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

JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

12 December 2018 (*)

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

In Case T‑358/17,

Mohamed Hosni Elsayed Mubarak, residing in Cairo (Egypt), represented by B. Kennelly QC, J. Pobjoy, Barrister, G. Martin, M. Rushton and C. Enderby Smith, Solicitors,

applicant,

v

Council of the European Union, represented initially by J. Kneale and M. Veiga, and subsequently by J. Kneale and A. Sikora-Kalėda, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU for annulment (i) 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); (ii) of Council Implementing Regulation (EU) 2017/491 of 21 March 2017 implementing Regulation (EU) No 270/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2017 L 76, p. 10); (iii) of Council Decision (CFSP) 2018/466 of 21 March 2018 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2018 L 78I, p. 3); and (iv) of Council Implementing Regulation (EU) 2018/465 of 21 March 2018 implementing Regulation (EU) No 270/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2018 L 78I, p. 1), in so far as those acts apply to the applicant,

THE GENERAL COURT (Fifth Chamber),

composed of D. Gratsias (Rapporteur), President, I. Labucka and I. Ulloa Rubio, Judges,

Registrar: F. Oller, Administrator,

having regard to the written part of the procedure and further to the hearing on 18 September 2018,

gives the following

Judgment

I.      Background to the dispute and factual context

1        Since the adoption, on 21 March 2011, of 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), and of Council Regulation (EU) No 270/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 4), the applicant, Mr Mohamed Hosni Elsayed Mubarak, has been designated in the first line of the lists included in the annex to that decision and in Annex I to that regulation (‘the lists at issue’). The identifying information concerning the applicant mentioned in those annexes is as follows: ‘Former President of the Arab Republic of Egypt — Date of birth 04.05.1928 — Male’.

2        The grounds for the designation of the applicant on the lists at issue were originally 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 for designation was maintained throughout successive renewals of Decision 2011/172, until the adoption of Council Decision (CFSP) 2017/496 of 21 March 2017 amending Decision 2011/172 (OJ 2017 L 76, p. 22). The latter decision amended that ground to read as follows: ‘Person subject to judicial proceedings or an asset recovery process by the Egyptian authorities following a final court ruling in respect of the misappropriation of State Funds on the basis of the United Nations Convention against Corruption’. Council Implementing Regulation (EU) 2017/491 of 21 March 2017 implementing Regulation No 270/2011 (OJ 2017 L 76, p. 10) introduced an identical amendment in relation to the applicant’s designation in Annex I to Regulation No 270/2011.

3        On 21 March 2018, the Council of the European Union adopted Decision (CFSP) 2018/466 amending Decision 2011/172 (OJ 2018 L 78I, p. 3) and Implementing Regulation (EU) 2018/465 implementing Regulation No 270/2011 (OJ 2018 L 78I, p. 1). Decision 2018/466 extended the application of Decision 2011/172 until 22 March 2019. Furthermore, that decision and Implementing Regulation 2018/465 amended the grounds of designation in respect of some of the individuals named on the lists at issue and deleted references to other individuals from those lists. The applicant’s name was maintained on those lists and the grounds for his designation remained unaltered.

II.    Procedure and forms of order sought

4        By application lodged at the General Court Registry on 31 May 2017, the applicant brought the present action.

5        On 14 August 2017, the Council lodged the defence.

6        The reply and the rejoinder were lodged on 28 September 2017 and 15 November 2017, respectively.

7        On 24 November 2017, the applicant requested that a hearing be held.

8        On 31 May 2018, pursuant to Article 86 of the Rules of Procedure of the General Court, the applicant lodged a statement of modification.

9        On 29 June 2018, the Council submitted its observations on the statement of modification.

10      On 10 September 2018, the applicant submitted, on the basis of Article 88(1) and Article 89(3) of the Rules of Procedure, a request that the Court adopt measures of organisation of procedure concerning the disclosure, by the Council and the European External Action Service (EEAS), of certain documents that were not provided to the applicant.

11      The hearing was held on 18 September 2018. At the hearing, the Council contended that the application for the adoption of measures of organisation of procedure should be dismissed. The parties were invited to make submissions on the admissibility of the applicant’s claim for annulment of Regulation 2018/465.

12      In the application, the applicant claims that the Court should:

–        annul Decision 2017/496 and Implementing Regulation 2017/491, in so far as they apply to him;

–        order the Council to pay the costs.

13      In the statement of modification, the applicant claims, moreover, that the Court should annul Decision 2018/466 and Implementing Regulation 2018/465.

14      The Council contends that the Court should:

–        dismiss the action in its entirety;

–        order the applicant to pay the costs;

–        in the alternative, should Decisions 2017/496 and 2018/466 and Implementing Regulations 2017/491 and 2018/465 be annulled as regards the applicant, order that the effects of those decisions be maintained with regard to the applicant until the annulment of those regulations takes effect.

III. Law

A.      Application for the adoption, by the Court, of measures of organisation of procedure

15      The measures of inquiry requested by the applicant relate, on the one hand, to the provision by the Council of the request from the EEAS dated 7 August 2017, referred to on page 1 of the memorandum from the Egyptian authorities of 29 August 2017, and the note verbale from the EEAS, referred to on page 1 of the memorandum from the Egyptian authorities dated 20 February 2018, and, on the other, to the provision by the EEAS of the documents referred to above and any other correspondence between that service and the Egyptian authorities relating to the maintenance of the applicant’s designation in 2017 and 2018.

16      The Council claims that those documents are not in its possession.

17      In that regard, it is sufficient to note that the documents which the applicant seeks to have disclosed concern letters sent by the EEAS to the Egyptian authorities, which are referred to in the memoranda from those authorities that were provided to him and which have been placed on the file. The applicant does not dispute that the Council relied on the information contained in the documents provided by the Egyptian authorities, and notably the memoranda mentioned above, in order to maintain the applicant’s name on the lists at issue, rather than on the requests contained in the notes verbales and letters from the EEAS to which those documents are intended to respond. Nor does he dispute that the Council disclosed to him all the documents from the Egyptian authorities concerning him that were in its possession.

18      Although the applicant claims that those letters and notes are necessary in order to understand the relevance of the memoranda mentioned above and to ascertain whether the questions of the EEAS which they were intended to answer were sufficient to address the concerns he had raised, it is nevertheless apparent from the content of those memoranda that the relevance of the information therein to the maintenance of the applicant’s listing is readily inferred, without there being any need to resort to contextual material. In addition, those documents are sufficient for the purpose of assessing whether the Council fulfilled its duty, to the requisite legal standard, to verify whether the evidence made available to it constituted a sufficiently solid basis for that listing to be maintained.

19      The same reasoning applies to the rest of the correspondence between the EEAS and the Egyptian authorities, in relation to the maintenance of the applicant’s designation in 2017 and in 2018, disclosure of which is also sought by the applicant.

20      Accordingly, there is no need to adopt the measures of organisation of procedure requested by the applicant.

B.      Substance

21      By the present action, the applicant seeks annulment of Decision 2017/496 and Implementing Regulation 2017/491 (‘the 2017 acts’) and also of Decision 2018/466 and Implementing Regulation 2018/465 (‘the 2018 acts’), in so far as those acts maintained his designation on the lists at issue (together, ‘the contested acts’).

22      The applicant puts forward five pleas in law in support of his action. In the context of the first plea, the applicant raises a plea of illegality in respect of Article 1(1) of Decision 2011/172, as renewed by Decisions 2017/496 and 2018/466, and in respect of Article 2(1) of Regulation No 270/2011.The second, third, fourth and fifth pleas allege, respectively, infringement of Article 6 TEU, in conjunction with Articles 2 and 3 TEU and Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’), in that the Council considered that the judicial proceedings in Egypt relating to the applicant complied with fundamental rights;infringement of the general criteria of Article 1(1) of Decision 2011/172 and Article 2(1) of Regulation No 270/2011;infringement of the rights of the defence, of the right to good administration and of the right to effective judicial protection;and the unjustified and disproportionate restriction of the right to property and reputation.

1.      First plea in law: plea of illegality in respect of Article 1(1) of Decision 2011/172, as renewed by Decisions 2017/496 and 2018/466, and in respect of Article 2(1) of Regulation No 270/2011

23      The first plea is, in essence, in two parts, alleging lack of legal basis and breach of the principle of proportionality.

(a)    First part of the first plea, alleging that Article 1(1) of Decision 2011/172, as renewed by Decisions 2017/496 and 2018/466, and Article 2(1) of Regulation No 270/2011 have no legal basis

24      In the context of the first part of the plea, the applicant maintains that, even if Article 1(1) of Decision 2011/172 could have been founded on the objectives referred to in recital 1 of that decision when the decision was adopted, that was no longer the case at the time of the adoption of the contested acts, owing to the political and judicial developments in Egypt indicated in the information sent to the Council prior to the adoption of those acts.Thus, the applicant maintains that that provision can no longer be based on an objective of support for the new Egyptian authorities, first, because those authorities were deposed after the adoption of Decision 2011/172 and Regulation No 270/2011; second, because of the development of the Egyptian political context, marked by violations of fundamental rights and the rule of law;and, third, because of the fact that the Council had become aware of information that established that the Egyptian authorities would not guarantee fair, impartial and independent judicial treatment of his cases or respect for the rule of law with regard to him.

