Common foreign and security policy – Restrictive measures against persons and entities with a view to combating terrorism

Judgment

T-400/10

17.12.2014

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Reference for a preliminary ruling

Hamas v Council

General Court

2nd Ch.

F. Dehousse

/

Restrictive measures

Keywords

Common foreign and security policy — Restrictive measures against certain persons and entities with a view to combating terrorism — Freezing of funds — Factual basis of the decisions to freeze funds — Reference to terrorist acts — Need for a decision of a competent authority for the purpose of Common Position 2001/931 — Obligation to state reasons — Temporal adjustment of the effects of an annulment

Significant points

  1. In accordance with a consistent line of decisions relating to successive fund-freezing measures adopted under Regulation No 2580/2001, an applicant still has an interest in obtaining annulment of a decision imposing restrictive measures which has been repealed and replaced by a subsequent restrictive decision, in so far as the repeal of an act of an institution does not constitute recognition of the unlawfulness of that act and has only prospective effect, unlike a judgment annulling an act, by which the annulled act is eliminated retroactively from the legal order and is deemed never to have existed (judgment of 12 December 2006 in Organisation des Modjahedines du peuple d’Iran v Council, T‑228/02, ‘OMPI T‑228/02’, ECR, EU:T:2006:384, paragraph 35; see also judgments of 23 October 2008 in People’s Mojahedin Organization of Iran v Council, T‑256/07, ‘PMOI T‑256/07’, ECR, EU:T:2008:461, paragraphs 45 to 48 and the case-law cited, and 30 September 2009 in Sison v Council, T‑341/07 ‘Sison T‑341/07’, ECR, EU:T:2009:372, paragraphs 47 and 48).
  2. In the first place, it should be borne in mind that, after adopting, on the basis of decisions of competent national authorities, a decision to include a person or a group on the list relating to frozen funds, the Council must satisfy itself at regular intervals, at least once every six months, that there are still grounds for maintaining that person or group on the list.
  3. Although verification that there is a decision of a national authority meeting the definition in Article 1(4) of Common Position 2001/931 is an essential precondition for the adoption, by the Council, of an initial decision to freeze funds, the verification of the consequences of that decision at national level is imperative in the context of the adoption of a subsequent decision to freeze funds (OMPI T‑228/02, EU:T:2006:384, paragraph 117, and judgment of 11 July 2007 in Sison v Council, T‑47/03, EU:T:2007:207, paragraph 164). The essential question when reviewing whether to continue to include a person on the list is whether, since that person was included on the list or since the last review, the factual situation has changed in such a way that it is no longer possible to draw the same conclusion in relation to the involvement of that person in terrorist activities (judgment of 15 November 2012 in Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, ECR, EU:C:2012:711, paragraph 82).
  4. In that regard, the Court cannot accept that the statement of reasons may consist merely of a general, stereotypical formulation, modelled on the drafting of Article 2(3) of Regulation No 2580/2001 and Article 1(4) or (6) of Common Position 2001/931. In accordance with the principles referred to above, the Council is required to state the matters of fact and of law which constitute the legal basis of its decision and the considerations which led it to adopt that decision. The grounds for such a measure must therefore indicate the actual and specific reasons why the Council considers that the relevant rules are applicable to the party concerned (see OMPI T‑228/02, EU:T:2006:384, paragraph 143 and the case-law cited).
  5. Accordingly, both the statement of reasons for an initial decision to freeze funds and the statement of reasons for subsequent decisions must refer not only to the legal conditions of application of Regulation No 372/2001, in particular the existence of a national decision taken by a competent authority, but also to the actual and specific reasons why the Council considers, in the exercise of its discretion, that the person or entity concerned must be made the subject of a measure freezing funds (Sison T‑341/07, paragraph 59 above, EU:T:2009:372, paragraph 60).

 

Noteworthy

 The General Court has once again annulled the imposition of restrictive measures by the European Council on a legal person for a lack for factual reasoning in support of the decision to impose such measures. Consistent with its case-law in Case T‑58/12 Nabipour and Others v Council [2013], the General Court has suspended the effects of the annulment, in order to avoid the risk of serious and irreversible harm to the effectiveness of the restrictive measures, for a period of three months from the delivery of the judgment or, if an appeal is lodged, until the Court of Justice has given judgment on that appeal.