ORDER OF THE GENERAL COURT (Second Chamber)
31 January 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)
In Case T‑527/09,
Chafiq Ayadi, residing in Dublin (Ireland), represented initially by B. Emmerson QC, S. Cox, Barrister, and H. Miller, Solicitor, and subsequently by E. Grieves, Barrister, and H. Miller,
applicant,
v
European Commission, represented by E. Paasivirta, T. Scharf and M. Konstantinidis, acting as Agents,
defendant,
supported by
Council of the European Union, represented by E. Finnegan and R. Szostak, acting as Agents,
intervener,
APPLICATION for annulment of Commission Regulation (EC) No 954/2009 of 13 October 2009 amending for the 114th 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 2009 L 269, p. 20), in so far as that act concerns the applicant,
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
Legal context and background to the dispute
1 For a detailed account of the background to the dispute and of the applicable legal context, reference is made, first, to paragraphs 3 to 23 of the judgment of the Court of Justice in Joined Cases C‑399/06 P and C‑403/06 P Hassan and Ayadi v Council and Commission [2009] ECR I‑11393 (‘the judgment of the Court of Justice in Ayadi’), delivered on appeal against the judgment of the Court of First Instance (now the General Court) in Case T‑253/02 Ayadi v Council [2006] ECR II‑2139 (‘the judgment of the General Court in Ayadi’), which had ruled on the action for annulment brought by the applicant, Mr Chafiq Ayadi, against 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-Qaeda 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) in so far as that act concerned him, and, second, to paragraphs 1 to 49 of the judgment of the General Court in Ayadi.
2 For the purposes of the present order, that background may be summarised as follows.
3 On 26 August 2002, the applicant brought before the General Court an action for annulment of Regulation No 881/2002 in so far as that act concerned him, on the grounds, inter alia, that it infringed the principles of proportionality and respect for human rights.
4 By its judgment in Ayadi, delivered on 12 July 2006, the General Court dismissed that action.
5 On 22 September 2006, the applicant appealed against the judgment of the General Court in Ayadi.
6 On 3 September 2008, the Court of Justice delivered its judgment 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 (‘the judgment of the Court of Justice in Kadi’).
7 In order to allow the European Commission to comply with the judgment of the Court of Justice in Kadi, the Presidency of the Council of the European Union requested that the Sanctions Committee established by Resolution 1267 (1999) of the Security Council of the United Nations (‘the Sanctions Committee’) provide it with a statement of the reasons for the inclusion of the applicant on that committee’s list. Following that step, the Commission sent a letter to the applicant on 24 June 2009 informing him that the freezing of his funds within the European Union was based on the grounds set out in the statement of reasons provided by the Sanctions Committee and attached to that letter. By letter of 23 July 2009, the applicant submitted detailed comments in reply to the Commission.
8 On 13 October 2009, the Commission adopted Regulation (EC) No 954/2009 amending for the 114th time Regulation No 881/2002 (OJ 2009 L 269, p. 20) (‘the contested regulation’). By that regulation, the entry concerning the name of the applicant, in Annex I to Regulation No 881/2002, was confirmed.
9 By its judgment in Ayadi, delivered on 3 December 2009, the Court of Justice set aside the judgment of the General Court in Ayadi and annulled Regulation No 881/2002 in so far as it concerned the applicant, basing its decision essentially on legal grounds derived from its judgment in Kadi.
Procedure
10 By document lodged at the Registry of the General Court on 28 December 2009, the applicant made an application for legal aid, pursuant to Article 94 of the Rules of Procedure of the General Court, for the purposes of bringing an action against the Commission, under Article 263 TFEU, for partial annulment of the contested regulation.
11 By application lodged at the Registry on 6 April 2010, the applicant brought the present action, which seeks annulment of the contested regulation in so far as it concerns him.
12 By separate document lodged at the Registry on the same date, the applicant applied for the case to be dealt with under an expedited procedure pursuant to Article 76a of the Rules of Procedure. After the Commission had been heard, that application was dismissed by decision of the Court (Seventh Chamber) of 18 May 2010.
13 By order of 6 July 2010, after the parties had been heard, the President of the Seventh Chamber of the Court granted the Council leave to intervene in support of the form of order sought by the Commission.
14 By Commission Regulation (EU) No 663/2010 of 23 July 2010 amending for the 131st time Regulation No 881/2002 (OJ 2010 L 193, p. 6), the entry relating to the name of the applicant, as it appears in Annex I to Regulation No 881/2002, was amended. The parties have not, however, based any argument on that amendment, which appears to have no bearing on the present proceedings.
15 Following changes in the composition of the Chambers of the General Court with effect from the beginning of the judicial year, the Judge-Rapporteur was assigned to the Second Chamber, to which this case has consequently been allocated.
16 By order of 22 October 2010, after the Commission had been heard, the President of the Second Chamber of the Court granted the applicant legal aid.
17 On 17 October 2011, the Sanctions Committee decided to remove the applicant’s name from the list of persons, groups and entities to which the freezing of funds and financial resources provided for by Resolution 1267 (1999) applies.
