Relatives of Ben Ali get it right

(BRUSSELS2) Mohamed Trabelsi, the nephew of former Tunisian President Ben Ali, Chiboub and Al Matri, his sons-in-law, obtained, on Wednesday (28 May), from the General Court of the European Union, the annulment of the sanctions imposed on their against: asset freeze, visa ban. For the judges, the question is a question of legal hierarchy and motivation of the act (cases T-187/11, T-188/11 and T-200/11).

Pattern difference

In the decision (of January 31, 2011) which enacted sanctions against certain Tunisian leaders associated with the Ben Ali regime, the European Union intended to target people " responsible for the embezzlement of Tunisian public funds » and those associated with them (1). The execution decision taken on this basis justified this inscription on a "black list" by the fact that they were doing " the object of a judicial inquiry by the Tunisian authorities" for deeds done “in the context of money laundering operations” (2). Notion that " was not included in the decision " frame.

The judges were interested in this difference in motive. Does the notion of “embezzlement of public funds” necessarily cover or imply that of “money laundering”? they wonder. Knowing that it is with regard to Tunisian criminal law that it is necessary to place oneself, this proof is not provided according to them. It is thus established that an individual can be described, in accordance with Tunisian criminal law, as " responsible for the embezzlement of public funds " or associated with such a responsible person for the sole reason that he is the subject of a " judicial investigation "for facts of" money laundering ».

In European law (3), add the judges, "money laundering" covers in particular the intentional conversion and transfer of assets resulting from any criminal activity, with the aim of concealing or disguising the illicit origin of the said goods or to help any person who is involved in this activity to escape the legal consequences of his actions. A significantly different definition of embezzlement, which makes it possible to conceal the illicit origin of assets resulting from the embezzlement of public funds.

Decision annulled but effects maintained

This important decision should no doubt be challenged by the European authorities through an appeal in cassation before the Court of Justice. The judges remained cautious. If they reversed the decision, they have some " maintained the effects (...) until the expiry of the time limit for appealing against this judgment or, if an appeal is lodged within that time limit, until it is dismissed ». In doing so, they rejected the complainants' requests for the suspension of the measures.

For the court, if the sanction were lifted, Mohamed Trabelsi and the other complainants could be placed on the European blacklist (the list annexed to decision 2011/72) “ for reasons other than those mentioned in the contested decision ". And if the decision were totally annulled - therefore its effects removed retroactively - it "would be able to transfer all or part of its assets outside the European Union, with the result that serious and irreversible harm could be caused to the effectiveness of any assets freeze that may be, future, decided by the Board against him ».

The costs of the proceedings were entirely borne by the Council of the EU. As for the Republic of Tunisia, which intervened in the procedure, it will cover its own expenses. But no request for damages from the plaintiffs (they were asking for 150.000 euros) was accepted.

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• (1) Council Decision 2011/72/CFSP of 31 January 2011 and Council Regulation (EU) No 101/2011 of 4 February 2011 (OJ L 31, p. 1).
• (2) Council Implementing Decision 2011/79/CFSP of 4 February 2011 (OJ L 31, p. 40)
• (3) Directive 2005/60/EC of October 26, 2005 (OJ L 309 p. 15)