ORDER OF THE GENERAL COURT (Second Chamber)
28 February 2012(*)
(Common foreign and security policy – Restrictive measures directed against persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban – Regulation (EC) No 881/2002 – Removal of the interested party from the list of persons and entities concerned – Action for annulment – No need to adjudicate – Claim for damages – Causal link – None)
In Case T‑127/09,
Abdulbasit Abdulrahim, residing in London (United Kingdom), represented initially by J. Jones, Barrister, and M. Arani, Solicitor, and subsequently by E. Grieves, Barrister, and H. Miller, Solicitor,
applicant,
v
Council of the European Union, represented by E. Finnegan and R. Szostak, acting as Agents,
and
European Commission, represented by E. Paasivirta and G. Valero Jordana, acting as Agents,
defendants,
APPLICATION for (i) partial annulment of Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ 2002 L 139, p. 9), as amended by Commission Regulation (EC) No 1330/2008 of 22 December 2008 amending for the 103rd time Regulation No 881/2002 (OJ 2008 L 345, p. 60), or of Regulation No 1330/2008; and (ii) compensation for the damage allegedly caused by those acts,
THE GENERAL COURT (Second Chamber),
composed of N.J. Forwood (Rapporteur), President, F. Dehousse and J. Schwarcz, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute, procedure and forms of order sought
1 On 21 October 2008, the name of the applicant – Mr Abdulbasit Abdulrahim – was added to the list drawn up by the Sanctions Committee established by United Nations Security Council Resolution 1267 (1999) of 15 October 1999 on the situation in Afghanistan (‘the Sanctions Committee list’).
2 By Commission Regulation (EC) No 1330/2008 of 22 December 2008 amending for the 103rd time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban (OJ 2008 L 345, p. 60), Mr Abdulrahim’s name was accordingly added to the list of persons and entities whose funds and other economic resources must be frozen under Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ 2002 L 139, p. 9) (‘the list at issue’).
3 By application, the signed original of which was received at the Court Registry on 15 April 2009, Mr Abdulrahim brought an action against the Council of the European Union and the European Commission, seeking essentially: (i) annulment of Regulation No 881/2002, as amended by Regulation No 1330/2008, or of the latter regulation, in so far as those acts concern him; and (ii) compensation for the damage allegedly caused by those acts. That action was registered under number T‑127/09.
4 In his application, Mr Abdulrahim claims in essence that the Court should:
– annul in whole or in part Regulation No 881/2002, as amended by Regulation No 1330/2008, and/or Regulation No 1330/2008, in so far as those acts concern him;
– order the defendants to pay him damages for loss of earnings, loss of profit and non-material damage;
– order the defendants to pay the costs.
5 In its defence, lodged at the Registry on 30 July 2009, the Council contends that the Court should:
– dismiss the application for annulment as inadmissible;
– dismiss the claim for damages as inadmissible or, in the alternative, as unfounded;
– order Mr Abdulrahim to pay the costs.
6 By separate document lodged at the Registry on 30 July 2009, the Commission raised a preliminary plea of inadmissibility under Article 114 of the Rules of Procedure of the General Court.
7 By order of the General Court (Seventh Chamber) of 17 December 2009, the preliminary plea was joined to the main proceedings and costs were reserved.
8 In its defence, lodged at the Registry on 5 February 2010, the Commission contends that the Court should:
– dismiss the action as manifestly inadmissible;
– declare both the action for annulment and the claim for damages unfounded;
– order Mr Abdulrahim to pay the costs.
9 By order of the President of the Seventh Chamber of the General Court of 26 October 2009, Mr Abdulrahim was granted legal aid and Mr J. Jones and Ms M. Arani were appointed to represent him.
10 By order of the President of the Seventh Chamber of the General Court of 14 April 2010, the order of 26 October 2009 was amended in so far as it appointed Mr Jones and Ms Arani as lawyers to act for Mr Abdulrahim. Under point 2 of the operative part of that new order, Mr H. Miller and Mr E. Grieves were appointed as the lawyers responsible for representing Mr Abdulrahim, with effect from 11 March 2010.
