JUDGMENT OF THE GENERAL COURT (Fourth Chamber, Extended Composition)
30 November 2022 (*)
(Common foreign and security policy – Restrictive measures against the PKK with a view to combating terrorism – Freezing of funds – Common Position 2001/931/CFSP – Applicability to situations of armed conflict – Terrorist group – Factual basis of the fund-freezing decisions – Decision taken by a competent authority – Authority of a third State – Review – Proportionality – Obligation to state reasons – Rights of the defence – Right to effective judicial protection – Modification of the application)
In Joined Cases T‑316/14 RENV and T‑148/19,
Kurdistan Workers’ Party (PKK), represented by A. van Eik and T. Buruma, lawyers,
applicant,
v
Council of the European Union, represented by S. Van Overmeire and B. Driessen, acting as Agents,
defendant,
supported by
European Commission, represented by T. Ramopoulos, J. Norris, J. Roberti di Sarsina and R. Tricot, acting as Agents,
intervener in Case T‑316/14 RENV,
the other parties to the proceedings being:
French Republic, represented by A.‑L. Desjonquères, B. Fodda and J.‑L. Carré, acting as Agents,
and
Kingdom of the Netherlands, represented by M. Bulterman and J. Langer, acting as Agents,
interveners in the appeal,
THE GENERAL COURT (Fourth Chamber, Extended Composition),
composed of S. Gervasoni (Rapporteur), President, L. Madise, P. Nihoul, R. Frendo and J. Martín y Pérez de Nanclares, Judges,
Registrar: I. Kurme, Administrator,
having regard to the written part of the procedure in Case T‑148/19, in particular:
– the decision of 26 July 2019 granting the United Kingdom of Great Britain and Northern Ireland leave to intervene,
– the modifications of the form of order sought by the applicant of 7 October 2019, 13 March 2020 and 29 September 2020,
having regard to the judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316), which referred Case T‑316/14 RENV back to the General Court,
having regard to the referral of Cases T‑148/19 and T‑316/14 RENV to the Fourth Chamber, Extended Composition,
having regard to the decision of 8 February 2022 joining Cases T‑148/19 and T‑316/14 RENV for the purposes of the oral part of the procedure and of the decision closing the proceedings,
having regard to the order of 25 March 2022 removing the United Kingdom of Great Britain and Northern Ireland from Cases T‑148/19 and T‑316/14 RENV as intervener,
further to the hearing on 31 March 2022,
gives the following
Judgment
1 By its action in Case T‑316/14 RENV, which is based on Article 263 TFEU, the applicant, the Kurdistan Workers’ Party (PKK), seeks the annulment of:
– Council Implementing Regulation (EU) No 125/2014 of 10 February 2014 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 Implementing Regulation (EU) No 714/2013 (OJ 2014 L 40, p. 9);
– Council Implementing Regulation (EU) No 790/2014 of 22 July 2014 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 Implementing Regulation No 125/2014 (OJ 2014 L 217, p. 1);
– Council Decision (CFSP) 2015/521 of 26 March 2015 updating and amending the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2014/483/CFSP (OJ 2015 L 82, p. 107);
– Council Implementing Regulation (EU) 2015/513 of 26 March 2015 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 Implementing Regulation No 790/2014 (OJ 2015 L 82, p. 1);
– Council Decision (CFSP) 2015/1334 of 31 July 2015 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2015/521 (OJ 2015 L 206, p. 61);
– Council Implementing Regulation (EU) 2015/1325 of 31 July 2015 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 Implementing Regulation 2015/513 (OJ 2015 L 206, p. 12);
– Council Implementing Regulation (EU) 2015/2425 of 21 December 2015 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 Implementing Regulation 2015/1325 (OJ 2015 L 334, p. 1);
– Council Implementing Regulation (EU) 2016/1127 of 12 July 2016 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 Implementing Regulation 2015/2425 (OJ 2016 L 188, p. 1);
– Council Implementing Regulation (EU) 2017/150 of 27 January 2017 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 Implementing Regulation 2016/1127 (OJ 2017 L 23, p. 3);
– Council Decision (CFSP) 2017/1426 of 4 August 2017 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision (CFSP) 2017/154 (OJ 2017 L 204, p. 95); and
– Council Implementing Regulation (EU) 2017/1420 of 4 August 2017 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 Implementing Regulation 2017/150 (OJ 2017 L 204, p. 3), in so far as those measures concern the applicant.
2 By its action in Case T‑148/19, which is also based on Article 263 TFEU, the applicant seeks the annulment of:
– Council Decision (CFSP) 2019/25 of 8 January 2019 amending and updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision (CFSP) 2018/1084 (OJ 2019 L 6, p. 6);
– Council Decision (CFSP) 2019/1341 of 8 August 2019 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2019/25 (OJ 2019 L 209, p. 15);
– Council Implementing Regulation (EU) 2019/1337 of 8 August 2019 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 Implementing Regulation (EU) 2019/24 (OJ 2019 L 209, p. 1);
– Council Implementing Regulation (EU) 2020/19 of 13 January 2020 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 Implementing Regulation 2019/1337 (OJ 2020 L 8I, p. 1);
– Council Decision (CFSP) 2020/1132 of 30 July 2020 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision (CFSP) 2020/20 (OJ 2020 L 247, p. 18); and
– Council Implementing Regulation (EU) 2020/1128 of 30 July 2020 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 Implementing Regulation 2020/19 (OJ 2020 L 247, p. 1), in so far as those measures concern the applicant.
I. Background to the dispute
3 The PKK was established in 1978 and entered into an armed struggle against the Turkish Government in order to obtain recognition for the right of the Kurds to self-determination.
4 On 28 September 2001, the United Nations Security Council adopted Resolution 1373 (2001) setting out strategies to combat terrorism and, in particular, the funding of terrorism.
5 On 27 December 2001, as it took the view that action by the European Union was necessary in order to implement Resolution 1373 (2001) of the United Nations Security Council, the Council of the European Union adopted Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93). In particular, Article 2 of Common Position 2001/931 provides for the freezing of the funds and other financial assets or economic resources of persons, groups and entities that are involved in terrorist acts and are set out on the list in the annex to that common position.
6 On 27 December 2001, in order to implement at EU level the measures set out in Common Position 2001/931, the Council also adopted Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70) and Decision 2001/927/EC establishing the list provided for in Article 2(3) of Regulation No 2580/2001 (OJ 2001 L 344, p. 83). The applicant’s name did not appear on that initial list.
7 On 2 May 2002, the Council adopted Common Position 2002/340/CFSP updating Common Position 2001/931 (OJ 2002 L 116, p. 75). The annex to Common Position 2002/340 updated the list of persons, groups and entities to whom the restrictive measures laid down by Common Position 2001/931 apply and, in particular, inserted on that list the name of the applicant, identified as follows: ‘Kurdistan Workers’ Party (PKK)’.
8 On 2 May 2002, the Council also adopted Decision 2002/334/EC implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2001/927 (OJ 2002 L 116, p. 33). That decision included the name of the applicant on the list provided for in Article 2(3) of Regulation No 2580/2001, in the same terms as those used in the annex to Common Position 2002/340.
9 Those measures have since been regularly updated in accordance with Article 1(6) of Common Position 2001/931 and Article 2(3) of Regulation No 2580/2001. The applicant’s name has continued to be retained on the lists of groups and entities to which the restrictive measures established by the measures above (‘the lists at issue’) apply, despite this being challenged before the Court and in spite of the annulment by the Court of several of the decisions and regulations to which those lists are annexed. Since 2 April 2004, the entity named on the lists at issue is the ‘Kurdistan Workers’ Party (“PKK”) (a.k.a. “KADEK”, a.k.a. “KONGRA-GEL”)’.
10 Accordingly, the restrictive measures applied to the applicant were, inter alia, maintained by the measures adopted in 2014 (namely Implementing Regulation No 125/2014 and Implementing Regulation No 790/2014), by the measures adopted between 2015 and 2017 (namely Decision 2015/521, Implementing Regulation 2015/513, Decision 2015/1334, Implementing Regulation 2015/1325, Implementing Regulation 2015/2425, Implementing Regulation 2016/1127, Implementing Regulation 2017/150, Decision 2017/1426 and Implementing Regulation 2017/1420), and by the measures adopted in 2019 and 2020 (namely Decision 2019/25, Decision 2019/1341, Implementing Regulation 2019/1337, Implementing Regulation 2020/19, Decision 2020/1132 and Implementing Regulation 2020/1128).
11 In the statements of reasons for the measures adopted in 2014, the Council described the PKK as an entity involved in terrorist acts which, from 1984 onwards, had committed numerous acts of that nature. It stated that the terrorist activities of the PKK had been ongoing, notwithstanding a number of ceasefires which had been unilaterally declared by the PKK, in particular since 2009. In that regard, the Council explained that the terrorist acts committed by the PKK included bomb attacks; rocket attacks; the use of explosives; the murder or abduction of Turkish citizens and foreign tourists; hostage-taking; attacks on Turkish security forces and armed confrontations with those security forces; attacks on oil facilities, public transport, and Turkish diplomatic, cultural and commercial facilities in various countries; extortion targeting Turkish citizens living abroad, and other criminal acts aimed at financing its activities. By way of example, the Council listed 69 incidents, occurring between 14 November 2003 and 19 October 2011, which it categorised as terrorist acts within the meaning of Article 1(3) of Common Position 2001/931.
12 The Council added that the PKK was the subject of decisions taken by national competent authorities within the meaning of Article 1(4) of Common Position 2001/931 and referred, in that regard, to an order of the Secretary of State for the Home Department of the United Kingdom (‘the UK Home Secretary’) of 29 March 2001, proscribing the PKK under the UK Terrorism Act 2000, supplemented by an order of 14 July 2006, which held that ‘KADEK’ and ‘KONGRA-GEL’ were other names for the PKK, and also to decisions of the Government of the United States of America adopted on dates not specified by the Council, designating the PKK as a ‘foreign terrorist organisation’ (‘FTO’) under Section 219 of the US Immigration and Nationality Act, and as a ‘specially designated global terrorist’ (‘SDGT’) under Executive Order No 13224. The Council also referred to judgments of Turkish Security Courts delivered between 1990 and 2006.
