt - Freezing of funds - Judgment) [2022] EUECJ T-335/18 (06 April 2022)

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(Common foreign and security policy – Restrictive measures adopted in view of the situation in Egypt – Measures directed against persons responsible for misappropriation of State funds and associated persons and entities – Freezing of funds – List of persons, entities and bodies subject to the freezing of funds – Maintenance of the applicants’ names on the list – Rights of the defence – Obligation on the Council of the European Union to verify that the decision of an authority of a third State was taken in accordance with the rights of the defence and the right to effective judicial protection – Error of law – Manifest error of assessment)

represented by B. Kennelly QC, J. Pobjoy, Barrister, and by G. Martin, C. Enderby Smith and F. Holmey, Solicitors,

Gamal Mohamed Hosni Elsayed Mubarak, as heir of Mohamed Hosni Elsayed Mubarak, residing in Cairo,

represented by B. Kennelly QC, J. Pobjoy, Barrister, and by G. Martin, C. Enderby Smith and F. Holmey, Solicitors,

Council of the European Union, represented by V. Piessevaux and A. Antoniadis, acting as Agents,

ACTIONS based on Article 263 TFEU and seeking annulment, first, of Council Decision (CFSP) 2018/466 of 21 March 2018 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2018 L 78I, p. 3), Council Decision (CFSP) 2019/468 of 21 March 2019 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2019 L 80, p. 40), and Council Decision (CFSP) 2020/418 of 19 March 2020 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2020 L 86, p. 11), and, secondly, of Council Implementing Regulation (EU) 2018/465 of 21 March 2018 implementing Regulation (EU) No 270/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2018 L 78I, p. 1), Council Implementing Regulation (EU) 2019/459 of 21 March 2019 implementing Regulation (EU) No 270/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2019 L 80, p. 1), and Council Implementing Regulation (EU) 2020/416 of 19 March 2020 implementing Regulation (EU) No 270/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2020 L 86, p. 3), in so far as those acts apply to the applicants,

composed of M.J. Costeira (Rapporteur), President, M. Kancheva and T. Perišin, Judges,

having regard to the written part of the procedure and further to the hearing on 30 September 2021,

1 On 21 March 2011, in the wake of the political events which took place in Egypt from January 2011, the Council of the European Union adopted, on the basis of Article 29 TEU, Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 63).

‘(1) On 21 February 2011, the European Union declared its readiness to support the peaceful and orderly transition to a civilian and democratic government in Egypt based on the rule of law, with full respect for human rights and fundamental freedoms and to support efforts to create an economy which enhances social cohesion and promotes growth.

(2) In this context, restrictive measures should be imposed against persons having been identified as responsible for misappropriation of Egyptian State funds and who are thus depriving the Egyptian people of the benefits of the sustainable development of their economy and society and undermining the development of democracy in the country.’

‘All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for misappropriation of Egyptian State funds, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen’.

4 The second and third paragraphs of Article 5 of Decision 2011/172, in its original version, provided that that decision, first, was applicable until 22 March 2012 and, secondly, that it was to be kept under constant review and was to be renewed, or amended as appropriate, if the Council deemed that its objectives had not been met.

5 Pursuant to the latter provision, that decision was renewed each year until 2021. In particular, as regards the period covered by the present actions, Decision 2011/172 was renewed successively by:

– Council Decision (CFSP) 2018/466 of 21 March 2018 amending Decision 2011/172 (OJ 2018 L 78I, p. 3);

– Council Decision (CFSP) 2019/468 of 21 March 2019 amending Decision 2011/172 (OJ 2019 L 80, p. 40);

– Council Decision (CFSP) 2020/418 of 19 March 2020 amending Decision 2011/172 (OJ 2020 L 86, p. 11).

6 Since the adoption of Decision 2011/172, the applicants, namely, first, in Case T‑335/18, Mr Gamal Mohamed Hosni Elsayed Mubarak (‘the first applicant’), Mr Alaa Mohamed Hosni Elsayed Mubarak (‘the second applicant’), Ms Heidy Mohamed Magdy Hussein Rasekh (‘the third applicant’) and Ms Khadiga Mahmoud El Gammal (‘the fourth applicant’), secondly, in Case T‑338/18, Ms Suzanne Saleh Thabet (‘the fifth applicant’), and, lastly, in Case T‑327/19, Mr Mohamed Hosni Elsayed Mubarak, former President of the Arab Republic of Egypt, father of the first two applicants and husband of the fifth applicant (‘the sixth applicant’), have been designated in the fifth, third, fourth, sixth, second and first lines, respectively, of the list annexed to that decision.

7 The identifying information relating to each of the applicants on that list was as follows:

– Mr Gamal Mubarak, ‘Son of Mr. Mohamed Hosni Elsayed Mubarak, former President of the Arab Republic of Egypt – Date of birth: 28.12.1963 – Male’;

– Mr Alaa Mubarak, ‘Son of Mr. Mohamed Hosni Elsayed Mubarak, former President of the Arab Republic of Egypt – Date of birth: 26.11.1960 – Male’;

– Ms Heidy Rasekh, ‘Spouse of Mr. Alaa Mohamed Hosni Elsayed Mubarak, son of former President of the Arab Republic of Egypt – Date of birth: 05.10.1971 – Female’;

– Ms Khadiga El Gammal, ‘Spouse of Mr. Gamal Mohamed Hosni Elsayed Mubarak, son of former President of the Arab Republic of Egypt – Date of birth: 13.10.1982 – Female’;

– Ms Suzanne Saleh Thabet, ‘Spouse of Mr. Mohamed Hosni Elsayed Mubarak, former President of the Arab Republic of Egypt – Date of birth: 28.02.1941 – Female’;

– Mr Mohamed Hosni Mubarak, ‘Former President of the Arab Republic of Egypt – Date of birth: 04.05.1928 – Male’.

8 The reason stated for the applicants’ designation, prior to the adoption of Decision 2018/466, was as follows:

‘Person subject to judicial proceedings or an asset recovery process by the Egyptian authorities following a final court ruling in respect of the misappropriation of State Funds on the basis of the United Nations Convention against corruption’.

9 Decision 2018/466 amended the grounds for the designation as follows in respect of the third, fourth and fifth applicants:

– in respect of the third applicant: ‘Person subject to judicial proceedings or an asset recovery process by the Egyptian authorities following a final court ruling in respect of the misappropriation of State Funds on the basis of the United Nations Convention against corruption, and associated with Alaa Mohamed Hosni Elsayed Mubarak’;

– in respect of the fourth applicant: ‘Person subject to judicial proceedings or an asset recovery process by the Egyptian authorities following a final court ruling in respect of the misappropriation of State Funds on the basis of the United Nations Convention against corruption, and associated with Gamal Mohamed Hosni Elsayed Mubarak’;

– in respect of the fifth applicant: ‘Associated with Mohamed Hosni Elsayed Mubarak, who is subject to judicial proceedings or an asset recovery process by the Egyptian authorities following a final court ruling in respect of the misappropriation of State Funds on the basis of the United Nations Convention against corruption.’

10 Decision 2019/468 amended the annex to Decision 2011/172 by an annex which included:

– Part A, on the list of natural and legal persons, entities and bodies referred to in Article 1 of Decision 2011/172, which did not amend the grounds for the designation of the applicants;

– Part B, entitled ‘Rights of defence and right to effective judicial protection under Egyptian law’, which was divided into two subsections, headed, first, ‘The rights of defence and the right to effective judicial protection’ and, second, ‘Application of the rights of defence and the right to effective judicial protection’, the latter subsection containing references to all the applicants with the exception of the fifth applicant.

11 Decision 2020/418 did not amend the grounds for the applicants’ designation, with the exception of the sixth applicant, where the entry ‘(deceased)’ was added after the term ‘person’.

12 Decision 2020/418, on the other hand, amended the references to the applicants in the second subsection of Part B of the Annex to Decision 2019/468. Those references now referred to only two cases and to a ‘freezing order’, as regards the first and second applicants, and only to one case as regards the sixth applicant. As regards the fifth applicant, a reference had been inserted containing the finding that her rights of defence and her right to effective judicial protection had been respected in the criminal proceedings on which the Council relied and referred to a ‘freezing order’.

13 On the basis of Article 215(2) TFEU and Decision 2011/172, on 21 March 2011 the Council adopted Regulation (EU) No 270/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 4). That regulation reproduced, in essence, the provisions of Decision 2011/172. In particular, the provisions of Article 2(1) of that regulation reproduced those of Article 1(1) of that decision. The regulation contained, in Annex I thereto, a list of the natural and legal persons, entities and bodies referred to in Article 2(1) thereof, which contained the same references as the corresponding list annexed to that decision, including the reason for the designation of the persons appearing in it and, in particular, the applicants. Council Implementing Regulation (EU) 2018/465 of 21 March 2018 implementing Regulation No 270/2011 (OJ 2018 L 78I, p. 1), Council Implementing Regulation (EU) 2019/459 of 21 March 2019 implementing Regulation No 270/2011 (OJ 2019 L 80, p. 1) and Council Implementing Regulation (EU) 2020/416 of 19 March 2020 implementing Regulation No 270/2011 (OJ 2020 L 86, p. 3) had made amendments to the list in Annex I to Regulation No 270/2011, corresponding to those introduced by Decisions 2018/416, 2019/468 and 2020/418 and described in paragraphs 9 to 12 above.

14 On 12 March 2021, the Council adopted Decision (CFSP) 2021/449 repealing Decision 2011/172 (OJ 2021 L 87, p. 46), published on 15 March 2021 in the Official Journal of the European Union and which entered into force on the day following that of its publication.

15 On the same day, the Council adopted Regulation (EU) 2021/445 repealing Regulation No 270/2011 (OJ 2021 L 87, p. 17), published on 15 March 2021 in the Official Journal of the European Union and which entered into force on the day following that of its publication.

16 By applications lodged at the Registry of the General Court on 31 May 2018, the first four applicants, on one hand, and the fifth applicant, on the other, brought their actions, registered as Cases T‑335/18 and T‑338/18 respectively (together ‘the first five applicants’).

17 The statements in defence were lodged by the Council on 3 August 2018, as regards Case T‑338/18, and on 18 September 2018, as regards Case T‑335/18.

18 On 7 December 2018 and 3 January 2019, the fifth applicant and the first four applicants, respectively, requested that a hearing be held and that the proceedings be stayed on account of their respective intention to lodge an appeal against the judgment of 22 November 2018, Saleh Thabet and Others v Council (T‑274/16 and T‑275/16, not published, EU:T:2018:826).

