OPINION OF ADVOCATE GENERAL
SHARPSTON
delivered on 24 January 2019(1)
Case C‑458/15
Staatsanwaltschaft Saarbrücken
v
K. P.
(Request for a preliminary ruling from the Landgericht Saarbrücken (Regional Court, Saarbrücken, Germany))
(Reference for a preliminary ruling — Common Foreign and Security Policy — Restrictive measures taken against certain persons and entities with a view to combating terrorism — Freezing of funds — Common Position 2001/931/CFSP — Article 1(4) and (6) — Maintaining individuals, groups and entities on the list provided for in Article 2(3) of Council Regulation (EC) No 2580/2001 — Validity)
1. A collector of funds for an alleged terrorist organisation potentially faces jail in a Member State of the European Union. He disputes whether the national laws that he is accused of breaking are legally valid because the EU instruments which they implement were, in his view, adopted without an adequate statement of reasons. It is not the first time that the statement of reasons for the ‘listing’ of an alleged terrorist group has been placed under the microscope. This reference refocuses the magnifying glass.
2. The Landgericht Saarbrücken (Regional Court, Saarbrücken, Germany) seeks a ruling from this Court on the legality of certain EU acts maintaining the inclusion of the organisation known as the Liberation Tigers of Tamil Eelam (‘the LTTE’) on the list of persons, groups and entities to which Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism refers. (2) The reference was made in criminal proceedings brought against Mr K. P. (‘the defendant’). In the course of the procedure before this Court, Mr K. P. has raised a further issue relating to the adequacy of the reasoning behind the original Council decision including the LTTE on the list of proscribed organisations and whether that has any implications for the legality of the subsequent EU acts identified by the referring court in its order for reference.
Legal framework
International law
3. On 28 September 2001, in response to the terrorist attacks committed on 11 September 2001 in New York, Washington and Pennsylvania, the UN Security Council adopted Resolution 1373 (2001) (3) (‘Resolution 1373 (2001)’) on the basis of Chapter VII of the Charter of the United Nations. The preamble to that resolution reaffirms ‘the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts’. Point 5 declares that ‘acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and … knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations’.
4. Resolution 1373 (2001) does not lay down a list of entities or persons to whom measures which counter acts of terrorism should apply.
Common Positions 2001/931/CFSP and 2006/380/CFSP
5. On 27 December 2001, the Council of the European Union adopted Common Position 2001/931/CFSP on the application of specific measures to combat terrorism. (4)
6. The recitals to Common Position 2001/931 include the following statements: the European Council has declared that terrorism is a real challenge to the world and to Europe and that the fight against terrorism will be a priority objective of the European Union; the United Nations Security Council adopted Resolution 1373 (2001) laying out wide-ranging strategies to combat terrorism and in particular the fight against the financing of terrorism; and the European Union should take additional measures in order to implement that resolution. (5)
7. Article 1(1) of Common Position 2001/931 provides, inter alia, that that measure applies to persons, groups and entities involved in terrorist acts and listed in the Annex. Pursuant to Article 1(2), ‘persons, groups and entities involved in terrorist acts’ means:
– persons who commit, or attempt to commit, terrorist acts or who participate in, or facilitate, the commission of terrorist acts,
– groups and entities owned or controlled directly or indirectly by such persons; and persons, groups and entities acting on behalf of, or under the direction of, such persons, groups and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons, groups and entities.
8. Article 1(3) provides that ‘terrorist act’ means ‘one of the intentional acts listed which, given its nature or its context, may seriously damage a country or an international organisation, as defined as an offence under national law, where committed with the aim of …
(iii) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation … (k) participating in the activities of a terrorist group, including by supplying information or material resources, or by funding its activities in any way, with knowledge of the fact that such participation will contribute to the criminal activities of the group’.
9. Article 1(4) provides that ‘the list in the Annex shall be drawn up on the basis of precise information or material in the relevant file which indicates that a decision has been taken by a competent authority in respect of the persons, groups and entities concerned, irrespective of whether it concerns the instigation of investigations or prosecution for a terrorist act, an attempt to perpetrate, participate in or facilitate such an act based on serious and credible evidence or clues, or condemnation for such deeds … For the purposes of this paragraph “competent authority” shall mean a judicial authority, or, where judicial authorities have no competence in the area covered by this paragraph, an equivalent competent authority in that area’.
