Case T-348/07

Stichting Al-Aqsa

v

Council of the European Union

(Common foreign and security policy – Restrictive measures against certain persons and entities with a view to combating terrorism – Freezing of funds – Common Position 2001/931/CFSP and Regulation (EC) No 2580/2001 – Action for annulment – Adaptation of heads of claim – Judicial review – Conditions for implementation of a European Union measure freezing funds)

Summary of the Judgment

1.      Procedure – Act repealing and replacing the contested act during the proceedings – Request to adapt the claim for annulment

(Art. 230, fifth para., EC)

2.      European Union – Common foreign and security policy – Specific restrictive measures directed against certain persons and entities with a view to combating terrorism – Concept of person, within the meaning of Art. 1(2), first indent, of Common Position 2001/931

(Council Common Position 2001/931, Art. 1(2))

3.      European Union – Common foreign and security policy – Specific restrictive measures directed against certain persons and entities with a view to combating terrorism – Decision to freeze funds

(Council Common Position 2001/931, recital (1), and Art. 1(4); Council Regulation No 2580/2001, Art. 2(3))

4.      European Union – Common foreign and security policy – Specific restrictive measures directed against certain persons and entities with a view to combating terrorism – Decision to freeze funds

(Council Common Position 2001/931, Art. 1(6); Council Regulation No 2580/2001, Art. 2(3))

1.      The period of two months laid down in the fifth paragraph of Article 230 EC applies in principle both where an action for annulment of an act is brought by means of an application and where it is brought in the course of proceedings by means of a request to adapt a claim for annulment of an earlier act that has been repealed and replaced by the act in question. The rules concerning time-limits for bringing proceedings are mandatory and must be applied by the court in question in such a way as to safeguard legal certainty and equality of persons before the law, whilst avoiding any discrimination or arbitrary treatment in the administration of justice.

However, by way of an exception to that rule, that period is not applicable in the case of proceedings in which, first, the act in question and the measure which that act repeals and replaces have, with regard to the person concerned, the same subject-matter, are essentially based on the same grounds and have essentially the same content, and therefore differ only by reason of their respective scopes of application ratione temporis and, second, the request to adapt a claim is not based on any new plea, fact or evidence apart from the actual adoption of the act in question repealing and replacing that earlier act.

In such circumstances, since the subject-matter and context of the dispute as established by the original action have not undergone any alteration except as regards its temporal dimension, legal certainty is in no way affected by the fact that the request to adapt the claim was made after the two-month period provided for in the fifth paragraph of Article 230 EC had expired. In those circumstances, it would be contrary to the principle of due administration of justice and to the requirements of procedural economy to oblige the applicant to lodge a request to adapt its claim within that two-month period failing which it would be inadmissible.

(see paras 32-35, 44)

2.      According to its normal legal meaning, which should be used unless otherwise specified by the legislature, the term ‘person’ means someone or something with legal personality, and therefore both a natural person and a legal person.

The persons referred to in the first indent of Article 1(2) of Common Position 2001/931 on the application of specific measures to combat terrorism may therefore be both natural and legal persons, whereas the groups and entities referred to in the second indent of Article 1(2) of that Common Position may be any other types of social organisations which although they do not have legal personality none the less exist in a more or less structured form.

That interpretation is confirmed by Article 1(5) of Common Position 2001/931, which reads: ‘the Council shall work to ensure that names of natural or legal persons, groups or entities listed in the Annex have sufficient particulars appended to permit effective identification of specific human beings, legal persons, entities or bodies’.

The fact that the list annexed to Common Position 2001/931 and the list annexed to Regulation No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism include only natural persons under the heading ‘Persons’, whereas several legal persons are included under the heading ‘Groups and entities’, is irrelevant in that regard. Those lists, drawn up solely for the purposes of implementing, in individual specified cases, Common Position 2001/931 and Regulation No 2580/2001, have in fact no effect on the definition of ‘persons, groups and entities’ given in those measures. The same applies, therefore, as regards any errors in the classification of persons and groups and entities which they may contain.

(see paras 57-59, 61)

3.      In interpreting the scope of a provision of Community law, its wording, context and objectives must all be taken into account. Having regard both to the wording, context and objectives of the provisions at issue in Common Position 2001/931on the application of specific measures to combat terrorism (see, especially, recital 1 in the preamble to that Common Position) and Council Regulation No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, and to the major part played by the national authorities in the fund-freezing process provided for in Article 2(3) of that regulation, a decision to instigate investigations or prosecute must, if the Council is to be able validly to invoke it, form part of national proceedings seeking, directly and chiefly, the imposition on the person concerned of measures of a preventive or punitive nature, in connection with the combating of terrorism and by reason of that person’s involvement in terrorism.

That is so with regard to an order of a court hearing an application for interim measures, which in the light of its content, scope and context, taken together with the national legislation on sanctions for the suppression of terrorism, constitutes a decision of a competent national authority within the meaning of Article 1(4) of Common Position 2001/931 and Article 2(3) of Regulation No 2580/2001. Such an order, together with that legislation, can be regarded as meeting the requirements of Article 1(4) of the Common Position and can therefore in principle, as such, justify the adoption of a fund-freezing measure under Article 2(3) of Regulation No 2580/2001.

(see paras 96-97, 101, 105)

4.      When the Council contemplates adopting, or maintaining in force after review, a fund-freezing measure pursuant to Regulation No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, on the basis of a national decision for the instigation of investigations or prosecution for an act of terrorism, it may not disregard subsequent developments arising out of those investigations or that prosecution. It may therefore be that a police or security enquiry is closed without giving rise to any judicial consequences, because it proved impossible to gather sufficient evidence, or measures of investigation ordered by the investigating judge do not lead to proceedings going to judgment for the same reasons; similarly, a decision to prosecute may end in the abandoning of the prosecution or in acquittal in the criminal proceedings. It would be unacceptable for the Council not to take account of such matters, which form part of the body of information having to be taken into account in order to assess the situation. To decide otherwise would be tantamount to giving the Council and the Member States excessive power to freeze a person’s funds indefinitely, beyond review by any court and whatever the result of any judicial proceedings taken.

The same considerations must apply where a national administrative measure freezing funds or proscribing an organisation as terrorist is withdrawn by the body that has issued it or been annulled by a judicial ruling.

By continuing to include a person indefinitely in the list annexed to Regulation No 2580/2001, when periodically reviewing the latter’s situation pursuant to Article 2(3) of that regulation and Article 1(6) of Common Position 2001/931 on the application of specific measures to combat terrorism, solely on the ground that a decision taken on an application for interim measures by the competent national judicial authority has not been challenged, in the domestic legal order, by the judicial body hearing an appeal in interlocutory proceedings or by the judicial body competent to adjudicate on the substance, whilst the administrative decision whose effects that court had been asked to suspend has in the meantime been repealed by the body which issued it, the Council oversteps the bounds of its discretion.

(see paras 164, 168-169, 180)