19 On 18 and 29 January 2019, the Council submitted its observations on those requests for a stay of proceedings.

20 On 4 February 2019, the President of the Fifth Chamber of the General Court decided to stay the proceedings in the present cases pending delivery of the judgment of the Court of Justice on the appeal brought by the applicants in Case C‑72/19 P.

21 By application lodged at the Registry of the General Court on 30 May 2019, the sixth applicant brought an action, which was registered under number T‑327/19.

22 By request lodged on the same day, the sixth applicant requested that the proceedings be stayed on account of the appeal which he had brought against the judgment of 12 December 2018, Mubarak v Council (T‑358/17, not published, EU:T:2018:905). On 20 June 2019, the Council submitted its observations on that request for a stay of proceedings. On 6 June 2019, the sixth applicant submitted a request that certain data not be made public.

23 On the basis of Article 86 of the Rules of Procedure of the General Court, on 31 May and 3 June 2019 respectively, the fifth applicant and the first four applicants lodged statements of modification seeking to extend the forms of order sought in their applications to include Decision 2019/468 and Implementing Regulation 2019/459 (together, ‘the 2019 acts’). They also submitted, on the same day as their statement of modification, a request that certain data not be made public.

24 On 2 July 2019, the President of the Fifth Chamber decided to stay the proceedings in Case T‑327/19 pending delivery of the judgment of the Court of Justice on the appeal brought by the sixth applicant in Case C‑145/19 P.

25 Following a change in the composition of the Chambers of the Court, pursuant to Article 27(5) of the Rules of Procedure, Cases T‑335/18, T‑338/18 and T‑327/19 were re-assigned to the Ninth Chamber by decision of 16 October 2019.

26 By letter of 21 April 2020, the first applicant informed the General Court of the death of his father, the sixth applicant, which had occurred on 25 February 2020, and of his intention to continue the proceedings, as a successor of the latter and on behalf of the other successors. In addition, he enclosed with that letter the documents in relation to the death and the authority which had been conferred on him by those successors for the purposes of continuing the proceedings.

27 On 26 and 27 May 2020, the applicants lodged statements of modification seeking to extend the forms of order sought in their applications to include Decision 2020/418 and Implementing Regulation 2020/416 (together, ‘the 2020 acts’).

28 By judgment of 3 December 2020, Saleh Thabet and Others v Council (C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992), the Court of Justice held, in paragraphs 47 and 60, that the General Court had erred in law in finding in the judgments under appeal that the Council was not required, before relying on the decisions of the Egyptian authorities in order to maintain the restrictive measures to which the appellants were subject, to verify that those decisions had been adopted in accordance with the rights of the defence and the right to effective judicial protection, since the appellants had not produced objective, reliable, specific and consistent evidence such as to raise legitimate questions concerning the observance of those rights.

29 Ruling definitively on the dispute before the General Court, the Court of Justice recalled that, as was apparent from paragraphs 44 and 59 of its judgment of 3 December 2020, Saleh Thabet and Others v Council (C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992), the Council had not fulfilled its obligation to verify that the Egyptian authorities acted in accordance with the rights of the defence and the right to judicial protection of the appellants in Cases C‑72/19 P and C‑145/19 P before relying on the decisions of those authorities in order to adopt the restrictive measures against those appellants (judgment of 3 December 2020, Salah Thabet and Others v Council, C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992, paragraph 65).

30 In those circumstances, the Court of Justice held that the second pleas in law in each of the actions in Joined Cases T‑274/16 and T‑275/16 and in Case T‑358/17 had to be upheld, without it being necessary to examine the other pleas in those actions, and, consequently, the acts at issue in Case C‑72/19 P, in so far as they concerned the first five appellants, and the acts at issue in Case C‑145/19 P, in so far as they concerned the sixth appellant, had to be annulled (judgment of 3 December 2020, Saleh Thabet and Others v Council, C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992, paragraph 66).

31 Consequently, having set aside, first, the judgment of 22 November 2018, Saleh Thabet and Others v Council (T‑274/16 and T‑275/16, not published, EU:T:2018:826), in point 1 of the operative part of the judgment of 3 December 2020, Saleh Thabet and Others v Council (C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992), and, secondly, the judgment of 12 December 2018, Mubarak v Council (T‑358/17, not published, EU:T:2018:905), in point 2 of that operative part, the Court, in points 3 and 4 of that operative part respectively, annulled Council Decision (CFSP) 2016/411 of 18 March 2016 amending Decision 2011/172 (OJ 2016 L 74, p. 40) and Council Decision (CFSP) 2017/496 of 21 March 2017 amending Decision 2011/172 (OJ 2017 L 76, p. 22), in so far as they concerned the first five applicants, and Decision 2017/496, Implementing Regulation 2017/491, Decision 2018/466 and Regulation 2018/465 (together ‘the 2018 acts’) in so far as those acts concerned the sixth applicant.

32 The proceedings were resumed following delivery of the judgment of 3 December 2020, Saleh Thabet and Others v Council (C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992).

33 On 8 December 2020, the General Court, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, invited the parties to submit their observations on the inferences to be drawn, for the present cases, from the judgment of 3 December 2020, Saleh Thabet and Others v Council (C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992). The parties submitted their observations in that respect within the prescribed time limit.

34 On 28 January 2021, the Council submitted its observations on the statements of modification referred to in paragraphs 23 and 27 above.

35 On the same day, the Council lodged its statement of defence in Case T‑327/19.

36 By decision of the President of the General Court of 20 May 2021, the present cases were assigned to a new Judge-Rapporteur, sitting in the Ninth Chamber.

37 By decision of the President of the Ninth Chamber of 30 June 2021, the present cases were joined for the purposes of the oral part of the procedure.

38 On 20 July 2021, the Court, by way of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, requested the Council to submit certain documents and the applicants to indicate the consequences, if any, they inferred from the adoption of Council Decision 2021/449 of 12 March 2021 and from Council Regulation 2021/445 of 12 March 2021 for the present action. The parties submitted their observations in that regard on 28 July 2021 and on 5 August 2021.

39 By decision of the President of the Ninth Chamber of 13 August 2021, following the death of Judge Berke on 1 August 2021, a new judge was appointed to complete the panel of judges.

40 The parties presented oral argument at the hearing held on 30 September 2021.

– annul the 2018 acts, the 2019 acts and the 2020 acts (together ‘the contested acts’), in so far as those acts apply to them;

– annul the 2019 acts and the 2020 acts, in so far as those acts apply to him;

– in the alternative, should the 2018 acts be annulled as regards the first five applicants, order that the effects of Decision 2018/466 be maintained with respect to the first five applicants until the partial annulment of Implementing Regulation 2018/465 takes effect;

44 The parties having been given the opportunity to make submissions in that regard at the hearing, the present cases should be joined for the purposes of the decision closing the proceedings, in accordance with Article 68(1) of the Rules of Procedure of the General Court.

45 In support of their actions, the first five applicants rely on the same four pleas in law. The first plea alleges an error of assessment by the Council concerning compliance with the designation criterion in Article 1(1) of Decision 2011/172 and Article 2(1) of Regulation No 270/2011. The second plea alleges infringement of the applicants’ rights under Article 6 TEU, read in conjunction with Articles 2 and 3 TEU and Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’). The third plea alleges that Article 1(1) of Decision 2011/172 and Article 2(1) of Regulation No 270/2011 are illegal. The fourth plea alleges infringement of the principle of proportionality.

46 In support of his action, the sixth applicant puts forward three pleas in law. The first plea alleges infringement of the applicants’ rights under Article 6 TEU, read in conjunction with Articles 2 and 3 TEU and Articles 47 and 48 of the Charter. The second plea alleges an error of assessment by the Council concerning compliance with the designation criterion in Article 1(1) of Decision 2011/172 and Article 2(1) of Regulation No 270/2011. The third plea in law alleges a breach of the principle of proportionality.

47 Those pleas are identical respectively to the second, first and fourth pleas put forward by the other applicants. They will therefore be examined together by the Court.

48 In view of the grounds on which the Court of Justice set aside, in the judgment of 3 December 2020, Saleh Thabet and Others v Council (C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992), the judgments of 22 November 2018, Saleh Thabet and Others v Council (T‑274/16 and T‑275/16, not published, EU:T:2018:826), and of 12 December 2018, Mubarak v Council (T‑358/17, not published, EU:T:2018:905), and annulled the acts of the Council on which the General Court ruled in those judgments, the General Court considers it appropriate to examine, in the first place, the second plea in Cases T‑335/18 and T‑338/18 and the first plea in Case T‑327/19.

49 The present pleas may be divided into three parts, seeking, respectively, annulment of the 2018 acts, 2019 acts and 2020 acts.

50 It is therefore necessary to examine, in the first part, the arguments set out by the first five applicants in their applications and their replies with a view to the annulment of the 2018 acts; in the second part, the arguments set out by the first five applicants, in their first statements of modification, and by the sixth applicant, in his application and reply, with a view to the annulment of the 2019 acts; and in the third part, the arguments set out by the first five applicants, in their second statements of modification, and by the sixth applicant, in his statement of modification, with a view to the annulment of the 2020 acts.

51 As a preliminary point, it should be recalled, in the first place, that in a review of restrictive measures, the Courts of the European Union must ensure the review, in principle a full review, of the lawfulness of all Union acts in the light of the fundamental rights forming an integral part of the EU legal order, which include, in particular, observance of the rights of the defence and the right to effective judicial protection (see judgment of 3 December 2020, Saleh Thabet and Others v Council, C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992, paragraph 32 and the case-law cited).

52 The effectiveness of the judicial review guaranteed by Article 47 of the Charter requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to include or to maintain a person’s name on the lists of persons subject to restrictive measures, the EU Courts are to ensure that that decision, which affects that person individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, are substantiated (see judgment of 3 December 2020, Saleh Thabet and Others v Council, C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992, paragraph 33 and the case-law cited).

53 In the second place, according to the case-law, it is for the Council, before acting on the basis of a decision of an authority of a third State with a view to adopting or maintaining restrictive measures, to verify whether that decision was adopted in accordance with the rights of the defence and the right to effective judicial protection (see judgment of 3 December 2020, Saleh Thabet and Others v Council, C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992, paragraph 37 and the case-law cited).