18 By Commission Implementing Regulation (EU) No 1081/2011 of 25 October 2011 amending for the 160th time Regulation No 881/2002 (OJ 2011 L 280, p. 17), the entry relating to the applicant’s name was accordingly deleted from the list in Annex I to Regulation No 881/2002.
19 By document lodged at the Registry on 27 October 2011, the Commission requested that the Court declare that the present action had become devoid of purpose and that there was no longer any need to adjudicate on it.
20 In its written observations, lodged at the Registry on 17 November 2011, the Council supported that application.
21 In his written observations, lodged at the Registry on 21 November 2011, the applicant, by contrast, opposed that application. He submits in particular that:
– the retroactive effect as from 30 May 2002, conferred on the contested regulation by Article 2 thereof, was not nullified by Regulation No 1081/2011;
– it is necessary to avoid a recurrence of the unlawful acts alleged in the present case, and it is not possible to assume, in the absence of any information as to the reasons for the deletion of the entry in respect of his name from the list in Annex I to Regulation No 881/2002, that the fund-freezing measure contested by the present action will not be reintroduced in the future;
– to hold that there is no need to adjudicate would be tantamount to granting the Commission de facto impunity as it would be free to avoid judicial scrutiny at will;
– there is, on the contrary, an overriding public interest that the contested regulation should be subject to such judicial scrutiny since he alleged, in his reply, that that act had been adopted on the basis of information extracted under torture, in contravention of the mandatory rules of international law (jus cogens);
– the present action also relates to the question whether he has been wronged by the implementation of the contested regulation, inter alia in the form of damage done to his reputation, in breach of Article 8 of the European Convention on Human Rights (ECHR);
– the adoption of Regulation No 1081/2011 and the concomitant repeal of the contested regulation cannot be regarded as equivalent to the annulment of the latter regulation sought, which would have the effect of removing that act from the legal order of the European Union as if it had never existed (judgment of the Court of Justice in Ayadi, paragraphs 53 to 65);
– the orders of the Court of 6 July 2011 in Case T‑142/11 SIR v Council, not published in the ECR, and in Case T‑160/11 Petroci Holding v Council, not published in the ECR, referred to by the Commission, are neither relevant nor do they constitute a valid precedent in the present case; it is necessary, on the contrary, to refer to the Court’s judgment of 3 April 2008 in Case T‑229/02 PKK v Council, not published in the ECR, paragraphs 46, 47, 49 and 50, by which it was held that the PKK retained an interest in pursuing its action for annulment of the fund-freezing measure originally contested in that case, notwithstanding the repeal of that measure and its replacement by other fund-freezing measures in the course of the proceedings;
– a decision on the merits of the present action is also necessary to enable him to obtain reimbursement of his costs, unless the Commission agrees to pay them.
The request for a ruling that there is no need to adjudicate
22 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 otherwise decides, the remainder of the proceedings are to be oral.
23 In the present case, the Court considers that it has sufficient information from the documents in the file to decide the matter without opening the oral stage of the proceedings.
24 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 it will be inadmissible. That objective of the dispute must continue, like the interest in bringing proceedings, 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 to 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).
25 If the applicant’s interest in bringing proceedings disappears in the course of proceedings, a decision of the General Court on the merits cannot bring him any benefit (Wunenburger v Commission, paragraph 43, and Ryanair v Commission, paragraph 44).
26 According to equally settled case-law, the withdrawal, or the repeal in certain circumstances, of the contested act by the defendant institution eliminates the subject-matter of the action for annulment since it leads, for the applicant, to the desired outcome and gives him full satisfaction (see 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; SIR v Council, paragraph 18; and Petroci Holding v Council, paragraph 15).
27 In the present case, the Commission, by Regulation No 1081/2011, deleted the entry relating to the applicant’s name from the list in Annex I to Regulation No 881/2002, although that entry, originally made by Regulation No 881/2002, had been retained retroactively by the contested regulation, with the result that the resulting restrictive measures had continued to be applicable to him notwithstanding the partial annulment of Regulation No 881/2002 by the judgment of the Court of Justice in Ayadi (see paragraph 61 of that judgment). Such a deletion entails the repeal of the contested regulation in so far as that act concerned the applicant.
28 That repeal leads, for the applicant, to the desired outcome and gives him full satisfaction, given that, following the adoption of Regulation No 1081/2011, he is no longer subject to the restrictive measures which adversely affected him.
29 It is true that, according to settled case-law, in an action for annulment, the applicant may retain an interest in the annulment of a measure withdrawn in the course of 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 In the case 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 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, and the applicant has not adduced any convincing evidence pointing to the conclusion, that, following the adoption of Regulation No 1081/2011, the present action is liable to procure for him an advantage within the meaning of the case-law referred to in paragraph 24 above, with the result that he retains an interest in bringing proceedings.