11 Following a change in the composition of the Chambers of the Court with effect from the beginning of the judicial year, the Judge-Rapporteur was assigned to the Second Chamber, to which the present case was accordingly allocated.
12 On 22 December 2010, it was decided to remove Mr Abdulrahim’s name from the Sanctions Committee list.
13 On 6 January 2011, Mr Abdulrahim’s lawyers wrote to the Commission asking for his name to be removed from the list at issue.
14 By Commission Regulation (EU) No 36/2011 of 18 January 2011 amending for the 143rd time Regulation No 881/2002 (OJ 2011 L 36, p. 12), Mr Abdulrahim’s name was removed from the list at issue.
15 By document received at the Registry on 9 March 2011, Mr Abdulrahim brought a further application for legal aid under Article 94 of the Rules of Procedure for the purpose of pursuing the present action. That application was granted in part by order of the President of the Second Chamber of the General Court of 10 June 2011.
16 By letter received at the Registry on 27 July 2011, the Commission sent the Court a copy of Regulation No 36/2011.
17 By letter from the Registry of 17 November 2011, the parties were requested to express their views in writing on the conclusions to be drawn, especially in the light of the purpose of the action, from the adoption of Regulation No 36/2011.
18 In their written observations, lodged at the Registry on 6 December 2011, the Commission and the Council requested the Court to declare that the application for annulment had become devoid of purpose and that there was no longer any need to adjudicate in that regard. Those parties maintained their earlier heads of claim as regards the claim for damages and the costs.
19 By contrast, in his written observations lodged at the Registry on 6 December 2011, Mr Abdulrahim opposed the application for a declaration that there is no need to adjudicate on the application for annulment. Relying, inter alia, on Case T‑229/02 PKK v Council, not published in the ECR, paragraphs 46 to 51, Mr Abdulrahim submits more specifically that:
– the removal of his name from the list at issue does not have the same legal effect as the annulment of the regulations contested in the present case; the adoption of Regulation No 36/2011 and the concomitant repeal of Regulation No 1330/2008 cannot therefore be regarded as equivalent to the annulment of Regulation No 1330/2008 as sought, which would cause that act to disappear from the legal order of the European Union as if it had never existed;
– it is necessary to avoid a recurrence of the unlawful acts alleged in the present case, whether with regard to Mr Abdulrahim or with regard to other persons potentially concerned, and it is not possible to assume – in the total absence of information as to the reasons for the removal of Mr Abdulrahim’s name from the list at issue – that the fund-freezing measure contested by means of the present action for annulment will not be reintroduced in the future; that is all the more true in the light of the chaotic evolution of the situation in Libya;
– to hold that there is no need to adjudicate would be tantamount to granting the institutions de facto impunity, as they would be free to avoid judicial scrutiny at will;
– there is, on the contrary, an overriding public interest in ensuring that Regulation No 1330/2008 is subject to such judicial scrutiny, since: (i) the Commission claimed, incorrectly, that the present case is different from that which gave rise to the judgment of the Court of Justice in Joined Cases C‑402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351; (ii) the Commission failed to alert the General Court to highly material facts concerning the Libyan Islamic Fighting Group (LIFG) and its members; and (iii) Mr Abdulrahim alleged, in his reply, that Regulation No 1330/2008 had been adopted on the basis of information extracted by means of torture, in contravention of the mandatory rules of international law (jus cogens);
– the present action also relates to the question whether Mr Abdulrahim has been and continues to be wronged by the adoption and implementation of Regulation No 1330/2008, inter alia in the form of damage to his reputation, in breach of Article 8 of the European Convention on Human Rights (ECHR); consequently, the Court must examine the merits of the action;
– a decision on the merits of the application for annulment is also necessary to enable Mr Abdulrahim to secure the reimbursement of his costs, unless the Commission agrees to pay them.
Law
The application for annulment
20 Under Article 113 of its Rules of Procedure, the General Court may at any time, of its own motion, after hearing the parties, declare that the action has become devoid of purpose and that there is no need to adjudicate on it. Unless the General Court decides otherwise, the remainder of the proceedings are to be oral.