54 In particular, the requirement for the Council to verify that the decisions of third States on which it bases the entry of a person or entity on a list of persons or entities whose assets are to be frozen have been taken in accordance with those rights is designed to ensure that they are included on that list only on a sufficiently solid factual basis and, thus, to protect the persons or entities concerned (see judgment of 3 December 2020, Saleh Thabet and Others v Council, C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992, paragraph 39 and the case-law cited).

55 The Council cannot conclude that a listing decision is taken on a sufficiently solid factual basis before having itself verified that the rights of the defence and the right to effective judicial protection were observed at the time of the adoption of the decision by the third State in question on which it intends to base the adoption of restrictive measures (see judgment of 3 December 2020, Saleh Thabet and Others v Council, C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992, paragraph 40 and the case-law cited).

56 The mere reference by the Council to documents from the Egyptian authorities, in which those authorities had set out the manner in which the applicants’ fundamental rights had been observed and had given assurances in that regard, while it did not dispute that it did not itself verify whether those rights had been observed and even stated that further checks on its part were not necessary in that respect, cannot suffice for the view to be taken that the decision by the Council to maintain the applicants on the lists at issue rests on a sufficiently solid factual basis (see, to that effect, judgment of 3 December 2020, Saleh Thabet and Others v Council, C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992, paragraphs 44 and 59).

57 In the third place, the rights of the defence include the right to be heard and the right to have access to the file, as enshrined inter alia in Article 41(2) of the Charter (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 99 and the case-law cited).

58 In criminal proceedings, observance of the rights of the defence represents particular aspects of the right to a fair trial guaranteed, in particular, by Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’) (see ECtHR, 2 November 2010, Sakhnovskiy v. Russia, CE:ECHR:2010:1102JUD002127203, paragraph 94 and the case-law cited).

59 It seeks, in particular, to implement two principles inherent in the concept of a fair trial, on the one hand, the principle of equality of arms, according to which each party must be given a reasonable opportunity to present his or her case under conditions which do not place him or her at a disadvantage vis-à-vis his or her opponent and, on the other hand, the principle that proceedings must be adversarial, which implies the right to examine the observations or evidence produced by the other party and that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused (see, to that effect, ECtHR, 16 February 2000, Rowe and Davis v. United Kingdom, CE:ECHR:2000:0216JUD002890195, paragraph 60 and the case-law cited).

60 According to the case-law, the right to an effective remedy before an independent and impartial tribunal forms part of the essence of the right to effective judicial protection. The concepts of independence and impartiality presuppose the existence of rules the application of which is such as to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that court to external factors and its neutrality with respect to the interests before it (see, to that effect and by analogy, judgment of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, paragraphs 51 and 53 and the case-law cited).

61 Furthermore, it may be inferred from the case-law that any legally binding decision of a national authority which is capable of impinging on the rights or freedoms of the persons concerned must, in principle, be open to judicial review (see, to that effect and by analogy, judgment of 12 December 2019, Openbaar Ministerie (Swedish Public Prosecutor’s Office), C‑625/19 PPU, EU:C:2019:1078, paragraph 39).

62 It should be added that, as may be inferred from the case-law of the European Court of Human Rights (‘the ECtHR’), an error of fact or of law committed by a national authority in the context of judicial proceedings cannot be regarded as a breach of the right to a fair trial unless, exceptionally, that error can be said to be constitutive of ‘unfairness’, in particular if the findings of that authority may be regarded as arbitrary or manifestly unreasonable. Thus, the ECtHR held that a judicial decision which, in essence, had no legal basis in domestic law and did not contain any connection between the established facts, the applicable law and the outcome of the proceedings, was arbitrary and amounted to a ‘denial of justice’ (see, to that effect, ECtHR, 5 February 2015, Bochan v. Ukraine, CE:ECHR:2015:0205JUD002225108, paragraphs 61 and 62).

63 In addition, it should be recalled that the right to be tried within a reasonable time forms part of the right to effective judicial protection which is safeguarded, in particular, by the second paragraph of Article 47 of the Charter and Article 6(1) ECHR. Observance of the right to have one’s case adjudicated on within a reasonable time must be examined in the light of the circumstances of the case, which call for an overall assessment on the basis, in particular, of criteria relating to the complexity of the case, the conduct of the applicant and the conduct of the relevant authorities (see, to that effect, judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraphs 111 and 112 and the case-law cited).

64 Lastly, it should be noted that the principles referred to in paragraphs 51 to 63 above are enshrined not only in the provisions of the ECHR, but also in the provisions of several other legally binding instruments of international law, in particular Article 14 of the International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on 16 December 1966, to which, inter alia, the Arab Republic of Egypt is a party (see, to that effect and by analogy, judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraph 111).

65 It is in the light of those considerations that the Court must examine whether the Council adequately fulfilled its obligation to verify whether the applicants’ fundamental rights were respected before adopting the contested acts.

The first part, concerning the Council’s failure to verify observance of the rights of the defence and the right to effective judicial protection of the first five applicants before the adoption of the 2018 acts

66 The first five applicants submit, in essence, that, pursuant to Article 6 TEU, read in conjunction with Article 2 and Article 3(5) TEU, the Council is under an obligation to promote fundamental rights. However, they argue, the Council failed to ensure that those rights had been observed in the present case and relied, contrary to the requirements of the case-law, on an irrefutable presumption that the Egyptian authorities would comply with that principle. In that regard, they claim to have submitted detailed evidence which demonstrates the infringement of their fundamental rights in the criminal proceedings on which maintenance of their names on the lists at issue is based.

67 The Council submits, in essence, that the principles derived from the case-law cited by the first five applicants are not relevant to the present case. In the first place, the facts examined in the judgment of 21 December 2011, N.S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865), delivered in the context of the transfer of asylum seekers to a Member State where they faced a risk of inhuman and degrading treatment, are not comparable to the facts of the present case. In the second place, the first five applicants wrongly rely on the judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583). In particular, it is apparent from the judgment of 7 July 2017, Azarov v Council (T‑215/15, EU:T:2017:479), that the scheme of restrictive measures examined in the judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583), is not comparable to that to which the first five applicants are subject. In the third place, the evidence adduced by those applicants in support of the alleged violation of their fundamental rights is not objective, reliable, specific and consistent evidence such as to require the Council to carry out the necessary verifications, in accordance with paragraph 65 of the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694). In the fourth place, the Council states, in its response of 28 January 2021 to the General Court’s measure of organisation of procedure, that it had complied, before adopting the measures at issue, with the obligation to ensure observance of the fundamental rights of the first five applicants and had considered that the material communicated by the Egyptian authorities demonstrated that those rights had been observed.

68 In that regard, in the first place, the first five applicants submit that, on the one hand, the Council failed to satisfy itself that their fundamental rights had been observed and, on the other hand, they submitted detailed evidence showing that their rights had been infringed. It should be noted at the outset that the Council merely responds, referring to paragraph 65 of the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694), that the evidence submitted in support of the alleged infringement was not objective, reliable, specific and consistent evidence such as to raise legitimate questions, with the result that it was not required to carry out further verifications.

69 In the second place, it is true that it is apparent from the correspondence between the first five applicants and the Council before the adoption of the 2018 acts (letters of 6 December 2017, 29 January, 12 and 20 February and 21 March 2018) that the Council sent them a number of documents from the Egyptian authorities in connection with the criminal proceedings concerning them, which responded to requests from the European External Action Service (EEAS). However, those letters and documents did not mention concerns about observance of the rights of the defence and the right to effective judicial protection of the first five applicants, or did so only very indirectly. First, they related to the state of progress of the various ongoing proceedings or to the measures taken by the Egyptian authorities against the first five applicants and, second, they were intended to respond to the latter’s observations on the merits of those proceedings and their completion.

70 In particular, in the letters of 21 March 2018, the Council, in order to justify maintaining the names of the first five applicants on the lists at issue, relied solely on considerations intended to justify the validity of the grounds for designation, relating to the existence of judicial proceedings or an asset recovery procedure in connection with acts classifiable as misappropriation of State funds concerning those applicants or the persons to whom they were linked.

71 Thus, nothing in those letters indicated that the Council had itself verified whether the first five applicants’ rights of defence and right to effective judicial protection had been observed by the Egyptian authorities.

72 Furthermore, it must be held that the Council’s observations of 28 January 2021, in response to the Court’s measure of organisation of procedure of 8 December 2020, are not such as to invalidate that finding.

73 First of all, those observations do not call into question the finding that the Council, before the adoption of the 2018 acts, had not complied with the requirements set out in paragraphs 43 and 44, inter alia, of the judgment of 3 December 2020, Saleh Thabet and Others v Council (C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992). In the present case, the Council does not claim that it carried out such a verification itself, but only that it examined the evidence provided by the Egyptian authorities and that it found that that evidence sufficiently demonstrated that those rights had been observed without there being any need to carry out further verifications. As was pointed out in paragraph 56 above, the Court of Justice expressly rejected such an approach and held that it did not enable the Council to fulfil its obligations.

74 Moreover, as the first five applicants noted in their reply to the Court’s measure of organisation of procedure, the evidence communicated by the Egyptian authorities, on the basis of which the Council had decided to maintain their names on the lists at issue in 2018, is of the same kind as that on which the Council relied, on the same date, in maintaining the name of the sixth applicant on those lists. In paragraph 59 of the judgment of 3 December 2020, Saleh Thabet and Others v Council (C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992), the Court of Justice specifically held that that evidence was not sufficient for the Council to be able to consider that the decision to maintain the sixth applicant’s name on those lists was based on a sufficiently solid factual basis.

75 Next, those observations are in direct contradiction with those of the statement in defence, from which it is apparent, as mentioned in paragraph 67 above, that, in 2018, the Council did not consider itself bound to carry out such verifications in the absence of objective, reliable, specific and consistent evidence such as to raise legitimate questions, produced by the first five applicants. Moreover, by stating in its response to the General Court’s measure of organisation of procedure and in its observations on the applicants’ statements of modification that, as regards the 2019 and 2020 acts, it adapted its approach in order to comply with the Court of Justice’s findings in the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), the Council implicitly acknowledges that its position concerning verification of observance of the fundamental rights of the first five applicants when the 2018 acts were adopted was different to that which it adopted after that judgment was delivered.

76 Lastly, as is apparent from paragraphs 69 and 70 above, the verifications which the Council claims to have carried out before the adoption of the 2018 acts concerning the fundamental rights of the first five applicants are not apparent from the documents in the file, and in particular from its correspondence with the Egyptian authorities and with those applicants.