13 In the statements of reasons for the measures adopted between 2015 and 2017, the Council stated that the continued inclusion of the applicant’s name on the lists at issue was based on the decisions of the UK authorities (2001 and 2006) and the US authorities (1997 and 2001) which had previously been taken into account, as supplemented by a decision of the UK authorities of 3 December 2014 maintaining the proscription of the PKK, by a judgment of 2 November 2011 of the tribunal de grande instance de Paris (Regional Court, Paris, France), whereby the centre culturel kurde Ahmet Kaya (Ahmet Kaya Kurdish Cultural Centre) was convicted of involvement in a criminal association in order to prepare an act of terrorism and of financing a terrorist undertaking, that judgment being upheld on appeal by a judgment of 23 April 2013 of the cour d’appel de Paris (Court of Appeal, Paris, France) and, on further appeal, by a judgment of 21 May 2014 of the Cour de cassation (Court of Cassation, France), and by a review carried out by the US authorities which was completed on 21 November 2013 and confirmed the PKK’s designation as a ‘foreign terrorist organisation’.
14 The statements of reasons relating to the measures adopted in 2019 and 2020 repeat the previous reasoning, while supplementing it, in particular, with Decision 2019/1341 and Implementing Regulation 2019/1337 by referring to the continued designation of the PKK as a ‘foreign terrorist organisation’ by the US authorities after a review completed on 5 February 2019.
II. Forms of order sought
15 The applicant claims that the Court should annul Implementing Regulation No 125/2014, Implementing Regulation No 790/2014, Decision 2015/521, Implementing Regulation 2015/513, Decision 2015/1334, Implementing Regulation 2015/1325, Implementing Regulation 2015/2425, Implementing Regulation 2016/1127, Implementing Regulation 2017/150, Decision 2017/1426 and Implementing Regulation 2017/1420 (Case T‑316/14 RENV) and Decision 2019/25, Decision 2019/1341, Implementing Regulation 2019/1337, Implementing Regulation 2020/19, Decision 2020/1132 and Implementing Regulation 2020/1128 (Case T‑148/19) in so far as they concern the applicant. It also requests, in Case T‑148/19, in the alternative, that the Court order the Council to adopt a less onerous measure than inclusion in the lists at issue. Lastly, it claims that the Council should be ordered to pay the costs.
16 The Council, supported by the Commission in Case T‑316/14 RENV, contends that the actions should be dismissed and that the applicant should be ordered to pay the costs.
III. Law
A. Admissibility
17 Since, at the hearing, the Council refrained from arguing that the two signatories of the authorities to act issued to the lawyers who signed the applicant’s written pleadings did not have the authority to represent the applicant, as was noted in the minutes of the hearing, only its plea of inadmissibility directed against the three modifications of the application in Case T‑148/19 concerning Implementing Regulation 2019/1337, Implementing Regulation 2020/19, Decision 2020/1132 and Implementing Regulation 2020/1128 remains.
18 Specifically, the Council submits that those measures neither amend nor replace the measures whose annulment had previously been sought, with the result that the requirements of Article 86(1) of the Rules of Procedure of the General Court are not met.
19 As that same ground of inadmissibility could apply to Decisions 2015/521, 2015/1334 and 2017/1426, which were contested in Case T‑316/14 RENV, the Court raised of its own motion that plea of inadmissibility, which is a matter of public policy relating to the admissibility of an action (see, to that effect, judgment of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraphs 139 to 145 and the case-law cited), and put a question to the parties in that regard.
20 In response to that question, the applicant acknowledged that its actions were inadmissible in so far as they relate to Decisions 2015/521, 2015/1334 and 2017/1426 (Case T‑316/14 RENV), and Decision 2020/1132 and Implementing Regulations 2019/1337, 2020/19 and 2020/1128 (Case T‑148/19), as recorded in the minutes of the hearing.
21 Article 86(1) of the Rules of Procedure provides that, where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter, the applicant may, before the oral part of the procedure is closed, or before the decision of the Court to rule without an oral part of the procedure, modify the application to take account of that new factor.
22 In the present case, Decisions 2015/521, 2015/1334 and 2017/1426 neither extend the effects nor replace the only measure referred to by the application in Case T‑316/14 RENV, namely Implementing Regulation No 125/2014, which was replaced by Implementing Regulation No 790/2014, which was contested in the first modification of that application. The sole purpose of those decisions is to amend the list provided for by Common Position 2001/931, which is based on the TEU, whereas the implementing regulations amend the list provided for by Regulation No 2580/2001, which is based in particular on Article 301 EC (now, after amendment, Article 215 TFEU), which is intended to implement at EU level the restrictive measures provided for by decisions relating to the common foreign and security policy (CFSP) and, previously, the common positions. Consequently, even though decisions relating to the CFSP and the implementing regulations are, in principle, adopted on the same day and contain the same list of persons, groups and entities covered, they constitute separate measures.
23 Likewise, Implementing Regulation 2019/1337, Implementing Regulation 2020/19, which repealed it, and Implementing Regulation 2020/1128, which repealed the latter regulation, do not extend the effects of or replace the sole measure referred to in the application in Case T‑148/19, namely Decision 2019/25, which was replaced by Decision 2019/1341, which is the subject of the first modification of that application. In that regard, in so far as decisions relating to the CFSP set the framework for the adoption of regulations that are adopted on the basis of Article 215 TFEU, it will in any event be for the Council, in accordance with Article 266 TFEU, to draw the appropriate conclusions from any annulment of decisions relating to the CFSP for regulations which implement those decisions (see, to that effect, judgment of 28 May 2013, Trabelsi and Others v Council, T‑187/11, EU:T:2013:273, paragraph 121).
24 Furthermore, as is clear from the title of Decision 2020/1132, which is the subject of the third modification of the application in Case T‑148/19, that decision repeals Council Decision (CFSP) 2020/20 of 13 January 2020 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931 and repealing Decision 2019/1341 (OJ 2020 L 8I, p. 5), which was not contested either in the application or in the modifications of the application, with the result that it cannot be concluded that the conditions laid down in Article 86 of the Rules of Procedure are met (see, to that effect, judgment of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraphs 141 and 142). If the admissibility of the application for annulment of Decision 2020/1132 were accepted, on the ground that that decision amends the list provided for by Common Position 2001/931, in the same way as Decisions 2019/25 and 2019/1341, that would be tantamount to extending the scope of Article 86(1) – which refers to the amendment of ‘a measure the annulment of which is sought’, and not to ‘measures with the same subject matter’ – which would be contrary to the requirements of economy of procedure and legal certainty which justified adding a provision dedicated to modifications of the application in the Rules of Procedure which entered into force in 2015 (see the explanatory statement for Article 86 of the new Rules of Procedure).
25 It follows that the present actions must be declared inadmissible in so far as they seek the annulment of Decisions 2015/521, 2015/1334 and 2017/1426 (Case T‑316/14 RENV), and Decision 2020/1132 and Implementing Regulations 2019/1337, 2020/19 and 2020/1128 (Case T‑148/19).
26 In addition, there was nothing to prevent the applicant, in order to challenge the lawfulness of those measures, from bringing an action for annulment against them in so far as they concerned the applicant (see, to that effect, judgment of 12 February 2020, Kande Mupompa v Council, T‑170/18, EU:T:2020:60, paragraph 37).
27 It follows that the substance of the present actions will be examined in so far as they concern:
– Implementing Regulations No 125/2014 and No 790/2014 (‘the 2014 measures’);
– Implementing Regulations 2015/513, 2015/1325, 2015/2425, 2016/1127, 2017/150 and 2017/1420 (‘the 2015 to 2017 measures’);
– Decisions 2019/25 and 2019/1341 (‘the 2019 decisions’).
B. Substance
28 In Case T‑316/14 RENV, the applicant stated, in its observations on the judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316), that it wished to maintain all the pleas in law relied on in its application in Case T‑316/14, with the exception of the first plea, which it had withdrawn at the hearing prior to the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788), which was set aside on appeal by the Court of Justice. In support of that action before the General Court, the applicant raised eight pleas. Those pleas alleged, first, infringement of the international law of armed conflict by the 2014 measures, the 2015 to 2017 measures, Common Position 2001/931 and Regulation No 2580/2001 (a plea which was subsequently withdrawn), second, incorrect classification of the applicant as a terrorist group within the meaning of Article 1(3) of Common Position 2001/931, third, that there was no decision taken by a competent authority within the meaning of Article 1(4) of Common Position 2001/931, fourth, infringement of Articles 4 and 51 of the Charter of Fundamental Rights of the European Union (‘the Charter’) in so far as the 2014 measures and the 2015 to 2017 measures are based, in part, on information obtained through torture or ill-treatment, fifth, that there was no review consistent with the requirements of Article 1(6) of Common Position 2001/931, sixth, infringement of the principles of proportionality and subsidiarity, seventh, failure to fulfil the obligation to state reasons, and, eighth, infringement of the rights of the defence and of the right to effective judicial protection.
29 In Case T‑148/19, the applicant relies on six pleas in law in support of its action, alleging, first, incorrect classification of the applicant as a terrorist group within the meaning of Article 1(3) of Common Position 2001/931, second, that there was no decision taken by a competent authority within the meaning of Article 1(4) of Common Position 2001/931, third, that there was no review consistent with the requirements of Article 1(6) of Common Position 2001/931, fourth, infringement of the principles of proportionality and subsidiarity, fifth, failure to fulfil the obligation to state reasons, and, sixth, infringement of the rights of the defence and of the right to effective judicial protection.
