Case T‑400/10 RENV
Hamas
v
Council of the European Union
(Common foreign and security policy — Restrictive measures taken against certain persons and entities with a view to combating terrorism — Freezing of funds — Whether an authority of a third State can be classified as a competent authority within the meaning of Common Position 2001/931/CFSP — Factual basis of the decisions to freeze funds — Obligation to state reasons — Error of assessment — Right to effective judicial protection — Rights of defence — Right to property)
Summary — Judgment of the General Court (First Chamber, Extended Composition), 14 December 2018
1. Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Freezing of funds — Scope — Persons, groups and entities involved in terrorist acts — Meaning — Criterion for appraisal
(Council Common Position 2001/931)
2. EU law — Principles — Rights of defence — Right to effective judicial protection — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds — Obligation to disclose incriminating evidence — Scope — Notification to the person concerned by means of a publication in the Official Journal of the European Union — Lawfulness — Right of access to documents — Right subject to request for access being made to the Council
(Council Common Position 2001/931; Council Decision 2010/386/CFSP; Council Regulations No 2580/2001 and No 610/2010)
3. Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Freezing of the funds of an organisation involved in acts of terrorism — Restrictions on the right to property — No breach of the principle of proportionality
(Council Common Position 2001/931; Council Decision 2010/386/CFSP; Council Regulations No 2580/2001 and No 610/2010)
4. Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds — Adoption or retention on the basis of a national decision to freeze funds — Competent authority to adopt that national decision — Meaning — Authority of a non-member State — Included
(Council Common Position 2001/931, Art. 1(4))
5. Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds — Adoption or retention on the basis of a national fund-freezing decision of an authority of a third State — Lawfulness — Condition — National decision adopted in accordance with the rights of the defence and the right to effective judicial protection — Council’s obligation to verify — Obligation to state reasons — Scope
(Council Common Position 2001/931, Art. 1(4))
6. Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds — Adoption or maintenance on the basis of a national decision to investigate, prosecute or convict — Competent authority to adopt that national decision — Meaning — Administrative authority — Included — Conditions
(Council Common Position 2001/931, Art. 1(4))
7. Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds — Adoption or maintenance on the basis of a national decision to investigate, prosecute or convict — No requirement that a national decision be taken in the context of criminal proceedings stricto sensu — Conditions
(Council Common Position 2001/931, Art. 1(4))
8. Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Duty of sincere cooperation between Member States and the institutions of the European Union — Decision to freeze funds — Justification — Respecting fundamental rights — Judicial review — Scope
(Council Common Position 2001/931, Art. 1(4))
9. Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds — Adoption or maintenance on the basis of a national decision to investigate, prosecute or convict — Obligation to state reasons — Scope — National decision to convict — No obligation to adduce the serious and credible evidence or clues underlying the national decision
(Council Common Position 2001/931, Art. 1(4))
10. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to freeze funds directed against certain persons and entities suspected of terrorist activities — Minimum requirements
(Art. 296 TFEU; Council Common Position 2001/931, Art. 1(4); Council Decisions 2011/430/CFSP, 2011/872/CFSP, 2012/333/CFSP, 2012/765/CFSP, 2013/395/CFSP and 2014/72/CFSP; Council Regulations No 687/2011, No 1375/2011, No 542/2012, No 1169/2012, No 714/2013 and No 125/2014)
11. European Union — Judicial review of the legality of the acts of the institutions — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds — Retention on the basis of a national decision to freeze funds — Scope of the review — Review extending to all of the material used to demonstrate that the risk of involvement in acts of terrorism is ongoing — Not all of the material being derived from a national decision adopted by a competent authority — Irrelevant
(Art. 296 TFEU; Council Decisions 2011/430/CFSP, 2011/872/CFSP, 2012/333/CFSP, 2012/765/CFSP, 2013/395/CFSP and 2014/72/CFSP; Council Regulations No 687/2011, No 1375/2011, No 542/2012, No 1169/2012, No 714/2013 and No 125/2014)
12. Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Duty of sincere cooperation between Member States and the EU institutions — Decision to freeze funds — Justification — Burden of proof borne by the Council — Scope
(Council Common Position 2001/931, Art. 1(4); Council Regulation No 2580/2001, Art. 2(3))
13. Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Freezing of funds — Regulation No 2580/2001 — Scope — Armed conflict within the meaning of international humanitarian law — Included
(Council Common Position 2001/931; Council Regulation No 2580/2001)
14. Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds — Retention on the basis of a national decision to freeze funds — Obligation on the part of the Council to indicate the detailed rules for reviewing decisions of the competent authorities — None
(Council Common Position 2001/931, Art. 1(6))
1. According to Common Position 2001/931 on the application of specific measures to combat terrorism, the relevant factor for determining whether the rules contained therein should be applied to a person or an entity is connected to the acts which they perform and not the nature of that person or that entity. In those circumstances, the holding of power following elections, the political nature of the organisation or participation in a government, cannot be regarded as allowing exemption from the application of the rules contained in Common Position 2001/931.
