27 September 2018 (*1)

(Common foreign and security policy — Restrictive measures taken in view of the situation in Egypt — Freezing of funds — Admissibility — Objectives — Criteria for inclusion of persons targeted — Renewal of designation of the applicants on the list of persons targeted — Factual basis — Plea of illegality — Legal basis — Proportionality — Right to fair trial — Presumption of innocence — Right to good administration — Error of law — Manifest error of assessment — Right to property — Rights of the defence — Right to effective judicial protection)

In Case T‑288/15,

Ahmed Abdelaziz Ezz, residing in Giza (Egypt),

Abla Mohammed Fawzi Ali Ahmed Salama, residing in Cairo (Egypt),

Khadiga Ahmed Ahmed Kamel Yassin, residing in Giza,

Shahinaz Abdel Azizabdel Wahab Al Naggar, residing in Giza,

Represented initially by J. Lewis, B. Kennelly, QC, J. Pobjoy, Barrister, J. Binns, S. Rowe, Solicitors, and J.-F. Bellis, lawyer, and subsequently by B. Kennelly, J. Pobjoy, S. Rowe and H. de Charette, lawyer,

applicants,

Council of the European Union, represented by M. Bishop and I. Gurov, acting as Agents,

defendant,

APPLICATION pursuant to Article 263 TFEU seeking, first, the annulment of Council Decision (CFSP) 2015/486 of 20 March 2015 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2015 L 77, p. 16), secondly, of Council Decision (CFSP) 2016/411 of 18 March 2016 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2016 L 74, p. 40) and, thirdly, of Council Decision (CFSP) 2017/496 of 21 March 2017 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2017 L 76, p. 22), in that those acts concern the applicants,

THE GENERAL COURT (Fifth Chamber, Extended Composition),

composed of D. Gratsias (Rapporteur), President, I. Labucka, A. Dittrich, I. Ulloa Rubio and P. G. Xuereb, Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written part of the procedure and further to the hearing on 4 July 2017,

gives the following

1In the wake of political events which took place in Egypt from January 2011, the Council of the European Union adopted, on 21 March 2011, on the basis of Article 29 TEU, Council 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).

2Recitals 1 and 2 of Decision 2011/172 read as follows:

‘(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.’

3Article 1(1) of Decision 2011/172, as amended by the corrigendum to that decision (OJ 2014 L 203, p. 113), provides as follows:

‘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.’

4The second paragraph of Article 5 of Decision 2011/172, in its original version, provided that that decision was applicable until 22 March 2012. The third paragraph of Article 5 of that decision provides that that decision is to be kept under constant review and is to be renewed, or amended as appropriate, if the Council deems that its objectives have not been met. Pursuant to the latter provision, the Council renewed that decision several times for a period of one year by adopting, successively, Decision 2012/159/CFSP of 19 March 2012 (OJ 2012 L 80, p. 18), Decision 2013/144/CFSP of 21 March 2013 (OJ 2013 L 82, p. 54), Decision 2014/153/CFSP of 20 March 2014 (OJ 2014 L 85, p. 9), Decision (CFSP) 2015/486 of 20 March 2015 (OJ 2015 L 77, p. 16), Decision (CFSP) 2016/411 of 18 March 2016 (OJ 2016 L 74, p. 40), and Decision (CFSP) 2017/496 of 21 March 2017 (OJ 2017 L 76, p. 22).

5The applicants, Ahmed Abdelaziz Ezz, Abla Mohamed Fawzi Ali Ahmed Salama, Khadiga Ahmed Ahmed Kamel Yassin and Shahinaz Abdel Azizabdel Wahab Al Naggar, were designated since the adoption of Decision 2011/172, respectively, in the seventh, eighth, ninth and tenth lines of the list in the annex to that decision. The identifying information relating to each of them, which appeared on that list, was, with respect to the first applicant, ‘Former Member of Parliament; Date of birth: 12.01.1959; Male’, in relation to the second applicant, ‘Wife of Ahmed Abdelaziz Ezz; Date of birth: 31.01.1963; Female’, in relation to the third applicant, ‘Wife of Ahmed Abdelaziz Ezz; Date of birth: 25.05.1959; Female’, and, in relation to the fourth applicant, ‘Wife of Ahmed Abdelaziz Ezz; Date of birth: 09.10.1969; Female’. Decision 2017/496 made a correction concerning the name of the second applicant.

6The ground for the designation of the applicants, as amended by the corrigendum to Decision 2011/172, was as follows: ‘Person subject to judicial proceedings by the Egyptian authorities in respect of the misappropriation of state funds on the basis of the United Nations Convention against corruption’. That ground has remained identical in successive renewals of that decision. In particular, the amendments relating to the ground for designation, introduced by Decision 2017/496, did not concern the applicants, but only other persons designated on the same list.

7On the basis of Article 215(2) TFEU and Decision 2011/172, the Council adopted Regulation (EU) No 270/2011 of 21 March 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 reproduces, in essence, the provisions of Decision 2011/172 and the list in Annex I thereto is identical to that in the annex to that decision. Council Implementing Regulation (EU) 2017/491 of 21 March 2015 implementing Regulation No 270/2011 (OJ 2017 L 76, p. 10), made amendments to the list in Annex I to that regulation, corresponding to those introduced by Decision 2017/496.

8By an action brought on 20 May 2011, registered at the Registry of the General Court under number T‑256/11, the applicants sought the annulment of Decision 2011/172 and Regulation No 270/2011, in so far as those acts concern them.

9On 24 May 2013, the applicants brought a new action, registered at the Registry of the General Court under number T‑279/13, by which they sought the annulment of Decision 2011/172, as amended by Decision 2013/144 and Regulation No 270/2011, ‘renewed by decision of the Council notified to the applicants by letter dated 22 March 2013’ in so far as those acts concern them.

10The action brought by the applicants in Case T‑256/11 was dismissed by the judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93). On 5 May 2014, the applicants brought an appeal against that judgment.

11On 30 May 2014, each of the applicants brought a separate action against Decision 2014/153 (Cases T‑375/14, Al Naggar v Council, T‑376/14, Yassin v Council, T‑377/14, Ezz v Council and T‑378/14, Salama v Council).

12The judgment of 5 March 2015, Ezz and Others v Council (C‑220/14 P, EU:C:2015:147), dismissed the applicants’ appeal referred to in paragraph 10 above.