30 In view of the similarities between six of the pleas raised in both cases, it is appropriate to examine them together, distinguishing between Cases T‑316/14 RENV and T‑148/19 only where specific arguments put forward in support of those pleas and certain differences between the contested measures so require.
31 Those pleas are principally based on infringement of Article 1 of Common Position 2001/931, it being noted that that common position constitutes the relevant text in the present case, including for the examination of the contested implementing regulations which are formally based solely on Regulation No 2580/2001, since that regulation is intended to implement the measure freezing the funds of terrorists and terrorist entities within the Member States on the basis of the principles and definitions of terrorist acts contained in the common position and on the basis of the lists drawn up by the Council under that common position. Article 1 of that common position provides, in paragraphs 3, 4 and 6:
‘3. For the purposes of this Common Position, “terrorist act” shall mean one of the following intentional acts, which, given its nature or its context, may seriously damage a country or an international organisation, as defined as an offence under national law, where committed with the aim of:
(i) seriously intimidating a population, or
(ii) unduly compelling a Government or an international organisation to perform or abstain from performing any act, or
(iii) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation:
(a) attacks upon a person’s life which may cause death;
(b) attacks upon the physical integrity of a person;
(c) kidnapping or hostage taking;
(d) causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property, likely to endanger human life or result in major economic loss;
(e) seizure of aircraft, ships or other means of public or goods transport;
(f) manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of, biological and chemical weapons;
(g) release of dangerous substances, or causing fires, explosions or floods the effect of which is to endanger human life;
(h) interfering with or disrupting the supply of water, power or any other fundamental natural resource, the effect of which is to endanger human life;
(i) threatening to commit any of the acts listed under (a) to (h);
(j) directing a terrorist group;
(k) participating in the activities of a terrorist group, including by supplying information or material resources, or by funding its activities in any way, with knowledge of the fact that such participation will contribute to the criminal activities of the group.
For the purposes of this paragraph, “terrorist group” shall mean a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist acts. “Structured group” means a group that is not randomly formed for the immediate commission of a terrorist act and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure.
4. The list in the Annex shall be drawn up on the basis of precise information or material in the relevant file which indicates that a decision has been taken by a competent authority in respect of the persons, groups and entities concerned, irrespective of whether it concerns the instigation of investigations or prosecution for a terrorist act, an attempt to perpetrate, participate in or facilitate such an act based on serious and credible evidence or clues, or condemnation for such deeds. Persons, groups and entities identified by the Security Council of the United Nations as being related to terrorism and against whom it has ordered sanctions may be included in the list.
For the purposes of this paragraph “competent authority” shall mean a judicial authority, or, where judicial authorities have no competence in the area covered by this paragraph, an equivalent competent authority in that area.
…
6. The names of persons and entities on the list in the Annex shall be reviewed at regular intervals and at least once every six months to ensure that there are grounds for keeping them on the list.’
32 It is apparent from the case-law interpreting those provisions of Common Position 2001/931 that the procedure which may lead to a fund-freezing measure under that common position takes place at two levels: national level, and EU level (see, to that effect, judgment of 14 March 2017, A and Others, C‑158/14, EU:C:2017:202, paragraph 84, and of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraphs 203 and 204). In the first phase, a competent national authority is to take in respect of the party concerned a decision meeting the definition in Article 1(4) of Common Position 2001/931. In the second phase, the Council, acting by unanimity, is to decide to include the party concerned on the fund-freezing list, on the basis of precise information or material in the relevant file which indicates that such a decision has been taken (judgments of 12 December 2006, Organisation des Modjahedines du peuple d’Iran v Council, T‑228/02, EU:T:2006:384, paragraph 117, and of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraph 131).
33 In the absence of means on the part of the European Union to carry out its own investigations regarding the involvement of a given person in terrorist acts, that requirement for a prior decision taken by a national authority aims to establish that serious and credible evidence or clues exist of the involvement of the person concerned in terrorist activities, regarded as reliable by the national authorities and having led them, at the very least, to adopt measures of inquiry. It is apparent from the references to a national decision, ‘precise information’ and ‘serious and credible evidence or clues’ in Article 1(4) of Common Position 2001/931 that that common position aims to protect the persons concerned by ensuring that they are included on the fund-freezing list only on a sufficiently solid factual basis, and that it seeks to attain that objective by requiring a decision taken by a national authority (judgments of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraphs 68 and 69, and of 26 July 2017, Council v Hamas, C‑79/15 P, EU:C:2017:584, paragraph 24).
34 There are a number of consequences resulting from that specific form of cooperation between the Council and the Member States in the fight against terrorism, as established by Common Position 2001/931.
35 It follows, first, that, in accordance with Article 1(4) of Common Position 2001/931, the initial entry of a person or entity on the fund-freezing list presupposes that a national decision has been issued by a competent authority. However, no such condition is laid down in Article 1(6) of that Common Position, which relates to the review of the listing.
36 Second, it follows from the above that the Council’s burden of proving that the freezing of the funds of a person, group or entity is legally justified has a relatively limited scope at the level of the procedure before the EU institutions. The specific form of cooperation between the Member States and the Council in the field of combating terrorism gives rise to an obligation on that institution to defer as far as possible to the assessment conducted by the competent national authority (judgments of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraphs 133 and 134; of 4 December 2008, People’s Mojahedin Organization of Iran v Council, T‑284/08, EU:T:2008:550, paragraph 53; and of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraph 282).
37 That obligation on the Council to defer as far as possible to the assessment of the competent national authority concerns principally national condemnation decisions taken into account at the time of the initial listing under Article 1(4) of Common Position 2001/931. Specifically, it is not for the Council to verify whether the events found to have occurred in the national condemnation decisions on which the initial listing was based actually took place and who is responsible for them. Such an obligation on the Council to verify the events underpinning a national decision which has formed the basis for the initial entry on the fund-freezing lists would undoubtedly undermine the two-tier system characteristic of that common position, since the Council’s assessment of the accuracy of those events could conflict with the national authority concerned, and such a conflict would be all the more inappropriate because the Council does not necessarily have at its disposal all the facts and evidence that appear in the file of that authority (see, to that effect, judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraphs 240 to 242 and the case-law cited). It must also be borne in mind that the guarantee, for the persons concerned, that their entry on the fund-freezing list will be founded on a sufficiently solid factual basis is based precisely on the requirement for a decision taken by a national authority and on the trust which the EU institutions put in the assessment of the evidence and clues made by that national authority (see paragraph 33 above).
38 However, as regards the material on which the Council relies in order to demonstrate that there is an ongoing risk of involvement in terrorist activities under Article 1(6) of Common Position 2001/931, whether it is material from a national decision adopted by a competent authority or from other sources, it is for the Council, in the event of challenge, to establish that the findings of fact mentioned in the measures maintaining the lists in question are well founded and for the Courts of the European Union to determine whether they are made out, which entails establishing whether the events concerned actually occurred and whether they are factors justifying the application of restrictive measures to the person concerned (see, to that effect, judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraphs 52 to 55 and the case-law cited).
39 Furthermore, as the Court of Justice also noted in its judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316, paragraphs 60 to 62 and 78 to 80 and the case-law cited), the Council remains subject to an obligation to state reasons as regards both the incidents found to have occurred in the decisions taken into account under Article 1(4) of Common Position 2001/931 and the incidents found to have occurred in subsequent national decisions or incidents taken into account by the Council independently, without any reference to such decisions.
40 It follows that a distinction must be drawn, for each of the contested measures, according to whether they are based on the decisions of competent national authorities which justified the applicant’s initial listing or according to whether they are based on subsequent decisions of those national authorities or on material independently relied on by the Council. Such a distinction is all the more necessary since those two types of basis are governed by different provisions of Common Position 2001/931, the former falling within Article 1(4) of that position and the latter falling within Article 1(6) thereof.
41 In the present case, the 2014 measures are based, first, on an independent analysis by the Council of several incidents listed in the statements of reasons and, second, on decisions of the UK, US and Turkish authorities. By contrast, the 2015 to 2017 measures and the 2019 decisions are based solely on decisions of several national authorities, namely those of the United Kingdom, the United States and France. It should also be noted that some of the national decisions taken into account formed the basis of the applicant’s initial listing, whereas other decisions adopted subsequently were taken into account by the Council in its review of the applicant’s listing.
42 It is therefore appropriate to examine the six similar pleas directed against the contested measures in the light of those preliminary considerations, bearing in mind that the plea specific to Case T‑316/14 RENV, alleging infringement of Articles 4 and 51 of the Charter and directed solely against the 2014 measures, will be dealt with together with the plea alleging infringement of Article 1(6) of Common Position 2001/931 (see paragraphs 166 and 175 below). Hereafter will follow an analysis of whether those measures comply with Article 1(3) (first plea), Article 1(4) (second plea) and Article 1(6) (third plea) of Common Position 2001/931, whether they observe the principle of proportionality (fourth plea) – it being recalled that the applicant stated at the hearing that that plea was based solely on the infringement of that principle, as was formally noted in the minutes of the hearing, and not also on the principle of subsidiarity – whether the obligation to state reasons has been met (fifth plea), and, lastly, whether the applicant’s rights of defence and right to effective judicial protection have been observed (sixth plea), starting with an examination of the second plea, alleging an infringement of Article 1(4) of Common Position 2001/931.
1. Plea in law alleging infringement of Article 1(4) of Common Position 2001/931
43 At the outset, it should be noted that Article 1 of Common Position 2001/931 draws a distinction between the initial entry of a person or entity on a fund-freezing list, referred to in paragraph 4 thereof, and the retention on that list of the name of a person or entity already listed, referred to in paragraph 6 thereof. While the initial entry of a person or entity on the fund-freezing list presupposes the existence of a national decision by a competent authority, no such condition is laid down for the retention of the name of that person or entity on the list, since such retention is, in essence, an extension of the original listing and presupposes that there is an ongoing risk of the person or entity concerned being involved in terrorist activities, as initially established by the Council on the basis of the national decision on which that original listing was based (judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 59 to 61, and of 26 July 2017, Council v Hamas, C‑79/15 P, EU:C:2017:584, paragraphs 37 to 39).