10. Article 1(6) states that ‘the names of persons and entities on the list in the Annex shall be reviewed at regular intervals and at least once every six months to ensure that there are grounds for keeping them on the list’.
11. In accordance with Article 3 of Common Position 2001/931, the European Union ‘acting within the limits of the powers conferred on it by the Treaty establishing the European Community, shall ensure that funds, financial assets or economic resources or financial or other related services will not be made available, directly or indirectly, for the benefit of persons, groups and entities listed in the Annex’.
12. Annexed to Common Position 2001/931 is a list entitled ‘First list of persons, groups and entities referred to in Article 1 ...’. The LTTE does not appear on that list. That Annex was revised on a number of occasions. It was subsequently replaced by Council Common Position 2006/380/CFSP of 29 May 2006 updating Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Common Position 2006/231/CFSP. (6) In the Annex to Common Position 2006/380, the LTTE was listed for the first time. (7)
Regulation No 2580/2001
13. The following statements are made in the recitals of Regulation No 2580/2001:
– The European Council declared that combating the funding of terrorism is a decisive aspect of the fight against terrorism and called upon the Council to take the necessary measures to combat any form of financing for terrorist activities.
– In Resolution 1373 (2001), the United Nations Security Council decided that all States should implement a freezing of funds and other financial assets or economic resources as against persons who commit, or attempt to commit, terrorist acts or who participate in or facilitate the commission of such acts.
– In addition, the Security Council decided that measures should be taken to prohibit funds and other financial assets or economic resources from being made available for the benefit of such persons, and to prohibit financial or other related services from being rendered for the benefit of such persons.
– Action by the European Union is necessary in order to implement the CFSP aspects of Common Position 2001/931.
– Member States should lay down rules on sanctions applicable to infringements of the provisions of Regulation No 2580/2001 and ensure that they are implemented.
– The list referred to in Article 2(3) of Regulation No 2580/2001 may include persons and entities linked or related to third countries as well as those who otherwise are the focus of the CFSP aspects of Common Position 2001/931. (8)
14. Pursuant to Article 1(1) of Regulation No 2580/2001, ‘“funds, other financial assets and economic resources” means assets of every kind, whether tangible or intangible, movable or immovable, however acquired …’. Article 1(4) states that the definition of ‘terrorist act’ is the same as that contained in Article 1(3) of Common Position 2001/931.
15. Article 2 provides:
‘1. Except as permitted under Articles 5 and 6:
(a) all funds, other financial assets and economic resources belonging to, or owned or held by, a natural or legal person, group or entity included in the list referred to in paragraph 3 shall be frozen;
(b) no funds, other financial assets and economic resources shall be made available, directly or indirectly, to, or for the benefit of, a natural or legal person, group or entity included in the list referred to in paragraph 3.
2. Except as permitted under Articles 5 and 6, it shall be prohibited to provide financial services to, or for the benefit of, a natural or legal person, group or entity included in the list referred to in paragraph 3.
3. The Council, acting by unanimity, shall establish, review and amend the list of persons, groups and entities to which this Regulation applies, in accordance with the provisions laid down in Article 1(4), (5) and (6) of Common Position 2001/931/CFSP; such list [“the Article 2(3) list”] shall consist of:
(i) natural persons committing, or attempting to commit, participating in or facilitating the commission of any act of terrorism;
(ii) legal persons, groups or entities committing, or attempting to commit, participating in or facilitating the commission of any act of terrorism;
(iii) legal persons, groups or entities owned or controlled by one or more natural or legal persons, groups or entities referred to in points (i) and (ii); or
(iv) natural legal persons, groups or entities acting on behalf of or at the direction of one or more natural or legal persons, groups or entities referred to in points (i) and (ii).’
The inclusion of the LTTE on the list provided for in Article 2(3) of Regulation No 2580/2001
16. Article 1 of Council Decision 2006/379/EC (9) included the LTTE for the first time on the Article 2(3) list (‘the original listing decision’). (10)
17. That listing was maintained by Council Decision 2007/445/EC. (11) The recitals to that decision state that the Council provided all persons, groups and entities, where practically possible, with statements of reasons explaining why they had been listed in, inter alia, Decision 2006/379. (12) A notice was published in the Official Journal of the European Union informing the persons concerned that the Council intended to maintain their entry on the Article 2(3) list. Those persons were also informed that they could request the Council’s statement of reasons for their inclusion on the list. (13) The Council sent the LTTE a letter dated 29 June 2007 to which it attached a statement of reasons explaining the decision to maintain that organisation on the Article 2(3) list.