25      The Council contends that the question of the appropriateness of the legal basis of Decision 2011/172 has already been settled by the Courts of the European Union in the judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93), upheld on appeal by the judgment of 5 March 2015, Ezz and Others v Council (C‑220/14 P, EU:C:2015:147), and also in the order of 15 February 2016, Ezz and Others v Council (T‑279/13, not published, EU:T:2016:78).

26      It is sufficient to note in that regard that, according to settled case-law, review of the legal basis for an act enables the powers of the author of the act to be verified and the procedure for the adoption of that measure to be checked as to whether it is tainted by any irregularity. Moreover, the choice of legal basis for an EU measure must rest on objective factors amenable to judicial review, factors which include the purpose and content of the 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).

27      It is in that context that, in paragraph 47 of the order of 15 February 2016, Ezz and Others v Council (T‑279/13, not published, EU:T:2016:78), relating to a dispute concerning the maintenance of the designation of several persons on the list annexed to Decision 2011/172, the Court considered that the ‘social and legal developments’ that had occurred since the initial designation of the applicants in that case could influence only the merits of the grounds of the contested measures and could not be examined in the context of the review of the choice of legal basis for those measures.

28      It must be held that that reasoning is applicable in the present case.

29      According to the case-law, as is apparent from recital 1 of Decision 2011/172, that decision forms part of a policy of support for the Egyptian authorities that is based, in particular, on the objectives of consolidation of and support for democracy, the rule of law, human rights and the principles of international law set out in Article 21(2)(b) TEU. It therefore falls within the common foreign and security policy (CFSP) (see, to that effect, judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraphs 41 and 44 to 47).

30      The same is true of Decisions 2017/496 and 2018/466 which merely renew Decision 2011/172 and form part of the same policy.

31      Consequently, even on the assumption that the situation in Egypt in respect of which the Council adopted Decision 2011/172 has evolved, and in a manner contrary to the democratisation process which the policy underpinning that decision is intended to support, the aims pursued by Decisions 2017/496 and 2018/466 and the rules whose validity they renew nonetheless remain within the scope of the CFSP (see, to that effect and by analogy, judgment of 14 June 2016, Parliament v Council, C‑263/14, EU:C:2016:435, paragraphs 45 to 54).

32      Those findings are not called into question by the case-law cited by the applicant, which is not relevant.

33      With regard, in the first place, to the judgment of 8 June 2010, Vodafone and Others (C‑58/08, EU:C:2010:321), it is sufficient to note that the Court of Justice did not consider in that case whether a provision of the EU Treaty falling within the CFSP constituted an appropriate legal basis, but whether that was so as regards Article 95(1) EC, which involved consideration of the general context and the specific circumstances of the field harmonised by the act adopted on that basis as these appeared at the time of its adoption (see, to that effect, judgment of 8 June 2010, Vodafone and Others, C‑58/08, EU:C:2010:321, paragraphs 32 to 35 and 39 to 47). The Court’s reasoning in that judgment is not, therefore, applicable to the present case.

34      As regards, in the second place, paragraphs 191 to 193 of the judgment of 11 July 2007, Sison v Council (T‑47/03, not published, EU:T:2007:207), these relate to the General Court’s examination of a plea alleging failure to state reasons, and not to a plea alleging the lack of a legal basis. They are not relevant, therefore.

35      As regards, in the third place, paragraph 110 of the judgment of 22 April 2015, Tomana and Others v Council and Commission (T‑190/12, EU:T:2015:222), it must be noted that that paragraph must be read in the context of the General Court’s reasoning of which it forms part. In its reasoning, the General Court did not seek to review the merits of the Council’s assessments of developments in the situation in Zimbabwe and the need to maintain the restrictive measures adopted in the light of those developments, but only to verify whether, by those measures, the Council had intended to pursue aims falling within the CFSP (see, to that effect, judgment of 22 April 2015, Tomana and Others v Council and Commission, T‑190/12, EU:T:2015:222, paragraphs 93 to 111).

36      In those circumstances, since the applicant has failed to establish that Decisions 2017/496 and 2018/466 have no legal basis, in so far as they renew Article 1(1) of Decision 2011/172, the applicant’s complaint that Regulation No 270/2011 has no legal basis must itself be rejected in consequence thereof. That complaint is based solely on the implicit premiss that the illegality of the decision, as renewed by Decisions 2017/496 and 2018/466, deprives that regulation of its legal basis, which was constituted by the decision in question itself.

37      The first part of the first plea in law must therefore be rejected.

(b)    Second part of the first plea, alleging breach of the principle of proportionality by Article 1(1) of Decision 2011/172, as renewed by Decisions 2017/496 and 2018/466, and Article 2(1) of Regulation No 270/2011

38      In the context of the second part of the plea, the applicant maintains that the evidence which he submitted in order to establish that Article 1(1) of Decision 2011/172 and Article 2(1) of Regulation No 270/2011 lacked a legal basis also demonstrates the disproportionate nature of those provisions in the light of the objectives pursued by the Council in the context of that decision and that regulation.

39      The Council disputes those arguments.

40      In that regard, it should be noted that, in the light of the case-law, the Council has a broad discretion as regards establishing the general criteria defining the category of persons that could be made subject to restrictive measures, in the light of the objectives underpinning those measures, and, therefore, as regards the need to renew the application of those criteria (see, to that effect, judgments of 21 April 2015, Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 41 and the case-law cited, and of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 48).

41      In this case, it is not for the Court to rule, in the context of the present action, on the merits of the Council’s policy of supporting the process of political stabilisation in Egypt, as referred to in recital 1 of Decision 2011/172. Nor is it for the Court to substitute its own assessment for that of the Council as regards the geographical or political context to which Decision 2011/172 relates and the need to renew that decision in the light of that context. However, the possibility cannot be ruled out that, because of serious and systematic violations of fundamental rights, the renewal of Decision 2011/172 and the continued application of Regulation No 270/2011 are manifestly inappropriate in the light of the objectives of the policy of support referred to above, since those objectives relate to the consolidation of and support for democracy, the rule of law and human rights. The Court must therefore examine whether, in assessing the need to renew or maintain those acts, the Council did not manifestly disregard the importance and gravity of the material concerning the political and judicial context in Egypt invoked by the applicant, and whether it was under an obligation, in the light of that material, to carry out further checks.

42      In the first place, the applicant relies on the fact that the ‘new Egyptian authorities’ supported by the Council were deposed, and on developments in the Egyptian political context that occurred subsequently.

43      It should be recalled in that regard that, according to recital 1 of Decision 2011/172, that decision forms part of a ‘[policy of support for] 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’.

44      However, contrary to the assumption underlying the applicant’s argument, the wording of that recital does not mean that the Council was required to abandon that policy since the first President of the Republic elected in Egypt following the events of February 2011, Mr Mohammed Morsi, and the members of the government he had formed had been removed from office in June 2013. In any event, it is not for the Court to rule on the question whether that policy continued to be relevant after those authorities had been deposed.

45      Furthermore, given the purpose of the freezing of the assets of the persons covered by Decision 2011/172, those measures must, in principle, be maintained until the conclusion of the judicial proceedings to which those persons are subject in Egypt, in order to ensure their effectiveness. Consequently, their renewal cannot be called into question solely on the basis of successive changes of government in Egypt since the adoption of that decision.

46      The first argument must therefore be rejected.

47      In the second place, the applicant maintains that the current political regime in Egypt is undermining the principles which Decision 2011/172 is intended to promote, namely democracy, the rule of law, human rights and the principles of international law. He relies, in that regard, on a number of documents which include statements of EU authorities or on behalf of the European Union, documents issued by international organisations, reports by non-governmental organisations and press reports.

48      However, first, it should be noted that, whilst those documents reflect the concerns of a certain number of observers, including institutional actors, about developments in the situation in Egypt with regard to respect for the rule of law and fundamental rights, it is not apparent from those documents that those developments influenced the judicial proceedings in the light of which the lists at issue were drawn up.

49      In particular, it must be noted that the statements by EU authorities or on behalf of the European Union on which the applicant relies do not concern those judicial proceedings. Moreover, in the context of a policy aimed, in particular, at respect for the rule of law and fundamental rights in Egypt, assisting the Egyptian authorities with a view to combating the misappropriation of State funds is not at odds with the expression of concerns or demands that those principles be observed by those authorities themselves, but, on the contrary, is complementary thereto.

50      Furthermore, as regards the documents relating specifically to the operation of the judicial system in Egypt, these could not lead the Council to assume that the capacity of the Egyptian judicial authorities to safeguard the fundamental rights of the persons designated on the list annexed to Decision 2011/172 is systematically compromised.

51      Thus, as regards the report by the International Commission of Jurists of September 2016, entitled ‘Egypt’s Judiciary: A Tool of Repression — Lack of Effective Guarantees of Independence and Accountability’, it must be pointed out that that document focuses on the conduct of the judiciary towards opponents of the political authorities, or those considered to be opposing such authorities. It does not, however, relate to that conduct in the context of judicial proceedings for misappropriation of State funds, as in the present case.

52      Similarly, it must be noted that certain documents produced in support of the statement of modification mention the risk that the independence of the Egyptian judiciary could be undermined because of recent legislative changes concerning the method of appointment of the heads of Egypt’s highest judicial bodies.

53      However, a court’s independence is not assessed on the basis only of the manner of appointment of its members, but also in the light of their term of office, the existence of safeguards against outside pressures and the question whether it presents the appearance of independence. Furthermore, it is not a question of assessing that independence in the light of any theoretical concepts regarding the permissible limits of the interaction between the political organs of government and the judiciary, but of determining whether, in a given case, the requirements arising from that principle have been met (see, to that effect, ECtHR, 6 May 2003, Kleyn and Others v. Netherlands, CE:ECHR:2003:0506JUD003934398, paragraphs 190 and 193 and the case-law cited).