21 In the present case, the Court considers that it has sufficient information from the documents in the file to decide on the matter without opening the oral stage of the proceedings.
22 According to settled case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. That purpose must, like the interest in bringing proceedings, persist until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (see Case C‑362/05 P Wunenburger v Commission [2007] ECR I-4333, paragraph 42 and the case-law cited; see also, to that effect, Joined Cases T‑494/08 to T‑500/08 and T‑509/08 Ryanair v Commission [2010] ECR II‑0000, paragraphs 42 and 43).
23 If the applicant’s interest in bringing proceedings disappears in the course of proceedings, a decision of the General Court on the merits cannot procure any advantage for that party (Wunenburger v Commission, paragraph 43, and Ryanair v Commission, paragraph 44).
24 According to equally settled case-law, the withdrawal – or, in certain circumstances, the repeal – of the contested act by the defendant institution divests the action for annulment of its purpose, since it leads, for the applicant, to the desired outcome and gives him full satisfaction (see, to that effect, order of the Court of 28 March 2006 in Case T‑451/04 Mediocurso v Commission, not published in the ECR, paragraph 26 and the case-law cited, and orders of the Court of 6 July 2011 in Case T‑142/11 SIR v Council, not published in the ECR, paragraph 18, and in Case T‑160/11 Petroci Holding v Council, not published in the ECR, paragraph 15).
25 In his order of 10 June 2011 relating to the supplementary legal aid sought, the President of the Second Chamber of the General Court expressed the view that, since Mr Abdulrahim’s name had been removed from the list at issue with effect from 18 January 2011, his interest in pursuing the action for partial annulment of Regulation No 1330/2008 – if he was indeed continuing his action beyond that date – seemed in any event to have lost much of its intensity.
26 That preliminary finding, made for the purposes of Article 94(3) of the Rules of Procedure, should be confirmed unreservedly.
27 In the present case, the Commission, by Regulation No 36/2011, deleted the entry relating to Mr Abdulrahim’s name from the list at issue, originally made by Regulation No 1330/2008. Such a deletion entails the repeal of Regulation No 1330/2008 in so far as that act concerned Mr Abdulrahim.
28 That repeal leads, for Mr Abdulrahim, to the desired outcome and gives him full satisfaction, given that, following the adoption of Regulation No 36/2011, he is no longer subject to the restrictive measures which adversely affected him.
29 It is true that, according to settled case-law, the applicant may, in an action for annulment, retain an interest in the annulment of a measure which is repealed in the course of the proceedings if the annulment of that measure may in itself have legal consequences (see orders in Case T‑25/96 Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission [1997] ECR II‑363, paragraph 16, and in Case T‑184/01 IMS Health v Commission [2005] ECR II‑817, paragraph 38).
30 Where an act is annulled, the institution which adopted it is required under Article 266 TFEU to take the necessary measures to comply with the related judgment. Those measures do not involve the elimination of the act as such from the legal order of the European Union because that is the very essence of its annulment by the Court. They involve, rather, the removal of the effects of the illegalities found in the judgment annulling the act. The institution concerned may thus be required to take adequate steps to restore the applicant to his original situation or to refrain from the adoption of an identical measure (see order in Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission, paragraph 17 and the case-law cited).
31 In the present case, however, it is not apparent from the case-file – nor has Mr Abdulrahim adduced any convincing evidence substantiating such a conclusion – that, following the adoption of Regulation No 36/2011, the present action is liable to procure for him an advantage for the purposes of the case-law referred to in paragraph 22 above, leading him to retain an interest in bringing proceedings.
32 In particular, as regards, first, the fact that the repeal of an act of an institution of the European Union does not amount to recognition of its illegality and takes effect ex nunc, by contrast with a judgment annulling an act, by virtue of which the act annulled is removed retroactively from the legal order of the European Union and deemed never to have existed (paragraph 19 above, first indent) (see, to that effect, Joined Cases T‑481/93 and T‑484/93 Exporteurs in Levende Varkens and Others v Commission [1995] ECR II‑2941, paragraph 46), it must be pointed out that that fact cannot establish an interest on the part of Mr Abdulrahim in securing the annulment of Regulation No 1330/2008.
