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Evidence standards in the judicial review of restrictive measures

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Abstract

This article discusses, from a practical point of view, the evidence standards applied by the EU Courts in restrictive measures’ litigation, that is, the rules and practices aimed at establishing who must prove what (allocation of the ‘burden of proof’) and whether any relevant fact has been proven or not (‘standard of proof’). While, in principle, the same rules apply across all fields of litigation, the EU Courts take into account the peculiarities of the restrictive measures’ sector and try to strike a fair balance between the EU institutions’ discretion and the respect for due process and fundamental rights.

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Notes

  1. The expression ‘EU Courts’ refers both to the General Court of the European Union (hereinafter the ‘General Court’), judge of first instance in the field of restrictive measures under Art. 275(2) TFEU, and to the Court of Justice of the European Union (hereinafter the ‘Court of Justice’), which deals with those cases in appeal on points of law, under Art. 256 TFEU (in addition to its jurisdiction for preliminary rulings under Art. 267 TFEU, which is not relevant for the purpose of this article).

  2. See, for instance, Castillo de la Torre, Gippini Fournier [1], Kalintiri [6].

  3. As the Advocate General Kokott observed, the burden of proof determines which party must put forward the facts and, where necessary, adduce the related evidence and the allocation of that burden determines which party bears the risk of facts remaining unresolved or allegations unproven (Opinion in Case C-97/08 P, Akzo Nobel e.a./Commission, C-97/08 P, EU:C:2009:536, para. 74 (fn. 64)).

  4. The ‘EU authority’ which is competent for the adoption of restrictive measures is mainly the Council, which adopts a decision under Article 29 TEU. The decision is then implemented either by Member States’ authorities or by way of a Council regulation under Article 215 TFEU. In some instances, the Council can delegate the adoption of implementing acts to the Commission (see, for instance, the Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with the ISIL (Da’esh) and Al-Qaida organisations [2002] OJ L 139/9). Hereinafter we will refer in general to the ‘EU authority’ and, in specific instances, to the Council.

  5. Advocate General Opinion in Case C-97/08 P, Akzo Nobel e.a./Commission, EU:C:2009:536, para. 74 (fn. 64). While the expression ‘standard of proof’ originates in common law systems, the underlying concept, in essence, is not extraneous to continental law legal systems.

  6. Triart [8].

  7. See, in this regard, Art. 2 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, [2003] OJ L1/1, according to which the burden of proving an infringement of Art. 101(1) or of Art. 102 TFEU shall rest on the party or the authority alleging the infringement, while the undertaking or association of undertakings claiming the benefit of Art. 101(3) TFEU shall bear the burden of proving that the conditions of that paragraph are fulfilled.

  8. Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Commission e.a./Kadi EU:C:2013:518 (hereinafter ‘Kadi II’), paras. 121–122.

  9. Joined Cases T-35/10 et T-7/11 Bank Melli Iran v Council, EU:T:2013:397, para. 125; Case T-8/11, Bank Kargoshaei e.a. v Council, EU:T:2013:470, para 116. According to the General Court, this circumstance in no way detracts from the fact that the contested measures are measures taken by the Council, which must, therefore, ensure that their adoption is justified, if necessary by requesting the Member State concerned to submit to it the evidence and information required for that purpose.

  10. Bank Melli Iran, para. 126; Bank Kargoshaei e.a., para. 117. According to the General Court, the Council cannot rely on a claim that the evidence concerned comes from confidential sources and cannot, consequently, be disclosed. While that circumstance might, possibly, justify restrictions in relation to the communication of that evidence to the applicant or its lawyers, the fact remains that, taking into consideration the essential role of judicial review in the context of the adoption of restrictive measures, the EU Courts must be able to review the lawfulness and merits of such measures without it being possible to raise objections that the evidence and information used by the Council is secret or confidential. Moreover, the Council is not entitled to base an act adopting restrictive measures on information or evidence in the file communicated by a Member State, if that Member State is not willing to authorise its communication to the EU Courts whose task is to review the lawfulness of that decision.

