Case T‑127/09 RENV

Abdulbasit Abdulrahim

v

Council of the European Union

and

European Commission

(Referral back after setting aside of order — Common foreign and security policy — Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban — Regulation (EC) No 881/2002 — Freezing of funds and economic resources of a person named in a list drawn up by a body of the United Nations — Naming of that person in the list in Annex I to Regulation (EC) No 881/2002 — Action for annulment — Admissibility — Period allowed for commencing proceedings — Exceeded — Excusable error — Fundamental rights — Rights of the defence — Right to effective judicial protection — Right to respect for property — Right to respect for private and family life)

Summary — Judgment of the General Court (Third Chamber), 14 January 2015

1.      Judicial proceedings — Time-limit for instituting proceedings — Claim barred by lapse of time — Unforeseeable circumstances or force majeure — Definition — Postal delay

(Art. 263, sixth para., TFEU; Statute of the Court of Justice, Art. 45, second para.)

2.      European Union — Judicial review of the legality of the acts of the institutions — Regulation imposing restrictive measures taken against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban — Ambit of the review

(Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 881/2002, Annex I)

1.      Article 45 the Statute of the Court of Justice is applicable in cases of abnormal difficulties, independent of the will of the person concerned and apparently inevitable even if all due care is taken. It is for the party concerned to establish, first, that abnormal circumstances, unforeseeable and outside his control, made it impossible for him to comply with the time-limit for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU and, secondly, that he could not guard against the consequences of those circumstances by taking appropriate steps without making unreasonable sacrifices. In particular, a trader must pay close attention to the course of the procedure set in motion and, in particular, demonstrate diligence in order to comply with the prescribed time-limits.

Therefore, where an applicant’s lawyers have demonstrated all the diligence required by entrusting the signed original of the application to a reputedly reliable postal service, a subsidiary of the historic postal service of a Member State, on the same day as sending the copy by fax, those lawyers could reasonably expect that that signed original would arrive at the Registry within a period shorter than the ten days available to them to achieve it. It cannot be required of an applicant, a fortiori one who is the recipient of legal aid, that he should choose the most expensive international delivery services offered by a postal operator, where a less expensive service offered by the same operator appears, in principle, adequately to ensure delivery of the signed original of the application to the Court’s Registry within the prescribed period.

(see paras 45-47, 49)

2.      Where the person concerned challenges the legality of the decision to list or maintain his listing on the list appearing in Annex I to Regulation 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, and repealing Regulation 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, the EU judicature must, as part of the review of the lawfulness of the grounds which are the basis of that decision, ensure that that decision is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated. To that end, it is for the EU judicature, in order to carry out that examination, to request the competent European Union authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination.

If the competent EU authority finds itself unable to comply with the request by the EU judicature, it is then the duty of the latter to base its decision solely on the material which has been disclosed to it. If that material is insufficient to allow a finding that a reason is well founded, the EU judicature is to disregard that reason as a possible basis for the contested decision to list or maintain a listing. If, on the other hand, the competent EU authority provides relevant information or evidence, the EU judicature must then determine whether the facts alleged are made out in the light of that information or evidence and assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person concerned, applying when necessary techniques which accommodate, on the one hand, legitimate security considerations about the nature and sources of information taken into account in the adoption of the act concerned and, on the other, the need sufficiently to guarantee to an individual respect for his procedural rights.

Having regard to the preventive nature of the restrictive measures at issue, if, in the course of its review of the lawfulness of the contested measure, the EU judicature considers that, at the very least, one of the reasons mentioned in the summary provided by the Sanctions Committee is sufficiently detailed and specific, that it is substantiated and that it constitutes in itself sufficient basis to support that decision, the fact that the same cannot be said of other such reasons cannot justify the annulment of that measure. In the absence of one such reason, the EU judicature will annul the contested decision.

However, the fact that the competent EU authority does not make accessible to the person concerned and, subsequently, to the EU judicature information or evidence which is in the sole possession of the Sanctions Committee or the Member of the United Nations (UN) concerned and which relates to the summary of reasons underpinning the decision at issue, cannot, as such, justify a finding that those rights have been infringed. However, in such a situation, the EU judicature, which is called upon to review whether the reasons contained in the summary provided by the Sanctions Committee are well founded in fact, taking into consideration any observations and exculpatory evidence produced by the person concerned and the response of the competent EU authority to those observations, will not have available to it supplementary information or evidence. Consequently, if it is impossible for the EU judicature to find that those reasons are well founded, those reasons cannot be relied on as the basis for the contested listing decision.

(see paras 62, 63, 66, 68, 71)