33 On the one hand, the fact remains that, in the circumstances of the present case, there is nothing to indicate that the removal ex tunc of Regulation No 1330/2008 would procure any advantage for Mr Abdulrahim. In that connection, it should be pointed out, inter alia, that there is nothing to establish that, in the event of a judgment annulling that act, the Commission and/or the Council would be required, pursuant to Article 266 TFEU, to adopt measures, within the terms of the case-law referred to in paragraph 29 above, designed to remove the effects of the illegality held to exist.
34 On the other hand, with regard to recognition of the alleged illegality itself, that may admittedly constitute one of the forms of reparation sought through a claim for damages under Articles 268 TFEU and 340 TFEU. By contrast, such recognition is not sufficient to establish a continuing interest in bringing proceedings under Articles 263 TFEU and 264 TFEU for the annulment of acts of the institutions. Were the position otherwise, an applicant would permanently retain an interest in seeking the annulment of an act, notwithstanding its withdrawal or repeal, and that would be incompatible with the case-law referred to in paragraphs 24 and 29 above.
35 As regards Mr Abdulrahim’s reference to the judgment in PKK v Council, it is true that, according to the case-law, an applicant may retain an interest in securing the annulment of a decision imposing restrictive measures which has been replaced (see, to that effect, in addition to PKK v Council, Case T‑228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II‑4665, paragraph 35; judgment of 11 July 2007 in Case T‑327/03 Al-Aqsa v Council, not published in the ECR, paragraph 39; and Case T‑256/07 People’s Mojahedin Organization of Iran v Council [2008] ECR II‑3019, paragraph 48). The fact remains, however, that that case-law was developed in a specific context which differs from that in the present case. By contrast with Regulation No 1330/2008, the acts at issue in those cases had not only been repealed, but had also been replaced by new acts, and the restrictive measures relating to the entities concerned had been maintained. The original effects of the acts which had been repealed thus continued, in relation to the entities concerned, by means of the acts which replaced them. In the present case, however, Regulation No 36/2011 quite simply removes Mr Abdulrahim’s name from the list at issue, thereby repealing Regulation No 1330/2008 in so far as it concerns Mr Abdulrahim, but not replacing it. The effects produced by that regulation do not therefore persist vis-à-vis Mr Abdulrahim. In addition, that case-law is based on the difference between the effects of the repeal of an act and the effects of its annulment, a factor which is not relevant in the present case, as is apparent from paragraph 32 above.
36 That distinction between, on the one hand, circumstances such as those in the present case and, on the other, the circumstances which gave rise to the judgments referred to in paragraph 35 above, made by the General Court in the orders in SIR v Council and Petroci Holding v Council, appears to be confirmed by the judgment in Joined Cases C‑399/06 P and C‑403/06 P Hassan and Ayadi v Council and Commission [2009] ECR I-11393. First, instead of concluding automatically that the applicants concerned retained an interest in bringing proceedings in the cases in question, the Court of Justice raised, of its own motion, in paragraph 57 of that judgment, the question whether, in the light of the withdrawal of the contested regulation and its retroactive replacement by another act, it was still necessary to adjudicate on the cases concerned. Secondly, in paragraphs 59 to 63 of that judgment, the Court of Justice pointed out a certain number of particular circumstances in the cases before it which, in terms of their effects, were quite similar to those in the cases which gave rise to the case-law referred to in paragraph 35 above and which led it to conclude, in paragraphs 64 and 65 of the judgment, that, ‘in these particular circumstances’, and in contrast to what had been held in the order in Case C‑123/92 Lezzi Pietro v Commission [1993] ECR I‑809, the adoption of the new act (and the concomitant repeal of the contested regulation) could not be regarded as equivalent to the annulment, pure and simple, of the contested regulation. Those particular circumstances do not, however, obtain in the present case, as has already been pointed out in paragraph 35 above. More specifically, in the present case, Regulation No 36/2011 is definitive inasmuch as it may no longer be the subject of an action for annulment. Consequently, it is inconceivable that Regulation No 1330/2008 might come back into force so far as Mr Abdulrahim is concerned, contrary to the finding made by the Court of Justice in paragraph 63 of Hassan and Ayadi v Council and Commission.