(see paras 153, 154)
2. See the text of the decision.
(see paras 170, 171, 175, 176, 179, 180, 197, 214, 221, 379, 380)
3. See the text of the decision.
(see paras 184-189, 192, 393, 394)
4. See the text of the decision.
(see paras 244, 245)
5. See the text of the decision.
(see paras 246, 247)
6. See the text of the decision.
(see paras 259-261)
7. Common Position 2001/931 on the application of specific measures to combat terrorism does not require the decision of the competent authority to be taken in the context of criminal proceedings stricto sensu, provided that the purpose of the national proceedings in question is to combat terrorism in the broad sense.
(see para. 269)
8. See the text of the decision.
(see paras 282-284)
9. With regard to the decisions of competent authorities from a Member State, it is apparent from the wording of the first subparagraph of Article 1(4) of Common Position 2001/931 on the application of specific measures to combat terrorism that the requirement for the decisions of competent authorities to be based on serious and credible evidence or clues concerns decisions to instigate investigations or prosecution, but does not apply to decisions concerning condemnations (convictions). In decisions concerning the instigation of investigations or prosecutions, that requirement protects the persons concerned by ensuring that the inclusion of their name in the fund-freezing lists is on a sufficiently solid factual basis, while, in condemnation decisions, that requirement must no longer apply since the evidence gathered previously during the investigation or prosecutions has in principle been examined in detail.
(see paras 304-306)
10. See the text of the decision.
(see paras 317-319, 378)
11. See the text of the decision.
(see paras 330-335)
12. Given that the Council does not have to indicate, in the statement of reasons of acts maintaining restrictive measures with a view to combating terrorism, the evidence or clues relied on in a decision of a competent authority for the purposes of Article 1(4) of Common Position 2001/931 on the application of specific measures to combat terrorism, where that authority is from a Member State, the Council cannot be expected to verify the national authority’s classification of those deeds and to indicate in those measures the outcome of that classification.
(see paras 344, 345)
13. See the text of the decision.
(see paras 351-353)
14. In the context of a review pursuant to Article 1(6) of Common Position 2001/931 on the application of specific measures to combat terrorism, the Council may maintain the person or entity concerned on the fund-freezing lists if it concludes that there is an ongoing risk of that person or entity being involved in the terrorist activities which justified their initial listing. In the process of verifying whether the risk of the person or entity concerned being involved in terrorist activities is ongoing, the subsequent fate of the national decision that served as the basis for the original entry of that person or entity on the list for the freezing of funds must be duly taken into consideration, in particular the repeal or withdrawal of that national decision as a result of new facts or material or any modification of the competent national authority’s assessment. However, with regard to a decision of a competent authority from a Member State, the Council does not have to state, in the fund-freezing decisions, the detailed rules for reviewing that decision Moreover, the Council cannot be obliged to indicate the deeds underpinning the review decisions, or to verify the classification of those deeds.
(see paras 357, 358, 360, 361)