Mohamed Hosni Elsayed Mubarak and others v Council of the European Union

The European Court of Justice yesterday annulled sanctions imposed on the late former President of Egypt, Mohamed Hosni Elsayed Mubarak, and members of his family (for the sanctions imposed in the period 2016, 2017 and 2018). In doing so, the Court of Justice overturned the previous judgment of the General Court that had upheld the designations.

In its judgment, the Court has reaffirmed the principle that:

“...in a review of restrictive measures, the Courts of the European Union must ensure the review, in principle a 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, in particular, observance of the rights of the defence and the right to effective judicial protection.”

The Court annulled the designations on the basis that “the mere reference by the [EU] Council to letters and a memorandum from the Egyptian authorities, in which those authorities set out the manner in which the applicants’ fundamental rights had been observed and gave assurances in that regard....cannot suffice.”  The CJEU confirmed that the Council must itself verify observance of those rights (which was not done in the present case). According to the Court,“[t]he [EU] Council cannot conclude that a listing decision is taken on a sufficiently solid factual basis before having itself verified that the rights of the defence and the right to effective judicial protection were observed at the time of the adoption of the decision by the third State in question.”

The former President and his family have been represented by Brian Kennelly QC and Jason Pobjoy, along with Guy Martin, Charles Enderby Smith and François Holmey from Carter Ruck, for the past seven years. Brian, Jason and Carter Ruck continue to act for the family in ongoing litigation in the EU Courts.

Brian and Jason have extensive expertise in challenging and advising on EU and international asset-freezing sanctions, and are recognised as leading sanctions lawyers in the EU. They have represented over 30 individuals and entities in over a dozen challenges to asset-freezing regimes before the General Court of the EU and the Court of Justice. Many of their recent cases have resulted in the de-listing of the sanctioned individuals. They also have considerable experience in advising on sanctions compliance issues, and have acted in a number of the leading domestic cases concerning compliance with US, EU and other international sanctions.

A copy of the decision is available here.