  11. Kadi II, para. 122.

  12. Kadi II, para. 123; Case C-280/12 P Council v Fulmen and Mahmoudian, EU:C:2013:775, para. 68.

  13. A mere ‘opposition’ of the applicant is not sufficient in this respect (see Cases T-9/13 National Iranian Gas Company/Council, EU:T:2015:236, paras. 165–166, and T-10/13 Bank of Industry and Mine/Council, EU:T:2015:235, paras. 187–188).

  14. As an example, in a case related to restrictive measures against Iran with the aim of preventing nuclear proliferation, the applicant did not dispute that he carried out transactions involving the designated Iranian banks during the periods referred to in the grounds of the contested measures, while claiming that there was no link between the transactions referred to in these grounds and the transactions that it actually carried out. Accordingly, the General Court, supported by the Court of Justice in appeal, concluded that the Council was not bound to produce proof of facts that were not in dispute (Cases T-434/11 Europäisch-Iranische Handelsbank/Council, EU:T:2013:405, paras. 113–118, and C-585/13 P Europäisch-Iranische Handelsbank/Council, EU:C:2015:145).

  15. As an example, in a further case related to the restrictive measures against Iran with the aim of preventing nuclear proliferation, the applicant was accused, amongst other, of handling payments and letters of credit to entities engaged in nuclear proliferation, which the applicant did not dispute. Nonetheless, it claimed that the services provided through those letters were ordinary banking services unrelated to transactions linked to nuclear proliferation. Asked by the General Court to provide detailed information on the letters of credit in question, the Council could not produce any evidence and simply claimed that the applicant had also failed to produce such evidence. The General Court considered that, since the Council relied on those letters of credit and the applicant contested them, it was for the Council to provide to the General Court the related details. Consequently, the fact that it was impossible to determine whether the applicant’s arguments (that the services it provided to those entities did not justify the adoption of restrictive measures against it) are well founded should not prejudice the applicant. On the contrary, since such impossibility was due to the Council’s failure to meet its obligation to submit relevant evidence and information, the General Court upheld the applicant’s position (Case T-494/10 Bank Saderat Iran/Council, EU:T:2013:59, paras. 111–116, upheld in appeal in Case C-200/13 P Council/Bank Saderat Iran, EU:C:2016:284).

  16. Kadi II, para. 124.

  17. See, for instance, Kadi II, para. 120, Case C-280/12 P Council v Fulmen and Mahmoudian, EU:C:2013:775, para. 65.

  18. That is, ‘juge des faits’ in French, working language of the EU Courts.

  19. The General Court can take measures of organisation of procedure and measures of inquiry of its own motion under Chap. 6 of its Rules of Procedure.

  20. See notably Kadi II, para. 125. According to Art. 64 of the Rules of Procedure of the General Court, under the adversarial principle, all information and material must be fully communicated between the parties.

  21. This provision has been implemented by the Decision (EU) 2016/2387 of the General Court of 14 September 2016 concerning the security rules applicable to information or material produced in accordance with Article 105(1) or (2) of the Rules of Procedure. In addition, Art. 190a of the Rules of Procedure of the Court of Justice insures that the same system is maintained in the case of appeal.

  22. Kadi II, para. 119.

  23. The question of the probative value of evidence must be distinguished from the different question of the admissibility of evidence. The latter issue, of procedural nature, relates to the possibility to make use of that evidence in the context of the relevant litigation and it is not dealt with in this article.

  24. Kadi II, para. 124.

  25. See, for instance, Case T-493/10 Persia International Bank/Council, EU:T:2013:398, para. 95.

  26. Joined Cases T-533/15 et T-264/16 Kim e.a. v Council and Commission, EU:T:2018:138, para. 258 (with reference to Case T-343/06 Shell Petroleum and Others v Commission, EU:T:2012:478, para. 161 and the case-law cited).

  27. These formulas vary from references to the ‘personal conviction’ of the judge (‘intime conviction’ in French), to more ‘objective’ standards (see Castillo de la Torre, Gippini Fournier [1], 38).

