ORDER OF THE COURT OF FIRST INSTANCE (Seventh Chamber)
17 September 2009 (*)
(Procedure – Third-party proceedings – Failure of the third parties to take part in the original case – No prejudicial effects on the rights of the third parties – Manifest inadmissibility)
In Case T‑284/08 TO,
Juliette Avaessian Avaki, Saïd Kioumarsi, Nasser Rachid Taghi Nejad, Abbas Chirazi Moghaddam, Mohammad Ahmadi, Mohammad Reza Hadjian, Ali Torkchvand, Sétareh Chakeri and Milad Tchaharpadari, represented by P.-O. Sur, lawyer,
third party applicants,
v
People’s Mojahedin Organization of Iran, established in Auvers-sur-Oise (France), represented by J.-P. Spitzer, lawyer, D. Vaughan, QC, and M.-E. Demetriou, Barrister,
applicant in the main proceedings,
Council of the European Union, represented by M. Bishop and E. Finnegan, acting as Agents,
defendant in the main proceedings,
French Republic, represented by G. de Bergues and A.-L. During, acting as Agents,
and
Commission of the European Communities, represented by P. Aalto and S. Boelaert, acting as Agents,
interveners in the main proceedings,
APPLICATION by third parties contesting the judgment in Case T‑284/08 People’s Mojahedin Organization of Iran v Council [2008] ECR II-0000,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Seventh Chamber),
composed of N.J. Forwood (Rapporteur), President, D. Šváby and L. Truchot, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts and third party proceedings
1 By application received at the Registry of the Court of First Instance on 18 March 2009, Ms Juliette Avaessian Avaki and the eight other third parties, all of whom claim to be victims or legal representatives of victims of a terrorist attack committed on 2 June 1998 on the premises of the Teheran Islamic Revolutionary Court (Iran), brought third party proceedings, pursuant to Article 42 of the Protocol on the Statute of the Court of Justice and Article 123 of the Rules of Procedure of the Court of First Instance, contesting the judgment in Case T‑284/08 People’s Mojahedin Organization of Iran v Council [2008] ECR I-0000, currently under appeal (‘the contested judgment’). The notice concerning that judgment was published in the Official Journal of the European Union on 24 January 2009 (OJ 2009 C 19, p. 29).
2 By the contested judgment, the Court of First Instance annulled 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 (OJ 2008 L 188, p. 21) (‘the contested decision’), in so far as it concerned the People’s Mojahedin Organization of Iran (‘the PMOI’), on three grounds: (i) the continued freezing of the PMOI’s funds as provided for under the contested decision was the result of a procedure during which the PMOI’s rights of defence had not been respected; (ii) it had not been established to the requisite legal standard that the contested decision had been adopted in accordance with Article 1(4) of Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93) and with Article 2(3) of 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 (OJ 2001 L 344, p. 70); (iii) the very circumstances of the adoption of the contested decision compromised the PMOI’s fundamental right to effective judicial protection.
3 On 19 January 2009, the French Republic – an intervener in support of the Council of the European Union – lodged an appeal before the Court of Justice, seeking to have the contested judgment set aside. That appeal is still pending on the date of the present order.
4 The written procedure followed the normal course. By decision of 8 July 2009, adopted pursuant to Article 47(1) of the Rules of Procedure, the Court of First Instance (Seventh Chamber) decided that a second exchange of pleadings was unnecessary.
Forms of order sought
5 In their application, the third parties claim that the Court of First Instance should ‘reverse’ the contested judgment and ‘maintain’ the contested decision and, in the alternative, that it should ‘[l]ay out the reversal of said decision by maintaining its effects during a period of time which will enable the Council to remedy the violations noticed’.
6 In its response, received at the Registry of the Court of First Instance on 4 June 2009, the PMOI contends that the Court should dismiss the application initiating third-party proceedings as manifestly inadmissible; in the alternative, dismiss that application as unfounded; and, in any event, order the third parties to pay the costs.
7 In its response, received at the Registry of the Court of First Instance on 3 June 2009, the Council states that it has no observations to make on the application initiating third-party proceedings.
8 Neither the Commission of the European Communities nor the French Republic has lodged a response.
Admissibility
9 The Court of First Instance considers the information in the case-file to be sufficient and decides, pursuant to Articles 111 and 113 of the Rules of Procedure, that it is appropriate to rule on the admissibility of the present application without opening the oral procedure.
10 In their application, the third parties submit that their application initiating third-party proceedings is admissible under Article 123 of the Rules of Procedure. As regards, more specifically, their obligation under point (c) of the first subparagraph of Article 123(1) of the Rules of Procedure to indicate the reasons for which they were unable to take part in the original case before the Court of First Instance, they claim, first, that ‘they had not been asked to’ and, secondly, that they did not apply of their own volition to participate in it, ‘because at that stage of the procedure, their prejudice was neither certain, nor present’.