77 In the light of the foregoing, it must be held that it is not apparent from the documents in the file that, before the adoption of the 2018 acts, the Council had fulfilled its obligation to itself to verify that the rights of defence and the right to effective judicial protection of the first five applicants had been respected by the Egyptian authorities.

78 That part of the plea must therefore be upheld in so far as it supports the form of order sought by the first five applicants seeking annulment of the 2018 acts.

The second part, concerning the inadequacy of the Council’s verifications concerning observance of the applicants’ fundamental rights before the adoption of the 2019 acts

79 The applicants, relying on the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), submit, in essence, that, contrary to the approach taken by the General Court in the judgments of 22 November 2018, Saleh Thabet and Others v Council (T‑274/16 and T‑275/16, not published, EU:T:2018:826), and of 12 December 2018, Mubarak v Council (T‑358/17, not published, EU:T:2018:905), the Court of Justice requires the Council to carry out the necessary verifications irrespective of the evidence produced by the designated person. In addition, the statement of reasons as to why the Council considers that the Egyptian authorities observed the applicants’ fundamental rights is manifestly inadequate on the ground that it does not respond to the evidence provided by the applicants and it is not based on an independent assessment by the Council.

80 The Council maintains that it verified that the Egyptian authorities had observed the applicants’ rights of defence and their right to effective judicial protection. In that regard, it submits, in essence, that it complied with that obligation by questioning the Egyptian authorities, first, as to whether the Egyptian legal order contained the guarantees necessary for the protection of those rights and, second, on observance of those rights in the judicial proceedings concerning the applicants. Furthermore, the Council submits that, in the judgment of 3 December 2020, Saleh Thabet and Others v Council (C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992), the Court of Justice did not rule on the assessments made by the General Court in the judgment of 22 November 2018, Saleh Thabet and Others v Council (T‑274/16 and T‑275/16, not published, EU:T:2018:826), concerning observance of the applicants’ fundamental rights, such that it was open to the Council to rely on those assessments in the context of its verifications in that regard. Lastly, the Council asserts that it cannot be required to carry out a full review of all aspects of the criminal proceedings at issue, first, because it does not have the means available to it and, second, because it is required to demonstrate a certain restraint in its investigations in order to avoid the risk of interference in Egyptian internal affairs.

81 Before examining whether those acts are well founded, it is necessary to determine the content and scope of the verifications carried out by the Council prior to the adoption of the 2019 acts.

The content and scope of the verifications carried out by the Council before the adoption of the 2019 acts

82 It was held in paragraph 75 above that the Council had altered its position concerning verification of observance of the fundamental rights of the persons on the lists at issue after the adoption of the 2018 acts. Subsequently, before the adoption of the 2019 acts, the Council questioned the Egyptian authorities on the subject, first, of the existence of guarantees as to the protection of those rights in the Egyptian legal order and, secondly, of observance of those rights in the proceedings on which the inclusion of the applicants’ names on the lists at issue was based.

83 The Egyptian authorities replied to those questions by notes of 9, 18 and 28 February 2019.

84 On the basis of those replies, as indicated in paragraph 10 above, the Council inserted in the annexes to the 2019 acts a Part B, comprising two subsections: a first subsection, entitled ‘The rights of defence and the right to effective judicial protection’, where it listed the rights guaranteed under the Egyptian legislation, and a second subsection, entitled ‘Application of the rights of defence and the right to effective judicial protection’, which contained the evidence which, according to that institution, supports the conclusion that the applicants’ rights of defence and right to effective judicial protection had been observed during the criminal proceedings on which it had relied in entering their names on those lists.

85 In that regard, in the first place, as regards the legal safeguards provided by the Egyptian legal order so far as concerns the rights of the defence and the right to effective judicial protection, it should be noted, as is apparent from the Council’s pleadings, that the EEAS questioned the Egyptian authorities in order to ascertain, in essence, whether the right to an effective remedy against any decision of a competent authority, as protected by Article 47 of the Charter, and the rights of defence, listed in Article 6(3) ECHR, were guaranteed in the Egyptian legal order.

86 Specifically, as regards the right to effective judicial protection, the EEAS referred the following questions:

‘For any individual suspected of or charged with a criminal offence, can the Egyptian authorities confirm that the following rights are guaranteed under Egyptian law, [which includes any relevant provisions of national law, international agreements to which Egypt is a party and any relevant case-law (Court of Cassation, …)]:

– the right to judicial review of any decision by the Prosecution or by any other national authority (such as the Experts[ʼ] committee set up by Prime [Ministerial] Decree No 2873 of 2015 or the National Committee for Recovery of Assets Abroad) involved in, or linked to, the judicial proceedings or asset recovery processes in respect of misappropriation of State funds?

– the right to defend himself [or] herself in person or through legal assistance of his [or] her own choosing or, if he [or] she has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require?’

87 By a note of 18 February 2019, the Egyptian authorities confirmed that the Egyptian Constitution, in particular Article 54 thereof, guaranteed access free of charge to the judicial system, since it provided that the right to bring an action was a guaranteed and inalienable right for all and that the State had to guarantee access to the courts for the applicants and an expeditious judgment on the cases.

88 On the basis of those replies, in the first subsection of Part B of the annexes at issue, the Council stated as follows:

‘It follows from Articles 54, 97 and 98 of the Egypt Constitution, Articles 77, 78, 124, 199, 214, 271, 272 and 277 of the Egypt Criminal Procedures Act and Articles 93 and 94 of the Egypt Advocacy Act (Law No 17 of 1983) that the following rights are guaranteed under Egyptian law:

2. the right to defend himself [or] herself in person or through legal assistance of his [or] her own choosing or, if he [or] she has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

1. the right to be informed promptly, in a language which he [or] she understands and in detail, of the nature and cause of the accusation against him [or] her;

2. the right to have adequate time and facilities for the preparation of his [or] her defence;

3. the right to examine or have examined witnesses against him [or] her and to obtain the attendance and examination of witnesses on his [or] her behalf under the same conditions as witnesses against him [or] her;

4. the right to have the free assistance of an interpreter if he [or] she cannot understand or speak the language used in court.’

89 In the second place, as regards the application to the applicants of the rights of the defence and the right to effective judicial protection, the EEAS asked questions concerning the four judicial cases in which the applicants were involved, namely Case No 8897 of 2013, which concerned the first, second and sixth applicants, Case No 10427 of 2012, which concerned the first and second applicants, Case No 53 of 2013, which concerned all the applicants, and Case No 144/2012, which concerned the fifth applicant.

90 On the basis of the answers given to those questions by the Egyptian authorities, the Council, in the second subsection of Part B of the annexes at issue, included references to the ‘cases’ involving the applicants.

91 In particular, the references relating to the sixth applicant contained the following text:

‘The information on the Council’s file shows that the rights of defence and the right to effective judicial protection of Mr Mubarak were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular as follows:

On 27 June 2013, Mr Mubarak was charged together with two other individuals with misappropriation of public funds and proceedings were initiated before the Cairo Criminal Court on 17 November 2013. On 21 May 2014, that Court convicted the three defendants. The defendants challenged this judgment before the Court of Cassation. On 13 January 2015, the Court of Cassation quashed the verdict and ordered a retrial. On retrial, on 4 and 29 April 2015, verbal and written pleadings of the parties were presented. On 9 May 2015, the Cairo Criminal Court convicted the defendants, ordered the restitution of the misappropriated funds and ordered the payment of a fine. On 24 May 2015, an appeal was lodged with the Court of Cassation. On 9 January 2016, the Court of Cassation upheld the convictions. On 8 March 2016, the defendants reached a settlement within the Experts’ Committee set up by Prime Ministerial Decree No 2873 of 2015. That settlement was approved by the Cabinet of Ministers on 9 March 2016. That settlement was not submitted to the Court of Cassation for final approval by the Prosecutor General because the Experts’ Committee was not the competent committee. It is open to the defendants to submit a request for settlement to the competent committee, the National Committee for Recovery of Assets Located Abroad (NCRAA).

The investigation relating to facts of misappropriation of public funds or assets is still ongoing. The Council has found no indication that the rights of defence or the right to effective judicial protection of Mr Mubarak were not respected.’

92 The references to the first applicant also contained the finding that it was apparent from the information in the Council’s file that his rights of defence and his right to effective judicial protection had been respected during the criminal proceedings on which the Council had relied. The facts relied on in support of that finding referred successively to a ‘freezing order’, a ‘first case’, a ‘second case’ and a ‘third case’. The information relating to the ‘freezing order’ and ‘the first case’ contained the following entries:

On 28 February 2011, the Prosecutor General issued an order prohibiting Mr Gamal Mubarak and other individuals from disposing of their assets and funds in accordance with Article 208 bis/a of the Egypt Criminal Procedures Act, which allows the Prosecutor General to prohibit the defendant, his wife and his children from disposing of their assets if there are any doubts that such assets are the illegal proceeds of the crimes committed by that defendant. On 8 March 2011, the competent criminal Court upheld the prohibition order. Pursuant to the laws of the Arab Republic of Egypt, defendants have the right to challenge the court ruling on the prohibition order before the same court. Mr Gamal Mubarak has not challenged the ruling of 8 March 2011.

Mr Gamal Mubarak and another individual were referred to the trial court (Cairo Criminal Court) on 30 May 2012. On 6 June 2013, the Court returned the case to the public prosecution for further investigations. After the conclusion of the investigations, the case was referred again to the Court. On 15 September 2018, the Cairo Criminal Court delivered a judgment by which:

(i) it requested the Experts’ Committee it had appointed to complement the expert report it had submitted to the Court in July 2018;

(iii) asked to refer the defendants to the National Committee for Recovery of Assets Located Abroad (NCRAA) with a view to a possible reconciliation.

The defendants successfully challenged the order of arrest and, following a motion of recusal of the judicial panel, the case was referred to another circuit of the criminal court to review the merits.’

93 The references to the ‘second case’ and the ‘third case’ relied on in relation to the first applicant were, mutatis mutandis, the same as those relating to the ‘first case’ and the ‘second case’ respectively relied on in relation to the sixth applicant.

94 As regards the references to the second applicant, these were, mutatis mutandis, identical to those relating to the first applicant, set out in paragraphs 92 and 93 above.