  28. See Sect. 3.2 below.

  29. Case C-605/13 P Anbouba/Council, EU:C:2015:248, paras. 50–55. In the specific case, the EU Courts have not engaged in a piece by piece analysis, as the General Court had reviewed whether Mr Anbouba’s inclusion on the lists of persons subject to restrictive measures was well founded on the basis of a set of indicia relating to his situation, functions and relations in the context of the Syrian regime that were not rebutted by the applicant (ibidem, para. 54).

  30. Case C-605/13 P Anbouba/Council, EU:C:2015:248, para. 104.

  31. Case T-203/12 Alchaar v Council, EU:T:2014:602, para. 138.

  32. Case T-202/12, Al Assad/Council, EU:T:2014:113, para. 96.

  33. Case T-563/11, Anbouba/Council, EU:T:2013:429, para. 38. The General Court considered that, given the authoritarian nature of the Syrian regime and the State’s tight control over the Syrian economy, the Council could rightly regard as constituting a matter of common experience the fact that the activities of one of the leading businessmen in Syria, who is active in numerous sectors, could not have prospered if he had not enjoyed the favour of that regime and provided it with a degree of support in return.

  34. Case C-605/13 P, Anbouba/Council, EU:C:2015:248, paras. 51–52 (see also Clausen [3], p. 410). The reluctance of the Court of Justice to base its assessment on presumptions is also evident in Case C-330/15 P Tomana e.a. v Council et Commission, EU:C:2016:601, where it established that the fact of holding senior posts in the ruling party during the relevant period was sufficient to consider the applicants as being fully associated with the Government of Zimbabwe, unless they have taken specific action demonstrating their rejection of the government’s practices, while specifying that such a conclusion was not the result of a presumption been applied, but of an appraisal of the evidence (constituted by a set of indicia sufficiently specific, precise and consistent) carried out in the context in which the measures were adopted (ibidem, paras. 81–84).

  35. Case C-376/10 P Tay Za v Council, EU:C:2012:138, paras. 63–65.

  36. Since the entry into force of the Lisbon Treaty, restrictive measures are adopted on a twofold level. On the one hand, the general listing criteria are adopted by way of a Council decision under Article 29 TEU. This decision defines “the approach of the Union to a particular matter of a geographical or thematic nature” and it is based on one of the EU CFSP objectives under Article 21 TEU, which include “democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law”. On the other hand, the Council decision under Article 29 TEU is implemented either by Member States authorities or by way of a Council regulation under Article 215 TFEU. For the purpose of this article, the expression ‘general listing criteria’ refers to the criteria on which the EU authority bases the restrictive measures in conformity with the relevant CFSP objectives, while the expression ‘individual listing grounds’ refers to the specific reasons upon which a person, group or entity is subject to the restrictive measures in conformity with the general listing criteria.

  37. Case T-5/17 Sharif/Council, EU:T:2019:216, paras. 55–56.

  38. Case T-5/17 Sharif/Council, EU:T:2019:216, para. 97, with reference to Case C-348/12 P Council/Manufacturing Support & Procurement Kala Naft, EU:C:2013:776, para. 120.

  39. In fact, in the same case a plea of illegality was raised against the general inscription criterion and the General Court specified that the EU institutions may make use of presumptions which reflect the fact that it is open to the authority on which the burden of proof lies to draw certain conclusions on the basis of common experience derived from the normal course of events. It went further to recall that a presumption, even where it is difficult to rebut, remains within acceptable limits so long as it is proportionate to the legitimate aim pursued, it is possible to adduce evidence to the contrary and the rights of the defence are safeguarded (Case T-5/17 Sharif/Council, EU:T:2019:216, paras. 91–92). The General Court referred, by analogy, to case-law related to competition law (Case C-97/08 P Akzo Nobel and Others/Commission, EU:C:2009:536, paras. 60–63, Opinion of Advocate General Kokott in Case C-8/08 T-Mobile Netherlands and Others, EU:C:2009:110, paras. 87–89, Case C-521/09 P Elf Aquitaine/Commission, EU:C:2011:620, para. 62 and the case-law cited), as well as to case-law of the European Court of Human Rights concerning Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, requiring that presumptions are confined within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence (ECtHR, 7 October 1988, Salabiaku/France, CE:ECHR:1988:1007JUD001051983).