18. The inclusion of the LTTE on the Article 2(3) list was further maintained by the following subsequent acts: (14) Council Decision 2007/868/EC; (15) Council Decision 2008/583/EC; (16) Council Decision 2009/62/EC; (17) and Council Regulation (EC) No 501/2009. (18)
19. In relation to each of those acts, the Council followed the pattern that it had established when deciding to maintain the LTTE’s listing by Decision 2007/445. Thus, the Council published a notification in the Official Journal of the European Union of its intention to maintain the listing before the act was adopted and it sent a communication setting out its reasons for renewing the listing once the act in question had been adopted.
German law
20. The Außenwirtschaftsgesetz (Law on foreign trade and payments, ‘the AWG’) in application between 2006 and 2009 prohibited the transmission of donations to proscribed organisations, such as the LTTE. In essence, infringement of the prohibition against exports, sales, supply, making available, transmission, services, investment, support or circumvention provided for in a legislative act of the ‘European Communities’ which serves to implement an economic sanction adopted by the Council of the European Union in the sector of the Common Foreign and Security Policy could result in the imposition of a custodial sentence. (19)
Facts, procedure and the question referred
21. By a criminal indictment dated 12 March 2015 issued by the Staatsanwaltschaft Saarbrücken (Public Prosecutor’s Office, Saarbrücken), Mr K. P. was brought before the referring court for trial. In those proceedings the public prosecutor alleges that, in the period from 22 August 2007 to 27 November 2009, by making funds available to the LTTE Mr K. P. infringed a directly applicable prohibition laid down in a legal act of the European Union which implements an economic sanction adopted by the Council of the European Union in the field of the Common Foreign and Security Policy. It is also alleged that, from 2007 to 2009, Mr K. P. was the regional organiser for the Saarland Region of the Tamil Coordination Committee (‘the TCC’) which, on behalf of the LTTE, raised donations from Tamils living in Germany that were then transferred to Sri Lanka and used in that country by the LTTE to finance the military struggle against the central government. The public prosecutor submits that Mr K. P. was part of the organisation’s hierarchy, responsible for supervising subordinate organisers for local districts and other persons acting locally as fundraisers, and reporting directly to the TCC’s national organisers for Germany.
22. It is alleged that, after receiving the funds collected by the individuals in his region who were subordinate to him, Mr K. P. transmitted those funds to the TCC at least once a month, on issuance of the corresponding donation receipts, and that the funds were then transmitted on to the LTTE in Sri Lanka. Specifically, it is alleged that, in the period from 11 August 2007 to 27 November 2009 (‘the material time’), Mr K. P. received donations on 43 separate occasions totalling EUR 69 385 and transmitted these to the TCC knowing, and also intending, that the funds would be transferred to Sri Lanka and used there to fund the aims of the LTTE. He is alleged to have been aware that the Council of the European Union had placed the LTTE on the list of associations covered by Regulation No 2580/2001; that an embargo thus existed; and that, consequently, the collection and transmission of such donations to Sri Lanka, like any other financial or material support for the LTTE, constituted a criminal offence.
23. At the trial on 1 July 2015, Mr K. P.’s lawyer challenged the legality of the EU acts at issue listing the LTTE as a proscribed organisation for the purposes of Article 2(3) of Regulation No 2580/2001 from 28 June 2007. That challenge was based on two grounds.
24. First, Mr K. P.’s lawyer drew an analogy with E and F. (20) The Court had ruled there that the inclusion of Devrimci Halk Kurtulus Partisi-Cephesi (DHKP‑C) on the list provided for in Article 2(3) of Regulation No 2580/2001 was unlawful and could not form the basis for a criminal conviction linked to an alleged infringement of that regulation. That was because the Council had failed to provide a statement of reasons relating to the original decision listing the DHKP-C on the Article 2(3) list and to a series of renewal decisions thereafter. The Court held that, whereas Decision 2007/445 (which again renewed the inclusion of the DHKP-C on the Article 2(3) list) had itself been adopted with a statement of reasons, all of the previous measures including the initial listing were invalid because they had not been accompanied by a statement of reasons. In addition to denying the DHKP-C ‘the information necessary to enable them to verify whether the inclusion of DHKP-C on the list during the period prior to 29 June 2007 … was well founded’, ‘the lack of a statement of reasons … vitiates the listing’ because it ‘frustrates the attempts of the courts to carry out an adequate review of the substantive legality of that listing’. (21)
25. Second, in LTTE v Council (22) the General Court annulled a number of EU acts covering the period from January 2011 to October 2014 (23) insofar as they concerned the LTTE. Mr K. P.’s lawyer argued that it followed necessarily from the reasoning of that judgment that the EU acts at issue in the present case must also be treated as void, in any event insofar as they concerned the LTTE.