44 It follows, first, that, where the Council continues to rely on a national decision from a competent authority in order to decide to retain the listing of a person or entity on the basis of Article 1(6) of Common Position 2001/931, a plea alleging infringement of Article 1(4) of Common Position 2001/931 is effective in supporting an action brought against such a decision (see, to that effect, judgment of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraphs 229 and 230), which, moreover, is not disputed by the Council. It may be added, in that regard, that the Court of Justice did not call into question the effectiveness of such a plea by holding, in the judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316, paragraph 38), that the General Court did not err in law in examining the decisions to retain the lists exclusively in the light of Article 1(6) of Common Position 2001/931. The Court of Justice ruled on the General Court’s examination of the Council’s obligation to state reasons and held, in essence, that fulfilment of that obligation to state reasons had to be examined in the light of the grounds under Article 1(6) of Common Position 2001/931 and, moreover, referred all the other pleas back to the General Court for examination, including the pleas alleging infringement of Article 1(3) and (4) of that common position.
45 It follows, second, that, in the present case, that plea will be examined solely in respect of the national decisions on which the initial listing of the applicant in 2002 was based, namely:
– the order of the UK Home Secretary of 29 March 2001;
– the decisions of the Government of the United States of 8 October 1997 and 31 October 2001.
46 The arguments relating to the French judicial decisions which post-date the initial listing of the applicant and the arguments contesting decisions relating to the steps taken following the decisions referred to above adopted by the UK authorities in 2014 and by the US authorities in 2013 and 2019 and the material relied on independently by the Council, will, by contrast, be addressed in the context of the examination of the plea alleging infringement of Article 1(6) of Common Position 2001/931.
47 The same applies to the arguments relating to the judgments of the Turkish Security Courts mentioned in the statements of reasons for the 2014 measures. Even though certain passages in those statements of reasons may give rise to confusion, in that they mention the convictions of the PKK by the Turkish Security Courts, some of which predate 2002, and formally conclude that there were decisions taken under Article 1(4) of Common Position 2001/931 after listing those convictions, it can be inferred from the general conclusion concerning the review of the contested listings, which mentions only that the UK and US decisions remain in force, that only those decisions were taken into account for the purpose of the provision of the common position referred to above, which the Council confirms in its defence and which the applicant, moreover, acknowledges in its reply.
(a) The UK decision
48 The applicant disputes that the order of the UK Home Secretary of 29 March 2001 can be classified as a decision of a competent authority within the meaning of Article 1(4) of Common Position 2001/931, relying on arguments based on the concept of ‘competent authority’, the information required to show that such a decision was taken and the date of the incidents referred to in that order.
(1) Classification of the UK Home Secretary as a ‘competent authority’
49 The applicant submits that the UK Home Secretary cannot be classified as a ‘competent authority’ within the meaning of Article 1(4) of Common Position 2001/931. That minister is not a judicial authority but an administrative authority. His or her orders are administrative in nature and are not adopted at the end of a procedure involving several stages, as is the case for decisions in criminal matters. Furthermore, the proscriptions laid down by those orders are of unlimited duration as they are not subject to any periodic review. The UK Home Secretary has, moreover, a wide discretion, since the powers of the UK Parliament are limited to a collective assessment of the organisations concerned without it having any knowledge of the confidential information taken into account by the UK Home Secretary.
50 As a preliminary point, it must be borne in mind that, on multiple occasions, the Court has held that the UK Home Secretary’s order of 29 March 2001 constituted a decision of a competent authority within the meaning of Article 1(4) of Common Position 2001/931 (see, to that effect, judgments of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraphs 144 and 145; of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 106; of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraphs 258 to 285; of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraphs 71 to 96; of 10 April 2019, Gamaa Islamya Égypte v Council, T‑643/16, EU:T:2019:238, paragraphs 108 to 133; and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 112).
51 According to case-law, even if the second subparagraph of Article 1(4) of Common Position 2001/931 indicates a preference for decisions from judicial authorities, it does not exclude the taking into account of decisions from administrative authorities where (i) those authorities are actually vested, in national law, with the power to adopt restrictive decisions against groups involved in terrorism and (ii) those authorities, although only administrative, may be regarded as ‘equivalent’ to judicial authorities (judgments of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 107; of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraph 259; of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraph 72; of 10 April 2019, Gamaa Islamya Égypte v Council, T‑643/16, EU:T:2019:238, paragraph 111; and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 114).
52 Administrative authorities may be regarded as equivalent to judicial authorities if their decisions are open to a judicial review that covers matters both of fact and of law (see, to that effect, judgments of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraph 145; of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraph 260; of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraph 73; of 10 April 2019, Gamaa Islamya Égypte v Council, T‑643/16, EU:T:2019:238, paragraph 112; and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 115).
53 Consequently, the fact that the courts of the relevant State have powers concerning the suppression of terrorism does not preclude the Council from taking account of decisions taken by the national administrative authority entrusted with the adoption of restrictive measures in relation to terrorism (judgments of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 108; of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraph 261; of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraph 74; of 10 April 2019, Gamaa Islamya Égypte v Council, T‑643/16, EU:T:2019:238, paragraph 113; and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 116).
54 As is apparent from the statement of reasons for the 2015 to 2017 measures and the 2019 decisions, appeals against orders of the UK Home Secretary may be brought before the Proscribed Organisations Appeal Commission (United Kingdom; ‘the POAC’), which determines, both as regards questions of law and questions of fact, the matter in the light of judicial-review principles, and either party may bring an appeal on a point of law against the decision of the POAC before an appellate court with the permission of the POAC itself or, if permission is refused, of the appellate court (see, to that effect, judgments of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraph 262; of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraph 75; of 10 April 2019, Gamaa Islamya Égypte v Council, T‑643/16, EU:T:2019:238, paragraph 114; and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 117).
55 In those circumstances, the UK Home Secretary’s 2001 order must be regarded as having been adopted by an administrative authority equivalent to a judicial authority and, thus, by a competent authority within the meaning of Article 1(4) of Common Position 2001/931 (see, to that effect, judgments of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraph 263; of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraph 76; of 10 April 2019, Gamaa Islamya Égypte v Council, T‑643/16, EU:T:2019:238, paragraph 115; and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 118).
56 It should also be noted that, according to case-law, Article 1(4) of Common Position 2001/931 does not require the decision of the competent authority to be taken in the context of criminal proceedings stricto sensu, provided that, in the light of the objectives of Common Position 2001/931, the purpose of the national proceedings in question is to combat terrorism in the broad sense through the adoption of measures of a preventive or punitive nature (see, to that effect, judgments of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraphs 269 to 271; of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraphs 82 to 84; of 10 April 2019, Gamaa Islamya Égypte v Council, T‑643/16, EU:T:2019:238, paragraphs 119 to 121; and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 119).
57 In the present case, the UK Home Secretary’s 2001 order imposes measures proscribing organisations considered to be terrorist organisations and therefore forms part, as required by case-law, of national proceedings seeking, primarily, the imposition on the PKK of measures of a preventive or punitive nature, in connection with the fight against terrorism (see, to that effect, judgments of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 115; of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraphs 272 and 273; of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraph 84; of 10 April 2019, Gamaa Islamya Égypte v Council, T‑643/16, EU:T:2019:238, paragraph 121; and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 120).
58 It follows from the findings above that the contested measures cannot be annulled on the ground that, in the statements of reasons for those measures, the Council took the UK Home Secretary’s 2001 order as its basis in order to include the applicant’s name on the lists at issue, the UK Home Secretary being an administrative authority whose decisions are not of a criminal nature.
59 That conclusion is not undermined by the other arguments put forward by the applicant in support of the present plea.
60 First, as regards the claim that there is no procedure involving several stages, as is the case for judicial proceedings, it is not apparent from the wording of Article 1(4) of Common Position 2001/931 that, in order to serve as a basis for a listing, a national decision at issue must close a procedure comprising several stages (judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 124).
61 In any event, the procedure giving rise to the proscription order given by the UK Home Secretary does involve several stages. First of all, in order to proscribe an organisation, that authority must conduct a rigorous examination of the evidence on which the reasonable belief that the organisation is involved in terrorism is based. That evidence includes information from public information sources and intelligence services. Further, the UK Home Secretary’s order comes after consultation of the entire government, including the intelligence services and police authorities. Lastly, the proscription order is subject to a check by and the approval of the two chambers of the UK Parliament in the context of the ratification procedure (judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraphs 125 to 128).
62 Second, as for the claim that the duration of the proscription established by the order of the UK Home Secretary is unlimited, it should be noted that the fact that that order is not subject to an annual review obligation does not preclude the Council from relying on that decision in order to include the entity covered by that decision on the fund-freezing lists, since the Council, in accordance with its obligation to review, is required to verify whether, on the date on which it intends to maintain that entity on those lists, that decision, other decisions or subsequent factual evidence still justify that listing (judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 131).
63 In addition, pursuant to section 4 of the UK Terrorism Act 2000, an organisation or person affected by a proscription measure may submit in writing an application to the UK Home Secretary requesting that he or she review whether it is appropriate to remove it from the list of proscribed organisations, and under section 5 of the UK Terrorism Act 2000, if the UK Home Secretary refuses such an application, the applicant may appeal to the POAC, whose decisions can themselves be the subject of an appeal (judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 132) (see paragraph 54 above).
64 Accordingly, even though the UK Terrorism Act 2000 does not provide for an annual review of the UK Home Secretary’s proscription orders, those decisions do not have unlimited effect.