13On 29 May 2015, the applicants lodged a statement of modification intended to extend the original form of order sought in the action brought by them in Case T‑279/13 to ‘Council Decision (CFSP) 2015/485 of 20 March 2015 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt’.

14By order of 15 February 2016, Ezz and Others v Council (T‑279/13, not published, EU:T:2016:78), made on the basis of Article 126 of the Rules of Procedure of the General Court, the applicants’ action in the case at issue was dismissed. First, the General Court rejected as manifestly inadmissible the form of order sought in the statement of modification referred to in paragraph 13 above on the ground of lis pendens. The General Court held that the parties, submissions and subject matter in the present action and in the statement of modification were identical and that the latter had been lodged after that action (order of 15 February 2016, Ezz and Others v Council, T‑279/13, not published, EU:T:2016:78, paragraphs 22 to 30). Secondly, it rejected the form of order sought in the action as manifestly lacking any foundation in law (order of 15 February 2016, Ezz and Others v Council, T‑279/13, not published, EU:T:2016:78, paragraphs 43 to 79).

15By orders of 21 March 2016 of the President of the Eighth Chamber of the General Court, Cases T‑375/14, T‑376/14, T‑377/14 and T‑378/14 were removed from the register following the withdrawal from the proceedings of the applicants (orders of 21 March 2016, Al Naggar v Council, T‑375/14, not published, EU:T:2016:185, of 21 March 2016, Yassin v Council, T‑376/14, not published, EU:T:2016:186, of 21 March 2016, Ezz v Council, T‑377/14, not published, EU:T:2016:187 and of 21 March 2016, Salama v Council, T‑378/14).

not published, EU:T:2016:188).

16By application registered at the Court Registry on 26 May 2016, registered at the Court Registry under number T‑269/16, the first applicant brought an action against Decision 2016/411, in so far as that decision concerns him. By separate application, registered on the same day at the Court Registry under number T‑269/16, the second, third and fourth applicants brought an action against Decision 2016/411, in so far as that decision concerns them.

17On 12 September 2016, the General Court, by order, dismissed as manifestly inadmissible the applicants’ actions referred to in paragraph 16 above on the ground of lis pendens in relation to the lodging of the applicants’ statement of modification in the present action against Decision 2016/411, which is referred to in paragraph 22 below (orders of 12 September 2016, Ezz v Council, T‑268/16, not published, EU:T:2016:606, paragraph 15, and of 12 September 2016, Salama and Others v Council, T‑269/16, not published, EU:T:2016:607, paragraph 15).

II. Procedure and forms of order sought

18By application lodged at the Registry of the General Court on 29 May 2015, the applicants brought the present action. According to the first page and paragraph 1 of the application, the applicants seek the annulment of ‘Council Decision (CFSP) 2015/485 of 20 March 2015 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 that decision relates to them. They also claim that the Council should be ordered to pay the costs.

19In a letter to the Registry of the General Court dated 24 August 2015, the applicants indicated that the application was to be read as referring to Decision 2015/486, the reference to ‘2015/485’ resulting from a typographical error.

On 15 February 2016, the Council lodged its defence. In that document it claims that the Court should:

–dismiss the action;

–order the applicants to pay the costs.

21The reply and the rejoinder were lodged on 31 March 2016 and 27 May 2016 respectively.

22On 25 May 2016, on the basis of Article 86 of the Rules of Procedure, the applicants lodged a statement of modification in which they claim that the Court should:

–annul Decision 2016/411, in so far as that decision relates to the applicants;

–order the Council to pay the costs.

23On 30 June 2016, the Council submitted observations on the statement of modification, in which it states that it maintains the form of order sought in the defence.

24On 25 July 2016, the applicants requested a hearing.

25By decision of 4 October 2016, the case was reassigned to the Fifth Chamber.

26On 31 March 2017, by way of a measure of organisation of procedure, the Court requested the parties to provide it with a number of documents.

27The applicants and the Council replied to those requests on 11 and 21 April 2017 respectively.

28On a proposal from the Fifth Chamber, the General Court, by decision of 5 April 2017, referred the case to the Fifth Chamber (Extended Composition).

29On 18 May 2017, by way of a measure of organisation of procedure, the General Court, first, requested the parties to provide it with additional information and, secondly, questioned them on the issue of the impact, in the present case, of some of its previous decisions.

30On 26 May 2017, the applicants lodged a second statement of modification, in which they claim that the Court should annul, first, Decision 2017/496 and secondly, Implementing Regulation 2017/491, in so far as those acts concern them.

31The parties replied to the General Court’s requests referred to in paragraph 29 above by letters dated 1 and 8 June 2017.

32By a procedural document dated 8 June 2017, the applicants requested the Court to adopt, on the basis of Article 92(1), Article 93(1) and Article 94 of the Rules of Procedure, a measure of inquiry providing for the examination of their legal representative in Egypt as a witness. On 19 June 2017, the Council submitted its observations on that request for a measure of inquiry.

33On 26 June 2017, the Council lodged observations on the statement of modification, in which it stated that it maintains the form of order sought in the defence.

34The hearing was held on 4 July 2017. At the request of the applicants, the hearing took place in camera, having heard the Council. The applicants specified, however, that that request did not imply the confidential treatment of certain information in the General Court’s decision terminating the proceedings. [confidential] (*1)

35On 19 September 2017, the Court reopened the oral phase of the proceedings and invited the parties to comment on the possible impact on the present action of the judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583). The parties provided their reply to the Court on 4 October 2017.

III. Law

36In the statement of defence, the Council relies on several pleas of inadmissibility against the form of order sought in the action for annulment of ‘Council Decision (CFSP) 2015/485 of 20 March 2015 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 that decision relates to them. First, the Council considers that those conclusions refer either to a non-existent act, or to an act against which the applicants manifestly do not have standing to bring proceedings. Secondly, it takes the view that, in so far as the correction by the applicants in their letter of 24 August 2015 was made after the expiry of the time limit of two months provided for in respect of actions based on Article 263 TFEU, the action against Decision 2015/486 is out of time. Finally, it contends that, if the present action is shown to have been brought after the statement of modification in Case T‑279/13, lodged by the applicants on the same day, that action must be declared to be inadmissible on the ground of lis pendens.