26. Since the criminal proceedings against Mr K. P. can succeed only if the EU acts at issue are valid, the referring court asks:
‘Is the placing of the Liberation Tigers of Tamil Eelam (LTTE) on the list provided for in Article 2(3) of [Regulation No 2580/2001] for the period from 11 August 2007 to 27 November 2009 (inclusive) resulting in particular from Council Decisions: 2007/445/EC of 28 June 2007; 2007/868/EC of 20 December 2007 (in its corrigendum version of the same day); 2008/583/EC of 15 July 2008; 2009/62/EC of 26 January 2009; and Council Regulation (EC) No 501/2009 of 15 June 2009 illegal?’
27. The Council and the Commission submitted written observations. Mr K. P. subsequently submitted a request for an oral hearing which contained written comments on the question referred and also explicitly raised the question of the validity of the original listing decision. In accordance with Article 62(2) of the Court’s Rules of Procedure, I therefore asked the parties to address two issues at the oral hearing. Those were (i) whether the Court should also examine the alleged invalidity of the initial listing decision and (ii) in the affirmative, should that initial measure be found to be invalid, what effect (if any) that would have on the validity of subsequent measures (specifically, the EU acts at issue).
28. Mr K. P., the Council and the Commission made oral submissions and answered questions at the hearing on 12 September 2018.
Assessment
Admissibility
29. Where a reference for a preliminary ruling questions the validity of an EU measure, it is necessary to enquire whether the party who has raised that question before the national court would have had standing ‘without any doubt’ to challenge the lawfulness of that measure directly under Article 263 TFEU. If so, he would now be precluded from seeking to challenge the validity of that same measure via a reference for a preliminary ruling under Article 267 TFEU. (24)
30. Here, it seems clear that Mr K. P. could not ‘without any doubt’ have satisfied the dual requirements of individual and direct concern. The order for reference describes Mr K. P.’s role as being that of a ‘regional organiser’, part of a ‘rigid hierarchy supervising subordinate organisers for local districts and other persons acting locally as fundraisers, and reporting directly to the national organisers for Germany’. Those facts strongly suggest that Mr K. P. would not have been able to establish individual concern sufficient to overcome the particularly high threshold applicable at that time. (25) There is, moreover, nothing to suggest that Mr K. P. had (but failed to take) the opportunity to challenge the measures directly as a representative of the LTTE. (26)
31. The reference is accordingly admissible.
The validity of the original decision listing the LTTE on the Article 2(3) list
32. In its single question, the referring court enquires as to the validity of the EU acts at issue. Each one of those acts concerns a renewal of the listing of the LTTE.
33. In his written comments, however, Mr K. P.’s lawyer reiterates the arguments that the order for reference records him as having raised on his client’s behalf at the criminal trial before the referring court. Thus, he argues that (i) the original listing decision is invalid for absence of a statement of reasons; and that (ii) it follows from the judgment in E and F (27)that any renewal decisions taken after the adoption of an original listing decision without a statement of reasons are also invalid (the alleged ‘domino effect’). The core of that argument is that renewal decisions such as the EU acts at issue are ‘in essence an extension of the original listing’. (28) Mr K. P. also argued that he could not have challenged the original listing decision at the relevant time (which, as I note above at point 30, is probably correct) and that this reference now provides him with that opportunity.
34. For the following reasons, however, I do not believe that the Court should address the question of the validity of the original listing decision here.
35. First and foremost, the referring court did not include that decision in its question to this Court. Nor did it set out detailed arguments or relevant background information to aid the Court in that regard. Consequently, the Court does not have the necessary material to conduct an appropriate review of the procedural or substantive validity of Regulation No 2580/2001.