65 Third, as regards the claim that the UK Home Secretary has a wide discretion to proscribe terrorist organisations, it should be pointed out that that minister adopts proscription orders, not on the basis of political considerations, but pursuant to the provisions of national law defining acts of terrorism, as is apparent from section 3 of the UK Terrorism Act 2000. Contrary to the applicant’s claim in respect of that provision, the fact that it states that the UK Home Secretary is to proscribe an entity where he or she ‘believes that it is concerned in terrorism’ relates to the standard of proof required for listing (see, to that effect, judgment of 13 December 2016, Al-Ghabra v Commission, T‑248/13, EU:T:2016:721, paragraphs 112 to 119) and is even less likely to allow a discretionary assessment because that standard of proof involves a degree of conviction – and thus a degree of precision of reasoning – which is greater than mere suspicions (see, to that effect, judgment of 13 December 2016, Al-Ghabra v Commission, T‑248/13, EU:T:2016:721, paragraphs 114 and 115).
66 It may be added that, in any event, the UK Home Secretary’s wide discretion is tempered by the parliamentary review and approval to which his or her draft orders are subject. Accordingly, the Court has previously had occasion to consider, specifically with regard to draft orders of the UK Home Secretary, (i) that all the members of the House of Commons, which is one of the two chambers of the UK Parliament which have to ratify the draft order, receive a summary of the facts concerning each of the organisations included in the list of the draft order, which implies the possibility of an individual examination by the House of Commons, (ii) the debates of the House of Commons actually relate to individual organisations, as shown, moreover, by the views of the PKK aired during the parliamentary debate which led to the ratification of the 2001 order, reproduced by the applicant in the application in the present case, and (iii) the House of Commons remains free, in any event, to refuse to approve the draft order (judgment of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 122; see also, to that effect, judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraphs 136 and 137).
67 It follows from all the foregoing that all the arguments challenging the classification of the UK Home Secretary as a ‘competent authority’ within the meaning of Article 1(4) of Common Position 2001/931 must be rejected.
(2) ‘Precise information or material in the relevant file which indicates that a decision has been taken by a competent authority’
68 The applicant argues, in essence, that the Council did not refer to precise information or material in the relevant file showing that the order of the UK Home Secretary constituted a decision taken by a competent authority within the meaning of Article 1(4) of Common Position 2001/931. According to the applicant’s written pleadings, that criticism is based on three complaints. First, the Council did not state the reasons why it considered the UK Home Secretary to be a ‘competent authority’. Second, the contested measures do not contain any description of the reasons supporting the 2001 order. Third, those measures also fail to specify the reasons why the Council concluded that the actions concerned fell within the scope of the concept of ‘terrorist act’ within the meaning of Article 1(3) of Common Position 2001/931.
69 As regards the first complaint, it is a formal criticism of fulfilment of the obligation to state reasons (see, to that effect, judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraphs 329 to 333) and will therefore be examined in response to the plea alleging a failure to fulfil that obligation (see paragraphs 221 to 224 below).
70 As regards the other two complaints, it is appropriate to recall, first of all, the content of the passages in the statements of reasons for the contested measures devoted to the UK Home Secretary’s 2001 order.
71 In the 2014 measures, the Council stated that the UK Home Secretary, in the light of the perpetration of acts of terrorism by the PKK and its participation in such acts, had proscribed the PKK as an organisation involved in acts of terrorism. It inferred from this, after also referring to other national decisions, that decisions had been taken by competent authorities within the meaning of Article 1(4) of Common Position 2001/931 (statement of reasons, page 4).
72 In the 2015 to 2017 measures and in the 2019 decisions – the statement of reasons for which are identical in this regard – the Council states that it relied on the existence of decisions that it classifies as decisions of a competent authority within the meaning of Article 1(4) of Common Position 2001/931, including the UK Home Secretary’s 2001 order. It states that it had examined the factual information on which the decisions were based and had taken the view that those facts fell within the scope of the concepts of ‘terrorist acts’ and ‘groups and entities involved in terrorist acts’ within the meaning of Article 1(2) and (3) of Common Position 2001/931 (statement of reasons, paragraphs 1 to 6). In addition, in Annex A to the statement of reasons, relating to that order, the Council states, inter alia, that that order was adopted in 2001 because the then UK Home Secretary had a reasonable belief that the PKK had committed and participated in terrorist acts within the meaning of Article 1(3) of Common Position 2001/931 (paragraphs 3, 4 and 16). It states that the terrorist acts concerned consisted of terrorist attacks believed to have been committed by the PKK since 1984 and that the PKK had undertaken in the early 1990s a terrorist campaign aimed at Western interests and investments with a view to bringing increased pressure on the Turkish Government, which included the kidnapping of Western tourists and, in 1993-1994, an attack on a refinery and attacks on tourist resorts that led to the deaths of foreign tourists. It states that, even though the PKK appeared to have abandoned that campaign between 1995 and 1999, during that period it had continued to threaten to attack Turkish tourist resorts. The Council states that it considers that those acts fall within the scope of the aims set out in points (i) and (ii) of the first subparagraph of Article 1(3) of Common Position 2001/931 and the acts of violence set out in subpoints (a), (c), (d), (f), (g) and (i) under point (iii) of the first subparagraph of Article 1(3) of Common Position 2001/931 (paragraph 16).
73 Next, it should be noted that it is apparent from case-law that the ‘precise information or material in the relevant file’ required under Article 1(4) of Common Position 2001/931 must show that a decision has been taken in respect of the persons or entities concerned by a national authority meeting the definition in that provision so that, inter alia, those persons or entities can identify that decision, but that information or material need not relate to the content of that decision (see, to that effect, judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 148 and the case-law cited).
74 It follows that, in the present case, the Council can be regarded as having provided, in the 2014 measures, ‘[sufficiently] precise information’ relating to the UK Home Secretary’s 2001 order, within the meaning of Article 1(4) of Common Position 2001/931, by indicating the precise date of that order, its author and its legal basis, in this case the UK Terrorism Act 2000.
75 The same is true of the 2015 to 2017 measures and the 2019 decisions, which contain the same information relating to the precise date, the author and legal basis of the 2001 order.
76 It follows that all the arguments challenging the Council’s fulfilment of the requirements relating to ‘precise information or material in the relevant file which indicates that a decision has been taken by a competent authority’ under Article 1(4) of Common Position 2001/931 must be rejected.
(3) The date of the acts of terrorism on the basis of which the PKK was proscribed by the UK Home Secretary
77 The criticism that the UK Home Secretary’s 2001 order was based on incidents which occurred too long ago to be validly taken into account under Article 1(4) of Common Position 2001/931 is raised only in Case T‑148/19.
78 It should be noted, as a preliminary point, that the ‘distance in time’ to be assessed in the present case relates to the time separating the incidents taken into account in the 2001 order and the date of that order, as the applicant correctly claims.
79 In so far as that argument is raised in support of the plea alleging infringement of Article 1(4) of Common Position 2001/931, it is appropriate to rule here solely on the classification of the 2001 order as a ‘decision of a competent authority’ within the meaning of that provision, in particular in the light of the date of the incidents taken into account by that order (see, to that effect, Opinion of Advocate General Sharpston in Council v LTTE, C‑599/14 P, EU:C:2016:723, point 80), it being specified that the distance in time between, on the one hand, the incidents referred to in that order and the adoption of that order and, on the other hand, the decisions retaining the listing which are contested in the present case will be examined in the context of the plea alleging infringement of Article 1(6) of Common Position 2001/931.
80 As regards the assessment in the present case of the distance in time at issue, it can be noted that the most recent events taken into account in the UK Home Secretary’s 2001 order, as described in the 2019 decisions, consisting of threats of attacks against Turkish tourist resorts, cover the period from 1995 to 1999 (see paragraph 72 above). It should also be borne in mind that it is not for the Council to verify whether the events found to have occurred in the national condemnation decisions on which an initial listing was based, such as the 2001 order, actually took place (see paragraph 37 above). It is apparent from settled case-law that that order must be treated as a condemnation decision since it is final in the sense that it does not have to be followed by an investigation and its purpose is to ban the persons or entities concerned in the United Kingdom, with consequences in criminal law for anyone maintaining any kind of link with them (see judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraphs 155 and 156 and the case-law cited).
81 It follows that, despite the applicant disputing that the threats of attacks concerned ever occurred – with the applicant claiming that the statements of reasons contain no substantiation for the argument that the threats actually occurred – those threats can be taken into account in the present case. It also follows that the distance in time between the most recent events taken into account (1999) and the date of the 2001 order is approximately two years. Such a distance in time, of less than five years, is not to be regarded as excessive (see, to that effect, judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 208 and the case-law cited).
82 Article 1(4) of Common Position 2001/931 was therefore not infringed by reason of the date of the incidents referred to in the UK Home Secretary’s 2001 order, which was taken into account under that provision.
83 Accordingly, it follows from all the foregoing that the complaints directed against the fact that the contested measures are based on the UK Home Secretary’s 2001 order must be rejected.
(b) The US decisions
84 The applicant disputes that the 1997 and 2001 decisions of the US authorities can be classified as decisions of a competent authority within the meaning of Article 1(4) of Common Position 2001/931, relying on arguments based on the concept of ‘competent authority’ and the information required to show that such decisions have been taken.
85 In that regard, according to now settled case-law, the term ‘competent authority’ used in Article 1(4) of Common Position 2001/931 is not limited to the authorities of Member States but may, in principle, also include the authorities of third States (judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 22; of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraph 244; and of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraph 43).
86 That interpretation is justified, first, in the light of the wording of Article 1(4) of Common Position 2001/931, which does not limit the concept of ‘competent authorities’ to the authorities of the Member States, and, second, in the light of the objective of that common position, which was adopted in order to implement United Nations Security Council Resolution 1373 (2001), which seeks to intensify the global fight against terrorism through the systematic and close cooperation of all States (judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 23; of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraph 245; and of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraph 44).