11 In that connection, it should be borne in mind that Article 42 of the Protocol on the Statute of the Court of Justice, applicable by virtue of Article 53 thereof to the procedure before the Court of First Instance, provides that ‘Member States, institutions of the Communities and any other natural or legal persons may, in cases and under conditions to be determined by the Rules of Procedure, institute third-party proceedings to contest a judgment rendered without their being heard, where the judgment is prejudicial to their rights’.
12 The cases and conditions relating to third-party proceedings are laid down in Chapter 6 of the Rules of Procedure, which is entitled ‘Exceptional Review Procedures’. In that Chapter, Article 123(1) provides, by way of conditions for admissibility, that applications initiating third-party proceedings must ‘(b) state how [the contested judgment] is prejudicial to the rights of the third party; (c) indicate the reasons for which the third party was unable to take part in the original case before the Court of First Instance’.
13 Furthermore, Article 24(6) of the Rules of Procedure provides that ‘[n]otice shall be given in the Official Journal of the European Union of the date of registration of an application initiating proceedings, the names and addresses of the parties, the subject-matter of the proceedings, the form of order sought by the applicant and a summary of the pleas in law and of the main supporting arguments’.
14 It follows from the abovementioned provisions that the Community legislature considered third-party proceedings to be an exceptional review procedure, available to interested persons who, for valid reasons, have been unable to take part in the original proceedings. The extraordinary, even exceptional, nature of third-party proceedings is justified by the consideration that, in the interests of certainty in legal relations and the efficient administration of justice, it is necessary to prevent, so far as is possible, persons having an interest in the outcome of proceedings pending before the Court of Justice or the Court of First Instance from asserting that interest after the Community Court has delivered its judgment and thus settled the question in dispute (see order of 26 March 1992 in Case T-35/89 TO I Ascasibar Zubizarreta and Others v Albani and Others [1992] ECR II‑1599, paragraph 31 and the case-law cited).
15 Accordingly, any interested person who was in a position to participate in the original proceedings but who failed to intervene should not be able to rely on the right to bring third-party proceedings. Since publication in the Official Journal of the subject-matter of the original application and the form of order sought therein is intended to enable third parties to inform themselves about actions pending before the Community Courts, it is by reference to that publication that a third party must assess whether it has an interest in intervening in the original proceedings (see order in Ascasibar Zubizarreta and Others v Albani and Others, paragraph 32 and the case-law cited).
16 If it is clear from that notice that the subject-matter of the original proceedings and the form of order sought therein disclosed that the third party had an interest in intervening, that party must show that it was unable, for valid reasons, to make an application to intervene. Its subjective assessment as to the outcome of the proceedings does not constitute a valid reason justifying the third party’s non-participation in the original proceedings (order in Ascasibar Zubizarreta and Others v Albani and Others, paragraph 33).
17 The fact that the prejudicial effects alleged by the third party cannot be present or certain before delivery of the judgment in the main proceedings obviously cannot constitute a valid reason for which the third party is unable to take part in those proceedings. If it were otherwise, any third party with an interest in the outcome of certain proceedings and in a position to take part in them would be entitled to await the outcome of the proceedings before initiating third-party proceedings if that outcome were prejudicial to it, which would totally deprive of its effectiveness point (c) of the first subparagraph of Article 123(1) of the Rules of Procedure, as interpreted in the case-law cited in paragraphs 14 and 15 above.
18 The Court of First Instance notes that, in the present case, the third parties do not deny that the notice published on 13 September 2008 in the Official Journal (OJ 2008 C 236, p. 16), relating to the action brought by the PMOI against the Council on 21 July 2008, clearly indicated that that action challenged the entire Community procedure for freezing the funds of the PMOI. That notice reproduced in full the form of order sought by the PMOI – annulment of the contested decision in so far as it concerned the PMOI – and it is clear from the summary of the pleas set out in that notice that, according to the PMOI, that decision fell to be annulled because, at the time when it was adopted, there was no relevant decision from a competent national authority sufficient to justify the decision to include the PMOI in the list of terrorist organisations. The summary also indicated that, according to the PMOI, the contested decision fell to be annulled because, although the Council’s decision was purportedly based on ‘new information’ and on a decision of a competent authority other than that of the United Kingdom, the Council had not, before adopting the contested decision, disclosed to the PMOI the evidence on which it had relied. The summary also set out the PMOI’s claim that no justification had been given as to why such information was to be treated as new or relevant. Mention was also made in the summary of the PMOI’s arguments that the Council had adopted the contested decision without any proper evaluation of the new information and without examining whether that information constituted concrete and reliable evidence upon which the Council was entitled to act in order to prove that the PMOI was engaged in terrorism; that the contested decision had been adopted in infringement of the PMOI’s right to be heard and of its fundamental rights; and, finally, that the contested decision had been adopted in circumstances which amounted to an abuse or misuse of procedures and/or powers.