37 As regards, secondly, the fact that an applicant may retain an interest in seeking the annulment of an act of a European Union institution in order to prevent its alleged unlawfulness recurring in the future (paragraph 19 above, second indent) (see, to that effect, Wunenburger v Commission, paragraph 50), it must be borne in mind that such an interest in bringing proceedings, which follows from the first paragraph of Article 266 TFEU, can exist only if the alleged unlawfulness is liable to recur in the future independently of the circumstances of the case which gave rise to the action (Wunenburger v Commission, paragraphs 51 and 52). In the present case, however, there is nothing in the file to suggest that this might happen. On the contrary, as Regulation No 36/2011 was adopted in view of the specific circumstances of Mr Abdulrahim and, apparently, of developments in the situation in Libya, it does not appear likely that the alleged unlawfulness might recur in the future independently of the circumstances which have given rise to the present action.
38 As regards, thirdly, the argument that there is an overriding public interest in having the alleged infringement of a mandatory rule of international law penalised and that the Commission should not be acknowledged as having any impunity in that regard (paragraph 19 above, third and fourth indents), that argument is not sufficient to establish that Mr Abdulrahim has a personal interest in the continuation of the present action. The same is true of the arguments relating to the judgment in Kadi and Al Barakaat International Foundation v Council and Commission and the alleged failure on the part of the Commission to provide the General Court with facts concerning the LIFG and its members. Even though, as Mr Abdulrahim observes, the Commission and the Council must comply both with the case-law of the Court of Justice and with the mandatory rules of international law and are not entitled to adopt acts based on information obtained through torture, Mr Abdulrahim is not entitled to act in the interests of the law, or of the institutions or other persons and may put forward only such interests and claims as relate to him personally (see, to that effect, Case 85/82 Schloh v Council [1983] ECR 2105, paragraph 14).
39 As regards, fourthly, the possibility that detrimental consequences might, as the case may be, follow from the alleged unlawfulness of Regulation No 1330/2008 (paragraph 19 above, fifth indent), it must be stated at the outset that the application made by the defendant institutions for a declaration that there is no need to adjudicate relates only to the application for annulment. Mr Abdulrahim may therefore still seek compensation for the damage which, in his claim for damages under Article 268 TFEU and the second and third paragraphs of Article 340 TFEU, he purports to have sustained. Moreover, that claim will be examined subsequently in the present order.
40 As regards, fifthly and lastly, the argument relating to the alleged need to secure a decision on the merits of the present action for the purposes of the recovery of the costs incurred by Mr Abdulrahim, suffice it to refer to paragraphs 69 to 71 below.
41 It follows from all of the foregoing that there is no longer any need to adjudicate on the application for annulment and it is unnecessary to give a prior ruling on the admissibility of that application (see, by analogy, Case C-23/00 P Council v Boehringer [2002] ECR I‑1873, paragraph 52).
The claim for damages
42 Under Article 111 of the Rules of Procedure, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, by reasoned order and without taking further steps in the proceedings, give a decision on the action.
43 In the present case, in his order of 10 June 2011 relating to the supplementary legal aid sought, the President of the Second Chamber of the General Court expressed the view that the claim for damages appeared manifestly inadmissible or manifestly unfounded, particularly in the light of the requirements relating to the burden of proving the truth and the extent of the damage purportedly sustained as well as a causal link between that damage and the substantive illegalities invoked in support of that claim.
44 That preliminary finding, made for the purposes of Article 94(3) of the Rules of Procedure, cannot but be confirmed. The claim for damages appears to be manifestly lacking any foundation in law – or even to be manifestly inadmissible – in the light of the procedural documents, the information in the case-file and the explanations provided by the parties in their written pleadings.
