31 Having regard to the wording of Articles 60 and 301 EC, especially to the expressions ‘as regards the third countries concerned’ and ‘with one or more third countries’ used there, those provisions concern the adoption of measures vis-à-vis third countries, since that concept may cover the leaders of such a country and also individuals and entities associated with or controlled, directly or indirectly, by them. The possibility cannot be ruled out that those in charge of certain businesses may be subject to restrictive measures adopted on the basis of Articles 60 and 301 EC, provided it is established that they are associated with the leaders of the third country targeted (see, to that effect, judgment in Tay Za v Council, C‑376/10 P, EU:C:2012:138, paragraphs 53 and 55).
32 Regulation No 314/2004 and the contested regulations amending it cited in paragraph 25 above concern the adoption of restrictive measures against the Republic of Zimbabwe.
33 According to recital 2 of Regulation No 314/2004, in view of the serious violations of human rights perpetrated by the government of that country, it was necessary to maintain the restrictive measures that had been in place since February 2002.
34 The restrictive measures in question took the form of the freezing of all the funds and economic resources belonging to the persons falling within the categories described in Article 6 of Regulation No 314/2004. Those persons are members of the Zimbabwean Government and natural or legal persons, entities and bodies associated with those members.
35 In the present case, it is apparent from the Annex to Regulation No 77/2009 that the name of the first applicant was included on the list of natural and legal persons, entities and bodies referred to in Article 6 of Regulation No 314/2004 on the ground that he had ‘strong ties to the Government of Zimbabwe’ and had ‘provided, including through his companies, financial and other support to the regime’ (see paragraph 5 above). The inclusion of that name was made under the power conferred on the Commission by Article 11(b) of that regulation and following the adoption of Common Position 2009/68.
36 As submitted by the Council and the Commission, the reasons for the inclusion of that name are wholly consistent with the concept of a person ‘associated with’ the leaders of the country affected by the restrictive measures. Indeed, in the light of the objectives of the restrictive measures, namely to prevent any assistance being given to the government targeted, the concept of a person ‘associated with’ must also include persons engaged in activities such as those described in paragraph 35 above. As a consequence, the inclusion of the name of the first applicant by Regulation No 77/2009 on the list of natural and legal persons, entities and bodies referred to in Article 6 of Regulation No 314/2004 is legitimately based on Articles 60 and 301 EC, on which Regulation No 77/2009 is itself, in turn, based.
37 That conclusion is also applicable with regard to the legal persons whose names are included on the list of persons referred to in Article 6 of Regulation No 314/2004 which are owned by the first applicant. As the Council argued, in order for restrictive measures to be effective, it clearly must be possible to adopt such measures in respect of any legal person owned by a natural person associated with the leaders of the country concerned. It follows that, as the names of the second and third applicants were included on the lists in question on the basis that they were owned by the first applicant, the inclusion of those names is legitimately based on Articles 60 and 301 EC. The same applies with regard to the inclusion of Breco International, which is based on exactly the same reason, so that Regulation No 314/2004 was legitimately based on those articles as regards the inclusion of that company.
Continued next page
(2965 VIEWS)