  40. In the case at issue, the General Court concluded that the burden of proof on the applicant was not excessive, as he could rely, inter alia, on facts and information that only he could have and that the Council had afforded the applicant the opportunity to produce evidence that, notwithstanding the existence of serious indicia that he should be included in the category of persons covered by the relevant listing criterion, he was not in fact linked to the Syrian regime (Case T-5/17 Sharif/Council, EU:T:2019:216, paras. 103–110).

  41. Case C-603/13 P Galp Energía España e.a. v Commission, EU:C:2016:38, para. 72.

  42. Case T-24/05 Alliance One International e.a. v Commission, EU:T:2010:453, para. 77.

  43. Case T-63/12 Oil Turbo Compressor v Council, EU:T:2012:579, para. 29 (with reference to previous case-law in the field of competition law, namely Case T-190/10 Egan and Hackett v Parliament, EU:T:2012:165, paras. 102–103 and the case-law cited).

  44. Case T-63/12 Oil Turbo Compressor v Council, EU:T:2012:579, para. 18 (with reference to Case T-390/08 Bank Melli Iran v Council, EU:T:2009:401, paras. 37 and 107). More recently, see Cases T-731/15 Klyuyev v Council, EU:T:2018:90, para. 125, and T-240/16 Klyuyev v Council, EU:T:2018:433, para. 137.

  45. Joined Cases T-35/10 and T-7/11 Bank Melli Iran v Council, EU:T:2013:397, paras. 99–102, and Cases T-58/12 Nabipour e.a./Council, EU:T:2013:640, para. 79, and T-182/13 Moallem Insurance/Council, EU:T:2014:624, para. 35.

  46. In such a case, a breach would justify annulment of the acts concerned only where it is established that the restrictive measures concerned could not have been lawfully adopted or maintained if the document that was not communicated had to be excluded as inculpatory evidence (see for instance, Cases T-7/11 Bank Melli Iran v Council, EU:T:2013:397, para. 100, T-493/10 Persia International Bank v Council, EU:T:2013:398, para. 85, and T-161/13 First Islamic Investment Bank/Council, EU:T:2015:667, paras. 83–87).

  47. See Case T-182/13 Moallem Insurance/Council, EU:T:2014:624, para. 35.

  48. See Case T-58/12 Nabipour e.a./Council, EU:T:2013:640, para. 79.

  49. For instance, in the framework of the restrictive measures taken against Iran with the aim of preventing nuclear proliferation, the General Court took into consideration evidence attached to the defence, proving that the applicant was controlled by a person providing support to the Iranian Government (Case T-161/13 First Islamic Investment Bank/Council, EU:T:2015:667, paras. 49–58). In some other instances in the same context, the General court took into account evidence produced by the applicant itself in order to confirm the legality of the measures (see, for instance, Cases T-9/13 National Iranian Gas Company/Council, EU:T:2015:236, paras. 163–166, and T-10/13 Bank of Industry and Mine/Council, EU:T:2015:235, paras. 185–188).

  50. See, for instance, Cases T-290/14 Portnov v Council, EU:T:2015:806, para. 47, and T-255/15 Almaz-Antey Air and Space Defence/Council, EU:T:2017:25, para. 151. However, in the specific framework of the anti-terrorist measures implementing a UN Security Council Resolution, the General Court has accepted that the EU authority can bring evidence which was not at the disposal of the competent authority at the moment of the decision. In this occasion, the General Court made a distinction between, on the one hand, the procedural requirement of a sufficiently specific statement of reasons and its disclosure to the person concerned in the course of the administrative procedure and, on the other hand, the determination, to be made by the EU Courts that, the statement of reasons thus disclosed has a sufficiently solid factual basis, after having requested the competent EU authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination (Case T-248/13 Al-Ghabra/Commission, EU:T:2016:721, para. 140, with reference to Kadi II, paras. 117–120). The General Court considered that the new material produced with the defence was specifically intended to serve that purpose and could be taken it into account for the purposes of the review of lawfulness of the measures at issue.