87 However, according to different case-law which also constitutes settled case-law, the Council must, before acting on the basis of a decision of an authority of a third State, verify whether that decision was adopted in accordance with the rights of the defence and the right to effective judicial protection (judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 24 and 31, and of 4 September 2019, Hamas v Council, T‑308/18, EU:T:2019:557, paragraph 58).
88 It is therefore appropriate to begin by examining the applicant’s arguments challenging that verification, as carried out by the Council in the present case. In that regard, the need to carry out that verification follows, inter alia, from the purpose of the requirement – as laid down in Article 1(4) of Common Position 2001/931 – that the initial entry of a person or entity on the fund-freezing list must be based on a decision adopted by a competent authority. That requirement is designed to protect the persons or entities concerned by ensuring that they are first included on that list only on a sufficiently solid factual basis (see, to that effect, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 68). That objective cannot be attained unless the decisions of third States on which the Council bases initial listings of persons or entities are adopted in accordance with the rights of the defence and the right to effective judicial protection (judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 26).
89 In the present case, in Annex C to the statements of reasons, relating to PKK’s FTO and SDGT designations by the US authorities, which is identical in the 2015 to 2017 measures and the 2019 decisions, the Council states, inter alia, that the FTO designation was decided on 8 October 1997 and that the SDGT designation was decided on 31 October 2001 (paragraphs 3 and 4).
90 The Council then states that FTO designations are automatically reviewed every five years by the US Secretary of State, if the designation has not in the meantime been the subject of a revocation request. The entity concerned may itself request, every two years, that its designation be revoked by submitting evidence to show that the circumstances on which its FTO designation was based have significantly changed. The US Secretary of State and the US Congress may also of their own motion revoke an FTO designation. In addition, the entity concerned may seek judicial review of its FTO designation before the Circuit Court of Appeals for the District of Columbia (United States). As regards the SDGT designations, the Council states that these are not subject to regular review, but that they can be challenged before the federal courts (paragraphs 8 to 11 of Annex C to the statement of reasons). Further, the Council states that the applicant’s FTO and SDGT designations have not been challenged before the US courts and are not the subject of any ongoing judicial procedure (paragraphs 11 and 12 of Annex C to the statement of reasons). In the light of the review processes and the description of the legal remedies available, the Council considers that the relevant US legislation ensures the protection of the rights of the defence and of the right to effective judicial protection (paragraph 13 of Annex C to the statement of reasons).
91 However, the General Court has already had occasion to find, in a number of judgments ruling on statements of reasons identical to those annexed to the 2015 to 2017 measures and to the 2019 decisions, that those statements were inadequate with the result that it can be held that the Council had carried out the necessary verification as regards the observance, in the United States of America, of the principle of respect for the rights of the defence (judgments of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraphs 54 to 65; of 10 April 2019, Gamaa Islamya Égypte v Council, T‑643/16, EU:T:2019:238, paragraphs 93 to 104; and of 4 September 2019, Hamas v Council, T‑308/18, EU:T:2019:557, paragraphs 65 to 76). In addition, the Court of Justice held, in the only judgment on appeal in which it ruled on a ground of appeal criticising the General Court’s analysis of the Council’s reliance on the US decisions (judgment of 4 September 2019, Hamas v Council, T‑308/18, EU:T:2019:557), that those criticisms were inadmissible and that the General Court’s analysis in the judgment under appeal has the force of res judicata (judgment of 23 November 2021, Council v Hamas, C‑833/19 P, EU:C:2021:950, paragraphs 36 to 40 and 82).
92 The principle of respect for the rights of the defence requires that persons subject to decisions that significantly affect their interests be placed in a position in which they may effectively make known their views on the evidence on which the decisions in question are based. In the case of measures to place the names of persons or entities on a fund-freezing list, that principle entails the grounds for those measures being notified to those persons or entities at the same time as, or immediately after, the measures are adopted (see judgment of 4 September 2019, Hamas v Council, T‑308/18, EU:T:2019:557, paragraphs 65 and 66 and the case-law cited).
93 As regards the US legislation governing the SDGT designation which forms the basis for the 2001 decision, the general description of it provided by the Council in the statements of reasons does not mention any obligation on the part of the US authorities to disclose a statement of reasons to the persons concerned, or even to publish those decisions, precluding the conclusion that the principle of the rights of the defence was observed (see, to that effect, judgment of 4 September 2019, Hamas v Council, T‑308/18, EU:T:2019:557, paragraphs 69 and 70).
94 As regards the legislation governing the FTO designation which forms the basis of the 1997 decision, it does indeed provide for the publication of the decisions in question in the Federal Register. However, it is not apparent from the statements of reasons that, apart from the operative part of those decisions, any statement of reasons is given in that publication – as is shown, moreover, by the extracts from the Federal Register annexed to the defence in Case T‑316/14 RENV – or was made available to the applicant in any way whatsoever (see, to that effect, judgment of 4 September 2019, Hamas v Council, T‑308/18, EU:T:2019:557, paragraphs 71 and 75). The ‘administrative file’ of the US State Department concerning the PKK dating from 2013 or 2019 available to the US authorities, referred to in the statements of reasons, in fact largely post-dates the 1997 and 2001 US decisions, and there is nothing to indicate that it contains data relating to those decisions and the reasons on which they are based. Moreover, the Council does not specify in any way the conditions for accessing that administrative file, and merely asserts – indeed only in its written pleadings – that the applicant has not exercised its right to access that file.
95 Such publication of the operative part of the 1997 decision in the Federal Register, and accordingly the mere reference to that publication in the statements of reasons, is inadequate for it to be found that the Council carried out the necessary verification as regards observance, in the United States of America, of the principle of the rights of the defence (judgment of 4 September 2019, Hamas v Council, T‑308/18, EU:T:2019:557, paragraph 76).
96 It follows that, in the present case, as the Court held in its judgments of 6 March 2019, Hamas v Council (T‑289/15, EU:T:2019:138, paragraph 65), of 10 April 2019, Gamaa Islamya Égypte v Council (T‑643/16, EU:T:2019:238, paragraph 104), and of 4 September 2019, Hamas v Council (T‑308/18, EU:T:2019:557, paragraph 76), the US decisions could not serve as a basis for the 2015 to 2017 measures and the 2019 decisions as decisions of competent authorities within the meaning of Article 1(4) of Common Position 2001/931, without there being any need to examine the question of observance of the principle of effective judicial protection.
97 As regards the 2014 measures, they are particularly vitiated by the same lacuna, since the Council merely makes reference, in the statements of reasons for those measures, to the judicial or administrative review to which the decisions at issue may be subject, without mentioning any obligation on the US authorities to communicate to the persons concerned a statement of reasons or even to publish those decisions. In addition, when referring to the US decisions in the 2014 measures, the Council does not even indicate the date of those decisions, which makes it clear that those measures also do not fulfil the requirements under Article 1(4) of Common Position 2001/931, in terms of providing specific information showing that a decision has been taken by a competent authority (see paragraphs 74 and 75 above).
98 It follows from all the foregoing that the plea alleging infringement of Article 1(4) of Common Position 2001/931 must be upheld in so far as the contested measures are based on the 1997 and 2001 US decisions, but rejected in so far as they are based on the UK Home Secretary’s 2001 order.
2. Plea in law alleging infringement of Article 1(3) of Common Position 2001/931
99 Given that the plea alleging infringement of Article 1(4) of Common Position 2001/931 as regards the 1997 and 2001 US decisions was upheld, the present plea will not be examined in so far as it disputes the classification of the incidents identified in those decisions as terrorist acts.
100 In Cases T‑316/14 RENV and T‑148/19, the applicant puts forward two types of arguments in support of the plea alleging infringement of Article 1(3) of Common Position 2001/931, some of which challenge, in a general way, that it was pursuing a terrorist aim by actions carried out in the context of an armed conflict for self-determination, and others of which challenge, specifically, the terrorist aims, as expressed in that provision, which certain of the acts referred to in the statement of reasons allegedly pursued. It also maintains, in Case T‑148/19 alone, that it cannot be classified as a ‘terrorist group’ within the meaning of Article 1(3) of Common Position 2001/931, since it is not a structured group acting in concert to commit terrorist acts.
101 Since the Council disputes, in Case T‑148/19, both the admissibility and the effectiveness of the present plea, it is appropriate to begin by examining those aspects before analysing whether it is well founded.
(a) Admissibility of the plea
102 The Council contends that the present plea is inadmissible in that it is in no way supported by evidence.
103 That plea of inadmissibility must be dismissed.
104 Under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to the procedure before the General Court in accordance with the first paragraph of Article 53 thereof and Article 76(d) of the Rules of Procedure, all applications are to contain the subject matter of the dispute, the pleas in law and arguments on which the application is based and a brief statement of those pleas. It is settled case-law that that information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice it is necessary, if an action is to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the text of the application itself. In particular, in order to do so, the applicant must present a line of argument in support of the plea raised which enables the defendant and the EU Courts to understand and respond to them (see, to that effect, judgment of 25 January 2018, BSCA v Commission, T‑818/14, EU:T:2018:33, paragraphs 94 to 96 and the case-law cited).
105 By contrast, the applicant is not required to submit evidence in support of the plea in law on which it relies, since the question as to whether that plea is substantiated by such evidence falls within the assessment of the merits of that plea and the absence of such evidence may lead to the plea being rejected as unfounded. The reference in the abovementioned case-law to the ‘matters of fact’ which must appear in summary form in the application relates to the factual grounds which make the application comprehensible, irrespective of whether those factual grounds are established by means of evidence (see paragraph 104 above).
106 In the present case, the applicant has submitted a detailed line of argument in support of the first plea – more than 60 paragraphs of the application in Case T‑148/19 being devoted to that plea – which, moreover, the Council does not dispute and takes into account, moreover, by responding in detail to each of the arguments put forward by the applicant in support of the plea. Consequently, that plea is admissible.
