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sanctions on Zimbabwe in a case filed by Senator Aguy Georgias at the General Court of the European Union to claim damages against the European Commission and the Council of the European Union.
Court authorities in Luxembourg have allocated Georgias’ case to the Third Chamber but are yet to name the Judge to preside over the case out of the seven Judges that sit in that chamber.
Barrister Hugh Mercer QC, of Essex Court Chambers instructed by Malcolm Robson and Elizabeth Goulder, solicitors of London law firm Bates, Wells and Braithwaite last month filed two applications, one for damages and the other to expedite the proceedings.
The London solicitors representing Trinity Engineering, Georgias Trucking and businessman Senator Aguy Georgias, who are making a claim for non-contractual damages against the EU under Article 340 of the Treaty for the European Union (TFEU), now await the decision of the court on the two applications filed.
Georgias, who is also Deputy Minister of Public Works, contends that the EU institutions have taken unlawful action in the adoption of Commission Regulation 412/2007 (which amended the initial implementing Council Regulation 312/2004) which led to Senator Georgias’ wrongful inclusion within the sanctions regime for a period of almost five years. Lawyers representing the European Commission, Sandra Bartlett and Minas Konstantinidis and the Council of the Council of the
European Commission, Mr Bart Driessen and Mr Guillaume Ettienne, iocedun response to letters written to them by the General Court on April 17 inviting them to lodge observations on Georgias’ application for expedited procedure have however, sought to quash Georgias’ request. In separate responses they have argued that the grounds on which Georgias is seeking expedited procedure are not sufficient to warrant exceptional treatment. The decision, however, rests with the court.
It was expected that the court would make a ruling last Friday. Should the court however, rule against expedited procedure EU lawyers still have no more than a month to respond to Georgias claim for damages.
Since his inclusion on the EU sanctions regime in 2007, Georgias has fought a lone legal battle resulting in the litigation now commenced in the EU General Court.
The Senator has refused to be distracted even when some of his colleagues in government, who according to Georgias include the legal minds, have in the past even labelled him delusional by pursuing court action against the EU. Hugh Mercer, in making the claim for damages makes compelling arguments in which he cites more than 16 cases of EU case law in arguing that EU actions were unlawful in the adoption of Commission Regulation 412/2007 which amended Council Regulation 314/2004 and/or in the renewals (implicit or otherwise) of Regulation 314/2004 through;
1. Manifest error of assessment of the facts combined with breaches of the rights of defence and of the right to an effective judicial remedy;
2. Misuse of power;
3. Breach of rights of defence with regard to the renewals of the asset freezing measures.
The only grounds on which Senator Georgias’ name was included on the EU sanctions list were that he was a deputy minister in the Government of Zimbabwe. Hugh Mercer will argue that this does not provide sufficient information for the inclusion of Georgias on the travel ban list. If it were so, Mercer argues, then why is it that “none of the ministers or deputy ministers affiliated to either of the MDC formations have been the subject of sanctions”.
Mercer states further that “accordingly, in light of Council and Commission practice since 11 February 2009 when Morgan Tsvangirai of the MDC was sworn in as Prime Minister pursuant to the Global Political Agreement between Zanu-PF and the two MDC formations on resolving the challenges facing Zimbabwe (15 September 2008), it is clear beyond doubt that the fact of accepting office as a deputy minister is not sufficient to justify inclusion in the asset freezing measure in the Council Regulation”.
Georgias’ name, along with 35 others, was removed from the EU sanctions list on February 23, 2011.
This, however, came at a time when Georgias had already instituted legal action against the EU. To date he has spent thousands of personal funds in legal fees.
His case is set to expose the illegality of EU sanctions against Zimbabwe.
Meanwhile as Georgias’ solicitors await the response from the EU General Court to their applications, their trail-blazing case appears to have inspired more legal action against the EU with the latest legal challenge to the EU sanctions regime coming from Attorney-General Johannes Tomana in a case just filed with the EU Court.
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