55 It is apparent from the above that the first three applicants and Breco International approached the Commission, no later than 9 March 2009, requesting access to evidence relied on to justify the inclusion of the first three applicants and Breco International on the list of persons referred to in Article 6 of Regulation No 314/2004. However, the Commission, which adopted both Regulation No 77/2009, under which the applicants were first included on the lists in question, and Regulations No 173/2010 and No 174/2011, did not comply with that request.
56 Even if that failure to comply on the part of the Commission may be regarded as capable of having prevented the first three applicants from stating their point of view effectively on the measure which the Commission had adopted in their regard, it must nonetheless be ascertained whether, given the circumstances of the case, that simply amounts, in any event, to an immaterial error on the basis that, had there been no error, the applicants would not have been better able to defend themselves (judgment of 4 February 2014 in Syrian Lebanese Commercial Bank v Council, T‑174/12 and T‑80/13, EU:T:2014:52, paragraph 146).
57 In that regard, it should be noted that the applicants state that, on 19 February 2009, they submitted to the Foreign & Commonwealth Office (FCO), pursuant to the Freedom of Information Act 2000, an application for access to documents concerning the inclusion of the first three applicants and Breco International on the list of persons referred to in Article 6 of Regulation No 314/2004. In answer to that request, on 2 June 2009 the FCO provided a list of 17 documents and copies of 2 other documents, all of which were available to the public. Those documents included a report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo (‘the Panel of Experts’) of 8 October 2002, endorsed by the United Nations Security Council (UN) (‘the report of 8 October 2002’), a series of press articles concerning the first applicant and a number of internet links to information on the companies in question.
58 Furthermore, following the adoption of Decision 2011/101 and Regulation No 174/2011, the first applicant submitted a further request to the FCO on 4 November 2011 relating to documents concerning his inclusion on the list of persons referred to in Article 6 of Regulation No 314/2004. In reply to that request, the FCO provided the first applicant with a list of 15 documents, including, inter alia, the report of 8 October 2002 and a series of press articles.
59 It should also be noted that, as observed by the Council, the Commission informed the first applicant that his name had been included on the list of persons referred to in Article 6 of Regulation No 314/2004 by letter of 27 January 2009 and invited him, by letter of 18 December 2009, to submit his observations and any request to remove his name from the list to the Council. The first applicant also wrote, by letters of 26 October and 26 November 2009 and 10 February 2010, to all the members of the Council, setting out his observations on the inclusion of his name and the names of his companies on the lists in question. By letter of 16 February 2010, the Council disputed the first applicant’s arguments, referring, inter alia, to the evidence contained in the second report drawn up under the aegis of the UN on 15 October 2003 (‘the report of 15 October 2003’) by the Panel of Experts. The Council informed the first applicant that those names would be maintained on the lists in question under Decision 2010/92. The first applicant replied to that letter by letter of 19 April 2010, to which the Council replied by letter of 7 June 2010. Lastly, by letter of 13 May 2011, the first applicant submitted his observations to the High Representative of the Union for Foreign Affairs and Security Policy and received a reply from the European External Action Service dated 29 June 2011. Moreover, in reply to two letters from the first applicant of 11 October and 3 November 2011, the Council pointed out, by letter of 9 November 2011, that he could at any time submit a request, with supporting documentation, for the restrictive measures to be reconsidered.
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