(b) Effectiveness of the arguments
107 The applicant claims that it is not a structured group acting in concert to commit terrorist acts. The PKK, it maintains, refers to (i) a structured party within a multi-layered ‘complex’, (ii) the ‘complex’ itself and (iii) the Kurdish social movement, and the Council did not clearly identify in the 2019 decisions which of those conceptualisations it intended to maintain on the lists at issue. According to the applicant, neither the ‘complex’, which refers to a multitude of parties and other forms of independently organised groupings, nor the Kurdish social movement, whose members the applicant controls neither directly nor indirectly, can be regarded as a structured association, much less a ‘terrorist group’. As regards the PKK as a party within the ‘complex’, although it is sufficiently structured, it does not commit terrorist acts or aim to do so.
108 The Council submits that that complaint raised in support of the present plea is ineffective, since it follows from the wording of Article 1(3) of Common Position 2001/931 that classification as a ‘terrorist group’, and in particular as a ‘group’, within the meaning of that provision is not a condition for the application of that common position.
109 It does indeed appear from the wording of Common Position 2001/931 that classification as a ‘terrorist group’ within the meaning of the second subparagraph of Article 1(3) of that common position, that is to say ‘a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist acts’, does not constitute a general condition for application of that common position.
110 As stated in Article 1(2) of Common Position 2001/931, that position is to apply to natural persons as well as to groups and entities; however, the groups and entities are not distinguished in the lists annexed to the common position or to the 2019 decisions, which set out, under the first paragraph, ‘[natural] persons’ and, under the second paragraph, ‘groups and entities’. The definition of a ‘terrorist group’ provided in the second subparagraph of Article 1(3) of Common Position 2001/931 seeks only to clarify two specific terrorist aims, namely ‘directing a terrorist group’ (subpoint (j) under point (iii) of the first subparagraph of Article 1(3) of Common Position 2001/931) and ‘participating in the activities of a terrorist group’ (subpoint (k) under point (iii) of the first subparagraph of Article 1(3) of Common Position 2001/931); the field of application of that common position is wider than merely those two aims, which were not referred to again by the Council in the 2019 decisions in respect of the PKK (see, to that effect, judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 253).
111 It follows that, in so far as the applicant, in accordance with the requirements of Common Position 2001/931, was included on the lists at issue under ‘groups and entities’, and it does not in any way contest its classification as an ‘entity’, it is irrelevant that, as it maintains, the PKK does not constitute a ‘terrorist group’.
112 The present plea must therefore be rejected as ineffective, in so far as it criticises the classification of the applicant as a ‘terrorist group’.
113 By contrast, it should be stated, in response to the Council’s assertion that it was not for the Council to verify the classification of the facts by the competent national authority, that such an obligation lies with the Council and that the applicant’s arguments are therefore effective in so far as they dispute the outcome of the verification as to whether the acts taken into account by the national authorities correspond to the definition of terrorist acts laid down in Article 1(3) of Common Position 2001/931.
114 As is apparent from the wording of the first subparagraph of Article 1(4) of Common Position 2001/931, referring in particular to a ‘condemnation’ for ‘a terrorist act, an attempt to perpetrate, participate in or facilitate such an act’, the Council must verify whether the acts found to have occurred by the national authorities do indeed correspond to terrorist acts as defined in Article 1(3) of Common Position 2001/931 (see, to that effect, judgment of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 191). That verification is all the more necessary because, as is apparent from certain complaints raised by the applicant, the definitions of terrorist act vary from one State to another and do not necessarily correspond in every respect to the definition adopted in Common Position 2001/931.
115 However, where, during the procedure before the Council, the entity concerned does not contest, in a detailed manner, that the national decision concerns terrorist acts within the meaning of Article 1(3) of Common Position 2001/931, the Council is not required to comment in more detail on that issue, and the assertion in the statement of reasons that it has verified that the underlying grounds for the decisions taken by the national competent authorities are covered by the definition of terrorism set out in Common Position 2001/931 is sufficient (see, to that effect, judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraphs 162 and 163 and the case-law cited).
116 It should also be noted that the verification that must be carried out by the Council under Article 1(3) of Common Position 2001/931 relates solely to the incidents identified in the decisions of the national authorities on which the initial listing of the entity concerned was based. As is apparent from the judgment of 24 November 2021, LTTE v Council (T‑160/19, not published, EU:T:2021:817, paragraphs 168 and 276), when it retains the name of an entity on the fund-freezing lists in the context of its review carried out pursuant to Article 1(6) of Common Position 2001/931, the Council must establish not that that entity has committed terrorist acts within the meaning of Article 1(3) of that common position, but that there is an ongoing risk of it being involved in such acts, which does not necessarily mean that it commits those acts.
117 The fact remains, however, that, if it can be concluded that the PKK has committed terrorist acts after its initial listing, that justifies retaining its listing a fortiori.
118 It follows from all the foregoing that the plea alleging infringement of Article 1(3) of Common Position 2001/931 is ineffective in so far as it relates to the classification of the applicant as a ‘terrorist group’ and concerns the acts relied on in order to retain its name on the lists at issue during the reviews carried out by the Council under Article 1(6) of Common Position 2001/931, but that the plea is, by contrast, effective in so far as it disputes the classification as terrorist acts of the incidents identified by the decisions of the national authorities which form the basis of its initial listing.
(c) Substance of the plea
(1) Line of argument that the aims referred to in Article 1(3) of Common Position 2001/931 should be interpreted in the light of legitimate armed conflict for the self-determination of the Kurdish people
119 It should be noted, as a preliminary point, that, although the applicant withdrew its first plea in Case T‑316/14 RENV, alleging infringement of the international law of armed conflict (see paragraph 28 above), it maintains its arguments alleging that it is necessary to take into account the existence of an armed conflict when interpreting and applying Article 1(3) of Common Position 2001/931.
120 The applicant thereby denies that the acts imputed to it by the Council were committed with a terrorist aim, by relying on the armed conflict between it and the Republic of Türkiye. According to the applicant, it is essential in that regard to take account of the context of the contested measures, namely a legitimate armed conflict for self-determination of the Kurdish people, between the PKK and the Turkish authorities, since the use of violence is in principle permitted in times of armed conflict under international law. In accordance with Article 3(5) and Article 21 TEU, Article 1(3) of Common Position 2001/931 should be interpreted in the light of international law concerning self-determination, international humanitarian law or the fundamental values of democracy and the rule of law.
121 By doing so, the applicant disputes the allegedly terrorist aims of the acts attributed to it, emphasising the necessary distinction between carrying out an act and carrying it out for terrorist purposes. In particular, it intended neither to destabilise nor to destroy the Turkish State, but only to improve it and bring it into line with the democratic principles adopted within the European Union, including the fundamental right to self-determination. It also aimed to compel the Turkish Government to agree to a better position for the Kurds, with the result that its efforts could not be regarded as undue. Lastly, the applicant maintains that none of the acts attributed to it was directed against the civilian population, since only legitimate military objectives were targeted, even though those acts sometimes caused civilian casualties.
122 It should be recalled, in that regard, that it is apparent from the case-law of both the Court of Justice and the General Court that the existence of an armed conflict within the meaning of international humanitarian law does not preclude the application of provisions of EU law on the prevention of terrorism, such as Common Position 2001/931, to potential terrorist acts committed in that context (judgment of 14 March 2017, A and Others, C‑158/14, EU:C:2017:202, paragraphs 97 and 98; see also judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 294 and the case-law cited).
123 In fact, Common Position 2001/931 makes no distinction as regards its scope according to whether or not the act in question is committed in the context of an armed conflict within the meaning of international humanitarian law. Moreover, the objectives of the European Union and its Member States are to combat terrorism, whatever form it may take, in accordance with the objectives of current international law (judgment of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 58).
124 Moreover, the applicant does not dispute the applicability of Common Position 2001/931 in cases of armed conflict, but argues, in essence, that its provisions should be interpreted taking into account the legitimate nature of the armed conflict which it leads against the Turkish authorities for the self-determination of the Kurdish people.
125 It must be accepted, as the applicant has done, that the customary principle of self-determination referred to, in particular, in Article 1 of the Charter of the United Nations, signed in San Francisco on 26 June 1945, is a principle of international law applicable to all non-self-governing territories and to all peoples who have not yet achieved independence (see, to that effect, judgments of 21 December 2016, Council v Front Polisario, C‑104/16 P, EU:C:2016:973, paragraph 88, and of 4 September 2019, Hamas v Council, T‑308/18, EU:T:2019:557, paragraph 217).
126 Without taking a position either on its application in the present case, or on the lawfulness of recourse to armed force to achieve self-determination, it should be observed that that principle does not mean that, in order to exercise the right to self-determination, a people or the inhabitants of a territory may have recourse to means that fall under Article 1(3) of Common Position 2001/931 (judgments of 4 September 2019, Hamas v Council, T‑308/18, EU:T:2019:557, paragraph 218, and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 299).
127 The General Court has previously had occasion to find that an exception to the prohibition on terrorist acts in armed conflicts in favour of liberation movements engaged in an armed conflict against an ‘oppressive government’ has no basis in EU law or even in international law. In their condemnation of terrorist acts, the provisions of international law, specifically Resolution 1373 (2001) of the United Nations Security Council of 28 September 2001, the Geneva Convention of 12 August 1949, and relative to the Protection of Civilian Persons in Time of War, Additional Protocols I and II to the Geneva Conventions of 8 June 1977, and relating to the Protection of Victims of International and Non-International Armed Conflicts, and the International Convention for the Suppression of the Financing of Terrorism signed in New York on 9 December 1999, do not distinguish between the status of the author of the act and the objectives he or she pursues (judgment of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 68).