54      Accordingly, the Council cannot be required to assume, solely on the basis of the legislative changes referred to by the documents mentioned above, that the courts having jurisdiction in all the judicial proceedings underpinning the lists at issue lack independence.

55      Second, in order to assess the need for the renewal of the scheme of restrictive measures laid down by Decision 2011/172 and Regulation No 270/2011, the Council has to strike a balance between the objectives of the policy of which that decision forms part and the purpose of the decision itself. That scheme is intended only to facilitate the Egyptian authorities’ identification of any misappropriation of State funds that has taken place and to ensure that it remains possible for those authorities to recover the proceeds of such misappropriation. It is not inconceivable, therefore, that its renewal retains its relevance, including in the event of political and judicial developments detrimental to progress towards democracy, the rule of law or respect for fundamental rights.

56      In the present case, as noted in paragraphs 48 to 54 above, the evidence provided by the applicant alone does not allow for the conclusion that, as a result of the political and judicial developments to which he refers, respect for the rule of law and fundamental rights in the context of the judicial proceedings underpinning the lists at issue would be systematically undermined. Furthermore, as is evident from the material in the file, the Egyptian authorities provided the Council, in the memoranda dated 12 March 2015 and 5 December 2016, with information about the judicial framework of those proceedings. It is apparent from this that that judicial framework offers effective safeguards with respect to judicial protection and, in particular, with respect to appeals to the Egyptian Court of Cassation. It is, moreover, also apparent from the material in the file that several individuals designated on the lists in question, including the applicant, have obtained the annulment, by that court, of some of their criminal convictions.

57      The second argument must therefore be rejected.

58      In the third place, the applicant maintains that his fundamental rights have been flagrantly infringed by the Egyptian judicial authorities, particularly in the context of a case concerning the killing of protesters.

59      In that regard, infringements of the fundamental rights of the applicant cannot affect the legality of the scheme of restrictive measures laid down by Decision 2011/172 and Regulation No 270/2011. Neither the criteria laid down in Article 1(1) of that decision and in Article 2(1) of that regulation nor the grounds for designation of the persons included on the lists at issue, with the sole exception of the grounds for the designation of the applicant’s wife, as amended by the 2018 acts, make the freezing of assets introduced by that scheme subject to the existence of any links between the applicant and those persons. In addition, assuming that they are established, the infringements of the applicant’s fundamental rights cannot, by themselves, constitute evidence of similar infringements systematically affecting all the persons designated on the lists annexed to Decision 2011/172 and to Regulation No 270/2011. Thus, the present argument is relevant only in the context of the second plea, alleging infringement, by the contested acts, of the obligation to respect fundamental rights, and it is therefore appropriate to examine it in that context.

60      It follows from all of the foregoing that the applicant has not established that Article 1(1) of Decision 2011/172, as renewed by Decisions 2017/496 and 2018/466, and Article 2(1) of Regulation No 270/2011 are manifestly inappropriate in the light of the objectives of those acts. The second part of the plea must accordingly be rejected, as, therefore, must the first plea in its entirety.

2.      Second plea in law: infringement of Article 6 TEU, in conjunction with Articles 2 and 3 TEU and Articles 47 and 48 of the Charter

61      The second plea is in two parts, alleging, first, that the Council failed to satisfy itself that the applicant’s fundamental rights had been respected and that it applied an irrefutable presumption that the Egyptian authorities had respected those fundamental rights, and, second, that the maintenance of the applicant’s designation on the lists at issue is manifestly contrary to the objectives referred to in recital 1 of Decision 2011/172, owing to the infringement of those rights.

(a)    First part of the second plea, alleging that the Council failed to satisfy itself that the applicant’s fundamental rights had been respected and applied an irrefutable presumption that the Egyptian authorities had respected those fundamental rights

62      In the present part of the plea, the applicant submits that, pursuant to Article 6 TEU, in conjunction with Article 2 and Article 3(5) TEU, the Council is under an obligation to promote fundamental rights. In the present case, according to the applicant, the Council failed to satisfy itself that his fundamental rights had been respected and, moreover, proceeded on the basis of an irrefutable presumption that the Egyptian authorities would conduct themselves in accordance with those rights, contrary to the requirements of the case-law (judgments of 21 December 2011, N.S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 105 and 106, and of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 139). He submits that those requirements are confirmed by paragraphs 24 to 26 of the judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583). In the applicant’s submission, the Council erred in law in considering that the case-law in relation to anti-terrorism measures is not applicable in the present case, since, as in the context of those measures, the freezing of his assets is based solely on evidence supplied by the Egyptian authorities. He claims that, in the present case, he is particularly exposed to infringements of the right to a fair trial laid down in Articles 47 and 48 of the Charter and, moreover, he provided the Council with evidence showing that that right was in fact infringed, at least in two of the judicial proceedings against him in Egypt.

63      For its part, the Council contends that the principles deriving from the case-law cited by the applicant are not relevant in the present case, particularly in so far as those principles have been laid down in the context of proceedings concerning the scheme of restrictive measures established by Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93).

64      In that regard, it should be noted as a preliminary point that the case-law establishes, in relation to the Council, a general obligation when adopting restrictive measures to respect the 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).

65      It cannot be inferred from the case-law that the characteristics of the scheme established by Decision 2011/172 would justify an exception to that general obligation, which would have the effect of exempting the Council from any verification of the protection of fundamental rights of persons subject to the measures concerned that is afforded in Egypt.

66      In particular, contrary to what is suggested by the Council in the rejoinder, the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694) cannot be invoked for the purpose of challenging the relevance of the applicant’s complaints in the context of the present plea.

67      In that regard, in the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694), relating to a dispute about the freezing of the assets of a person designated on the list annexed to 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 Court did not rule out, as the Council asserts, the existence of a general obligation on the part of the Council to verify whether fundamental rights were being respected in the context of the Tunisian judicial proceedings on which that freezing of assets was based.

68      In paragraphs 64 and 65 of the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694), the Court held that, in the light of the Council’s obligations under the CFSP and the objectives of that policy of advancing human rights and the rule of law in the wider world, as referred to in recital 1 of Decision 2011/72, it could not be ruled out that the Council would carry out the necessary checks where there was objective, reliable, specific and consistent evidence such as to raise legitimate questions concerning the Tunisian authorities’ observance of the applicant’s right to have his case heard within a reasonable time (judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraphs 64 and 65).

69      That reasoning is, mutatis mutandis, applicable in the present case to the right to a fair trial and to respect for the presumption of the applicant’s innocence, the restrictive measures scheme established by Decision 2011/172 being similar to that imposed by Decision 2011/72.

70      Admittedly, in the judgment of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694), the Court did not find that the Council was required, systematically and on its own initiative, to check that those rights were being respected in the context of the judicial proceedings against the applicant in that case in Tunisia. However, in the present case, as the applicant stated in the reply, it is not his position that the Council is required to undertake such a detailed assessment for the designation of every person concerned or for that person’s re-designation on the lists at issue, but that the Council is under a duty to do so where it is aware, before taking such decisions, of evidence establishing that the person’s fundamental rights have been infringed. It must be noted that that reasoning is compatible with the reasoning applied in that judgment.

71      Furthermore, while it is true that there are differences between the mechanism established by Common Position 2001/931, to which part of the case-law cited by the applicant relates, and the restrictive measures scheme introduced by Decision 2011/172, those differences do not mean that the complaints supported by those references are entirely irrelevant.

72      First, as regards the scheme introduced by Decision 2011/172, it is indeed apparent from the case-law that the existence of ongoing judicial proceedings in Egypt may constitute a sufficiently solid factual basis for the designation of the persons on the lists at issue and for the maintenance of that designation (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, paragraphs 65 and 68 and the case-law cited).

73      However, the requirements that flow from the right to a fair trial and respect for the presumption of innocence are aimed, in particular, at ensuring that a decision such as that which must be taken at the end of those judicial proceedings is reliable and is not tainted by a denial of justice or even arbitrariness (see, to that effect and by analogy, ECtHR, 17 January 2012, Othman (Abu Qatada) v. United Kingdom, CE:ECHR:2012:0117JUD000813909, paragraph 260, and of 21 June 2016, Al-Dulimi and Montana Management Inc. v. Switzerland, CE:ECHR:2016:0621JUD000580908, paragraphs 145 and 146).

74      Consequently, the judicial proceedings in Egypt cannot constitute a sufficiently solid factual basis if, because of infringements of the right to a fair trial and of the presumption of innocence tainting those proceedings, the Council is reasonably entitled to assume that the decision taken at the end of those proceedings will not be reliable, particularly as it is not, in principle, for the Council to assess the accuracy and the relevance of the evidence on which those 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 the case-law cited).

75      Second, as regards the mechanism established by Common Position 2001/931, in the judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583, paragraphs 25 and 26), the Court of Justice held that the requirement laid down in Article 1(4) of Common Position 2001/931, that the initial entry of the name of a person or entity on the list at issue must be based on a decision taken by a competent authority, was designed to protect the persons or entities concerned by ensuring that their name was first included on that list only on a sufficiently solid factual basis. However, according to the Court of Justice, that objective cannot be attained unless the decisions of third States on which the Council bases initial listings of persons or entities are adopted in accordance with the rights of the defence and the right to effective judicial protection (judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 25 and 26).