95 As regards the references to the third and fourth applicants, they were, mutatis mutandis, identical. They also contained a finding that their rights of defence and their right to effective judicial protection had been respected in the criminal proceedings on which the Council had relied. The facts relied on in support of that finding referred successively to a ‘freezing order’ and to a ‘case’. The material relating to the ‘freezing order’ and to the ‘case’ was, mutatis mutandis, identical to that relating, first, to the ‘freezing order’ concerning the first applicant and, second, to the ‘second case’ concerning the sixth applicant and the ‘third case’ concerning the first and second applicants.

96 On the other hand, it should be noted that the EEAS did not ask any question concerning the ‘freezing order’ mentioned by the Council in the second subsection of Part B of the annexes at issue. As can be inferred, in particular, from the explanations provided by the Egyptian authorities in their memorandum of 27 November 2017, that ‘freezing order’ corresponds to an asset-freezing order made on 28 February 2011, confirmed by a decision of the competent criminal court on 8 March 2011, which concerned the whole of the sixth applicant’s family on account of the investigations conducted in Cases No 3642/2011 and No 10427 of 2012.

97 Likewise, although the EEAS asked the Egyptian authorities questions relating to Case No 144/2012, which concerned the fifth applicant, and that applicant was also involved in Case No 53 of 2013 and was a subject of the asset-freezing order referred to in the preceding paragraph, the second subsection of Part B of the annexes at issue did not, as stated in paragraph 10 above, contain any reference to that applicant.

98 In its observations on the fifth applicant’s statement of modification, the Council states that, in essence, as the sixth applicant’s wife, she must be regarded as a person associated with a person identified as responsible for misappropriation of Egyptian State funds. It must therefore be inferred that the Council considered that, in order to satisfy its obligation to verify that those rights had been observed, it was sufficient to examine whether the rights of the person with whom she was associated, namely the sixth applicant, had been observed.

99 Consequently, in the present case, in order to check whether the Council carried out adequate verifications so far as she was concerned, it is necessary to take into consideration the entries in the second subsection of Part B of the annexes at issue relating to the sixth applicant.

The inadequacy of the Council’s verifications before the adoption of the 2019 acts

100 The Council relied on Cases No 10427 of 2012, No 8897 of 2013 and No 53 of 2013 in order to justify re-inclusion of the applicants’ names on the lists at issue.

101 The applicants maintain that the verifications carried out by the Council are inadequate. In particular, they do not amount to an independent assessment of whether their fundamental rights have been observed and do not make it possible to respond to the precise evidence which they adduced concerning those infringements. In their view, the criminal proceedings at issue are vitiated, inter alia, by repeated and continuous infringements of their rights of defence and of their right to be tried within a reasonable time.

102 The applicants raise, in essence, five complaints in relation to that case relating to the infringement of their rights of defence and of their right to effective judicial protection.

103 The first complaint alleges infringement of Articles 5 and 6 ECHR and of Articles 6, 47 and 48 of the Charter, in that the first two applicants were the subject of selective prosecution and detention. The second complaint alleges infringement of Article 7 ECHR and Article 49 of the Charter, in that the charges brought against the first two applicants are based on a retroactive application of Egyptian criminal law. The third complaint alleges infringement of Article 6 ECHR and Articles 47 and 48 of the Charter, in that the criminal proceedings in that case are vitiated by an alteration of the evidence, by non-disclosure of evidence and by perjury. The fourth complaint alleges infringement of Articles 5 and 6 ECHR and of Articles 6, 47 and 48 of the Charter, in that the first two applicants were held in preventative detention illegally and arbitrarily at the end of the hearing on 15 September 2018, although they had already been held in preventative detention in that case for the maximum duration permitted by law. The fifth complaint alleges infringement of Article 6 ECHR and Article 47 of the Charter, on account of the unjustified delays in the procedure and the exorbitant duration of that procedure.

104 As a preliminary point in this connection, it should be noted that in that case the first two applicants were accused of complicity in the acquisition of unlawful profits in the context of transactions concerning the shares of the Egyptian bank Al Watany. For those reasons, the first two applicants were referred to the Cairo Criminal Court on 30 May 2012. On 6 June 2013, that court requested the Public Prosecutor to carry out further investigations. On 15 September 2018, that court delivered a judgment in which, first, it asked the Experts’ Committee which it had appointed to supplement the experts’ report submitted to it in July 2018, secondly, ordered the arrest of the first two applicants and, thirdly, requested that they be referred to the NCRAA with a view to a possible conciliation. Following an appeal by the first two applicants against the arrest warrant, the panel of judges concerned was the subject of a recusal decision. The case was referred to another panel of judges in order for them to review the case on its merits.

105 In the first place, as is apparent from the questions put by the EEAS, attached to the Council’s observations on the statements of modification, the Egyptian authorities were asked (i) whether the first two applicants had had the opportunity to submit observations before the decision of the Cairo Criminal Court of 15 September 2018 was delivered and (ii) what the outcome had been of the hearing which was scheduled to take place on 19 January 2019. It is apparent from those questions that the Council, in the course of its verifications concerning that case, focused on observance of the rights of defence of the first two applicants before the adoption of the decision of 15 September 2018 and on the subsequent course of the proceedings. On the other hand, it does not appear that the Council concerned itself with the other issues raised in the applicants’ complaints, in particular the issue of their right to have their case adjudicated upon within a reasonable time, which is the subject of their fifth complaint. Moreover, it should be noted that that latter issue was not mentioned in any of the communications sent by the EEAS to the Egyptian authorities.

106 In the second place, it is apparent from the Egyptian authorities’ reply of 9 February 2019 to those questions from the EEAS that, following the action brought by the first two applicants against that decision of the Cairo Criminal Court of 15 September 2018, which consisted of an application for recusal, the case was referred to another judicial panel in order for it to give judgment on the merits. Furthermore, it follows from that reply that the proceedings were still ongoing at the date of that reply and that a hearing was scheduled for 23 March 2019 so that the first two applicants could submit their oral arguments in response to the questions raised by the public prosecutor at the hearing on 19 January 2019. It can therefore be inferred that, on the date of the adoption of the 2019 acts, the delivery of a final decision in that case, for the purposes of which the first two applicants had been referred to the Cairo Criminal Court on 30 May 2012, was not imminent.

107 In the third place, it should be borne in mind that, as regards verification of observance of the right to be tried within a reasonable time, the longer the judicial proceedings forming the factual basis for a restrictive measure are, the greater the need for the Council to carry out that verification before it decides whether or not that measure should be renewed (see judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraph 114 and the case-law cited).

108 In particular, it is appropriate to bear in mind the precautionary nature of freezing the applicant’s assets and the purpose thereof, which is to assist the Egyptian authorities with establishing any misappropriation of State funds that has taken place, on conclusion of the judicial proceedings, and to ensure that it remains possible for those authorities, ultimately, to recover the proceeds of that misappropriation. It therefore falls to the Council to ensure that that measure is not extended unnecessarily, to the detriment of the applicant’s rights and freedoms, on which it has a significant negative impact, merely because the judicial proceedings on which it is based have been left open indefinitely, without any real justification (see, to that effect and by analogy, judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraph 115 and the case-law cited).

109 It is important to note that, at the time of the adoption of the acts at issue, the Council had at its disposal evidence that was capable of raising legitimate questions concerning the reasonable duration of those criminal proceedings, which rendered its obligation to carry out verifications more compelling (see judgment of 26 November 2013, Kendrion v Commission, C‑50/12 P, EU:C:2013:771, paragraph 96 and the case-law cited).

110 Both the documents sent each year by Egypt’s Prosecutor General (‘the Prosecutor General’), in particular the updated table of the cases concerning the first two applicants, and the documents provided by those applicants, especially the table sent to the Council on 19 February 2018 referring to the various procedural stages, reflected the numerous delays to those proceedings.

111 Thus, first, the investigations in that case started in March 2011, almost eight years before the adoption of the 2019 acts. The first two applicants were questioned and charged on 9 February 2012 and referred to the Cairo Criminal Court on 30 May 2012. Furthermore, as noted in paragraph 106 above, it can be inferred from the Egyptian authorities’ reply of 9 February 2019 that a final decision closing the proceedings in that case was not imminent. Secondly, there has been a succession of six different judicial panels in that case since 2012 (17 April and 13 November 2014, 17 October 2015, 17 September and 19 November 2016 and 19 September 2018), due to circumstances which do not appear to be specific to the case but to decisions or procedural acts of the Egyptian authorities. It is also apparent from the table referring to the various procedural stages that, between 7 July 2012, when the hearings in the trial began, and 23 August 2017, when the first two applicants completed their oral submissions, more than five years elapsed, owing in particular to numerous deferrals of the hearing. Finally, following the hearing on 23 August 2017, a third Experts’ Committee was created in order to re-examine the entire case.

112 Moreover, while it is true that the last change in the composition of the panel of judges, which occurred following the decision of the Cairo Court of Appeal of 19 September 2018, originates in the application for recusal lodged by the first two applicants, it is nevertheless clear from the finding of the Court of Appeal that that application was well founded. That decision shows that the president of the panel of judges in question had given an opinion on the case which prevented him, as well as the other judges, from examining it further. Accordingly, that event, which was indeed likely to delay the delivery of a final decision, seems ultimately to be more attributable to the Egyptian authorities than to the first two applicants.

113 Consequently, without it being necessary to examine the applicants’ other complaints in relation to that case, it follows from the foregoing that the evidence on which the Council relied in order to conclude that the right to effective judicial protection of the first two applicants had been observed was inadequate, given that there had been no verifications as to observance of their right to be tried within a reasonable time. The complaint of the first two applicants in that regard is therefore well founded.

114 With regard to that case, the applicants put forward, in essence, two complaints relating to infringement of the rights of the defence and of the right to effective judicial protection of the first, second and sixth applicants.

115 The first complaint alleges infringement of Article 6 ECHR and of Articles 47 and 48 of the Charter, in that, in essence, first, the Prosecutor General refused to refer to the Egyptian Court of Cassation (‘the Court of Cassation) the application for conciliation made by the first, second and sixth applicants, for the purposes of repaying the amount of the sums they had allegedly misappropriated. The Prosecutor General had refused to refer to the Court of Cassation for validation the agreement which those applicants had reached with a view to repaying the amount of the sums which they were accused of having misappropriated on the ground that it had not been concluded with the relevant committee, which should, in its view, have been the NCRAA. Secondly, the Court of Cassation deprived the applicants in question of their right to effective judicial protection by rejecting their request for conciliation without even examining it on the merits, on the ground that it had to be submitted to it by the Prosecutor General.