37In the reply, the applicants submit that the reference to ‘2015/485’ was merely a typing error, which was confirmed by the General Court in the order of 15 February 2016, Ezz and Others v Council (T‑279/13, not published, EU:T:2016:78). Furthermore, they contest the existence of lis pendens regarding that order.

38In that regard, in relation, first of all, to the first plea of inadmissibility, it should be recalled that, according to settled case-law, the requirement that, under Article 76 of the Rules of Procedure, the application must contain the subject matter of the proceedings implies that the statement must be sufficiently clear and precise as to enable the defendant to prepare its defence and the Court to decide the case, if necessary without other supporting information (see judgment of 13 September 2013, Anbouba v Council, T‑592/11, not published, EU:T:2013:427, paragraph 33 and the case-law cited).

39However, the contested act can be identified by implication from the content of the application (see, to that effect, order of 13 April 2011, Planet v Commission, T‑320/09, EU:T:2011:172, paragraph 23 and the case-law cited). Moreover, the Court of Justice and the General Court have already accepted the possibility of reclassifying heads of claim that designate in an imprecise or erroneous manner the contested act or acts, where the content of the application and the factual and legal context make it possible to identify those acts unambiguously (see, to that effect and by analogy, judgments of 7 July 1993, Spain v Commission, C‑217/91, EU:C:1993:293, paragraphs 14 to 16, and of 13 September 2013, Anbouba v Council, T‑592/11, not published, EU:T:2013:427, paragraph 24).

In the present case, whereas, as indicated in paragraph 18 above, the applicants, on the first page and in paragraph 1 of the application, make reference to ‘2015/485’ to indicate the contested decision in the application, it must be noted that, by contrast, they refer to the full title of Decision 2015/486. Moreover, the provisions cited by the applicants in the body of the application are those of Decision 2015/486 and not those of Council Decision (CFSP) 2015/485 of 20 March 2015 extending the mandate of the European Union Special Representative in Kosovo (OJ 2015 L 77, p. 12). In addition, the applicants attached to the application a copy of Decision 2015/486 and not of Decision 2015/485.

The applicants confirmed, moreover, in their letter to the Registry of the Court of 24 August 2015 (see paragraph 19 above), that the present action must be regarded as seeking the annulment of Decision 2015/486, in so far as that act refers to them, since the reference ‘2015/485’ in the application constitutes a mere typographical error which does not affect the admissibility of that action. Consequently, the present action cannot be regarded as relating to a non-existent act, or to an act against which the applicants manifestly do not have standing to bring proceedings.

Secondly, as regards the second plea of non-admissibility, contrary to what the Council maintains, the date of lodging the application, namely 29 May 2015, and not the date of lodging of the applicants’ letter of 24 August 2015, must be taken into account when considering whether the time limit for bringing an action against Decision 2015/486 has been complied with in the present case. As is apparent from paragraphs 40 and 41 above, the content, alone, of the application and its annexes makes it possible to identify without difficulty that decision as being the subject matter of the action. Having regard to the date of 24 March 2015 which appears on the letter by which the Council notified that decision to the applicants, the lodging of the application on 29 May 2015 satisfies the time limit for bringing an action against that decision, in accordance with the provisions of the sixth paragraph of Article 263 TFEU and Article 60 of the Rules of Procedure.

Finally, with regard to the third plea of non-admissibility, as the Council accepted in the reply, moreover, the General Court found, in paragraphs 22 to 30 of the order of 15 February 2016, Ezz and Others v Council (T‑279/13, unpublished, EU:T:2016:78), that the lodging of the statement of modification submitted in Case T‑279/13, to adapt the forms of order sought and the pleas in law of the application to Decision 2015/486, was subsequent to the lodging of the present action and that that statement of modification should therefore be dismissed as manifestly inadmissible on the ground of lis pendens. The form of order in the application is therefore not inadmissible on that ground.

The pleas of inadmissibility referred to in paragraph 36 above must therefore be rejected.

In the present action, the applicants seek the annulment of the Council decisions by which, in the context of adopting Decision 2015/486, Decision 2016/411 and Decision 2017/496, their designation in the annex to Decision 2011/172 was renewed, respectively, in 2015, 2016 and 2017 (‘the contested decisions’). In support of those claims, the applicants put forward five pleas in law. In the first plea, they rely on a plea of illegality in respect of Article 1(1) of Decision 2011/172, as renewed by Decisions 2015/486, 2016/411 and 2017/496, and in respect of Article 2(1) of Regulation No 270/2011, alleging, in essence, a lack of legal basis and an infringement of the principle of proportionality. The second, third, fourth and fifth pleas in law allege, respectively, infringement by the Council of Article 6 TEU, considered together with Article 2 and Article 3(5) TEU, and of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’), in that the Council failed to ensure that the legal proceedings in Egypt concerning the applicants respected fundamental rights, infringement of the general criteria laid down in the abovementioned provisions of Decision 2011/172 and Regulation No 270/2011, infringement of the rights of the defence and of the right to effective judicial protection and an unjustified and disproportionate restriction on the applicants’ right to property and damage to their reputation.

As a preliminary point, it is appropriate to examine the Council’s argument that pleas in law which are identical, at least in essence, to the pleas set out in paragraph 45 above have already been examined and rejected in the judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93) and, following the appeal against that judgment, in the judgment of 5 March 2015, Ezz and Others v Council (C‑220/14 P, EU:C:2015:147). The Council concludes from this that the present action should be dismissed, by way of an order, as manifestly lacking any foundation in law, on the basis of Article 126 of the Rules of Procedure.

In that regard, first, it should be noted that, in the context of the first and second pleas in law, the applicants complain that the Council failed to take into account certain items of information concerning political and judicial developments which have occurred since the adoption of Decision 2011/172 and which reveal, in general, infringements by the Egyptian authorities of the rule of law and of fundamental rights and, in particular, breaches of the right to a fair trial and respect for the presumption of innocence of the first applicant in the context of the ongoing criminal proceedings brought against him. The applicants claim that they informed the Council of that information, in particular in their letter of 23 December 2014. In the statements of modification, they argue that they submitted additional information of the same nature to the Council prior to the renewal of their designation in 2016 and 2017.

In the judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93), and in the order of 15 February 2016, Ezz and Others v Council (T‑279/13, not published, EU:T:2016:78), ruling on the applicants’ actions referred to in paragraphs 8 and 9 above, that complaint was not considered by the General Court. Furthermore, the applicants withdrew in the course of proceedings in their actions in Cases T‑375/14 to T‑378/14.