76      Admittedly, it seems to follow from the judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583) that, in the context of Common Position 2001/931, the obligation to check that the rights of the defence and the right to effective judicial protection are respected is systematic, as far as the Council is concerned, whenever it enters the name of a person or entity on the list annexed thereto, on the basis of a proposal from a third country (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 26 and 27).

77      By contrast, in the present case, as has already been stated in paragraphs 68 to 70 above, such an obligation can exist only if there is information such as to raise legitimate questions concerning respect for such fundamental rights. However, as has also been noted, the applicant himself made clear that he did not believe that obligation to be one that had to be systematic.

78      It is in the light of those considerations that it is incumbent on the General Court to carry out, in principle, a full review (see, to that effect, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 49 and the case-law cited) as to whether the Council has discharged its duty of careful and impartial examination by satisfying itself on the basis of the information available to it that the judicial proceedings brought against the applicant could be considered reliable, or whether it was necessary, in order to satisfy that requirement, for checks to be undertaken with the Egyptian authorities.

79      In order to demonstrate the Council’s failure to fulfil its duties, the applicant submits that he presented it with evidence in relation to the flagrant infringement of his fundamental rights. That evidence relates to two of the judicial proceedings against the applicant in Egypt, Case No 3642 of 2011, concerning the killing of protesters, and Case No 8897 of 2013, concerning the refurbishment of private residences of the applicant’s family.The applicant also relies on the documents pertaining to the general situation as regards the rule of law and fundamental rights in Egypt on which he relied in the context of the first plea (see paragraph 47 above).

80      First, in the case of the documents pertaining to the general situation as regards the rule of law and fundamental rights in Egypt, it is sufficient to note that those documents have no apparent connection with the applicant’s actual situation and, more specifically, with the judicial proceedings against him in Egypt. The only reference to those proceedings, in a European Parliament resolution added to the case file, does not seem to be intended to illustrate the infringement of the applicant’s fundamental rights by the Egyptian judicial authorities, but rather the difference in the treatment of the applicant as compared to that of political opponents. In addition, those documents do not indicate systemic violations by the Egyptian judicial authorities of the right to a fair trial, and thus that the Council must regard as plausible the risk that those violations may affect the judicial proceedings brought against the applicant.

81      Second, the evidence put forward by the applicant with regard to the alleged infringements of his right to a fair trial in the context of the judicial proceedings to which he himself was subject was not such as to give rise to legitimate questions on the part of the Council.

82      As regards the judicial proceedings in Case No 3642 of 2011, the following must be noted.

83      First, the trial in the context of which the alleged infringements are said to have occurred, which concerns complicity in the killing of protesters, has no apparent connection to misappropriation of State funds as referred to in the grounds for the applicant’s designation on the lists at issue. That trial was not therefore among the facts on which the Council could rely in order to freeze the applicant’s assets and to maintain that measure. In addition, even on the assumption that the infringements in question are established, the applicant does not explicitly state why the Council was required to infer that they might recur in the judicial proceedings concerning misappropriation of State funds to which he is also subject. The fact that those judicial proceedings were brought against him after he ceased to hold office as President of the Republic and that they relate to events that took place while he held that office cannot, by itself, constitute such a reason.

84      Second, since the acquittal of the applicant in that case was upheld as a result of the judgment of 2 March 2017 of the Egyptian Court of Cassation, the alleged infringements could not, in any event, have any effect on the final determination of the applicant’s criminal liability.

85      Third, as regards the alleged breach of the reasonable time principle, it is apparent from the evidence provided by the applicant that, whilst commencement of the retrial before the Egyptian Court of Cassation seems to have been delayed somewhat, the overall duration of the proceedings, which started in 2011, does not appear in any event to be such as to give rise to legitimate questions in that regard, given the complexity of the case, its importance, and the various procedural steps that have taken place.

86      As regards the infringements which, it is claimed, were committed by the Egyptian Court of Cassation in its judgment of 9 January 2016 dismissing the appeal of the applicant and his sons in the judicial proceedings in Case No 8897 of 2013, it must be held that such flagrant infringements are not apparent from the documents intended to substantiate that claim.

87      In particular, the applicant produced a memorandum from the lawyer who defended him in that court, which sets out the answers given by that court to the 35 grounds of appeal which he put forward and the reasons why he considers those answers to be insufficient or incorrect in law.

88      However, the mere fact that that lawyer did not consider those answers to be satisfactory does not indicate an infringement of the applicant’s right to a fair trial. The fact that the Egyptian Court of Cassation rejected the applicant’s grounds of appeal cannot, in itself, amount to such an infringement.

89      Thus, the question whether that court fulfilled its duty to conduct a proper examination of those submissions and arguments and the evidence adduced to support them is the only question that is relevant in that regard, given that the obligation to state reasons cannot be understood as requiring a detailed answer to every argument (see, to that effect, ECtHR, 15 May 2007, Boldea v. Romania, CE:ECHR:2007:0215JUD001999702, paragraphs 28 and 29).

90      Yet it is not evident from the documents provided by the applicant that the court in question failed, in a flagrant manner, properly to examine all those submissions, in particular those which are specifically mentioned in the statement of modification, and to respond to them satisfactorily, however succinctly.

91      Moreover, while the Egyptian Court of Cassation seems, in response to some of those submissions, to have declined to rule on the lower court’s assessment of the facts of the case, it should be noted, in the light, in particular, of the case-law of the European Court of Human Rights, that the specific nature of the role played by a court of cassation, whose review is limited to compliance with the law, is not, by itself, contrary to the right of access to a court or tribunal, since the conditions for the admissibility of an appeal on points of law may be more rigorous than for an appeal on fact and law (see, to that effect, ECtHR, 17 April 2008, Vasilakis v. Greece, CE:ECHR:2008:0117JUD002514505, paragraphs 27 and 30).

92      Last, the applicant also relies on the treatment which he claims is inconsistent with the right to a fair trial and results from the Prosecutor General’s approach, in the context of that case, as regards the conciliation process that followed delivery of the judgment of the Egyptian Court of Cassation on 9 January 2016. According to the applicant, the position of the Prosecutor General, that the conciliation process between the applicant and the Egyptian State had not culminated in the settlement of the proceedings in Case No 8897 of 2013, is vitiated by a misuse of power and satisfies political objectives. The applicant claims that it had the effect of unfairly depriving him of the benefit of that conciliation process and thus of infringing his right to a fair trial.

93      In that regard, assuming that the principles relating to infringement of the right to a fair trial are applicable in the present case, it is not apparent from the material in the file that the Egyptian Prosecutor General’s approach which is criticised by the applicant, even if that approach is assumed to be wrong, is vitiated by a misuse of power or based on purely political considerations.

94      In those circumstances, the fact that the Prosecutor General regards the requirements of the Egyptian legislation in relation to the conciliation procedure as not being met in the present case, owing, in particular, to the lack of jurisdiction of the committee that was approached by the applicant, cannot constitute, by itself, an infringement of the applicant’s right to a fair trial.

95      It follows from all of the foregoing that none of the evidence put forward by the applicant in support of his claims as to an infringement of the right to a fair trial was such as to raise legitimate questions regarding the risk that the outcome of the judicial proceedings against him would be tainted by such infringements. The Council was not, therefore, obliged, in the light of that evidence, to undertake further checks, and the first part of the plea must accordingly be rejected.

(b)    Second part of the second plea, alleging that the renewal of the applicant’s designation is manifestly contrary to the objectives referred to in recital 1 of Decision 2011/172

96      As indicated in paragraph 58 above, the applicant maintains that the flagrant infringement of his fundamental rights, notably his right to a fair trial, is manifestly contrary to the objectives of Decision 2011/172 and Regulation No 270/2011. In the applicant’s view, the evidence he submitted to the Council demonstrates that the Council is required to act on the basis that the Egyptian authorities are not affording him fair, independent or unbiased treatment in the criminal proceedings brought against him.

97      However, for those arguments to be accepted, the evidence provided by the applicant must refer clearly to sufficiently serious infringements of the right to a fair trial so as to convince the Council, on the basis of its examination alone, that it could no longer maintain the applicant’s asset freeze without adopting a decision that was manifestly inappropriate in the light of its objectives. Having regard to the considerations set out in paragraphs 80 to 95 above in the context of the first part of the second plea, it must be held that the evidence produced by the applicant does not satisfy those requirements. If that evidence did not raise legitimate questions that would justify the Council’s undertaking checks with the Egyptian authorities, it could not, a fortiori, have convinced the Council, on the basis of its examination alone, to end the freezing of those assets.

98      Accordingly, the second part of this plea must be rejected, as, therefore, must the second plea in its entirety.

3.      Third plea in law: infringement of the general criteria referred to in Article 1(1) of Decision 2011/172 and in Article 2(1) of Regulation No 270/2011

99      According to the applicant, the Council made an error of assessment in taking the view that the evidence available to it for the purpose of maintaining his designation on the lists at issue complied with the criteria laid down in Article 1(1) of Decision 2011/172 and Article 2(1) of Regulation No 270/2011. In fact, according to the applicant, he is not involved in any judicial proceedings in the seven cases referred to in the documents which the Council forwarded to him. Furthermore, he maintains that he is not the subject of any asset recovery proceedings, at least in relation to misappropriated State funds.Nor, in his submission, can the Council rely on the asset-freezing orders mentioned by the Egyptian authorities in the letter of 22 February 2016. Last, he claims that, in order to challenge the Egyptian authorities’ allegations, he produced solid and relevant material which ought to have been taken into account by the Council, particularly as the letters from the Egyptian authorities are vitiated by manifest errors.