116 The second complaint alleges infringement of Article 6 ECHR and Articles 47 and 48 of the Charter in that, in essence, the Court of Cassation in its judgment of 9 January 2016 did not examine to the requisite legal standard a number of grounds of appeal submitted by the first, second and sixth applicants, with the result that that judgment is arbitrary and manifestly unreasonable.

117 As a preliminary point it should be noted that, in that case, the first, second and sixth applicants are accused of misappropriation of State funds, consisting of unlawful use of the funds allocated for the renovation of communications centres of the Presidency of the Egyptian Republic for work in their private homes. On 21 May 2014, the Cairo Criminal Court sentenced the three applicants concerned to prison sentences and ordered them to make restitution of the misappropriated funds and to pay a fine for the misappropriation of State funds described above. On 13 January 2015, the Egyptian Court of Cassation set aside that decision of the Criminal Court and ordered a new trial. On 9 May 2015, the Cairo Criminal Court again sentenced the three applicants concerned to prison sentences and ordered them to make restitution of the misappropriated funds and to pay a fine. On 9 January 2016, the Court of Cassation dismissed the applicants’ appeal and upheld their convictions. It was in that context that the three applicants concerned submitted the request for conciliation referred to in paragraph 115 above.

118 In the first place, it should be noted, as is apparent from the Council’s observations on the statement of modification and Annexes F2 and R1, that the EEAS, in its questions to the Egyptian authorities, focused exclusively on the legal difficulties raised by the applicants’ first complaint, relating mainly to the competence of the Experts’ Committee with which the first, second and sixth applicants had concluded an agreement with a view to repayment of the amount of the sums which they allegedly misappropriated and not on the observance of the right of effective judicial protection of the first, second and sixth applicants.

119 In the second place, in their note of 9 February 2019, the Egyptian authorities, in response to those questions, stated, respectively, in essence, that:

– the issue of the lack of competence of the Experts’ Committee had been raised by the First Advocate General, sitting on that committee. They attached to their reply the text of Egyptian Law No 28 of 2015, Article 6 of which provided that the NCRAA was the sole competent committee to receive applications for conciliation in respect of persons listed on freezing orders abroad;

– the Cabinet of Ministers had informed the Prosecutor General that no conciliation agreement had been approved by it;

– there was no legal basis for the Prosecutor General to refer the request for conciliation made by the first two applicants and the former Egyptian Head of State since the Experts’ Committee to which the matter had been referred did not have competence;

– following the decision of the Prosecutor General not to refer that request for conciliation to the Court of Cassation, which was in accordance with the applicable provisions, the first two applicants and the former Egyptian Head of State could still submit, in accordance with the applicable provisions, a new request for conciliation to the NCRAA;

– the first two applicants and the former Egyptian Head of State would be able to recover the sums already paid;

– those authorities had sent the United Kingdom and the Republic of Cyprus requests for mutual legal assistance with a view to recovery of the misappropriated funds on 17 February 2016 and did not have any information to the effect that the United Kingdom Public Prosecutor’s Office would not accede to that request;

– the execution of the financial convictions which had been imposed on the persons in question did not constitute an agreement with them and, if those convictions were executed in full, they would inform the United Kingdom authorities and the Cypriot authorities.

120 As is apparent, first, from the considerations set out in the second subsection of Part B of the annexes at issue, relating to the observance of the rights of the defence and the right to effective judicial protection of the applicants in question and, secondly, from the Council’s response to the measure of organisation of procedure of 8 December 2020, it should be noted that the Council considered those replies from the Egyptian authorities to be satisfactory.

121 As it states in its observations on the statements of modification, the Council considers that it was not required to provide further details in the second subsection of Part B of the annexes at issue so far as that case was concerned. In particular, it takes the view that the possibility for the first, second and sixth applicants, following the decision of the Prosecutor General not to refer their request for conciliation to the Court of Cassation, to submit an application for an amicable settlement to the NCRAA constituted an available legal remedy, of which they were not deprived.

122 In the third place, it should be noted that the Council’s finding that Egyptian law guaranteed to any person suspected or accused of a criminal offence the right to judicial review of any act or administrative decision (see paragraph 88 above), does not follow from the reply and information provided by the Egyptian authorities, set out in paragraph 87 above, following the question put by the EEAS on that point. As is apparent from paragraph 61 above, the right to effective judicial protection means that any legally binding decision of a national authority capable of impinging on the rights or freedoms of the persons concerned must be open to judicial review.

123 Consequently, since, in the light of the Egyptian authorities’ replies to the EEAS’s questions, the Council could not be assured that Egyptian law offered the guarantee referred to in the previous paragraph as regards the right to effective judicial protection, it should have exercised particular vigilance in ensuring that the decisions adopted in the criminal proceedings on which the inclusion and maintenance of the applicants’ names on the lists at issue were based could nevertheless be subject to judicial review.

125 First, as has been pointed out in paragraph 122 above, the Council incorrectly found that Egyptian law guaranteed to any person suspected or accused of a criminal offence the right to judicial review of any act or administrative decision.

126 Second, as is apparent from the translation of the text of Article 18a(b) of the Egyptian Code of Criminal Procedure, placed on the file and communicated to the Council, those provisions applicable to the conciliation procedure initiated by the three applicants in question provide that that procedure is closed by the Court of Cassation ordering a stay of execution of all the penalties imposed. However, it should be noted that the decision of the Prosecutor General not to refer the request for conciliation to the Court of Cassation in order for the latter to rule on it was liable to impinge on their rights and freedoms, in so far as it prevented that procedure from leading to the stay of execution of all the penalties imposed on them.

127 Moreover, it follows from that translation that Article 18a(b) of the Egyptian Code of Criminal Procedure provides that, following the communication by the Prosecutor General of the request for conciliation, the Court of Cassation is to give a ruling within 15 days, after hearing the statements of the public prosecutor and the convicted party. Consequently, the decision of the Prosecutor General not to refer the request for conciliation to the Court of Cassation prevented the applicants from exercising their rights of defence.

128 In addition, in view of the purpose of the freezing of the applicants’ assets in the European Union, namely, to ensure that it remained possible for the Egyptian authorities to recover the proceeds of the misappropriation of State funds (see, to that effect, judgment of 27 September 2018, Ezz and Others v Council, T‑288/15, EU:T:2018:619, paragraph 64), the Prosecutor General’s decision was such as to prevent the lifting of those measures. If that conciliation procedure were completed, those measures could be regarded as no longer having any purpose since, as the applicants state, the conciliation procedure was aimed, in the context of an amicable settlement with the Egyptian State, at payment of the sums whose restitution had been ordered in respect of the misappropriation of State funds alleged against them.

129 Consequently, in the light of the matters set out in paragraphs 126 to 128 above, the Council should have concluded that the decision of the Prosecutor General not to refer the applicants’ request for conciliation, which prevented the Court of Cassation from ruling on that application, was among the decisions which should, in principle, have been open to judicial review in order to ensure the right to effective judicial protection of the persons in question.

130 By taking the view that the possibility for the first, second and sixth applicants to submit a request for an amicable settlement to the NCRAA constituted a legal remedy, the Council failed to fulfil its duty of vigilance in the present case. It is clear that that possibility did not constitute a power to subject that decision of the Prosecutor General to judicial review and could not therefore be equiparated with a ‘remedy’ enabling the effective judicial protection of those persons to be guaranteed.

131 In any event, as is clear from the wording of Article 18a(b) of the Egyptian Code of Criminal Procedure in the English translation provided by the applicants and from its interpretation by the judgment of 22 September 2018 of the Egyptian Court of Cassation, and as confirmed, moreover, by the opinion of an expert in Egyptian law relied on by the applicants, it was for the latter court to ascertain that the conciliation procedure had been carried out and whether all the relevant procedural requirements had been complied with and the Prosecutor General was under an obligation to refer the request for conciliation to that court in order for it to carry out such an examination.

132 Thus, as confirmed by the questions put by the EEAS, reiterated in substance in paragraph 118 above, the question arose in the present case as to what the legal basis, if any, the Prosecutor General had relied on in order not to refer the applicants’ request for conciliation, since it was not apparent from Article 18a(b) of the Egyptian Code of Criminal Procedure, which had been communicated to the Council, that he had the power to do so or that he was required to do so in the event that the matter had been referred to a committee without competence to carry out that conciliation.

133 Furthermore, in their reply to the EEAS, the content of which is set out in paragraph 119 above, the Egyptian authorities did not refer to any other provision or principle of Egyptian law authorising such a decision, apart from the argument that there was no legal basis for referring the request concerned where the committee seised was not competent. In that regard, it may be noted, as is apparent from paragraphs 131 to 132 above, that the wording of Article 18a(b) of the Egyptian Code of Criminal Procedure does not provide for any case in which the Prosecutor General should refrain from making such a referral, in particular where the committee seised lacks competence.

134 Consequently, the option to submit a new conciliation request to the NCRAA could not, on any view, constitute a guarantee enabling the applicants in question to be reinstated in their rights following the decision of the Prosecutor General not to refer their request. In view of the interpretation of the applicable law put into effect in that decision, which was not clear from the wording of Article 18a(b) of the Egyptian Code of Criminal Procedure, the Council could not in any way rule out the possibility that, had the applicants decided to make use of that option, that authority might, depending on the case, consider itself to be justified in again refusing to make such a referral.

135 Thus, in the absence of any details as to the legal basis under Egyptian law on which the abovementioned decision was based, there was nothing to indicate to the Council that irregularities in the conciliation procedure, other than referral to the committee lacking competence, might not have justified the adoption of a fresh, analogous decision. It should be noted, in that regard, that, in verifying whether the applicants’ rights of defence and right to effective judicial protection have been observed, the Council cannot rely solely on the assurances given by the competent authorities that those rights have been or will be observed, but must carry out an impartial and objective assessment of observance of those rights (see, to that effect, judgment of 3 December 2020, Saleh Thabet and Others v Council, C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992, paragraphs 44 and 59).

136 It follows that, by considering that the right to effective judicial protection of the first, second and sixth applicants had been observed in the present case on the ground that those persons had a legal remedy against the Prosecutor General’s decision not to refer their request for conciliation to the Court of Cassation by making a new request to the NCRAA, the Council committed an error of assessment, which reflects an inadequate verification as to the observance of that right.