32 In particular, with regard, first, to 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 is deemed never to have existed (paragraph 21, first and sixth indents, above; 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 the applicant in securing the annulment of the contested regulation.
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 that act would procure any advantage for the applicant. In that connection, it must be pointed out, inter alia, that there is nothing to establish that, in the event of a judgment annulling that act, the Commission would be required, pursuant to Article 266 TFEU, to adopt measures, within the terms of the case-law cited 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, it is true, constitute one of the forms of compensation pursued in an action for damages pursuant to Articles 268 TFEU and 340 TFEU. By contrast, such recognition is not sufficient to establish a continuing interest in bringing proceedings for annulment of acts of the institutions under Articles 263 TFEU and 264 TFEU. Were the position otherwise, an applicant would continue permanently to 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 26 and 29 above.
35 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 21, second indent, above; 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 that may happen. On the contrary, as Regulation No 1081/2011 was adopted in view of the specific position of the applicant 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 gave rise to the present action.
36 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 21, third and fourth indents, above), that argument is not sufficient to establish that the applicant has a personal interest in the continuation of the present action. Even though, as the applicant observes, the Commission must comply with mandatory rules of international law and is not entitled to adopt a decision based on evidence obtained under torture, the applicant is not entitled to act in the interests of the law or of the institutions and may put forward only such an interest and claims as relate to him personally (see, to that effect, Case 85/82 Schloh v Council [1983] ECR 2105, paragraph 14).
37 With regard, fourthly, to the case-law according to which an applicant retains an interest in securing the annulment of a decision imposing restrictive measures which has been repealed and replaced (paragraph 21, seventh indent, above; 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 that that case-law was developed in a specific context which differs from that in the present case. By contrast to the regulation contested in the present case, the acts at issue in the cases cited 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, with regard to the entities concerned, by means of the acts which replaced them. In the present case, however, Regulation No 1081/2011 quite simply deletes the entry relating to the applicant in the list in Annex I to Regulation No 881/2002, thereby repealing the contested regulation, in so far as it concerns the applicant, without replacing it. The effects produced by that regulation do not therefore continue to exist. In addition, that case-law is based on the difference between the effects of the repeal and of the annulment of an act, a factor which is not relevant in the present case, as is apparent from paragraph 32 above.
38 Far from being contradicted by the judgment of the Court of Justice in Ayadi, that distinction, made by the General Court in the orders in SIR v Council and Petroci Holding v Council, appears rather to be reinforced by it. 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 its judgment in Ayadi, 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 of the cases before it, which were quite similar in their effects to those in the cases which gave rise to the case-law referred to in paragraph 37 above, and which led it to the conclusion, 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 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 37 above. More specifically, in the present case, Regulation No 1081/2011 is definitive inasmuch as it may no longer be the object of an action for annulment. Consequently, it is inconceivable that the contested regulation might come back into force so far as the applicant is concerned, contrary to what was held by the Court of Justice in paragraph 63 of its judgment in Ayadi.
39 As regards, fifthly, possible detrimental consequences which might, as the case may be, follow from the alleged unlawfulness of the contested regulation (paragraph 21, fifth indent, above), it must be stated at the outset that, contrary to what the applicant submits, the present action does not include any claim for compensation in respect of material or non-material damage, inter alia in the form of damage done to his reputation.
40 In any event, the applicant may seek compensation for such damage in an action based on Article 268 TFEU and the second and third paragraphs of Article 340 TFEU as the bringing of such an action does not have to be preceded by an action for annulment of the act purportedly giving rise to the alleged damage (see, to that effect, Case T‑178/98 Fresh Marine v Commission [2000] ECR II‑3331, paragraph 49 and the case-law cited).
41 As regards, sixthly 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 the applicant, suffice it to refer to paragraphs 43 to 45 below.
42 It follows from all of the foregoing that there is no longer any need to adjudicate on the present action.
Costs
43 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are in the discretion of the Court.
44 It must be stated, in that regard, that the present action was brought as a result of the Commission’s decision to retain the entry relating to the applicant’s name in the list in Annex I to Regulation No 881/2002, notwithstanding the delivery of the judgment of the Court of Justice in Ayadi, by relying on the statement of reasons provided by the Sanctions Committee.
45 In view of that statement of reasons, and in the light of the judgments of the Court of Justice in Kadi and in Ayadi and of the judgment 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 the applicant.
46 In accordance with the first subparagraph of Article 97(3) of the Rules of Procedure, the applicant having been granted legal aid and the Court having ordered the Commission to pay the costs incurred by the applicant, the Commission will be required to refund to the cashier of the Court the sums advanced by way of legal aid.
47 In accordance with Article 87(4) of the Rules of Procedure, the Council must bear its own costs.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby orders:
1. There is no longer any need to adjudicate on the action.
2. The European Commission, in addition to bearing its own costs, shall pay those incurred by Mr Chafiq Ayadi and shall be required to refund to the cashier of the General Court the sums advanced by way of legal aid.
3. The Council of the European Union shall bear its own costs.
Luxembourg, 31 January 2012.