100    The Council disputes those arguments.

(a)    General considerations

101    In the first place, it should be borne in mind that the concept of misappropriation of State funds, within the meaning of Article 1(1) of Decision 2011/172 and Article 2(1) of Regulation No 270/2011, encompasses any unlawful use of resources which belong to, or are under the control of, the Egyptian public authorities, for a purpose contrary to that for which those resources were intended, particularly for private purposes, and which leads to those authorities incurring financial harm (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 98). Furthermore, while that concept must be given an autonomous interpretation, it does cover, at the very least, actions capable of being characterised in terms of Egyptian criminal law as misappropriation of State funds (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 98).

102    In the second place, it is not, in principle, for the Council itself to examine and assess the accuracy and relevance of the information on which the criminal proceedings involving the applicant are based, but to verify whether, as indicated by the applicant’s grounds for designation, he is subject to one or more sets of ongoing judicial proceedings relating to criminal prosecutions for acts that could be characterised as misappropriation of State funds (see, to that effect, judgments of 14 April 2016, Ben Ali v Council, T‑200/14, not published, EU:T:2016:216, paragraphs 158 and 160, and of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraphs 65 and 66). The Council cannot be under an obligation to verify the information provided by the Egyptian authorities and to seek further evidence from them if there is no concrete evidence that would give rise to legitimate questions on its part as to the existence or basis of the judicial proceedings in question (see, to that effect and by analogy, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 115, and of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 68).

103    In the third place, the applicant is wrong to claim that the criteria referred to in Article 1(1) of Decision 2011/172 and in Article 2(1) of Regulation No 270/2011 must be interpreted as meaning that the Council is required to verify whether the acts of misappropriation of State funds at issue in the judicial proceedings to which he is subject are, having regard to the amount or type of funds misappropriated or to the context in which those acts took place, such as to undermine the rule of law in Egypt.

104    Such a limitation of the scope of the concept of misappropriation of State funds is not evident from the case-law recalled in paragraph 102 above. It should also be borne in mind that the Court of Justice confirmed the General Court’s reasoning in a case in which the General Court had ruled that the Council had been fully entitled to enter the names of the applicants concerned in that case on the lists at issue on the sole ground that they were subject to judicial proceedings in Egypt linked, in whatever form, to investigations concerning the misappropriation of State funds (see, to that effect, judgments of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraphs 71 to 73, and of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraphs 67, 95 and 97).

105    Nor, moreover, can the applicant refer to the General Court’s case-law on restrictive measures imposed in the context of decisions adopted by the Council in view of the situation in Ukraine. In that regard, it must be noted, in the light of recital 2 of Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26), that the purpose of the freezing of assets of persons identified in that decision, inter alia, as being responsible for the misappropriation of State funds is to consolidate and support the rule of law and respect for human rights in Ukraine. It is in that context that the Court was able to find that the listing criterion laid down by that decision had to be interpreted as meaning that it did not concern, in abstract terms, any act classifiable as misappropriation of State funds, but rather that it concerned acts classifiable as misappropriation of State funds or public assets which, having regard to the amount, the type of funds or assets misappropriated or the context in which those acts took place, were, at the very least, such as to undermine the legal and institutional foundations of Ukraine (judgments of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 91, and of 15 September 2016, Yanukovych v Council, T‑348/14, EU:T:2016:508, paragraph 102).

106    By contrast, the purpose of Decision 2011/172 and Regulation No 270/2011 is to contribute to the Egyptian authorities’ fight against the misappropriation of State funds, respect for the rule of law and fundamental rights constituting only one of the general objectives of the Council’s policy of support for Egypt, a policy of which, inter alia, those acts form part. In addition, in contributing to that fight, the freezing of assets of the persons responsible for the misappropriation of State funds or of persons associated with them as referred to in Article 1(1) of Decision 2011/172 and Article 2(1) of Regulation No 270/2011 is presumed to be consistent with those general objectives. The principles laid down by the Court in the judgments referred to above cannot, therefore, be applied to the present case.

107    In the fourth place, as indicated in paragraph 2 above, in the context of the 2017 acts, the original ground for designating the applicant on the lists at issue — which related to the existence of judicial proceedings brought against him by the Egyptian authorities in respect of the misappropriation of State funds on the basis of the United Nations Convention against Corruption — was supplemented by a second ground concerning the existence of an asset recovery process initiated by the Egyptian authorities following a final court ruling in respect of the misappropriation of State funds.

108    In that regard, first of all, it should be noted that, as indicated by the conjunction ‘or’, which links the two grounds for the applicant’s designation on the lists at issue, these are alternative grounds, so that each one of them is sufficient, by itself, to justify the designation of the applicant. Consequently, in accordance with the case-law, it is sufficient that one of those grounds is substantiated (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119).

109    Next, the fact that persons are designated on the lists at issue because they are subject to a process for the recovery of misappropriated assets in a particular case does not mean that they cannot also be designated on those lists on the ground that they continue to be subject, in the same case, to judicial proceedings.

110    First, it should be pointed out that the concept of judicial proceedings is not necessarily limited, in its accepted meaning, to the stage preceding a judicial decision in which a final ruling is given on the parties’ claims. It may also include the stage after that decision covering its enforcement, which may, moreover, require further judicial decisions to be delivered in relation to such enforcement.

111    Second, the criteria set out in Article 1(1) of Decision 2011/172 and Article 2(1) of Regulation No 270/2011 do indeed encompass persons being prosecuted for their involvement, to varying degrees, in the misappropriation of Egyptian State funds, and also persons associated with them who are subject to proceedings connected to those prosecutions, but, as is clear from the wording of those provisions, they also cover, a fortiori, persons who, at the end of judicial proceedings, have been found guilty of the misappropriation of Egyptian State funds, and persons who have been found by a criminal court to have been their accomplices (judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 67, upheld on appeal by judgment of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraphs 71 and 72).

112    Thus, a person designated on the lists at issue who has been held responsible for misappropriation of State funds or as an accomplice thereto in a final ruling by the Egyptian courts must be considered to be subject to judicial proceedings, in so far as enforcement of that decision is still ongoing. The same applies to persons who are subject to related judicial proceedings linked to that enforcement, such as a freezing or preservation order in respect of their assets.

113    In the fifth and last place, irrespective of whether the information provided by the Egyptian authorities is sufficient to conclude that the applicant is subject to judicial proceedings that relate to the misappropriation of State funds, that information, contrary to what is claimed by the applicant, does not reflect a deliberate intention on the part of the Egyptian authorities to transmit false, incomplete or misleading information. The mere fact that that information may contain inaccuracies or inconsistencies does not, in itself, reflect any such intention. Furthermore, it is for the Council to assess, where appropriate, in the light of the applicant’s observations, the reliability of that information and, on that basis, to determine whether it can rely on all of the proceedings mentioned by those authorities or only on some of them.

114    It is in the light of these considerations that the Court must examine the applicant’s arguments and the facts which he has put forward in order to demonstrate that the various judicial proceedings mentioned by the Egyptian authorities could not serve as a basis for the contested acts.

(b)    The arguments relating to each of the judicial proceedings on which the renewal of the applicant’s designation on the lists at issue is based

115    As a preliminary point, it must be noted that the Council did not explicitly indicate in its correspondence with the applicant whether it intended to rely on all the judicial proceedings mentioned by the Egyptian authorities or only on some of them. Furthermore, the fact that the Council referred in the defence to only three of those proceedings does not automatically mean that it did not intend to rely on the others.

116    In that regard, in the light of the interpretation to be found in the case-law of the grounds for designation of the persons included on the lists at issue (judgments of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraphs 72 and 73, and of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraphs 92 to 95), it must be held that the Council intended to rely on all the ongoing judicial proceedings relating to the misappropriation of State funds to which the applicant was subject, according to the information from the Egyptian authorities available on the date of the adoption of the contested acts. In any event, it is apparent from the case-law that the existence of a single set of ongoing judicial proceedings relating to conduct that could be characterised as misappropriation of State funds may constitute a sufficient factual basis for the renewal of the applicant’s designation (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 49 and 100).

117    It is appropriate for the Court to begin the examination of the applicant’s arguments by considering those relating, first, to Case No 8897 of 2013 and, second, to Cases No 53 of 2013 and No 756 of 2012.

(1)    The judicial proceedings in Case No 8897 of 2013

118    In Case No 8897 of 2013, the applicant maintains that, since the dismissal of his appeal by the Egyptian Court of Cassation on 9 January 2016, he has entered into an agreement with the Egyptian authorities, ratified by the Cabinet on 9 March 2016, under which he repaid all the misappropriated funds, and that he informed the Council that he had done so. He maintains that the payment of the sum in question releases him from any obligation to the Egyptian State. Thus, the maintenance of the restrictive measures against him has, in his submission, no ‘legal basis’, following the discontinuance of the judicial proceedings in the case in question and in the light of the object of those measures, which is to permit the recovery of the misappropriated funds by the Egyptian authorities. Furthermore, according to the applicant, because those restrictive measures are not of a criminal nature, the remaining financial penalties are not concerned. The applicant asserts, moreover, that because the misappropriated funds have been repaid, the Council cannot rely on the request for mutual legal assistance submitted to the United Kingdom authorities by the Egyptian authorities, which, furthermore, relates only to the applicant’s son.Last, in the statement of modification, the applicant claims that his right to a fair trial was infringed by the judgment of the Court of Cassation of 9 January 2016.