In addition, it should be recalled that Article 2(3) of Decision 2011/172 provides that, where observations are submitted, or where substantial new evidence is presented, the Council shall review its decision and inform the person or entity concerned accordingly. Furthermore, in accordance with the third paragraph of Article 5 of that decision, the latter is to be kept under constant review and is to be renewed if the Council deems that its objectives have not been met.

It follows from the combination of those provisions that the Council may, in any review prior to the renewal of Decision 2011/172, or at any time, determine, on the basis of substantial evidence or observations submitted to it, whether the factual situation has changed since the applicants’ original designation or since a previous review, so that their designation is no longer justified (see, to that effect and by analogy, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 46).

In the present case, it cannot be excluded, without examination, that the evidence presented by the applicants in their correspondence with the Council, prior to the adoption of the contested decisions, was of such a substantial nature as to call into question the renewal of their designation under the contested decisions.

Moreover, it is true that, in the decisions of the General Court and of the Court of Justice referred to in paragraph 46 above, similar pleas in law to the third, fourth and fifth pleas have already been examined. Consequently, in the context of the latter pleas, the applicants are not entitled to call into question the lawfulness of their original designation or of the renewal of their designation by Decision 2013/144 by submitting to the General Court questions already decided by the abovementioned decisions of the European Union judicature, as such a challenge is incompatible with the relative authority of res judicata which attaches not only to the operative part of those decisions, but also to the ratio decidendi on which they are based (see, to that effect, judgments of 1 June 2006, P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission, C‑442/03 P and C‑471/03 P, EU:C:2006:356, paragraphs 39 to 41; of 15 May 2008, Spain v Council, C‑442/04, EU:C:2008:276, paragraph 25; and of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 117). Moreover, objections or arguments raised against the contested decisions, which are based on the same elements of facts or points of law as those already examined by the EU judicature in the context of the applicants’ earlier actions, may be rejected as manifestly unfounded (see, to that effect and by analogy, order of 15 February 2016, Ezz and Others v Council, T‑279/13, not published, EU:T:2016:78, paragraph 41 and the case-law cited).

However, there is no reason to presume, without an assessment of the merits of the factual and legal elements presented in the context of the present action, in support of those pleas, that those elements have already been examined by the EU judicature (see, to that effect, order of 15 February 2016, Ezz and Others v Council, T‑279/13, not published, EU:T:2016:78, paragraph 41).

Consequently, the present action cannot be dismissed by the General Court as manifestly lacking any foundation in law without examining the arguments put forward by the applicants in support of the pleas in law in that action.

It is necessary to examine, first of all, the first and second pleas, which are based on the complaint set out in paragraph 47 above.

(a) Preliminary observations

As a preliminary point, it must be determined, first, whether the scheme of restrictive measures provided for in Decision 2011/172 may require the Council to take into account circumstances such as those relied on by the applicants in support of the complaint referred to in paragraph 47 above and, secondly, the factual context in which the applicants informed the Council of those circumstances and the treatment of that information by the Council.

(1) Legal background

First of all, it should be recalled that Article 2 TEU and Article 3(5) TEU require the institutions of the European Union to promote, in particular in international relations, the values and principles on which the European Union is founded, namely, in particular, respect for human dignity, the rule of law and fundamental rights.

Secondly, as the Court of Justice has pointed out, respect for those values and for the principles on which the European Union is founded is required of all actions of the European Union, including those in the area of the common foreign and security policy (CFSP), as is apparent from the provisions, read together, set out in the first subparagraph of Article 21(1), Article 21(2)(b) and (3) TEU, and Article 23 TEU (see, to that effect, judgment of 14 June 2016, Parliament v Council, C‑263/14, EU:C:2016:435, paragraph 47).

In particular, Article 21(1) TEU provides that the European Union’s action on the international scene is to seek to advance in the wider world, inter alia, the rule of law, the universality and indivisibility of human rights and respect for international law.

Finally, with regard more particularly to the right to a fair trial and to respect for the presumption of innocence, the breach of which is alleged in the present case, it should be noted that, according to the European Court of Human Rights (‘the ECtHR’), the right to a fair trial, as enshrined in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), which correspond, in the EU legal order, to Articles 47 and 48 of the Charter, holds a prominent place in a democratic society, particularly in criminal matters (ECtHR, 7 July 1989, Soering v. United Kingdom, CE:ECHR:1989:0707JUD001403888, §113).

Similarly, it should be stressed that the principles of independence and impartiality of justice and the right to effective judicial review are essential standards for respect for the rule of law, which itself forms one of the primary values on which the European Union is founded, as is clear from Article 2 TEU, the preambles of the EU Treaty and of the Charter (see, to that effect, judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraphs 87 and 88).

As the ECtHR has stated, in essence, the requirements arising from the right to a fair trial and respect for the presumption of innocence aim, in particular in criminal matters, to guarantee that the final decision on the merits of the charges against the person concerned is reliable and to prevent it from being vitiated by a denial of justice or even arbitrariness, which would constitute the very denial of the rule of law (see, to that effect and by analogy, ECtHR, 17 January 2012, Othman (Abu Qatada) v. United Kingdom, CE:ECHR:2012:0117JUD000813909, §260, and 21 June 2016, Al-Dulimi and Montana Management Inc. v. Switzerland, CE:ECHR:2016:0621JUD000580908, §145 and 146 (2)).

In the present case, the characteristics of the scheme set out in Decision 2011/172 do not justify an exception to the Council’s general obligation, when adopting restrictive measures, to respect fundamental rights that form an integral part of the EU legal order (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 25 and the case-law cited).

Accordingly, when considering whether to designate a person on the list annexed to Decision 2011/172 or to renew that designation, it is for the Council to verify, first, that the evidence at its disposal makes it possible to establish that that person is the subject of one or more ongoing legal proceedings in respect of acts that may be characterised as the misappropriation of state funds, and, secondly, whether those proceedings are such as to allow that person to be classified as satisfying the criteria laid down in Article 1(1) of Decision 2011/172 (see, to that effect and by analogy, judgments of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraph 156, and of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 62 and 64).