36. Second, were the Court to proceed ex officio with such an assessment, it would be failing to respect the rights of the Member States and the institutions concerned which, pursuant to the second paragraph of Article 23 of the Statute of the Court, may submit observations on requests for a preliminary ruling. Although the order for reference does indeed record the arguments raised by Mr K. P.’s lawyer at trial, it contains neither a direct question as to the validity of the original listing decision nor the necessary material to enable this Court to address that question. At the hearing, the Council and Commission confirmed that they had not addressed that question in their observations because they had not read the order for reference as raising that issue. Thus, whilst the preliminary reference procedure under Article 267 TFEU does provide the opportunity to parties like Mr K. P. to raise such a question long after the fact, where the order for reference is silent or at best ambivalent on that score the Court cannot proceed to address it ex officio. To do so would be to deny other parties their rights of defence.
37. Third, the starting point for review of the validity of any EU measure is to consider it on its own merits. In that regard, it should be noted that the original listing decision and the EU acts at issue are separate legal measures adopted in reliance upon different legal bases (Article 1(4) and Article 1(6) of Common Position 2001/931 respectively), applying distinct legal criteria. Moreover, although the Court did hold in LTTE that a renewal decision is essentially an extension of the original listing, the two are not so legally intertwined that the invalidity of the former automatically impugns the validity of the latter. Rather, it seems to me that there is a hierarchy of measures. The first (and most important step) at the time of an original listing decision is to verify the existence of an appropriate and relevant decision of a competent authority in terms of Article 1(4) of Common Position 2001/931. (29) In contrast, a decision to renew an original listing does not require re-verification of that decision. (30) At the time of renewal, the Council only needs to show that the risk posed is the ‘same’ as the risk shown at the time of the original listing. (31) The original listing decision and the EU acts at issue are therefore, in my view, clearly separate and independent legal acts. It follows that the Court is not automatically required to review the original listing decision placing a given person or group on the Article 2(3) list each and every time a renewal decision is challenged.
38. That said, I do not exclude the possibility that it may be appropriate for the Court to visit the question of whether the original listing was substantively invalid, with a corresponding effect on renewal decisions adopted thereafter, but only if it is expressly requested to do so. At the hearing, the Council acknowledged that (for example) had the competent national authority’s decision related to the failure by an LTTE-owned car to pass a vehicle safety test, that could not have justified the Council adopting the original listing decision. The legal consequence would then be that subsequent renewal measures would be undermined. That is not, however, alleged to be the situation here.
The analogy with E and F
39. In the national proceedings and before this Court, Mr K. P.’s lawyer relied heavily on this Court’s ruling in E and F to argue, by analogy, that defects in the original decision listing the LTTE (Decision 2006/379) produced a ‘domino effect’ such that all subsequent decisions maintaining LTTE’s inclusion on the Article 2(3) list should be declared void. However, it is clear that the underlying facts of E and F are very different from those of the present case. (32)
40. It will be recalled that in E and F, no statement of reasons for the listing of the DHKP-C had been issued, either for the initial listing or for each of the series of renewal decisions thereafter. A statement of reasons was first provided in relation to Decision 2007/445, but that came too late to save the preceding chain of EU measures from being declared invalid insofar as they listed that organisation. (33)
41. In contrast, in the present case statements of reasons were provided to the LTTE in respect both of the original listing and of each of the subsequent decisions maintaining the LTTE on the Article 2(3) list. As I have explained, the pattern followed was to send interested persons (where practicable), a statement of reasons explaining why they had been listed; and then to publish a notice in the Official Journal of the European Union notifying the persons concerned that the Council intended to maintain their entry on the Article 2(3) list and informing them that they could request the Council’s draft statement of reasons therefor. After the relisting, the Council then sent the persons concerned the final version of the statement of reasons, explaining why they had been relisted. (34)
42. True it is that the first statement of reasons for including the LTTE in the Article 2(3) list by Decision 2006/379 of 29 May 2006 was not communicated to the LTTE by the Council until 23 April 2007, (35) nearly 11 months after the initial listing. The fact remains, however, that that communication took place before Decision 2006/379 was replaced and repealed by Decision 2007/445 of 28 June 2007 and thus during the period whilst the former decision was legally effective. (36) The day after the latter decision was adopted, namely on 29 June 2007, the Council sent the LTTE a statement of reasons for its continued inclusion on the list. Thereafter, notification of the reasons for relisting followed the pattern that I have just described above.