119    The Council disputes those arguments.

120    In that regard, it is apparent from the wording of Article 18 bis (b) of the Code of Egyptian Criminal Procedure, a translation of which was annexed by the applicant to his application, that the criminal conciliation procedure provided for by that code has three stages. The first consists in the conclusion of an amicable settlement between an experts’ committee formed by decree and the defendants concerned. The second involves the ratification of the minutes of the settlement by the Cabinet. In the third stage, where conciliation takes place after final judgment has been delivered and the convicted parties have been imprisoned pursuant to that judgment, the Egyptian Court of Cassation orders, at the request of those parties, which is referred to it by the Prosecutor General, a stay of execution of all penalties, if that court has ascertained that the amicable settlement has been concluded in compliance with all the requisite conditions.

121    It is apparent from the material provided by the applicant himself that the conciliation procedure to which he refers had not been brought to an end when the contested acts were adopted. That material refers only to the completion of the first two stages of the procedure (conclusion of an amicable settlement with the experts’ committee and ratification of that settlement by the Cabinet).

122    Furthermore, the applicant does not claim that the third and final stage of that procedure (referral by the prosecution to the Egyptian Court of Cassation and the latter’s order of a stay of execution of all penalties imposed) had already taken place when the contested acts were adopted. Moreover, he did not produce any reliable evidence that would plausibly suggest that that stage of the procedure was in progress, still less that it had been completed.

123    By contrast, it is apparent from that material, and corroborated by the information from the Egyptian authorities, that, in the Egyptian Prosecutor General’s view, the proposal by the applicant and his sons to repay the misappropriated sums in the case in question was not sent to the committee competent to conclude that agreement and that the Prosecutor General therefore declined to initiate the third stage of the conciliation procedure mentioned above (see the letter dated 16 January 2017 from the applicant’s lawyer to the Prosecutor General).

124    It is not for the Council to call into question the position taken by the Egyptian authorities, which is that the applicant approached a committee in that case that had no jurisdiction, the applicant, who merely invokes misuse of power, having failed, moreover, to submit any information that might give rise to legitimate questions concerning the basis for that position.

125    It should be added that, in his written pleadings, the applicant did not call into question the Council’s contention, in its letter dated 21 March 2018, that he had not referred to any proceedings having been brought in the Egyptian courts to resolve his dispute with the Prosecutor General about the status of the payment that he had made in the context of his conciliation request. At the hearing, the applicant’s lawyer, having been invited to comment on that issue, merely indicated that he was not aware of the existence, in Egyptian law, of a legal remedy that would enable that dispute to be resolved. However, he did not provide any specific information to suggest that he had ascertained, notably from the applicant’s representatives in Egypt, whether or not such a remedy exists.

126    Consequently, the Council was entitled to consider that, in that case, the applicant was still subject to judicial proceedings within the meaning indicated in paragraph 112 above, that is to say, proceedings including the enforcement of a final ruling, for conduct that could be characterised as misappropriation of State funds.

127    The applicant’s argument that the financial penalties imposed on him in that case did not justify maintaining the freezing of his assets in the European Union, given the precautionary nature of that measure, does not affect that finding.

128    It is apparent from the foregoing that the Council was fully entitled to find that the conciliation procedure, involving the repayment of the misappropriated funds, had not been concluded. It could therefore logically be inferred that the ongoing enforcement of the decision convicting the applicant continued to cover not only the payment of the fines imposed by that decision but also the repayment of the misappropriated funds ordered in that decision. The question whether the freezing of the applicant’s assets in the European Union was intended to enable the Egyptian authorities not only to recover the value of the misappropriated assets but also the amount of the financial penalties imposed because of the misappropriation that had taken place is therefore irrelevant in the present case.

129    Also irrelevant, for the reasons set out in paragraphs 108 to 112 above, is the question whether the Council was entitled to find that the applicant was, in the context of that case, subject to asset recovery proceedings initiated by the Egyptian authorities following a final court ruling concerning the misappropriation of State funds. That reason for the designation of the applicant on the lists at issue was superfluous, since the Council was entitled to rely on the other reason for his designation, namely that the applicant was subject to ongoing judicial proceedings.

130    The applicant’s arguments in relation to Case No 8897 of 2013 must therefore be rejected.

(2)    The judicial proceedings in Cases No 53 of 2013 and No 756 of 2012

131    In Case No 53 of 2013, first, the applicant maintains that he is not subject to any judicial proceedings in that case, as the information from the Egyptian authorities refers only to an investigation by the Egyptian Prosecutor General. Further, he contends that the facts mentioned do not correspond to acts that might be characterised as misappropriation of State funds within the meaning of the case-law. Last, he claims that he has repaid the total value of the alleged gifts in that case.

132    The Council disputes those arguments.

133    Case No 53 of 2013 relates to the distribution of gifts to high-ranking individuals by an Egyptian State-owned news organisation, Dar-Al-Tahrir. The information from the Egyptian authorities provided before the adoption of the 2017 acts refers to the involvement of the applicant and members of his family and indicates that the Egyptian Prosecutor General’s investigations are ongoing and have not yet given rise to a referral to a criminal court. When that information was updated prior to the adoption of the 2018 acts, those authorities added that a payment order in the amount of 1 398 727 Egyptian pounds (approximately EUR 68 500) had been issued in order to repay the value of the gifts.

134    It should be borne in mind that, in accordance with the criteria set out in the case-law (judgments of 5 March 2015, Ezz and Others v Council, C‑220/14 P, EU:C:2015:147, paragraphs 73 and 81, and of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 67), the Council is entitled, in the context of Decision 2011/172, to take account of ongoing investigations to determine the relevant person’s responsibility in the misappropriation of State funds, including investigations conducted by the Egyptian Prosecutor General, who must be regarded as a judicial authority.

135    The investigations in Case No 53 of 2013, which were still underway both when the 2017 acts and when the 2018 acts were adopted, therefore constitute judicial proceedings within the meaning of Decision 2011/172 and Regulation No 270/2011.

136    Furthermore, as the Council submits, the conduct at issue, that is to say, the purchase of luxury consumer goods by an Egyptian State-owned entity — whose funds are therefore capable of being controlled by the State — with a view to offering them to senior State officials, may be characterised as misappropriation of State funds.

137    The fact that an amount equivalent to the value of the gifts concerned was repaid cannot call into question the Council’s ability to rely on that information in order to adopt the contested acts. It is for the Egyptian authorities to draw the appropriate conclusions from the steps taken by or on behalf of the applicant for the continuation of the judicial proceedings against him.

138    In addition, the applicant’s assets in the European Union are not frozen because he is allegedly the beneficiary of the misappropriation of State funds but because his involvement in that conduct, whatever its nature, is the subject of judicial proceedings.

139    Last, the applicant’s assertion that it would be appropriate for the Council to call for ‘official documents’ to prove that he is indeed subject to judicial proceedings in the case in question is based entirely on the unsubstantiated premiss that the Prosecutor General has, repeatedly and intentionally, provided false and misleading information.

140    In any event, it is apparent from the material in the file that the Egyptian authorities informed the Council of the closure of a number of judicial proceedings involving the applicant, in particular in Case No 756 of 2012 (see paragraphs 142 to 145 below), and that, as regards the present case, it carried out checks to which those authorities responded before the adoption of the 2018 acts in the terms indicated in paragraph 133 above. The Council did not, therefore, have an objective reason to question the reliability of the information sent by those authorities, notably as regards the question whether the judicial proceedings concerned were still pending.

141    It follows from the foregoing that, on the date of the adoption of the 2017 and 2018 acts, the evidence relating to Case No 53 of 2013, provided by the Egyptian authorities, constituted a sufficiently solid factual basis for maintaining the applicant’s designation on the lists at issue.

142    As regards Case No 756 of 2012, it should be borne in mind that, according to the information provided by the Egyptian authorities before the adoption of the 2017 acts, the applicant, his principal associates, his wife, his sons and his daughters-in-law are suspected of having received, between 2006 and 2011, luxury gifts purchased improperly by the State-owned Al-Arham newspaper. It is also indicated that the investigating magistrate to whom the case had been referred had recently decided to dismiss the charges against the accused and to close the case, and that the Egyptian Prosecutor General had appealed against that decision. When updating that information before the adoption of the 2018 acts, the Egyptian authorities stated that the case had been closed as regards members of the applicant’s family, following payment of the value of the gifts concerned to the news organisation mentioned above.

143    Consequently, for reasons similar to those set out in paragraphs 134 to 138 above, the Council was entitled to rely on the ongoing investigations in that case as regards the 2017 acts.

144    The fact that the Council did not mention that case before the General Court as being capable of supporting the applicant’s designation on the lists at issue in 2017 is irrelevant in that regard. As stated in paragraph 116 above, it must be held that the Council intended to rely on all the ongoing judicial proceedings relating to the misappropriation of State funds to which the applicant was subject, according to the information from the Egyptian authorities available on the date of the adoption of the contested acts.

145    By contrast, the Council could no longer properly rely on the evidence in relation to that case as regards the 2018 acts, since it had been informed by the Egyptian authorities, prior to the adoption of those acts, that the case had been closed as regards members of the applicant’s family, following repayment of the value of the gifts concerned.

146    It follows from the foregoing that the Council was entitled to rely, as regards the 2017 acts, on the judicial proceedings pending in Cases No 53 of 2013 and No 756 of 2012 and, as regards the 2018 acts, on the judicial proceedings in Case No 53 of 2013.