It follows from the foregoing that, in the context of cooperation with the Egyptian authorities, it is not, in principle, for the Council to assess the accuracy and relevance of the information on which the Egyptian legal proceedings are based (see, to that effect and by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 66 and case-law cited), it being for the Egyptian authorities to make such an assessment. The Court held, in that regard, that it was not for the Council or the General Court to verify whether the investigations to which the applicants were subject were well founded, but only to verify whether that was the case as regards the decision to freeze funds in the light of the request for assistance by the Egyptian authorities (judgment of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraph 77).

Accordingly, it is the task of the competent European Union 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. However, to the extent that the Council has provided evidence of the existence of judicial proceedings against the applicant, it is incumbent upon the applicant to provide solid evidence that is at least relevant and credible in support of his allegations (see, to that effect and by analogy, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraphs 72 to 75 and the case-law cited).

Consequently, first, in so far as Decision 2011/172 is part of a policy of support for the Egyptian authorities based, in particular, on the objectives of consolidating and supporting democracy, the rule of law, human rights and the principles of international law, the hypothesis that that decision is manifestly inappropriate in the light of those objectives owing to the existence of serious and systematic fundamental rights infringements cannot be completely ruled out. Moreover, the purpose of that decision, recalled in paragraph 64 above, is irrelevant having regard, in particular, to those objectives, if the Egyptian authorities’ finding that state funds have been misappropriated is vitiated by a denial of justice or by arbitrariness.

On the other hand, whereas, as is apparent from paragraphs 65 and 66 above, the existence of ongoing legal proceedings in Egypt constitutes, in principle, a sufficiently solid factual basis for the designation of the persons on the list annexed to Decision 2011/172 and its renewal, that is not the case when the Council must form a reasonable presumption that the decision taken at the end of those proceedings will not be reliable, especially since it is not, in principle, for the Council to assess the accuracy and relevance of the evidence on which those proceedings are based.

Therefore, in the context of the scheme of restrictive measures such as those provided for in Decision 2011/172, it cannot be excluded that the Council is obliged to assess whether the legal proceedings on which they are based can be considered as reliable in the light of the evidence submitted by the persons concerned relating to infringements of the rule of law and fundamental rights, in particular the right to a fair trial, provided that there is objective, reliable, specific and consistent evidence such as to raise legitimate questions concerning the observance of that right.

Moreover, notwithstanding its precautionary nature, the freezing of assets under Decision 2011/172 has a substantial negative impact on the freedoms and rights of the persons concerned so that, in order to ensure a fair balance between the objectives of the freezing of assets and the protection of those rights and freedoms, it is essential that the Council should be able, where necessary, to assess appropriately, under the supervision of the EU courts, the risk of such infringements occurring (see, to that effect and by analogy, 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).

paragraphs 131 and 132).

72That analysis is not called into question by the arguments provided by the Council in the context of the present action.

73In the first place, it should be noted that the Council does not dispute, in the present proceedings, that the consideration of the applicants’ allegations relating to the breach of fundamental rights in the Egyptian political and judicial context could be relevant in the context of the review prior to the adoption of the contested decisions. [confidential]. Similarly, in its written reply to the General Court dated 4 October 2017, the Council stated that, during the review of the designation of the applicants on the list annexed to Decision 2011/172 in 2016 and 2017, it had taken due account of the applicants’ allegations of serious human rights violations in the context of legal proceedings in Egypt.

74In the second place, the Council’s argument that it is not for it to verify whether guarantees equivalent to those offered by EU law in the field of fundamental rights are provided in Egyptian judicial proceedings relates to the scope of the obligation to assess respect for fundamental rights in the Egyptian political and judicial context, but does not call into question the existence of that obligation. [confidential].

75That interpretation is confirmed by the Council’s reference to paragraph 175 of the judgment of 7 July 2017, Azarov v Council (T‑215/15, under appeal, EU:T:2017:479), which sought, as is apparent from paragraph 166 of that judgment, to reject an argument of the applicant in that case alleging that it was for the Council, before adopting the decision contested in the case at hand, to verify whether the Ukrainian legal system guaranteed protection of fundamental rights at least equivalent to that guaranteed in the European Union.

76In the third place, relying on the judgments of 5 March 2015, Ezz and Others v Council (C‑220/14 P, EU:C:2015:147), and of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93), in order to argue, in essence, that the applicants’ allegations only tend to call into question the merits of the judicial proceedings and not their existence, such that the legality of freezing their assets would not be affected by those allegations, the Council does not take account of subsequent developments in that case-law cited, inter alia, in paragraph 66 above.

77In that regard, it should be pointed out that, in the analogous context of Council Decision 2011/72/CFSP of 31 January 2011 concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2011 L 28, p. 62), the General Court found that it was not apparent from the documents provided by the applicant that the lack of independence of the Tunisian judicial system vis-à-vis the political authorities alleged by him was such as to specifically affect the judicial proceedings against him or that that dysfunction was systemic (judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 73). The General Court has, therefore, already examined whether the Council should take into account observations which call into question the basis of the judicial proceedings against the applicant, in particular by invoking serious shortcomings in the judicial system at issue affecting the guarantees offered by the latter with regard to fundamental rights.

78Moreover, the Council’s argument mentioned in paragraph 76 above is difficult to reconcile with the fact that [confidential].

79Finally, in the fourth place, the fact that, as the Council contends, it did not adopt Decision 2011/172 and the subsequent decisions on the basis of a decision by a competent Egyptian authority, but with a view to achieving the objectives of the CFSP and within the framework of its autonomous power in that respect confirms the analysis of the General Court. It is specifically for the Council, in the exercise of that autonomous power, to examine carefully and impartially all the relevant aspects of the case, including the applicants’ allegations of breaches of fundamental rights concerning the judicial proceedings which form the factual basis for their designation in the annex to Decision 2011/172.

80Consequently, when examining the first and second pleas, it is for the General Court, having regard to the intensity of the judicial review which each of those pleas involve, to rule on the issue of whether the applicants’ allegations relating to breaches of the rule of law and fundamental rights in Egypt constituted objective, reliable, accurate and consistent evidence capable of giving rise to legitimate questions and whether the Council has taken sufficient account of them.