137 Therefore, without there being any need to examine further the applicants’ other arguments relating to that case, their first complaint must be held to be well founded.

138 The applicants put forward, in essence, two complaints in relation to that case.

139 The first complaint alleges infringement of their right to be tried within a reasonable time, in that, in that case, the investigation has continued, without justification, for more than six years and in that the applicants have not been heard during that period.

140 The second complaint alleges infringement of their right of access to the file, guaranteed under Egyptian law, in that the Prosecutor General refused to send them copies of the minutes of the measures of inquiry adopted since February 2017.

141 It should be noted as a preliminary point in that regard that, in that case, the applicants are accused of having unlawfully received luxury gifts from the newspaper held by the Egyptian State, Dar El Tahrir, as a guarantee of loyalty.

142 It must be pointed out in the first place that the EEAS stated, in its request for information to the Egyptian authorities that (i) in their memorandum of 10 November 2018, those authorities had stated that the applicants had repaid the amount of the alleged gifts and (ii) in their memorandum of 10 January 2019, those authorities had stated that the investigation was still ongoing as regards other defendants but that the case would probably be closed as regards the applicants, given the reimbursement of those gifts. On the basis of that information, the EEAS asked the Egyptian authorities why that case had not yet been closed so far as the applicants were concerned and when they thought that it would be so. In a second letter, the EEAS also asked the Egyptian authorities when the questioning of the applicants, mentioned in the note of 2 January 2016, had taken place and how their rights of defence had been observed, and in particular whether they had been assisted by a lawyer.

143 In the second place, in their memorandum of 9 February 2019, the Egyptian authorities stated that the liability of the various persons involved in that case was to be determined only at the end of the investigation, which was still ongoing as regards other defendants, but that in view of the applicants’ payment of the value of the gifts the case could be closed so far as they were concerned and that the results of the investigation should be revealed very soon. In their memorandum of 26 February 2019, they added that, according to their information, the first applicant had been questioned on 24 March 2013 and that, on that occasion, he had been informed, in the presence of his lawyer, of the identity of the prosecutor of the case in respect of which he was being questioned and of the accusations made against him.

144 In the third place, as has been noted in paragraphs 107 and 108 above, that the longer the judicial proceedings forming the factual basis for a restrictive measure are, the greater the need for the Council to carry out verification of the right to be tried within a reasonable time, which is a component of the right to effective judicial protection, before deciding whether or not to renew that measure. In addition, in view of the precautionary nature of those measures, it is for the Council to avoid unnecessary prolongation of the measure on account of judicial proceedings which are, without justification, left open indefinitely.

145 It must be noted in the present case, as the applicants point out, that, first, the investigation in that case had lasted for more than six years on the date of adoption of the 2019 acts. Secondly, as is apparent from the summary of the facts provided by the Egyptian authorities, that case did not appear to be particularly complex. Thirdly, the proceedings experienced repeated delays due to the failure, on several occasions, of the main witness in that case, a member of the governmental body combating corruption, to appear for questioning. Fourthly, there was no apparent change in the proceedings following the reimbursement by the applicants in February 2017 of the amount of the alleged gifts. It should also be noted in that regard that, in response to the questions put by the EEAS, the Egyptian authorities merely indicated that the investigations concerning other defendants were ongoing without providing further details. Fifthly, it is not apparent from the explanations provided by the Egyptian authorities in their memorandum of 26 February 2019 that the applicants, apart from the first applicant, were heard in that case, even though it had been in progress for six years.

146 It follows from the foregoing that the issue arises as to why the case had not yet been closed so far as the applicants were concerned, where the Egyptian authorities had themselves indicated that repayment of the amount of the alleged gifts could lead to closure of the case to the applicants advantage. In that regard, the mere fact that the investigation was to continue as regards the other defendants could hardly justify a period of approximately three years after the findings of the experts’ report and approximately two years after the abovementioned reimbursement. In particular, it is not clear why the need to continue that investigation in respect of those defendants prevented the case being closed in respect of the applicants. In any event, in view of the fact that that case was not particularly complex, a period of six years in respect of proceedings which were still at the stage of the criminal investigation, without all the applicants having been questioned and without the case having yet been referred to the court having jurisdiction in order for it to give a ruling, should have legitimately raised doubts in the mind of the Council.

147 In finding, in the second subsection of Part B of the annexes at issue, that that case was still ongoing and that the Council had found no indication that the applicants’ rights of defence or their right to effective judicial protection had not been respected, that institution necessarily considered that the Egyptian authorities’ replies to its questions, in particular as regards the failure to close the investigation, were satisfactory. As is apparent from paragraphs 145 to 146 above, such an assessment is incorrect, since the circumstances of that case raised legitimate questions concerning the right to be tried within a reasonable time. Consequently, without it being necessary to examine the applicants’ second complaint, it must be held that the first complaint is well founded.

148 It follows from all of the foregoing that, before the adoption of the 2019 acts, the Council did not carry out adequate verifications of the applicants’ right to effective judicial protection in the three sets of criminal proceedings on which it relied in order to maintain their names on the lists at issue, either because those verifications were incomplete or because the conclusions which it drew from them were incorrect.

149 The present part of the plea must therefore be upheld in so far as it supports the applicants’ claim for annulment of the 2019 acts.

150 It is true that the applicants have not put forward specific arguments concerning the inadequacy of the Council’s verifications as to observance of their rights of defence and their right to effective judicial protection in the context of the order freezing their assets, issued by the Prosecutor General.

151 However, as suggested by the Council’s findings concerning the ‘freezing order’, reproduced in paragraph 92 above, and as confirmed by the explanations given by the Egyptian authorities in their memorandum of 27 November 2017, that order was adopted on the basis of the criminal proceedings involving the applicants or, as regards the third, fourth and fifth applicants, on the basis of the criminal proceedings involving their husbands. However, in so far as, as concluded in paragraph 148 above, the Council did not carry out an adequate verification of the applicants’ right to effective judicial protection in respect of all the criminal proceedings on which it relied, it cannot accordingly rely on an asset-freezing order which is based on the existence of those proceedings in order to maintain the applicants on the lists at issue.

152 As regards, specifically, the fifth applicant, it has been noted in paragraph 98 above that she was kept on those lists as a person associated with the sixth applicant and that, consequently, it is in the light of the references relating to observance of the rights of the defence and the right to effective judicial protection of that person that the present plea must be examined in so far as it concerns her. It has been held in paragraphs 114 to 147 above that, in the two cases involving the sixth applicant on which the Council relied, namely Case No 8897 of 2013 and Case No 53 of 2013, the verification of observance of his rights was inadequate. Since the fifth applicant specifically relies on those inadequacies as regards her husband’s fundamental rights in the context of her second plea, the decision to maintain her on the lists at issue as a person associated with her husband must therefore be annulled on that ground.

The third part, relating to the inadequacy of the Council’s verifications before the adoption of the 2020 acts

153 The applicants rely, in essence, on similar arguments and evidence to those set out in their first statement of modification, as regards the first five applicants, and, as regards the sixth applicant, in his application.

154 The same is true of the Council in its written pleadings, which refers to its observations and arguments concerning the 2019 acts.

155 It should be noted as a preliminary point that, in order to maintain the applicants’ names on the lists at issue, the Council relied on Cases No 10427 of 2012 and No 8897 of 2013. The references to Case No 53 of 2013 were deleted from those lists.

156 In particular, as regards, first, Case No 10427 of 2012, the Council added the information that (i) the new formation of the Cairo Criminal Court, to which the case had been referred in 2018, had carried out its re-examination and had acquitted the first two applicants on 22 February 2020 and (ii) since that decision was not final, it could still be the subject of an appeal by the Public Prosecutor’s Office.

157 Next, as regards Case No 8897 of 2013, the Council added the information that (i) the amount of the fine had been recovered in March 2019 and (ii) the restitution sum was in the process of being recovered through mutual legal assistance requests made by the Egyptian authorities to two third countries.

158 Finally, the Council added a reference to the fifth applicant, which repeats, mutatis mutandis, the considerations concerning the ‘freezing order’ applicable to the first applicant, reproduced in paragraph 92 above.

159 In that regard, it must be held, in the first place, that, as submitted by the applicants, those amendments are not capable of correcting the inadequacies of the 2019 acts found in paragraph 148 above.

160 First, as regards Case No 10427 of 2012, it does not appear that the Council verified, before the adoption of the 2020 acts, whether the right of the first two applicants to be tried within a reasonable time had been observed. The additional statement that the acquittal decision handed down in their favour was not final and was open to appeal clearly indicates that that decision is not the final decision on their liability, so that the delays noted in paragraphs 110 to 112 above were still capable of affecting their right to be tried within a reasonable time.

161 Next, as regards Case No 8897 of 2013, the Council did not remove the reference concerning the option, for the first, second and sixth applicants, to approach the NCRAA following the Prosecutor General’s refusal to refer their request for conciliation to the Court of Cassation, with the result that the error of assessment found in paragraph 136 above still exists.

162 Lastly, as regards the reference to the fifth applicant, it should be noted that that reference relates mutatis mutandis to the ‘freezing order’ reproduced in paragraph 92 above and that, consequently, for the reasons set out in paragraph 151 above, the fact that that reference was not challenged in the context of her second statement of modification cannot affect the merits of the second plea in so far as it concerns her, since in her two statements of modification she duly disputed the entries relating to the sixth applicant.

163 In the second place, the Council’s arguments in its observations on the statement of modification are not capable of calling into question the finding set out in paragraph 159 above.

164 First, the fact that in the judgment of 3 December 2020, Saleh Thabet and Others v Council (C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992), the Court of Justice did not rule on the assessments made by the General Court in the judgment of 22 November 2018, Saleh Thabet and Others v Council (T‑274/16 and T‑275/16, not published, EU:T:2018:826), concerning observance of the applicants’ fundamental rights, is irrelevant in the present case. As noted in paragraph 31 above, the Court of Justice set aside the judgment of the General Court in its entirety. Consequently, even if they have not been called into question by the Court of Justice, the grounds constituting the necessary support for that judgment, by which the General Court held that the applicants had not demonstrated that their fundamental rights had been infringed by the Egyptian authorities, are devoid of any effect following that annulment and cannot serve as a basis for the assessments which the Council made in respect of those rights when the acts at issue were adopted.