19 The prejudicial effects claimed in the present case by the third parties – which mark the extent of their interest in the outcome of the proceedings – are described by them as (i) material damage consisting in the infringement of their rights to compensation as victims of acts of terrorism committed by the PMOI as a result of its renewed access to funds frozen under the contested decision; and (ii) non-material damage consisting, in particular, in the ‘negation of their suffering’.
20 In the light of the foregoing considerations, it must be held that the interest thus claimed by the third parties in the outcome of the original proceedings clearly reflects the terms of the notice published in the Official Journal. Their allegation relating to the lack of present and certain prejudicial effects before the delivery of the contested judgment is not capable of casting doubt on the existence of that interest and, as has already been stated in paragraph 17 above, does not constitute a valid reason for which they were unable to intervene in the original proceedings.
21 Furthermore, it should be noted that the third parties stated in their application that, although they did not take part in the original proceedings, it was also because ‘they had not been asked to’. In so far as that argument must be understood as meaning that, according to the third parties, third-party proceedings should be open to all interested parties who have not been ‘called upon’ to take part in the original proceedings, it should be recalled that the Court has already ruled on that point in the context of the application of the ECSC Treaty – and that assessment applies equally in the context of the EC Treaty – to the effect that the wording of point (c) of the first subparagraph of Article 97(1) of the Rules of Procedure of the Court of Justice, which is identical to that of point (c) of the first subparagraph of Article 123(1) of the Rules of Procedure of the Court of First Instance, is compatible with the principle concerning third-party proceedings set out in the Protocol on the Statute of the Court of Justice, which is implemented by Articles 97 and 123 (see Joined Cases 42/59 TO and 49/59 TO Breedband v Société des Aciéries du Templeand Others [1962] ECR 145; see also order in Ascasibar Zubizarreta and Others v Albani and Others, paragraph 37). The Rules of Procedure, which provide only for voluntary intervention and not for compulsory intervention (Case 12/69 Wonnerth v Commission [1969] ECR 577, 584), do not provide that the action is to be notified to all third parties who may be interested; rather, they provide that a notice is to be published in the Official Journal in order to enable third parties to inform themselves about actions which have been brought before the Community Courts.
22 It follows that the third parties have not put forward substantiated reasons for which they would have been genuinely unable to intervene in the original proceedings.
23 In any event, as is apparent from point (b) of the first subparagraph of Article 123(1) of the Rules of Procedure, for an application initiating third-party proceedings to be admissible, the third party must demonstrate that the contested judgment is prejudicial to a right and not merely that that party has a legitimate interest to protect (order of the Court of Justice in Case 292/84 TO Bolognese and Others v Scharf and Commission [1987] ECR 3563, paragraph 7).
24 In the present case, the contested judgment, annulling the contested decision, was not, through its operative part, prejudicial to any of the rights relied on by the third parties (see paragraph 19 above).
25 First, as regards the right to compensation to which the third parties claim to be entitled as against the PMOI, in their capacity as victims or the heirs of victims of a terrorist act committed by the PMOI, that right is in no way compromised by the annulment of the contested decision, since decisions to freeze funds adopted under Regulation No 2580/2001 are manifestly unrelated to protection of the property rights of victims of acts of terrorism. Moreover, appropriate remedies – such as preventive attachment – exist for the protection of the rights of persons who are entitled to compensation from the perpetrators of criminal acts. In the present case, the third parties have remained unable to explain why they did not have recourse to such remedies, with the result that the material damage that they claim appears, in any event, to have no causal link to the contested judgment.
26 Secondly, as regards the moral right asserted by the third parties, to the effect that the PMOI should not commit any further acts of terrorism and that it should remain classified as a terrorist organisation, that right – even assuming that it is more than a mere interest – is also not compromised by the annulment of the contested decision, since the decisions to freeze funds adopted under Regulation No 2580/2001 are temporary precautionary measures which do not as such entail any attribution of guilt to those on whom they are imposed and do not, moreover, imply any accusation of a criminal nature (see, to that effect, Joined Cases C‑402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-0000, paragraph 358, and the judgment of 11 July 2007 in Case T-47/03 Sison v Council, not published in the ECR, paragraph 101).
27 It is clear from the above that the third parties have not established that the contested judgment was prejudicial to their rights.
28 It follows from all of the foregoing considerations that the application initiating third-party proceedings must be dismissed as manifestly inadmissible.
Costs
29 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the third parties have been unsuccessful, they must be ordered to pay the costs incurred by the PMOI, in accordance with the form of order sought by the latter. However, as neither the Council, nor the French Republic or the Commission, have applied for costs, they must each be ordered to bear their own costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Seventh Chamber)
hereby orders:
1. The application initiating third-party proceedings is dismissed as manifestly inadmissible.
2. The third parties are to bear their own costs and to pay those incurred by the People’s Mojahedin Organization of Iran.
3. The Council of the European Union, the French Republic and the Commission of the European Communities are each to bear their own costs.
Luxembourg, 17 September 2009.