147    Accordingly, it follows from all of the above that, in accordance with the case-law recalled in paragraph 116 above, the Council could properly rely on the existence of judicial proceedings in Case No 8897 of 2013 for the purpose of maintaining the applicant’s designation on the lists at issue both in 2017 and in 2018. In addition, and in any event, it was also entitled to rely, in relation to the 2017 acts, on the judicial proceedings pending in Cases No 53 of 2013 and No 756 of 2012 and, in relation to the 2018 acts, on the judicial proceedings pending in Case No 53 of 2013. Consequently, the applicant’s arguments in relation to the other judicial proceedings mentioned by the Egyptian authorities must be rejected as ineffective and it is not necessary to examine them.

148    The third plea in law must therefore be rejected.

4.      Fourth plea in law: infringement of the rights of the defence, of the right to good administration and of the right to effective judicial protection

149    In the context of this plea, the applicant puts forward three complaints. First, he maintains that, notwithstanding the period that has elapsed since the initial decision was adopted, he has not been given any serious and credible evidence or concrete evidence in support of a case that would justify the imposition of restrictive measures on him. Second, he asserts that the Council failed to inform him in advance of the ‘actual grounds’ relied on in his case and did not provide him with an opportunity to make his views known prior to the adoption of the 2017 acts. In particular, he claims that in spite of his repeated requests, the Council merely forwarded the information supplied by the Egyptian authorities without stating how it was relevant to his re-designation on the lists at issue. Nor did the Council provide any explanation of the scope of the concepts of ‘asset recovery process’ or ‘final ruling’. Third, the applicant claims that there is no evidence that the Council carried out a careful and impartial examination of the merits of the alleged grounds, given the lack of response on its part to the exculpatory evidence which the applicant produced before the contested acts were adopted and in the light of the cursory rejection of his representations in the letters of 22 March 2017 and 22 March 2018. In addition, the absence of internal documents relating to the analysis of the information supplied by the Egyptian authorities, and the fact that the ‘Mashreq/Maghreb’ working party had already made its recommendations before the applicant was able to submit his observations, show, in his submission, that the Council simply ‘rubber-stamped’ that information.

150    The Council disputes those arguments.

151    According to settled case-law, the Courts of the European Union must ensure, in accordance with the powers conferred on them by the FEU Treaty, the review, in principle the full review, of the lawfulness of all Union acts in the light of the fundamental rights forming an integral part of the EU legal order, which include, inter alia, respect for the rights of the defence and the right to effective judicial protection (judgments of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 326, and 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 97 and 98).

152    In particular, in a procedure for the adoption of the decision to designate a person on a list of persons and entities whose assets are to be frozen or the decision to renew that designation, respect for the rights of the defence requires that the competent EU authority disclose to the individual concerned the evidence against that person available to that authority and relied on as the basis of its decision, so that that individual is in a position to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in bringing an action before the Courts of the European Union. In addition, when that disclosure takes place, the competent EU authority must ensure that that individual is placed in a position in which he may effectively make known his views on the grounds advanced against him. Last, as regards a decision whereby the name of the individual concerned is to be maintained on such a list, compliance with that dual procedural obligation must, contrary to the position in respect of an initial listing, precede the adoption of that decision (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 111 to 113 and the case-law cited). By contrast, it follows from the case-law that where that decision merely renews the designation of the individual concerned on such a list without amending the grounds for maintaining that listing, the Council cannot be required to comply with that dual procedural obligation (see, to that effect and by analogy, judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraphs 26 and 27).

153    However, respect for the right to be heard presupposes that the individual concerned always retains the right to submit observations, a fortiori during regular reviews of the restrictive measures adopted against him (see, to that effect and by analogy, judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 28). The right to be heard also means that, when comments are made by the individual concerned on the summary of reasons, the competent EU authority is under an obligation to examine, carefully and impartially, whether the alleged reasons are well founded, in the light of those comments and any exculpatory evidence provided with those comments, since the obligation to state reasons for the decision by identifying the individual, specific and concrete reasons why the competent authorities consider that the individual concerned must be subject to restrictive measures is the corollary of that right (see, to that effect, judgments of 22 November 2012, M., C‑277/11, EU:C:2012:744, paragraph 88, and 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 114 and 116).

154    With regard to the first complaint, it is apparent from the documents which the applicant himself added to the case file that the Council sent him, in good time, information about him that was provided by the Egyptian authorities (i) before the adoption of the 2017 acts and (ii) before the adoption of the 2018 acts. That information is sufficiently detailed and specific with respect to the nature of the proceedings, the facts and the persons concerned and the stage that each of those proceedings had reached, and includes, where appropriate, responses to the applicant’s comments on the basis of those proceedings (see, in particular, the material supplied in Cases No 8897 of 2013 and No 53 of 2013). It therefore enables him to put forward a proper defence. Moreover, in so far as that complaint relates to a lack of solid evidence or credible proof that would substantiate the contested acts, it must be rejected as ineffective in the context of the present plea, since that is a question which concerns the merits of those acts and not the issue as to whether rights of defence were respected during the adoption of those acts.

155    With regard to the second complaint, it must be noted that the fact that the Council did not expressly indicate to the applicant the relevance of the various judicial proceedings referred to by the Egyptian authorities as relating to him has no specific effect on his rights of defence. Since the grounds for the designation of the applicant are set out in the lists at issue, as amended by the contested acts, the applicant was in a position to discuss the relevance of those judicial proceedings in the light of those grounds, which, moreover, he did do in the context of the third plea. The mere fact that, in the absence of clarification by the Council, he was required, as he claims, to submit observations on all the judicial proceedings concerned could not affect his rights of defence. Furthermore, the concepts of ‘asset recovery process’ and ‘final ruling’ are sufficiently clear to enable him to submit his observations on the new ground introduced by the 2017 acts. The second complaint must therefore be rejected.

156    As regards the third complaint, first of all, it should be noted that the fact that the Council did not reply in detail to all the arguments which the applicant put forward in his letters prior to the adoption of Decision 2017/496 does not mean that it did not examine them to the requisite legal standard. It is, moreover, apparent from the Council’s letters of 22 March 2017 and 21 March 2018 that the Council replied, albeit succinctly, to the main objections raised by the applicant prior to the adoption of the contested acts and, in particular, stated its views as regards Case No 8897 of 2013, and in the context of the second of those letters, as regards Case No 53 of 2013. It is therefore evident from those letters that the Council took into account the applicant’s observations on those two cases for the purpose of the adoption of those acts.

157    Next, the fact that the Council did not give the applicant access to internal documents containing an analysis of the information provided by the Egyptian authorities does not mean that no such analysis was carried out. Moreover, as is apparent from paragraph 152 above, upholding the applicant’s rights of defence merely entails the Council’s disclosure to him of the material available to it that concerns him, and not the disclosure to him also of the analysis of that material undertaken by the Council’s services, unless the relevance and scope of that material cannot immediately be inferred from its content and requires explanation, which is not the case here.

158    Furthermore, it has consistently been held that although, in order for the rights of the defence to be observed, the EU institutions must enable the persons concerned to make their views known effectively, those institutions cannot be required to accept them (see judgment of 30 June 2016, Jinan Meide Casting v Council, T‑424/13, EU:T:2016:378, paragraph 126 and the case-law cited). Consequently, it cannot be inferred merely from the fact that the Council relied on some of the information provided by the Egyptian authorities, notwithstanding the applicant’s submissions calling into question its relevance and accuracy, that there was no careful and impartial examination of that information.

159    In any event, the question whether the Council was required to accept that information or carry out further checks concerns the merits of the contested acts.

160    Last, the argument concerning the date on which the proposal to renew the applicant’s designation was put forward by the ‘Mashreq/Maghreb’ working party, that is 20 February 2017, is irrelevant. First, that proposal is merely a preparatory act which does not prejudge the possibility of the Council taking into account the applicant’s subsequent observations in its final decision. Second, although it is the case that the Council only disclosed to him in its letter of 9 February 2017 the information on which it intended to rely in order to adopt the contested acts, the applicant had a sufficient, albeit admittedly short, period of time to submit observations, given that, as is evident from the documents in the case file, that information simply updated matters of which the applicant had already been aware in 2015 and 2016.

161    Therefore, since none of the complaints raised by the applicant in connection with the fourth plea can succeed, this plea must be rejected.

5.      Fifth plea in law: unjustified and disproportionate restriction of the applicant’s right to property and damage to his reputation

162    According to the applicant, the freezing of his assets in the European Union does not satisfy either of the two conditions laid down in the case-law for the restriction of his rights, namely, first, that that freezing of assets must pursue an objective of general interest and, second, that it must be necessary and proportional to that objective.

163    As regards the first condition, the applicant maintains that the objective of supporting the rule of law in Egypt cannot constitute a credible objective of the freezing of his assets, given that the Egyptian authorities have taken no steps to recover his assets in the European Union since 2011, contrary to what was declared in their letter of 22 February 2011, and that the current Egyptian regime is undermining democracy, the rule of law, human rights and the principles of international law.