165 In any event, on the one hand, contrary to what the Council maintains, the grounds of the judgment of 22 November 2018, Saleh Thabet and Others v Council (T‑274/16 and T‑275/16, not published, EU:T:2018:826), by which the General Court held that the applicants had not demonstrated that their fundamental rights had been infringed by the Egyptian authorities, were affected by the judgment of 3 December 2020, Saleh Thabet and Others v Council (C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992), even though the Court of Justice did not expressly rule on those grounds. Those grounds were based on the premiss that it was for the applicants to produce to the Council objective, reliable, specific and consistent evidence such as to raise legitimate questions concerning the observance of those rights. However, the Court held in paragraph 47 of the latter judgment that that premiss was incorrect. Consequently, the Council, which has the responsibility of itself verifying that those rights have been observed, cannot rely on the rejection by the General Court of the evidence which the applicants had produced before it.

166 On the other hand, the General Court’s rejection was based on the evidence produced by the applicants before the adoption of Decisions 2016/411 and 2017/496 and on the arguments which the applicants had put forward before the General Court in support of their plea alleging infringement by the Council of its obligation to verify observance of their fundamental rights. That evidence and those arguments are therefore devoid of any effect in the present dispute, since it is for the Court to rule on compliance with that obligation in the light of the arguments submitted in the application and the statements of modification and, where appropriate, in the light of the evidence submitted by the applicants to the Council before the adoption of the 2018, 2019 and 2020 acts.

167 Secondly, the Council’s arguments seeking to reject the applicants’ claims concerning the manipulation of the criminal proceedings against them and to dispute the probative value of the report of the International Commission of Jurists are also irrelevant in the present case. As is apparent from paragraphs 100 to 162 above, it has been found that the verifications carried out by the Council with regard to the applicants’ right to effective judicial protection before the adoption of the 2019 and 2020 acts are inadequate, irrespective of whether those claims are well founded and of the relevance of the report referred to above.

168 Thirdly, the Council’s argument that it does not have the means to carry out a full review of all aspects of the criminal proceedings in question is unfounded. It is sufficient to note that the Council could have relied on the information provided by the Egyptian authorities in response to its questions, and on the extensive evidence provided by the applicants, in so far as that evidence constituted objective, reliable, specific and duly updated evidence resulting from the relevant Egyptian administrative and judicial decisions, the applicable provisions of national law and the various reports and documents relating to the proceedings in question produced by those authorities or by those individuals.

169 In addition, where appropriate, the Council may supplement that evidence with information from reports and other documents drawn up by the other institutions and services of the European Union, in particular the EEAS, by the authorities of the Member States, by international organisations or non-governmental organisations (see, to that effect and by analogy, judgment of 2 April 2020, Ruska Federacija, C‑897/19 PPU, EU:C:2020:262, paragraph 65 and the case-law cited). Moreover, it is the task of the competent EU authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded (judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 121).

170 Fourthly, contrary to what the Council maintains, it cannot be inferred from paragraphs 20 and 32 to 34 of the judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583), and from paragraph 87 of the judgment of 28 October 2020, Ben Ali v Council (T‑151/18, EU:T:2020:514), that the Council is required to exercise some restraint in the verifications concerning observance of the rights of the defence and the right to effective judicial protection of persons subject to restrictive measures in the context of criminal proceedings initiated by a third country on which those measures are based.

171 In paragraphs 20 and 32 to 34 of the judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583), which the General Court recalls, in essence, in paragraph 87 of the judgment of 28 October 2020, Ben Ali v Council (T‑151/18, EU:T:2020:514), the Court of Justice was responding to an argument of the Council that, in so far as the third State could consider that a comment in the statements of reasons for acts imposing restrictive measures, relating to whether or not it complies with the rights of defence and the right to effective judicial protection, amounted to interference in its internal affairs, the statement of reasons required by the General Court would prevent the Council from relying on decisions of third States. In that regard, the Court held, (i) in paragraph 33 of that judgment, that that statement of reasons may be brief and (ii) in paragraph 34 of that judgment, that, since the Council could only rely on a decision of a third State that respects the rights of the defence and the right to effective judicial protection, such a statement of reasons could not amount to interference in the internal affairs of the third State concerned.

172 Consequently, on one hand, the Court’s findings set out in the preceding paragraph did not concern the adequacy of the verifications carried out by the Council as regards observance by the third State concerned of the fundamental rights of the persons subject to restrictive measures, but the adequacy of the statement of reasons for the decisions adopting such measures with regard to observance of those rights. Thus, according to the Court, the risk that that statement of reasons might be interpreted by that State as interference in its internal affairs could be avoided if that statement of reasons were brief.

173 On the other hand, it is clear from paragraph 34 of the judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583), that the Court of Justice held that the Council could not rely on the risk of interference in the internal affairs of the third State concerned in order to abstain from its obligation to verify whether the authorities of that State had observed the rights of the defence and the right to effective judicial protection. According to the Court, the fact that the Council makes assessments as to whether those rights have been observed cannot amount to interference in those internal affairs since, where those rights are not observed, the Council cannot rely on the decision of that State to adopt the restrictive measures with respect to the individuals at issue.

174 It must be added that that restraint in verifying the rights of the defence and the right to effective judicial protection, relied on by the Council, cannot, contrary to what it claims, be based on the findings made by the General Court in the context of a dispute relating to restrictive measures taken in view of the situation in Ukraine. It should be recalled that, according to those findings, first, in the context of the cooperation governed by the contested acts, it was not, in principle, for the Council itself to examine and assess the accuracy and relevance of the information on which the Ukrainian authorities relied in conducting criminal proceedings against the applicant for conduct that could be characterised as misappropriation of public funds. Second, the Council was not, in principle, required to assess whether the criminal proceedings in question complied with the procedural rules applicable under Ukrainian law (see, to that effect, judgment of 22 March 2018, Stavytskyi v Council, T‑242/16, not published, EU:T:2018:166, paragraphs 91 and 134 and the case-law cited).

175 Verification of the applicants’ rights of defence and right to effective judicial protection does not mean that the Council takes a decision on the merits of the criminal proceedings to which they are subject in Egypt, or that it determines whether those procedures comply with the procedural rules stemming from Egyptian law, but only that it must ensure that the essential guarantees relating to those fundamental rights, as enshrined in particular in Article 47 of the Charter and Article 6 ECHR, have been safeguarded so far as they are concerned.

176 The present part of the plea must therefore be upheld in so far as it supports the form of order sought by the applicants seeking annulment of the 2020 acts, as must, consequently, the second plea in Cases T‑335/18 and T‑338/18 and the first plea in Case T‑327/19.

177 In the light of all the foregoing, without there being any need to examine the other pleas in law, the action must be upheld and the 2018, 2019 and 2020 acts must be annulled in so far as they maintained the applicants’ names on the lists at issue.

178 The second head of claim put forward, in the alternative, by the Council, requesting the Court to maintain the effects of Decision 2018/466 with respect to the first five applicants until the partial annulment of Implementing Regulation 2018/465 takes effect, must also be dismissed.

179 Judgments by which the General Court annuls a decision of an institution or body of the European Union take, in principle, immediate effect unless, on the basis of Article 264, second paragraph, TFEU, the General Court decides to maintain provisionally the effects of the annulled decision. Accordingly, if those provisions do not apply, the annulled decision is removed retroactively from the legal order of the European Union and is deemed never to have existed (see judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraph 164 and the case-law cited).

180 However, having regard in particular to Decisions 2019/468, 2020/418 and 2021/449, it appears that Decision 2018/466 has no further effects at the present time, with the result that that request by the Council is ineffective.

181 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

182 Since the Council has been unsuccessful in the present case, it must be ordered to pay the costs, in accordance with the form of order sought by the applicants.

1. Orders that Cases T‑335/18, T‑338/18 and T‑327/19 be joined for the purposes of the judgment;

2. Annuls Council Decision (CFSP) 2018/466 of 21 March 2018 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt, Council Decision (CFSP) 2019/468 of 21 March 2019 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt and Council Decision (CFSP) 2020/418 of 19 March 2020 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt, in so far as those decisions concern Mr Gamal Mohamed Hosni Elsayed Mubarak, Mr Alaa Mohamed Hosni Elsayed Mubarak, Ms Heidy Mohamed Magdy Hussein Rasekh, Ms Khadiga Mahmoud El Gammal and Ms Suzanne Saleh Thabet;

3. Annuls Decision 2019/468 and Decision 2020/418 in so far as those decisions concern Mr Mohamed Hosni Elsayed Mubarak;

4. Annuls Council Implementing Regulation (EU) 2018/465 of 21 March 2018 implementing Regulation (EU) No 270/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt, Council Implementing Regulation (EU) 2019/459 of 21 March 2019 implementing Regulation (EU) No 270/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt and Council Implementing Regulation (EU) 2020/416 of 19 March 2020 implementing Regulation (EU) No 270/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt, in so far as those regulations concern Mr Gamal Mohamed Hosni Elsayed Mubarak, Mr Alaa Mohamed Hosni Elsayed Mubarak, Ms Heidy Mohamed Magdy Hussein Rasekh, Ms Khadiga Mahmoud El Gammal and Ms Suzanne Saleh Thabet;

5. Annuls Implementing Regulation 2019/459 and Implementing Regulation 2020/416 in so far as they concern Mr Mohamed Hosni Elsayed Mubarak;

6. Orders the Council of the European Union, in addition to bearing its own costs, to pay the costs incurred by Mr Gamal Mohamed Hosni Elsayed Mubarak, Mr Alaa Mohamed Hosni Elsayed Mubarak, Mr Mohamed Hosni Elsayed Mubarak, Ms Heidy Mohamed Magdy Hussein Rasekh, Ms Khadiga Mahmoud El Gammal and Ms Suzanne Saleh Thabet.

The second part, concerning the inadequacy of the Council’s verifications concerning observance of the applicants’ fundamental rights before the adoption of the 2019 acts

The content and scope of the verifications carried out by the Council before the adoption of the 2019 acts

The inadequacy of the Council’s verifications before the adoption of the 2019 acts

The third part, relating to the inadequacy of the Council’s verifications before the adoption of the 2020 acts

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Mubarak and Others v Council (Common foreign and security policy - Restrictive measures adopted in view of the situation in Egypt - Freezing of funds - Judgment) [2022] EUECJ T-335/18 (06 April 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/T33518.html Cite as: [2022] EUECJ T-335/18

Court of Justice of the European Communities (including Court of First Instance Decisions)