(2) Factual Background

(i) Evidence relating to legal proceedings against applicants in Egypt

81In the first place, it should be recalled that, as the General Court has already found, the applicants were originally designated in the annex to Decision 2011/172 on the basis of documents issued by the Egyptian authorities showing, on the one hand, that the first applicant was the subject of criminal proceedings in Egypt for conduct which may be characterised as misappropriation of state funds and, on the other hand, that all the applicants were the subject of an order for seizure of their assets related to those criminal proceedings (see, to that effect, judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, paragraphs 132 to 134 and 137 to 140). It is apparent from the documents in the case file that that original designation was based, inter alia, on information contained in documents annexed to letters from the Egyptian authorities dated 13 and 24 February 2011.

82Secondly, it is apparent from the documents in the case file that this information was subsequently supplemented and updated by a letter from the Egyptian authorities dated 13 February 2014, to which an updated table of criminal proceedings against the first applicant was annexed.

83Seven sets of criminal proceedings are mentioned in the document of 13 February 2014. The first two sets of criminal proceedings (Cases Nos 38 and 107 of 2011) concern acts of unlawful profit and the third set of criminal proceedings (Case No 291 of 2011) concern acts of money laundering related to the acts referred to in the first two sets of proceedings. The fourth, fifth, sixth and seventh sets of criminal proceedings (Cases Nos 457 and 541 of 2011 and 156 and 376 of 2013) concern, respectively, tax evasion, abuse of a dominant position, further acts of tax evasion and, finally, money laundering.

84In the third place, as is apparent from the Council’s response to the General Court’s request, in the context of the measure of organisation of the procedure of 31 March 2017, to provide it with all the information at its disposal concerning the applicants, the documents which the Egyptian authorities had provided to the Council with a view to adoption of Decision 2015/486 included, in particular, a memorandum from the Egyptian Prosecutor General’s Office (‘the PGO’) dated 9 February 2015. The applicants claim that that document was never communicated to them.

85As stated at the beginning of the PGO memorandum of 9 February 2015, it is intended to respond to a request for clarification expressed in the framework of the Maghreb/Mashreq Council working group, following questions from certain Member States. That request for clarification concerned the legal procedures to be followed in cases such as those concerning the persons designated on the list annexed to Decision 2011/172 and the prescribed period within which they should be dealt with.

86The PGO memorandum of 9 February 2015 refers, in particular, to the existence of remedies provided for in Egyptian criminal procedure which allow the persons concerned to submit, first, for review by the Court of Cassation of the Arab Republic of Egypt (‘the Egyptian Court of Cassation’) the first instance judgment which convicted them and, secondly, the judgment that again convicted them following the annulment of the first judgment and the referral back of the case. Moreover, it states that, in the latter case, the Egyptian Court of Cassation gives final judgment on the dispute either by dismissing the appeal or by ruling itself on the merits.

87As to the remainder, it follows from the Council’s written reply of 21 April 2017 that the other documents provided by the PGO in February 2015 merely constituted an update of the information already provided concerning the status of the criminal proceedings against the first applicant, which update did not show any change in those proceedings as compared with the indications in the document of 13 February 2014.

88Fourthly and finally, it is apparent from the documents of the case file that, prior to the renewal of the applicants’ designation in 2016 and in 2017, the Egyptian authorities provided updated information on the status of the judicial proceedings against the first applicant. In particular, that information showed, firstly, the closure of the investigations in Case No 156 of 2013 following the administrative settlement of the dispute and, secondly, the existence of three additional proceedings in Cases Nos 4 and 5482 of 2011 and No 244 of 2015 concerning, respectively, allegations of offences committed within the finance department of the company El-Dekheila, profiteering and money laundering. In addition, a memorandum dated 5 December 2016 from the Egyptian National Committee for the Recovery of Assets Abroad (‘the NCRAA’) was communicated to the Council on 6 January 2017. However, the content of that memorandum is identical to that of the PGO memorandum of 9 February 2015. In their reply to the questions of the General Court dated 1 June 2017, the applicants acknowledged that they had become aware of that document on 27 January 2017, namely before the renewal of their designation by Decision 2017/496.

(ii) Information supplied by the applicants prior to the renewal of their designation for the years 2015, 2016 and 2017

89First of all, it should be noted that, in their letter of 23 December 2014 to the Council, to which the applicants refer in the context of the complaint referred to in point 47 above, they expressed, inter alia, their concerns that the criminal proceedings against the first applicant had not been brought in good faith and on the basis of evidence and that they were unfounded and politically motivated. They substantiated those concerns by referring to the context in which those proceedings were brought and to the analysis of those proceedings by the Egyptian Court of Cassation and considered that they were reinforced by a number of documents relating, first, to respect for the right to a fair trial of the first applicant and, secondly, to respect for the rule of law in Egypt since the departure, in February 2011, of the then President of the Arab Republic of Egypt, Mr Mohammed Hosni Mubarak.

90The applicants attached to their letter of 23 December 2014 the documents supporting those concerns, which were annexed to the application. [confidential].

91First, there are two reports by the International Bar Association’s Human Rights Institute (IBAHRI), dated November 2011 and February 2014, on the situation of the legal professions in Egypt. The 2011 IBAHRI report, entitled ‘Justice at a Crossroads: the Legal Profession and the Rule of Law in the New Egypt’, was drawn up following a survey by that non-governmental organisation in Egypt in June 2011. Its purpose is, first, to examine the difficulties encountered by lawyers in that country in relation to respect for the rule of law and fundamental rights before the events of 2011 and in the period immediately following them and, secondly, to issue recommendations with a view to ensuring compliance with those principles. The IBAHRI report of 2014, entitled ‘Separating Law and Politics: Challenges to the Independence of Judges and Prosecutors in Egypt’, which is based on a survey conducted in Egypt between June and November 2013, aims to follow up on the recommendations of the 2011 IBAHRI report and focuses more specifically on obstacles to the independence of the Egyptian judiciary.

92Secondly, the applicants submitted a report by Mr D., a member of a law firm established in the United Kingdom, dated 27 July 2011 and a report by Mr M., a lawyer in Geneva, dated 4 February 2013, relating to several criminal proceedings against the first applicant. It is apparent from those reports that Mr D. and Mr M. were instructed, as observers, by the legal representatives of the first applicant in Egypt in order to assess compliance with the right to a fair trial of the latter in the context of the criminal proceedings brought against him in Egypt.