  51. Provided that it is established that the restrictive measures concerned could not have been lawfully adopted or maintained if the undisclosed document had to be excluded as inculpatory evidence (see footnote 46 above).

  52. Joined Cases T-533/15 et T-264/16 Kim e.a. v Council and Commission, EU:T:2018:138 para. 115. On this issue, see also Case C-123/18P, HTTS v Council, EU:C:2019:694, paras. 45–47 and 83.

  53. See footnote 6 above.

  54. See footnote 36 above.

  55. Kadi II, para. 97, Case C-280/12 P Council v Fulmen and Mahmoudian, EU:C:2013:775, para. 58.

  56. Case C-605/13 P Anbouba/Council, EU:C:2015:248, para. 41 (with reference to Case C-348/12 P Council v Manufacturing Support & Procurement Kala Naft, EU:C:2013:776, para. 120 and the case-law cited). By establishing the general listing criteria, the EU authority implements the CFSP objectives listed in Art. 21. These appreciations are considered as ‘policy choices’ that leave a broad margin of appreciation to the Council and are subject to a limited judicial review. Such a limited review is justified by the allocation of competences among EU institutions, based on the principle of the separation of powers (see, inter alia, Nehl [7], p. 178).

  57. Joined Cases T-246/08 et T-332/08 Melli Bank v Council, EU:T:2009:266, para. 45 (with reference to Case T-228/02 Organisation des Modjahedines du peuple d’Iran v Council, para. 159).

  58. See, for instance, Cases T-578/12 NationalIranian Oil Company v Council, EU:T:2014:678, para. 108, and T-346/14 Yanukovych v Council, EU:T:2016:497, paras. 99–101 (the judgement was confirmed by the Court of Justice in appeal in Case C-598/16 P, Yanukovych v Council, EU:C:2017:786).

  59. See Sect. 3.1 above.

  60. This notion has not been fully clarified in the case-law and is particularly controversial (see for instance, Castillo de la Torre, Gippini Fournier [1], p. 300 and the doctrine cited) An author refers to the test as a ‘vague, but flexible standard of judicial review’, which ‘is an expression of the fundamental requirement flowing from the division of powers basically to respect the margin of executive discretion and to subject its exercise to a limited judicial control only’ (Nehl [7], p. 178). A limited standard of review based on the ‘manifest error of assessment’ test generally applies to appreciations of a complex or political nature and it is particularly discussed with reference to complex economic appreciations or policy considerations in the field of competition law, as well as to complex socio-economic, technical and scientific assessments in other areas of EU law. In the context of restrictive measures, policy considerations are of particular relevance, as the Council acts on the basis of (foreign) policy considerations and for the pursuit of (foreign) policy objectives.

  61. See, for instance, Fartunova [5], p. 472.

  62. Examples: restrictive measures adopted ‘against the Islamic Republic of Iran with the aim of preventing nuclear proliferation’, ‘in view of the situation in Syria’, ‘in view of the situation in Ukraine’, etc.

  63. See Eckes [4] p. 224.

  64. See, for a recent example, Chachko [2], p. 14.

  65. These measures were adopted, on the basis of Art. 29 TEU, by Decision 2014/119/CFSP of the Council of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine [2014] OJ L 66/26, and, on the basis of Art. 215(2) TFEU, by Regulation (EU) No 208/2014 of the Council of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine [2014] OJ L 66/1.