43. Plainly, communicating the statement of reasons so belatedly after the adoption of the original listing sits ill with the Court’s requirement that the Council communicate such a statement ‘immediately’ after the adoption of an original listing. (37) However, the simple fact remains that the LTTE did not react to the original listing published in the Official Journal the European Union, as it clearly had the right to do, by bringing a legal challenge pursuant to Article 230 EC (now Article 263 TFEU) within the prescribed time limit. And before the replacement measure (Decision 2007/445) was enacted, the omission was remedied by the Council. (38) I add that the Council enjoys wide discretion as to how to remedy procedural errors in its acts. Had it chosen (for example) to provide the necessary statement of reasons in the recitals to a renewal listing measure, that would, in my view, also have remedied the matter.
44. I therefore propose that the Court should not examine the substantive or procedural invalidity of the original listing decision and/or whether there could be any effect on the validity of the EU acts at issue.
The validity of the EU acts at issue which include the LTTE on the Article 2(3) list (Decisions 2007/445, 2007/868, 2008/583 and 2009/62 and Regulation No 501/2009)
45. Was the statement of reasons accompanying each of the EU acts at issue adequate, in particular in the light of the judgment in LTTE? (39)
46. Common Position 2001/931 itself contains no express stipulation for a statement of reasons. The basis for that requirement is therefore Article 296 TFEU, which provides that legal acts shall state the reasons on which they are based. It is settled case-law that a statement of reasons ‘must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable persons concerned to ascertain the reasons for the measure and to enable the competent court having jurisdiction to exercise its power of review’. (40) That obligation is an expression of the general principle of respect for the rights of defence and the corresponding fundamental right under Article 47 of the Charter. (41)
47. The statement of reasons must contain the grounds indicating the actual and specific reasons why the decision-taker considers that the relevant rules are applicable to the party concerned; (42) and it must ‘set out the facts and the legal considerations that have decisive importance in the context of the act’. (43) The statement does not necessarily need to go into all the relevant facts and points of law because a statement of reasons is assessed also with regard to its factual and regulatory context. (44)
48. Thus, for renewal decisions such as the EU acts at issue, the regulatory context is the legal requirement that the Council review the Article 2(3) list ‘at least once every 6 months’ (Article 1(6) of Common Position 2001/931). If during those 6 months, the factual situation has not changed, it is ‘not necessary to set out in detail the reason why the Council’ is ‘convinced that the grounds which justified adding’ the persons concerned ‘to the list at issue [remain] valid’. (45) Moreover, it is sufficient if the reasons given relate to an act adopted in a context which was ‘known’ to the person concerned and which ‘enables him to understand the scope of the measure concerning him’. (46)
49. The factual context for renewal decisions may include whether the passage of time and/or a change in circumstances requires the Council to base retaining the person or group concerned on the Article 2(3) list on an ‘up-to-date assessment of the situation, and to take account of more recent facts which demonstrate that’ the risk ‘still exists’. (47) The Council does not, however, have to produce ‘new material’ which has been the ‘subject of a national decision taken by a competent authority’ in order to justify a renewal decision. (48)
50. The statements for the EU acts at issue appear to be — but for inconsequential differences such as changes in dates — identical. I shall review the statement of reasons provided for Decision 2007/445 as a representative example. To be clear, my assessment in this part of the Opinion does not relate to the statement of reasons for Council Regulation No 501/2009, which I consider separately at point 63 et seq. below.
51. The reasons underpinning the renewal of the LTTE’s listing by Decision 2007/445 are derived from three sources: the Official Journal of the European Union notice of 25 April 2007, the recitals to Decision 2007/445 and the final version of the statement of reasons dated 29 June 2007 sent to the LTTE. A combined reading of those three sources reveals that the Council (i) notified a draft statement of reasons to the LTTE; (ii) informed the LTTE (and all other parties concerned) that it could submit comments to the Commission explaining why renewal was not appropriate; (iii) included in that statement a summary of the reasons why the conditions for renewed listing remained justified; and (iv) after the renewal decision had been adopted, sent a final version of the statement of reasons to the LTTE containing the justification for the renewed listing. (49)
52. That document described the LTTE as a terrorist group formed in 1976 and recorded a series of 12 acts carried out by the LTTE that the Council considered fell within the definition of terrorist act given in Article 1(3) of Common Position 2001/931. It then referred to a decision of the United Kingdom Secretary of State for the Home Department on 29 March 2001 to proscribe the LTTE under the UK Terrorism Act 2000, a decision of the United Kingdom Treasury on 6 December 2001 to freeze the assets of LTTE and a decision by the Indian authorities to proscribe LTTE in 1992 (all three of which, according to the Council, fell within the definition of a ‘decision’ in Article 1(4) of Common Position 2001/931 and all three of which remained in force).