45 In that regard, the Court points out that, according to settled case-law, in order for the European Union to incur non-contractual liability under the second paragraph of Article 340 TFEU for unlawful conduct on the part of its institutions, a number of conditions must be satisfied: the institutions’ conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct alleged and the damage purportedly sustained. Since those three conditions for the incurring of liability are cumulative, failure to meet one of them is sufficient for a claim for damages to be dismissed, without it being necessary to examine the other conditions (Case T‑49/07 Fahas v Council [2010] ECR II‑0000, paragraphs 92 and 93).
46 It must also be pointed out that, in an action based on Article 268 TFEU, read in conjunction with the second paragraph of Article 340 TFEU, the applicant has to prove not only the unlawfulness of the conduct complained of and the fact of the damage, but also the existence of a causal link between that conduct and the damage purportedly sustained. As for the condition relating to a causal link, it is settled case-law that the damage must be a sufficiently direct consequence of the conduct complained of. A causal link for the purposes of the second paragraph of Article 340 TFEU is thus recognised where there is a direct link of cause and effect between the fault committed by the institution concerned and the damage purportedly sustained (judgment of 11 July 2007 in Case T‑47/03 Sison v Council, not published in the ECR, paragraph 244 and the case-law cited).
47 In the present case, as regards the nature and the extent of the various forms of damage purportedly sustained, the three following paragraphs are set out in the application under the heading ‘claim for damages’:
‘155. As regards the second requirement, in accordance with the case-law, the applicant must produce to the [General Court] evidence to establish the fact and the extent of the loss which he claims to have suffered. As a result of the listing of the applicant’s name in [the list at issue], the applicant’s funds and assets were frozen. Except for the exemptions granted by the HM Treasury for [the] applicant’s basic expenses the applicant was not able to access his funds and assets since [Regulation No 1330/2008] entered into force.
156. As a result of the unlawful Community act, the [applicant] has been unable to develop his business, and has therefore lost profits and business opportunities. He has also suffered non-material damage in the form of damage to his reputation and unjustified interference with his private and family life. The Community’s unlawful act has also placed him in a prolonged state of uncertainty and anxiety with regard to the recognition of his rights.
157. The loss or damage caused by an unlawful Community act will found a claim for damages if its existence is sufficiently certain. Accordingly, the applicant claims the following damages:
(1) Loss of earnings;
(2) Loss of profits;
(3) Lost business opportunities;
(4) Non-material damage for violation of his fundamental rights and for prolonged uncertainty and anxiety caused by the Community’s unlawful act.’
48 None of the 12 Annexes to the application serves to constitute evidence of any of that damage or to quantify it.
49 As regards the existence of a causal link between the various forms of damage purportedly sustained and the substantive illegalities invoked in support of the claim for damages, Mr Abdulrahim merely submits, in paragraph 158 of the application, that:
‘there is evident causal connection between the act of listing his name in [the list at issue] and subsequent freezing of his funds and assets and the loss and damage he suffered as a result of these acts. The loss is a direct consequence of the unlawful act of listing the Applicant in [the list at issue, effected] by … Regulation [No] 1330/2008.’
50 As Mr Abdulrahim himself concedes in paragraph 80 of the application, paragraph 31 of the reply to the Council and his witness statement of 13 March 2009, which is appended to the application as Annex 11, his assets in the United Kingdom had been frozen well before the adoption of Regulation No 1330/2008 on 22 December 2008. In order to comply with the Sanctions Committee decision of 21 October 2008 adding Mr Abdulrahim’s name to its list, the United Kingdom Government had adopted restrictive measures against him as from 21 October 2008 under the Al Qaida and Taliban (United Nations Measure) Order 2006, of which he had been officially informed by two letters from Her Majesty’s Treasury dated 27 October and 5 November 2008 respectively. It is common ground that the content and scope of those restrictive measures are equivalent to those of the restrictive measures provided for under Regulation No 881/2002.