164    As to the second of those conditions, he submits that the asset freeze imposed by the Council is not necessary in so far as, in its letter of 21 February 2011, the Egyptian Government had requested the judicial authorities of certain Member States to freeze the assets of the applicant and of members of his family. Furthermore, he states that there is no reference to a transfer of his assets to the Member States of the European Union in the judicial proceedings on which the Council relies. In addition, he asserts that the freezing of all his assets in the European Union is not the least onerous measure. Last, having failed to make enquiries in order to determine the amount of the funds misappropriated since 2011, the Council can, in the applicant’s submission, no longer rely on the findings of the General Court in paragraph 208 of the judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93). In the statement of modification, the applicant argues that his assets have been frozen for seven years and that that period reinforces the disproportionate nature of the measure.

165    The Council disputes those arguments.

166    It should be borne in mind in that regard that, according to the case-law, in view of the Council’s broad discretion in the present case, the legality of restrictive measures can be affected only if the measures are manifestly inappropriate in relation to the objective which the competent institution is seeking to pursue. The Council must be allowed that broad discretion, including in determining the nature and scope of those measures. Furthermore, it must also be noted that the right to property and the freedom to conduct a business are fundamental rights which are not, however, absolute, and whose exercise may be subject to restrictions justified by objectives of general interest pursued by the European Union. Consequently, restrictions may be imposed on the exercise of the freedom to pursue a trade or profession, as on the exercise of the right to property, in particular in the context of a Council decision or regulation imposing restrictive measures, provided that the restrictions do in fact correspond to objectives of general interest pursued and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed (see judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraphs 154 to 156 and the case-law cited). The same reasoning may be applied, mutatis mutandis, to the right to protection of the applicant’s reputation (see, to that effect, judgment of 25 March 2015, Central Bank of Iran v Council, T‑563/12, EU:T:2015:187, paragraph 115).

167    In the first place, the Court must examine the arguments calling into question the fact that the continued freezing of the applicant’s assets meets the objective of supporting the rule of law in Egypt.

168    As regards the applicant’s argument concerning the alleged failure of the Egyptian authorities to take steps to recover the misappropriated assets, only the judicial proceedings on which the Council was able to rely in order to renew the applicant’s designation should be taken into account. It must be noted that, as regards Cases No 756 of 2012 and No 53 of 2013, the judicial proceedings in those cases have not culminated in a decision containing a definitive ruling on the applicant’s liability with regard to the misappropriation of State funds. Furthermore, in Case No 8897 of 2013, the applicant acknowledged, in the context of the third plea, that the Egyptian authorities had made a request for legal assistance, at least to the United Kingdom authorities for the recovery of misappropriated funds.

169    As regards the applicant’s argument concerning the current political situation in Egypt, it is sufficient to note that, for the reasons set out in paragraphs 80 to 95 and 97 above, the applicant’s arguments in the second part of the second plea, alleging that the freezing of his assets is manifestly inappropriate in the light of the objectives of Decision 2011/172 and Regulation No 270/2011, must be rejected.

170    Consequently, the applicant has failed to establish that the condition that the freezing of his assets must pursue an objective of general interest — in this case, the objective of supporting the rule of law in Egypt — is not met.

171    In the second place, the Court must examine the arguments as to the lack of necessity and proportionality in the freezing of the applicant’s assets in the European Union.

172    First of all, the freezing of the applicant’s assets is an independent measure designed to attain the objectives of the CFSP, not a measure designed to respond to a request by the Egyptian authorities for legal assistance (see, to that effect and by analogy, judgments of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 151 and the case-law cited, and of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 146). The question whether measures taken by Member States’ judicial authorities are best suited to meeting the Egyptian authorities’ request for legal assistance and to best protecting the applicant’s fundamental rights is therefore irrelevant.

173    In any event, inasmuch as it applies to the whole of the territory of the European Union, that freezing of funds is clearly better able to safeguard the integrity of the assets covered than a series of decisions taken individually by the national authorities.

174    In addition, that measure, which is temporary and reversible, is subject to certain limitations and derogations which are intended to safeguard the essence of the applicant’s right to property and his freedom to conduct a business, and is subject to review, in principle a full review, by the Courts of the European Union in the light of fundamental rights and, in particular, the rights of the defence and the right to effective judicial protection.

175    As regards the right to reputation, first, it is sufficient to note that the grounds for the applicant’s designation in the annex to Decision 2011/172 and Regulation No 270/2011 do not mention the specific circumstances of the acts to which the judicial proceedings or the asset recovery proceedings concerning the applicant relate, but merely mention the Egyptian authorities’ classification of those acts as criminal. Second, the Council confined itself to mentioning the existence of such proceedings without commenting on the question as to whether or not the applicant had been found guilty (see, to that effect and by analogy, judgment of 11 July 2018, Klyuyev v Council, T‑240/16, not published, EU:T:2018:433, paragraph 182). The damage to the applicant’s reputation does not therefore exceed that which is strictly necessary for the purposes of compliance with the obligation to state reasons.

176    Therefore, the applicant has not established that his rights would be better protected if the freezing of his assets was decided upon by the judicial authorities of the Member States.

177    Next, it is apparent from the case-law that the fact that the judicial proceedings to which the applicant is subject in Egypt do not refer to acts entailing the holding of unlawful assets in the European Union is irrelevant (see, to that effect and by analogy, judgment of 5 October 2017, Mabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 57 and the case-law cited).

178    Last, as regards the disproportionate nature of the asset freeze in dispute, it has repeatedly been held that a partial freezing of the assets of a person such as the applicant in the European Union would not enable the intended objective to be met (see, to that effect and by analogy, judgments of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraph 233, and of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 161).

179    Furthermore, as is apparent from paragraphs 174 and 175 above, the freezing of the applicant’s assets does not infringe the essence of his fundamental rights.

180    Moreover, even if the Council were in a position to determine the quantum of the misappropriated funds that have become part of the applicant’s assets, that still could not justify limiting the freezing of the applicant’s assets in the European Union to just part of those assets. Implementation of such a measure presupposes that the Council is able to determine the value of the assets held by the applicant in each of the Member States, which involves establishing police and judicial cooperation which in turn falls within the competence of those Member States and, moreover, does not fall within the scope of measures that are precautionary and not penal in nature, such as the contested acts. Accordingly, even on the assumption that the Court’s reasoning in paragraph 208 of the judgment of 27 February 2014, Ezz and Others v Council (T‑256/11, EU:T:2014:93) — that, at the time of the adoption of Decision 2011/172 and Regulation No 270/2011, the Council could not have known the quantum of any possible misappropriation of State funds by the first applicant in that case — is not applicable in the present case, this would have no effect on the proportionality of the contested acts.

181    It must be added that, in the light of the particular circumstances specific to the judicial proceedings on which the Council was entitled to rely (see paragraph 147 above), the duration of those proceedings does not appear to be manifestly excessive. The same applies therefore to the freezing of the applicant’s assets in the European Union.

182    Consequently, the applicant has not established that the freezing of his assets in the European Union is unnecessary or is disproportionate.

183    It follows from all of the foregoing that the fifth plea in law must be rejected.

184    Accordingly, since none of the pleas in the present action can be accepted, the action must be dismissed in its entirety, without there being any need to rule on the admissibility of the claim for annulment of Implementing Regulation 2018/465, in so far as it applies to the applicant (see, to that effect and by analogy, judgment of 5 October 2017, Ben Ali v Council, T‑149/15, not published, EU:T:2017:693, paragraphs 64 and 65).

 Costs

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

186    In the present case, since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Council.

On those grounds,

THE GENERAL COURT (Fifth Chamber),

hereby:

1.      Dismisses the action;

2.      Orders Mr Mohamed Hosni Elsayed Mubarak to bear his own costs and to pay those incurred by the Council of the European Union.

Delivered in open court in Luxembourg on 12 December 2018.

Table of contents

I. Background to the dispute and factual context

II. Procedure and forms of order sought

III. Law

A. Application for the adoption, by the Court, of measures of organisation of procedure

B. Substance

1. First plea in law: plea of illegality in respect of Article 1(1) of Decision 2011/172, as renewed by Decisions 2017/496 and 2018/466, and in respect of Article 2(1) of Regulation No 270/2011

(a) First part of the first plea, alleging that Article 1(1) of Decision 2011/172, as renewed by Decisions 2017/496 and 2018/466, and Article 2(1) of Regulation No 270/2011 have no legal basis

(b) Second part of the first plea, alleging breach of the principle of proportionality by Article 1(1) of Decision 2011/172, as renewed by Decisions 2017/496 and 2018/466, and Article 2(1) of Regulation No 270/2011

2. Second plea in law: infringement of Article 6 TEU, in conjunction with Articles 2 and 3 TEU and Articles 47 and 48 of the Charter

(a) First part of the second plea, alleging that the Council failed to satisfy itself that the applicant’s fundamental rights had been respected and applied an irrefutable presumption that the Egyptian authorities had respected those fundamental rights

(b) Second part of the second plea, alleging that the renewal of the applicant’s designation is manifestly contrary to the objectives referred to in recital 1 of Decision 2011/172

3. Third plea in law: infringement of the general criteria referred to in Article 1(1) of Decision 2011/172 and in Article 2(1) of Regulation No 270/2011

(a) General considerations

(b) The arguments relating to each of the judicial proceedings on which the renewal of the applicant’s designation on the lists at issue is based

(1) The judicial proceedings in Case No 8897 of 2013

(2) The judicial proceedings in Cases No 53 of 2013 and No 756 of 2012

4. Fourth plea in law: infringement of the rights of the defence, of the right to good administration and of the right to effective judicial protection

5. Fifth plea in law: unjustified and disproportionate restriction of the applicant’s right to property and damage to his reputation

Costs

*      Language of the case: English.

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