53. In my view, the three sources identified in paragraph 51 above contained sufficient details to allow the LTTE to know the actual and specific reasons why the Council considered that the relevant rules were applicable to it as well as the facts and the legal considerations that had decisive importance in the context of the renewal listing. There were, in other words, sufficient elements to enable the LTTE to understand the accusations made against it and the scope of the measures taken. The LTTE was thus placed in a position effectively to dispute the merits of the renewal measure. Had it chosen to, it could have exercised its rights of defence both by submitting comments prior to the adoption of the renewal measure — as the Official Journal of the European Union notice invited it to do — and/or by challenging the renewal measure under Article 230 EC (now Article 263 TFEU) before the General Court within the prescribed time limit after its adoption.
54. It is true that the Court has stated clearly in general terms that statements of reasons must be communicated prior to the adoption of a renewal measure, (50) whereas the various final versions of the statements of reasons were dated and dispatched after the adoption of each contested measure. I nevertheless consider that the Council has fulfilled the spirit of the Court’s requirement. In particular, I emphasise the context in which Decision 2007/445 (and the other renewal measures) was adopted. In reality, the LTTE was in possession of an unchanged statement of reasons at all times prior to the adoption of each renewal measure. It cannot therefore be said that the LTTE was ever in a position where it did not know the facts and reasons behind the decision to maintain it on the Article 2(3) list.
55. Could the facts and reasons for each of the renewal measures simply be repeated verbatim every six months or did they require to be updated because they had become obsolete as a result of a change in circumstance and/or the passage of time?
56. Only one major change in circumstance has been brought to the Court’s attention: the military defeat of the LTTE in May 2009. That change occurred after the adoption of Decisions 2007/445, 2007/868, 2008/583 and 2009/62. The Council cannot therefore be criticised for failing to take it into account when it adopted those decisions.
57. Mr K. P. focuses his criticism of the statement of reasons on, first, the fact that the Council omitted to take into consideration an alleged truce between the LTTE and the Sri Lankan Government which started in 2002 and, second, the fact that one of the terrorist acts listed by the Council in the statement of reasons (the murder of a Sri Lankan Government minister) was not, he says, committed by the LTTE. In my view, neither of those claimed facts constitutes a change in circumstance between the original listing decision and any of those four decisions such as to require their author to modify its statements of reasons. The inference which can reasonably be drawn from the 11 other acts of terrorist activity relied on by the Council is, on the contrary, that the alleged truce did not bring the LTTE’s terrorist activities to an end.
58. I therefore conclude that no material change in circumstance has been brought to the Court’s attention which required the Council to modify the content of its statement of reasons for Decisions 2007/445, 2007/868, 2008/583 and 2009/62 from that of the original listing decision.
59. Did the passage of time of itself require a change in the statement of reasons?
60. In Council v Hamas (51) and in Kadi II (52)the Court indicated that respectively a gap of between 9 and 13 years and a gap of 16 years meant that ‘old’ reasoning could no longer be relied upon. Let us therefore look at the periods of time at issue in the present case. I take 16 October 2006 — the date of the last act of terrorism relied upon by the Council in its various statements of reasons for the EU acts at issue — as the starting point. The first renewal decision after the initial listing decision (namely Decision 2007/445 of 28 June 2007) was taken eight and a half months later. Decision 2009/62 of 26 January 2009 was adopted 27 months later. (Council Decision 2007/868 of 20 December 2007 and Council Decision 2008/583 of 15 July 2008 were adopted between these two dates.) In my view, it cannot be said that the terrorist acts of 2005/2006, taken in conjunction with the competent authority decisions of 2001, were obsolete reference points for those four EU acts.
61. It is important to recall here the context in which renewal measures are adopted. Six months is a short time-frame within which to conduct a mandatory review. The fact that no terrorist activity may have taken place within a particular six-month period may mean that the restrictive measures imposed are indeed having their intended effect. Alternatively, however, it may mean that the persons concerned are hoping to convey the impression that activity has ceased when in reality further terrorist acts are being planned and prepared. Renewal for one or perhaps several further six-month periods may be prudent even if there are no new terrorist acts, given, in particular, the Council’s broad discretion in that regard (53) and the public interest in taking preventive measures to forestall terrorist activity. (54)
62. It follows that in my view the notice in the Official Journal of the European Union, the recitals of Decision 2007/445 and the final statement of reasons taken together provided sufficient information to satisfy the Article 296 TFEU requirements in supporting the Council’s judgment that, in context, the LTTE posed an ‘on-going risk’. I reach the same conclusion in respect of Decisions 2007/868, 2008/583 and 2009/62. Given that the facts and surrounding circumstances relating to the LTTE do not appear to have changed significantly over the period during which those decisions were in force, it would indeed have seemed contradictory had the Council’s statements differed substantively, if at all.