  66. Case T-346/14 Yanukovych v Council, EU:T:2016:497, paras. 99–101 (the judgement was confirmed by the Court of Justice in appeal in Case C-598/16 P, Yanukovych v Council, EU:C:2017:786). An identical approach has been followed by the General Court in ‘parallel’ cases concerning the same restrictive measures (Case T-348/14 Yanukovych/Council, EU:T:2016:508, upheld by the Court in Case C-599/16 P Yanukovych/Council, EU:C:2017:785, Cases T-340/14 Klyuyev/Council, EU:T:2016:496, and T-341/14 Klyuyev/Council, EU:T:2016:47).

  67. Ibidem, para. 100 (with reference to Case T-578/12 NationalIranian Oil Company v Council, EU:T:2014:678, para. 108 and the case-law cited).

  68. Fartunova [5], p. 355.

  69. Sect. 3.1.

  70. Case T-619/15 Badica and Kardiam/Council, EU:T:2017:532, para. 64, with reference to Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission, EU:C:2008:461, para. 326.

  71. Case T-619/15 Badica and Kardiam/Council, EU:T:2017:532, paras. 65–68, with reference to Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat International Foundation v Council and Commission, EU:C:2008:461, paras. 286 and 287.

  72. Joined Cases T-107/15 et T-347/15 Uganda Commercial Impex v Council, EU:T:2017:628, para. 53.

  73. Ibidem, paras. 54–55 (with reference to Kadi II, para. 115).

  74. The inscription may also extend to persons, groups and entities identified by the Security Council of the United Nations as being related to terrorism and against whom it has ordered sanctions.

  75. Case C-599/14 P Council/LTTE, EU:C:2017:583, para. 22.

  76. However, the Court has specified that such a decision is not necessary in the event of a confirmatory measure, even though if, in view of the passage of time and in the light of changes in the circumstances of the case, the mere fact that the national decision that served as the basis for the original listing remains in force no longer supports the conclusion that there is an ongoing risk of the person or entity concerned being involved in terrorist activities, the Council is obliged to base the retention of that person or entity on the list on an up-to-date assessment of the situation, and to take into account more recent facts which demonstrate that the risk still exists (Case C-79/15 P Council/Hamas, EU:C:2017:584, para. 32, with reference, by analogy, to Kadi II, para. 156).

  77. Case T-643/16 Gamaa Islamya Egypte/Council, EU:T:2019:238, paras. 131–132. This is due to the fact that, within the framework of Common Position 2001/931, a specific form of cooperation has been set up between Member States authorities and the EU institutions, resulting in an obligation for the Council to rely as much as possible on the evaluation of the competent national authorities (ibidem, para. 130, with reference to Cases T-256/07 People’s Mojahedin Organization of Iran/Council, EU:T:2008:461, para. 133, and T-284/08 People’s Mojahedin Organization of Iran/Council, EU:T:2008:550, para. 53).

  78. Case C-599/14 P Council/LTTE, EU:C:2017:583, para. 24.

  79. Although they are often adopted under proposals put forward by individual Member States and based on information the latter have collected, the EU authority remains exclusively responsible for these measures (see Sect. 2 above and in particular footnote 9).

  80. Settled case-law: see, for instance Kadi II, para. 119, C-348/12 P, Council v Manufacturing Support & Procurement Kala Naft, EU:C:2013:776, para. 73, and T-290/14 Portnov, EU:T:2015:806, para. 38. In particular, the General Court had made it clear that national authorities’ statements are not sufficient by themselves to substantiate the listing, as the Council cannot rely entirely on those statements, without any information regarding the acts or conduct specifically imputed to the applicant by those authorities (Portnov, para. 48).

  81. That is, the principle developed by the Court of Justice in the LTTE judgement, in relation to restrictive measures taken with a view to combating terrorism, on the basis of Common Position 2001/931, as implemented by Regulation (EC) No 2580/2001, according to which it falls to the Council, before acting on the basis of a decision of an authority of a third State, to verify that the relevant legislation of that State ensures protection of the rights of defence and of the right to effective judicial protection equivalent to that guaranteed at EU level (Case C-599/14 P Council/LTTE, EU:C:2017:583, para. 24; see Sect. 4.2 above).