51 Furthermore, it is apparent from the case-file that it was at the instigation of the United Kingdom and upon a proposal from that State that Mr Abdulrahim’s name was added to the Sanctions Committee list, by decision of that committee of 21 October 2008.
52 It is accordingly quite obvious that the direct and immediate cause of the material damage purportedly sustained by Mr Abdulrahim, arising from the unavailability of his funds, financial assets and other economic resources and consisting in his being deprived of their use, was not the adoption of the Community acts at issue in the present case, but the adoption one after the other, on 21 October 2008, of the Sanctions Committee’s decision adding his name to its list and of the UK authorities’ decision adopting restrictive measures in his regard (see, by analogy, Sison v Council, paragraph 246).
53 The same finding is called for as regards the material damage purportedly sustained by Mr Abdulrahim and consisting in loss of earnings, profit and business opportunities.
54 As to the remainder, proof has not been provided of the existence of additional material damage which is directly and specifically attributable to the adoption of the Community acts at issue in the present case.
55 The fact that the adoption of Regulation No 881/2002 itself took place before the adoption of the UK restrictive measures is irrelevant in that regard since that regulation did not in any way relate to Mr Abdulrahim’s personal circumstances before the adoption of Regulation No 1330/2008.
56 The same is true of Mr Abdulrahim’s claim that Regulation No 881/2002 constitutes the clear legal basis for the Al Qaida and Taliban (United Nations Measure) Order 2006, which implements that regulation in the United Kingdom, since the freezing of his funds in the United Kingdom was decreed, pursuant to that order, at a time when there was no act of Community law requiring those funds to be frozen.
57 The same is also true of the claim that, given the fact that Regulation No 1330/2008 has direct effect, the United Kingdom would be obliged to abolish the restrictive national asset-freezing measure in respect of Mr Abdulrahim if that regulation were to be annulled. At present, both the Community measure and the national asset-freezing measure in respect of Mr Abdulrahim have been repealed.
58 Nor, furthermore, has Mr Abdulrahim – being a United Kingdom national, who resides in London – claimed that he has assets or pursues a professional activity in a Member State other than the United Kingdom. Accordingly, the fact that Regulation No 1330/2008 extended the freezing of his assets to the whole of the Community, whereas it had previously been limited to the territory of the United Kingdom, cannot have contributed to an increase in the material damage purportedly sustained.
59 As regards the non-material damage purportedly sustained by Mr Abdulrahim, inter alia, in terms of damage to his reputation, it must be recognised that the direct and immediate cause of that damage, too, is to be found, first, in the decision of the Sanctions Committee – which was established by the United Nations Security Council, whose decisions are binding on all Member States of the United Nations pursuant to Article 25 of the United Nations Charter – adding his name to the Sanctions Committee list upon a proposal from the United Kingdom Government and, secondly, in the consequent decision of that government to adopt without delay restrictive measures in his regard, which were immediately brought to the attention of his family and professional circles. As to the remainder, proof of additional non-material damage, directly and specifically attributable to the adoption of the Community acts at issue in the present case, has not been provided.
60 Accordingly, it cannot reasonably be claimed that the various forms of damage purportedly sustained are a sufficiently direct consequence of the substantive illegalities invoked by Mr Abdulrahim.
61 Lastly, it should be pointed out that neither the application nor its annexes contain the slightest quantification, or documentary evidence, of the damage claimed, in general and abstract terms, in paragraphs 155 to 157 of the application and in point (h) of the section of that application relating to the form of order sought, even though, in paragraph 155 of his application, Mr Abdulrahim appropriately invoked the case-law to the effect that an applicant must submit to the Court evidence to establish the fact and the extent of the loss which he claims to have suffered, citing in that connection Case T‑575/93 Koelman v Commission [1996] ECR II-1, paragraph 97; Case T-38/96 Guérin automobiles v Commission [1997] ECR II-1223, paragraphs 42 and 43; and Case T-19/01 Chiquita Brands and Others v Commission [2005] ECR II-3125, paragraph 65.