63. However, I take a different view of Regulation No 501/2009, which was adopted on 15 June 2009 to replace and repeal Decision 2009/62. That regulation shares similarities with the measures that were annulled by the Court in its judgment in LTTE. (55)
64. Here I note that by the date of the adoption of Regulation No 501/2009, there had been the same significant and material change in circumstance as the Court identified in the judgment in LTTE — namely the military defeat incurred by the LTTE in May 2009. (56) That defeat pre-dated the adoption of Regulation No 501/2009 on 15 June 2009. The statement of reasons for that measure, like its predecessors, refers to a list of terrorist acts all of which pre-date that military defeat. I also note that over 31 months had elapsed between the date of the last act of terrorism relied upon by the Council (October 2006) and the adoption of Regulation No 501/2009. That gap is longer than for one of the measures annulled by the Court in the judgment in LTTE (Regulation No 83/2011). (57)
65. The Council correctly pointed out at the hearing that it would have had just under a calendar month (between 17 May and 15 June 2009) in which to modify its draft Regulation No 501/2009. Such is, however, the context in which the mandatory 6-month reviews must take place. Had the military defeat been declared mere days before the date on which Regulation No 501/2009 was to be adopted, I would readily have accepted that it would be unreasonable to have expected the Council to take that fact into account. Here, however, the Council did have enough time to re-consider the renewal; yet nothing in the statement of reasons suggests that it did so.
66. The Council sought to argue that it did not matter that the statement of reasons contained nothing on this important new development. Had a sentence been added to the statement of reasons to the effect that the Council was aware of the military defeat but considered it premature to remove the LTTE from the Article 2(3) list, the result would have been substantively the same: the decision to renew would still have been taken. Perhaps that might well have been the case; but the Council’s argument misses the point. The absence of any reference to the change in circumstance and of any explanation as to why, nevertheless, the listing was to be renewed means that the Council failed to fulfil its obligations under Article 296 TFEU as interpreted by the Court in the context of terrorist listing renewal measures. (58)
67. The Council also argued at the hearing that it was for the LTTE to take the necessary steps to inform the Council of the military defeat, not for the Council actively to seek out that information. That submission sits uneasily with the fact (in the public domain) that the General Affairs and External Relations Council met on 18 and 19 May 2009 precisely to discuss ‘the recent developments’ in Sri Lanka, devoting 9 paragraphs of Council conclusions specifically to addressing the situation ‘as the fighting draws to an end’. (59) Moreover, the Court has expressly held that the Council can refer to recent material from the press and the internet to justify the renewal of a listing. (60) It must follow that the Council is also able to do so for the purposes of evaluating a possible removal from the list. I add that immediate lawyerly communication with administrative authorities on another continent may not be possible or, at least, not a top priority for a group that has just suffered a military defeat in which its leader appears to have been killed. (61)
68. I therefore consider Regulation No 501/2009 to be invalid for essentially the same reasons as those given by the Court in its judgment in LTTE. I add that, whilst the defect may or may not be remediable, any remedy cannot be applicable retroactively in the context of the criminal proceedings against Mr K. P. (62)
Conclusion
69. Accordingly, I propose that the Court should give the following answer to the question referred for a preliminary ruling by the Landgericht Saarbrücken (Regional Court, Saarbrücken, Germany):
Council Regulation (EC) No 501/2009 of 15 June 2009 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2009/62/EC is invalid insofar as it applies to the Liberation Tigers of Tamil Eelam.
Examination of the material before the Court has disclosed no factor affecting the validity of Council Decision 2007/445/EC of 28 June 2007 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decisions 2006/379/EC and 2006/1008/EC, Council Decision 2007/868/EC of 20 December 2007 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2007/445/EC, Council Decision 2008/583/EC of 15 July 2008 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2007/868/EC, or Council Decision 2009/62/EC of 26 January 2009 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2008/583/EC.