  82. These measures were based on decision 2014/119/CFSP and Regulation (EU) No 208/2014 (see footnote 65 above), and their subsequent modifications.

  83. See Case C-530/17 P Azarov/Council, EU:C:2018:1031, paras. 2 and 5.

  84. Ibidem, para. 24.

  85. The General Court held that, as the existence of a preliminary decision of the competent national authorities was not amongst the listing criteria and that, differently from the case of the anti-terrorist measures, the contested measures were taken in the context of the cooperation with a third State authorities in the view of supporting a regime change, the approach taken in the LTTE Case could not be applied to the case at issue (Case T-190/16 Azarov/Council, EU:T:2018:232, paras. 183–192).

  86. Case C-530/17 P Azarov/Council, EU:C:2018:1031, para. 34. The same approach has been later applied to a case concerning the same person (see C-416/18 P Azarov/Council, EU:C:2019:602).

  87. Ibidem, paras. 29–30.

  88. Ibidem, para. 45. For that reason, the Court of Justice annulled the contested measures without referring the case back to the General Court.

  89. Ibidem, para. 24.

  90. Ibidem, para. 25. The only acts in questions were (probably) the national decisions by which the criminal proceedings were opened, which were not transmitted to the Council, and the letter by which the Ukrainian authorities informed the EU foreign services of the existence of such procedures. None of these acts seems to constitute stricto sensu a decision comparable to those adopted in the context of anti-terrorist measures.

  91. Case C-220/14 P Ezz e.a. v Council, EU:C:2015:147, para. 77.

  92. Case T-215/15 Azarov/Council, EU:T:2017:479, para. 148.

  93. Ibidem, para. 175. According to the General Court, it did not appear to be such a case. It is not clear what the Court of Justice expects the Council to do in practice, in addition to these verifications. The new measures adopted by the Council in 2019 following the Azarov case (Council Decision (CFSP) 2019/354 of 4 March 2019 amending Decision 2014/119/CFSP and Council Implementing Regulation (EU) 2019/352 of 4 March 2019 implementing Regulation (EU) No. 208/2014 [2019] OJ L 64/1) will hopefully provide the EU Courts with the possibility to clarify their case-law in this respect (these new measures are currently under appeal before the General Court).

  94. In order to reverse the applicant’s claim, according to which he carried out only functions of an administrative or technical nature and had no real influence over the management of the Central Bank of Syria, which is a State body, the Council produced two press articles showing that the applicant was in a position to take significant decisions relating to the monetary policy of Syria, articles which, according to the General Court, confirmed that the applicant, as Governor, exercised fundamental functions within the Central Bank of Syria, which could not be characterised as merely administrative or technical (Joined Cases T-307/12 and T-408/13, Mayaleh/Council, EU:T:2014:926, paras. 140–142). However, it is worth noting that, at the same time, the General Court referred to the principle according to which a person exercising functions which confer on him the power to manage an entity covered by restrictive measures may, as a general rule, himself be considered to be involved in the activities that justified the adoption of the restrictive measures covering the entity in question (ibidem, para. 143, with reference to Case T-58/12 Nabipour and Others/Council, EU:T:2013:640, para. 110).

  95. In order to demonstrate that the applicant was an influent Syrian businessman, the Council referred to a number of press articles (namely from the New York Times), news releases (namely from BBC News, Reuters, Middle East Channel) and publications (namely from Stanford University Press, the Institute for Policy and Strategy, and International Affaires) (Case T-410/16 Makhlouf/Council, EU:T:2017:349, para. 81). It is worth adding that, in respect of the situation in Syria, the General Court has consistently held that the Council discharges the burden of proof borne by it if it presents to the EU Courts a set of indicia sufficiently specific, precise and consistent to establish that there is a sufficient link between the person subject to a measure freezing his funds and the regime being combated (Case C-630/13 P Anbouba/Council, EU:C:2015:247, para. 52).