93With regard to Mr D’s report, it concerns the investigations of the Prosecutor General of the Arab Republic of Egypt (‘the Egyptian Prosecutor General’) and the hearings held from 7 to 12 May and from 11 to 15 June 2011 in the first criminal proceedings against the applicant, which, as can be seen from the documents in the file, correspond to Procedure No 107 of 2011 in the documents provided by the Egyptian authorities. According to the report, the former Minister of Industry, a senior official of the Ministry of Industry and the first applicant are accused of having conspired to enable the latter to obtain energy licences for two companies in his group in breach of the rules governing the public procedure for awarding such licences to the steel sector.

94The content of Mr D.’s report is based on a reading of the prosecution’s file, to which the author had access, and on his direct observations during the various hearings he attended. That report includes a description of the elements contained in the prosecution’s case file as set out in the reference to the Criminal Court of 28 February 2011, a report of the hearings, in particular the hearing of witnesses, and a critical analysis of the evidence gathered by the prosecution.

In his report, Mr D. criticises, first, the haste with which he believes the Egyptian authorities handled the case in question and, secondly, the conditions in which the hearings he attended took place, which, in his opinion, give rise to breaches of the presumption of innocence and of the rights of the defence of the first applicant. In view of those observations, he concludes in his report that, ‘having seen the manner in which the Learned Judge directed the proceedings, it does not fill one with confidence that he will reach a correct decision in this case [and that] ... under so much public pressure ... [would feel under pressure to] convict the defendants, thereby leaving it to the Court of Cassation to overturn his verdict’.

96With regard to Mr M.’s report, it concerns the hearings held in 2012 in two of the criminal proceedings against the first applicant, one relating, according to the terms of the report, to charges of fraudulent acquisition of El-Dekheila shares and the other regarding alleged money laundering related to those charges, which correspond, according to the documents in the file, to Cases Nos 38 and 291 of 2011 in the documents provided by the Egyptian authorities.

97The assessment made by Mr M. in his report is based, first, on the reports drawn up by Mr A., an Egyptian lawyer instructed to attend the hearings on his behalf, Mr M. stating that he had initially chosen not to attend the hearings personally because of the ‘elevated risk to [his] personal safety [arising from] demonstrations carried out in front of the courthouse ... throughout the course of the proceedings against [the first applicant]’ and, secondly, on his direct observation of one of the hearings in Case No 38 of 2011.

98The first part of Mr M.’s report contains a description of the courtroom as he himself observed it and analyses, in the second part, the various points in respect of which he identified, in Mr A.’s reports, potential infringements of fundamental rights, namely the presence of a metal cage for the detention of accused persons, the presence of guards in the courtroom, auditory difficulties, the insufficiently impartial attitude of the criminal court and the prejudice caused by the media coverage. In view of those observations, he concludes that, ‘under international human rights standards, it is likely [that the first applicant’s] rights have been infringed and that in particular he has not been afforded a fair trial’. Furthermore, ‘[i]n either the acquisition fraud or the money laundering trials, there is therefore a significant risk of [legally] unsafe convictions’.

99Thirdly, the applicants refer the Council to three judgments of the Egyptian Court of Cassation, of 2 December 2012, 12 May 2013 and 14 December 2013 respectively. In those judgments, the Egyptian Court of Cassation, first, set aside the first instance judgments, which had held the accused, in particular the first applicant, responsible in each of the cases concerned and which had imposed various penalties on them, including fines and imprisonment and, secondly, referred the cases back to the trial judge for a new decision. As can be seen from the Egyptian authorities’ document referred to in paragraph 82 above, those three judgments were delivered in the criminal proceedings in Cases No 107 of 2011 (unlawfully granted energy licences), No 291 of 2011 (money laundering) and No 38 of 2011 (fraudulent acquisition of shares in the company El-Dekheila) respectively.

100Fourthly, the applicants relied on a judgment of the Criminal Court of the Swiss Confederation (‘the Swiss Federal Criminal Court’) of 12 December 2012 and two judgments of the Constitutional Court of the Principality of Liechtenstein (‘the Liechtenstein Constitutional Court’) of 28 August 2012 and 30 September 2013. Those judgments concern international mutual legal assistance procedures following requests from the Egyptian authorities. The first of those judgments annulled a decision by the Swiss authorities to grant them access to the file of criminal proceedings against Egyptian nationals, in particular for money laundering offences.

101In its judgment of 12 December 2012, the Swiss Federal Criminal Court relied on a certain amount of public information available in reports of international organisations or in the press to find that, ‘regardless of the problem of respect of human rights in [Egypt], [that country] is currently facing an uncertain internal transition featuring the instability of institutions and [the apparent questioning of the independence] and the existing respect between [the executive and judicial] authorities’. On the basis of this information, the court considered that ‘there [was] a risk that the [applicants] could incur immediate and irreparable prejudice’.

102The two judgments of the Constitutional Court of Liechtenstein of 28 August 2012 and 30 September 2013 annulled two judicial decisions dismissing the appeal by a company held by the first applicant against an order freezing its assets because of criminal proceedings against the first applicant in Egypt. That court considered that the sources of information on which that company relied, which included, in particular, the 2011 IBAHRI report and the report of Mr M., were sufficient to consider that it had ‘[demonstrated] the danger of infringements of fundamental rights [of the first applicant in Egypt]’, given that it was merely required to plausibly demonstrate that danger.

103It is apparent from the documents in the case file that the documents in question, with the exception of the above-mentioned IBAHRI report of 2014, had already been communicated by the applicants in order to support, in particular, their first and second pleas in law in Cases T‑375/14 to T‑378/14 and that the Council, which submitted a defence in which it replied to those pleas, had therefore already been aware of them in that context.

104In the correspondence with the Council prior to the renewal of the applicants’ designation in 2016 and 2017, the applicants submitted certain additional evidence relating to respect for fundamental rights in Egypt.

105First, the applicants attached to their letter to the Council dated 29 February 2016 a letter from their Egyptian legal representatives concerning the various legal proceedings against the first applicant mentioned by the Egyptian authorities in documents dated 2 January 2016. In particular, in three of these proceedings (Cases Nos 4 of 2011, 274 of 2012 and 376 of 2013), those legal representatives claimed that they had never been informed of the existence of ‘formal’ investigations and that their request for access to the file had been rejected by the Egyptian authorities. Furthermore, in their letters of 14 March 2016, the applicants, relying on the opinion of an Egyptian lawyer annexed to those letters, claimed that their right to be heard had not been respected before the freezing order adopted by the Egyptian authorities in respect of them had been issued.