62 Every claim for compensation for damage, whether the damage is material or non-material, and whether the indemnity is symbolic or actual, must give details of the nature of the damage alleged in connection with the conduct complained of on the part of the defendant institution and must quantify the whole of that damage, even if approximately (see Case T-277/97 Ismeri Europa v Court of Auditors [1999] ECR II-1825, paragraph 81 and the case-law cited, and Sison v Council, paragraph 250).
63 The arguments put forward by Mr Abdulrahim in his observations on the preliminary plea of inadmissibility and in his replies to the Council and the Commission do not contradict that finding but, in reality, seek rather to remedy the failure to provide, in the application, any specific arguments relating to the claim for damages. Accordingly, it is only in those observations and replies that Mr Abdulrahim first gave some indication of the amount to which the purported material and non-material damage corresponded.
64 However, it must be held that – as the Council found – even if that additional evidence to explain, evaluate and prove the damage were admissible, it would not establish the soundness of Mr Abdulrahim’s claims.
65 Consequently, as regards the three businesses purportedly operated by Mr Abdulrahim, the only documents produced by him relate to the income and expenditure of the El Shaam and Pizza Lodge restaurants for the period from 1 April 2007 to 31 March 2008. The accounts relating to the following period, on the basis of which the losses should a priori have been calculated, were not provided. Furthermore, no probative document was provided as regards the business called ‘London Souvenirs and Gifts’.
66 In those circumstances, the Court can only conclude that evidence of the fact and the extent of the material damage invoked has manifestly not been adduced, even at the stage of the reply.
67 It follows from all of the foregoing considerations that the claim for damages, even if it were admissible, would have to be dismissed as being, in any event, manifestly unfounded.
Costs
Costs relating to the application for annulment
68 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the General Court.
69 It should be stated in that regard that the present action was brought as a result of the Commission’s decision, taken in reliance on the statement of reasons provided by the Sanctions Committee, to add Mr Abdulrahim’s name to the list at issue.
70 Furthermore, it should be borne in mind that, in his order of 10 June 2011 in Case T-127/09 AJ, the President of the Second Chamber of the General Court expressed very serious doubts as to whether, following the adoption of Regulation No 36/2011, Mr Abdulrahim retained an interest in proceeding further with the application for partial annulment of Regulation No 1330/2008.
71 In view of the foregoing considerations and the statement of reasons provided by the Sanctions Committee, and in the light of the judgments in Kadi and Al Barakaat International Foundation v Council and Commission and in Case T‑85/09 Kadi v Commission [2010] ECR II-0000, the Court considers that it is just and equitable to order the Commission to bear its own costs and also to pay the costs incurred by Mr Abdulrahim up to 18 January 2011 in relation to the action for annulment and to order Mr Abdulrahim to bear his own costs, to pay in their entirety the costs incurred by the Council and to pay those incurred by the Commission after 18 January 2011 in relation to the same action.
72 In accordance with the first subparagraph of Article 97(3) of the Rules of Procedure, since Mr Abdulrahim has been granted legal aid and the Court has ordered the Commission to pay part of the costs incurred by the applicant in relation to the action for annulment, the Commission will be required to refund to the cashier of the Court the sums advanced by way of legal aid in that respect.
Costs relating to the claim for damages
73 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.
74 Since the applicant has been unsuccessful in his claim for damages, he must be ordered to pay the costs relating to it, in accordance with the form of order sought by the Council and the Commission.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby orders:
1. There is no longer any need to adjudicate on the application for annulment.
2. The claim for damages is dismissed.
3. The European Commission shall, in addition to bearing its own costs, pay those incurred by Mr Abdulbasit Abdulrahim up to 18 January 2011 in relation to the application for annulment and shall refund to the cashier of the General Court the sums advanced by way of legal aid in that regard.
4. Mr Abdulbasit Abdulrahim shall, in addition to bearing his own costs, pay in their entirety the costs incurred by the Council of the European Union in relation to the application for annulment, together with those incurred by the Commission after 18 January 2011 in that regard, and pay in their entirety the costs incurred by both of those institutions in relation to the claim for damages.
Luxembourg, 28 February 2012.