  96. The Council, in order to demonstrate that the weapons supplied by the Russian Federation were used by the separatists, including for shooting down aeroplanes, produced numerous press articles reporting on the shooting down of Ukrainian army aircraft and helicopters by the separatists, indicating that, in some cases, the separatists claimed direct responsibility for those acts. Referring to previous case-law (Joined Cases T-307/12 and T-408/13 Mayaleh/Council, EU:T:2014:926, paras. 141–142, and T-161/13 First Islamic Investment Bank/Council, EU:T:2015:667, para. 59), the General Court concluded that press articles may be used in order to corroborate the existence of certain facts (in the case at issue, the fact that the weapons provided by Russia were used by the separatists in Eastern Ukraine, including for shooting down aeroplanes) where they come from several different sources and they are sufficiently specific, precise and consistent as regards the facts there described, adding that it would be excessive and disproportionate to require the Council itself to investigate on the ground the accuracy of facts which are re-laid by numerous media (Case T-255/15 Almaz-Antey Air and Space Defence/Council, EU:T:2017:25, paras. 144–148). Interestingly, the General Court, while recognising the possibility that the media coverage of the Ukrainian conflict by the western media may also be partially biased, considered that genuine objectivity is impossible, and accepted that the press articles in question corroborated the existence of Russian involvement in the Ukrainian conflict, including the supply of weapons and military equipment to the separatists in Eastern Ukraine. It has to be add, in any case, that, according to the General Court, the applicant had not called into question the purely factual information reported in those articles in that regard, nor had it even sought to establish in what way they were manifestly incorrect.

  97. The Council referred, amongst other, to a public relations campaign implemented by the publishing house of which the applicant was the chairman of the board of directors that was designed to persuade Crimean children that they were Russian citizens living in Russia and thereby supporting the Russian Government’s policy to integrate Crimea into Russia. In order to substantiate the existence of the project at issue and its wide scope, the Council relied on several open-source documents, notably excerpts from the website of the Public Council under the Ministry of Education and Science of the ‘government’ of Crimea and from the website of the applicant’s publishing house, as well as by a statement of a public relations company involved in the campaign (Case T-720/14 Rotenberg/Council, EU:T:2016:689, para. 127). The General Court recognised the probative value of such evidence (ibidem, Para. 129).

  98. The issue was whether the persons and entities concerned provided support to the Government of Iran. The applicant company was listed based on the fact that it was owned or controlled by a person providing support to the Iranian Government. Evidence of this relation was provided by the Council by way of a report from a Tajik news agency stating that, in 2011, the applicant’s parent company was converted into a bank named Kont Bank Investment, an extract from the website of Kont Bank Investment, according to which that bank was owned by the Turkish company Kont Kozmetik ve Diş Ticaret Limited Şirketi, an extract from the website of Kont Kozmetik ve Diş Ticaret Limited Şirketi, according to which it was part of the Kont Group, which includes companies active in the field of tourism and financial services, and an extract from the website of the Sorinet Group stating that the person at issue is the head of that group and, moreover, identifies the applicant, its parent company, Kont Bank Investment and other members of the Kont Group as forming part of the Sorinet Group. The General Court concluded, accordingly, that the evidence presented by the Council indicated, at a minimum, a relationship of control between the person at issue and the applicant, through Kont Kozmetik ve Diş Ticaret Limited Şirketi and through Kont Bank Investment. Also, a sufficient probative value was recognised to the evidence, due to the fact that it was coming from the websites of a news agency and from the companies concerned themselves (Case T-161/13 First Islamic Investment Bank/Council, EU:T:2015:667, paras. 50–59).

  99. Case 294/83 Les Verts/Parliament, EU:C:1986:166 para. 23.

  100. Case C-348/12 P Council v Manufacturing Support & Procurement Kala Naft, EU:C:2013:776, para. 120.

  101. Kadi II, para. 97.

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    Fabio Filpo

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Filpo, F. Evidence standards in the judicial review of restrictive measures. ERA Forum 20, 615–635 (2020). https://doi.org/10.1007/s12027-019-00583-9

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