106Secondly, in a letter dated 7 March 2017, the applicants drew the Council’s attention to the fact that the first applicant had been remanded in custody as from that date and that they considered that to be a breach of the guarantees enshrined, inter alia, in Article 5 of the ECHR.

(iii) The Council’s treatment of the evidence provided by the applicants

107First of all, it is apparent from the documents in the case file that the Council replied to the applicants’ letter of 23 December 2014 in its letter of 24 March 2015. That latter letter does not contain any explicit reference to the applicants’ allegations calling into question respect for fundamental rights in Egypt, and in particular the right to a fair trial of the first applicant, nor to the documents mentioned in paragraphs 91 to 102 above, which support those allegations. However, the Council responded to the applicants’ concerns about the basis of the criminal proceedings brought against the first applicant, which were, inter alia, supported by those allegations, in the following terms: ‘[The] Council does not share your view that the circumstances in which the prosecution was brought against your client show there is no evidence for it and that it is politically motivated’.

108[confidential]

109Moreover, it is not apparent from the documents in the case file that the Council’s assessment of the applicants’ observations and of the documents gave rise to ad hoc verification with the Egyptian authorities.

110It therefore follows from all the above that, in the context of the review of the designation of the applicants prior to the adoption of Decision 2015/486, the Council considered, implicitly but necessarily, that the observations and documents in question, irrespective of their relevance and credibility, were not such as to call into question the renewal of Decision 2011/172. In particular, in the light of the PGO memorandum of 9 February 2015 and the Council’s explanations, it has to be assumed that the Council considered that they did not call into question the assessment of respect for fundamental rights in Egypt carried out on the basis, inter alia, of that memorandum and that they therefore did not call for additional verification.

111As is apparent from the Council’s letters of 21 March 2016 and 22 March 2017 to the first applicant, that position with regard to the applicants’ allegations concerning infringements of the rule of law and of fundamental rights in Egypt did not change when their designation was renewed in 2016 and 2017.

112First, in its letter of 21 March 2016, the Council stated that the applicants’ complaints concerning the way in which the Egyptian authorities had handled the cases concerning the first applicant should be dealt with under the Egyptian legal system and procedures. Secondly, in its letter of 22 March 2017, it stated that it had assessed the observations of the first applicant concerning the level of protection of his fundamental rights in the judicial proceedings in Egypt and that it had concluded that it was reasonable to continue to support the efforts of the Egyptian authorities to recover the sums lost by the Egyptian State.

In that regard, it must be noted that, by the complaint referred to in paragraph 47 above, the applicants submit, in essence, that that position reflects, on the part of the Council, a disregard for the scope of the evidence which they submitted to it and its resulting obligations in respect of that evidence. In the first plea in law, they submit that those errors render Decisions 2015/486, 2016/411 and 2017/496 unlawful in so far as they renew the scheme of restrictive measures in Decision 2011/172 in their entirety. In the second plea in law, they claim that the contested decisions, in so far as they renew their designation, do not comply with the Council’s obligation to respect fundamental rights under Article 6 TEU, in conjunction with Articles 2 and 3(5) TEU and Articles 47 and 48 of the Charter. It is therefore for the General Court, when examining those pleas, to rule on the merits of the Council’s position as regards the evidence submitted to it by the applicants, in the light of the evidence that it otherwise had in its possession relating to the situation in Egypt.

(b) As regards the first plea, alleging that Decisions 2015/486, 2016/411 and 2017/496 and Regulation No 270/2011 are vitiated by illegality

114This plea consists of two parts, alleging that Decisions 2015/486, 2016/411 and 2017/496 are vitiated by illegality, in so far as they renew Article 1(1) of Decision 2011/172 and that Article 2(1) of Regulation No 270/2011 is unlawful, respectively.

116The Council disputes that it is open to the applicants to rely on a plea of illegality against Article 1(1) of Decision 2011/172 and Article 2(1) of Regulation No 270/2011, in respect of which, in its view, they could bring an action under Article 263 TFEU. In addition, it contends, in general terms, that the arguments submitted by the applicants in the context of the present plea in law have already been rejected by the General Court and by the Court of Justice. Furthermore, according to the Council, infringement of the criteria for listing is not relevant in respect of the examination of the appropriateness of the legal basis. It also submits that the various circumstances invoked by the applicants in the context of the present plea, namely the political changes in Egypt, the situation of fundamental rights in that country and the alleged infringement of the first applicant’s fundamental rights, are irrelevant in assessing the legality of the measures adopted in the context of Decision 2011/172.

117It should be noted at the outset that, in the context of this part, the applicants rely on two separate complaints. First, they claim that Article 1(1) of Decision 2011/172, as renewed by Decisions 2015/486, 2016/411 and 2017/496, lacks a legal basis, in that its provisions, it is claimed, no longer meet the objectives of the CFSP. Secondly, they claim, implicitly in the application and the first statement of modification and expressly in the second statement of modification, infringement by the Council of the principle of proportionality on account of the manifestly inappropriate nature of the renewal of those provisions in the light of developments in Egypt.

(i) The complaint alleging lack of legal basis

118First of all, it should be recalled that, according to settled case-law, review of the legal basis of an act enables the competence of the author of the act to be verified and the procedure for the adoption of that act to be verified as to whether it is vitiated by any irregularity. Furthermore, the choice of the legal basis for an EU measure must rest on objective factors amenable to judicial review, which include the aim and content of that measure (see judgment of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraph 42 and the case-law cited; order of 15 February 2016, Ezz and Others v Council, T‑279/13, not published, EU:T:2016:78, paragraph 47).

119In the present complaint, the applicants dispute the application, in the present case, of the reasoning by which the General Court, in paragraph 47 of the order of 15 February 2016, Ezz and Others v Council (T‑279/13, unpublished, EU:T:2016:78), held that the ‘social and legal developments’ which had taken place since their original designation, which they relied on in the context of a plea also based on the lack of a legal basis, could only have an impact on the validity of the reasons for the contested decisions and could not be examined in the context of the review of the choice of legal basis for those measures.

120According to the applicants, it follows from the case-law that, where the aim and content of a measure are premised on a particular social and legal context, the review of its legal basis must necessarily include a consideration of the development of that context.