128 Moreover, it should be pointed out that, in the present case, the applicant merely makes reference to a single provision – a provision of EU law in this instance – which it mentions in support of the claim that there is an exception to the prohibition of terrorist acts in armed conflicts for self-determination, namely Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism (OJ 2002 L 164, p. 3) and, in particular, recital 11 to that framework decision, according to which ‘actions by armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of these terms under that law, and, inasmuch as they are governed by other rules of international law, actions by the armed forces of a State in the exercise of their official duties are not governed’ by that framework decision. The applicant adds that Framework Decision 2002/475 was accompanied by a statement by the Council explicitly excluding from its scope armed resistance such as that conducted by the various European resistance movements during World War II.
129 However, Common Position 2001/931, much like Resolution 1373 (2001) of the United Nations Security Council of 28 September 2001 which it implements at EU level, contains no provision comparable to recital 11 of Framework Decision 2002/475, and the absence of such a recital in that common position must specifically be interpreted as expressing the Council’s intention not to provide for any exception to the application of provisions of that common position when it comes to preventing terrorism by combating its financing (judgment of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraphs 74 to 76).
130 It follows that the applicant’s reference to Framework Decision 2002/475 and to a statement of the Council accompanying that framework decision is irrelevant.
131 In addition, a distinction must be drawn between, on the one hand, the objectives which a people or the inhabitants of a territory seek to attain and, on the other, the conduct which they adopt in order to attain them. The ‘aims’ referred to in points (i) to (iii) of the first subparagraph of Article 1(3) of Common Position 2001/931 do not correspond to such objectives, which may be described as ultimate or underlying objectives. They refer, as is apparent from the terms used (intimidation, compulsion, destabilisation or destruction), to the very nature of the acts carried out, which leads to the conclusion that the first subparagraph of Article 1(3) of Common Position 2001/931 refers only to ‘acts’ and not to ‘aims’ (see judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 300 and the case-law cited).
132 Thus, in particular, contrary to what the applicant claims, the aim pursued by attacks on the fundamental structures of the Turkish State (point (iii) of the first subparagraph of Article 1(3) of Common Position 2001/931), which is allegedly to change those structures in order to render them more democratic, if proven, does not have to be taken into account. Similarly, the term ‘unduly’ (point (ii) of the first subparagraph of Article 1(3) of Common Position 2001/931) must be understood as referring to the unlawful nature of the compulsion exercised, in particular by the means of compulsion used, and must not be assessed in the light of the alleged legitimate nature of the aim pursued by the exercise of that compulsion. Lastly, as regards the intimidation of a population (point (i) of the first subparagraph of Article 1(3) of Common Position 2001/931), in respect of which the applicant claims that the armed conflict which it leads to achieve the self-determination of the Kurdish people pursues only military targets, it must be held that that argument has no basis in fact, since several of the acts mentioned in the statements of reasons, in particular attacks directed against tourist resorts, had civil populations as their principle targets, who were not merely collateral damage (see paragraphs 142 and 143 below).
133 Lastly, it must be pointed out that it cannot be inferred from the foregoing that the tool for preventing terrorism, namely Common Position 2001/931 and, more generally, the entire system of EU restrictive measures, constitutes an obstacle to the exercise of the right to self-determination of populations in oppressive States. Common Position 2001/931 and its implementation by the Council do not seek to determine who, in a conflict between a State and a group, is right or wrong, but to combat terrorism (judgment of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 71). In such a case, it is for the Council, exercising the wide discretion enjoyed by the EU institutions in the management of the external relations of the European Union (see, to that effect, judgments of 28 October 1982, Faust v Commission, 52/81, EU:C:1982:369, paragraph 27; of 16 June 1998, Racke, C‑162/96, EU:C:1998:293, paragraph 52; and order of 6 September 2011, Mugraby v Council and Commission, T‑292/09, not published, EU:T:2011:418, paragraph 60), to decide in respect of whom, be they natural or legal persons related to the State concerned or to the people wishing to exercise their right to self-determination, it is necessary to adopt restrictive measures.
134 Consequently, the applicant’s line of argument relating to the taking into account of the legitimate armed conflict for the self-determination of the Kurdish people when interpreting the aims referred to in the first subparagraph of Article 1(3) of Common Position 2001/931 must be rejected.
135 It follows that all of the applicant’s arguments challenging the conclusion that some of the acts imputed to it pursued terrorist aims on the ground that they were reprisals against the Turkish army must also be rejected.
(2) Challenge to the terrorist nature of the aims pursued by some of the acts ascribed to the applicant
136 At the outset, it is appropriate to reject the complaint alleging, in essence, infringement of the principle of the legality of criminal offences and penalties, in so far as the Council cannot base the contested measures on incidents which occurred before Common Position 2001/931 entered into force. In view of the purely precautionary nature of the freezing of funds provided for by Common Position 2001/931, which, therefore, does not constitute a penal or administrative sanction (see judgment of 7 December 2010, Fahas v Council, T‑49/07, EU:T:2010:499, paragraphs 67 and 68 and the case-law cited), that general principle of EU law, enshrined in the first sentence of Article 49(1) of the Charter, according to which ‘no one shall be held guilty of any criminal offence on account of any act … which did not constitute a criminal offence under national law or international law at the time when it was committed’, is not applicable in the present case (see, by analogy, judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraphs 70 to 81).
137 Moreover, the complaint alleging that some of the acts found to have occurred by the UK authorities do not correspond to the definition of an offence within the meaning of the legislation of that State must be rejected as ineffective. It follows from the specific form of cooperation between the Member States and the Council relating to the fight against terrorism and from the resulting obligation on the Council to defer as far as possible to the assessment of the competent national authority on which its decision is based that it must also defer to that authority as regards the classification of the facts established under the rules of national law. Even though there is a requirement for the act to be ‘defined as an offence under national law’ under Article 1(3) of Common Position 2001/931, that classification falls strictly within the national sphere and is independent as such, when implemented, from the implementation of that common position.
138 In so far as the applicant argues that some of the acts imputed to the PKK do not meet the criteria laid down in Article 1(3) of Common Position 2001/931 to define the concept of terrorist act, it should be noted, as a preliminary point, that, contrary to what the applicant claims, it is clear from the criticisms put forward in support of the present plea and examined below that, as regards incidents which it argues do not constitute terrorist acts, the applicant had sufficient data to put forward arguments in support of its challenge. It may also be inferred from the Court’s finding, in the judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316, paragraphs 62 and 80), that the summary of the incidents on which the 2014 measures were based, like that of the 2015 to 2017 measures, which was identical in the 2019 decisions, contained, except as regards the incident that took place in August 2014, a sufficient statement of reasons for the applicant to have sufficient data to put forward arguments to challenge the classification of the incidents concerned as terrorist acts.
139 Next, irrespective of the fact that the terrorist nature of the aims pursued by the applicant is disputed only in respect of some of the acts relied on by the Council, those challenges do not call into question the Council’s assessments.
140 It must be pointed out that each of the types of acts mentioned in subpoints (a) to (k) under point (iii) of the first subparagraph of Article 1(3) of Common Position 2001/931 may be terrorist in nature. In order to be classified as ‘terrorist’, an act does not have to combine the 11 items mentioned in that provision.
141 It follows that it is irrelevant that, as the applicant claims, some of the acts attributed to it did not cause death (subpoint (a)), did not involve the use of weapons (subpoint (f)), did not cause extensive destruction (subpoint (d)) or did not give rise to kidnappings (subpoint (c)), since, first, it is not disputed that those acts pursued other terrorist aims included in subpoints (a) to (k) under point (iii) of the first subparagraph of Article 1(3) of Common Position 2001/931 and that, second, some of the other acts established pursued one or another of those purposes.
142 In particular, as regards the acts found to have occurred by the UK authorities in 2001, it should be recalled that the Council referred to them as follows in the statements of reasons for the 2015 to 2017 measures and in the 2019 decisions (paragraph 16 of Annex A to the statement of reasons):
– the kidnapping of Western tourists, including several UK citizens, in the early 1990s;
– the attack on a refinery in 1993-1994;
– between 1993 and 1994, a campaign of attacks on tourist resorts which led to the death of foreign tourists, including UK citizens;
– between 1995 and 1999, threats of attacks on Turkish tourist resorts.
143 Accordingly, even if, as the applicant maintains, it has not been established that the attack on the refinery committed in 1993-1994 endangered human life under subpoint (d) under point (iii) of the first subparagraph of Article 1(3) of Common Position 2001/931, the fact remains that the applicant does not dispute either the extensive destruction caused, as referred to in that provision, nor the inevitable consequence of that destruction, namely the major economic losses which are cited, alongside the endangering of human life, as one of the two alternative consequences of the destruction referred to above. Similarly, even if the attack on that refinery could not be imputed to the applicant, as it claims, it may be noted that other acts were found to have occurred by the UK authorities in 2001 (see paragraph 142 above), in respect of which the applicant disputes neither its involvement nor the terrorist aim or aims pursued, which include attacks on a person’s life. Lastly, the applicant is not justified in disputing that the threats of attacks on Turkish tourist resorts between 1995 and 1999 corresponded to the definition of terrorist acts in Article 1(3) of Common Position 2001/931, which expressly refers, under subpoint (i) under point (iii) of the first subparagraph, to ‘threatening to commit … the acts listed under (a) to (h)’, such as attacks on life or destruction.
144 In addition, the applicant’s arguments disputing the classification of the acts at issue as terrorist acts on the ground that there are differences between the definition of act of terrorism under UK law and terrorist acts set out in Article 1(3) of Common Position 2001/931 must be rejected. The national legislation at issue, namely the UK Terrorism Act 2000, adopts the same two-level definition of terrorist acts as that contained in the common position, by defining those acts both by the ‘aims’ pursued and by the means employed for those purposes, with those ‘aims’ and those means corresponding to a large degree. It is therefore of no consequence that the criterion of seriousness is attached to the means used under UK law (with the reference, for example, to serious violence or serious damage) and to ‘aims’ in Common Position 2001/931 (with the reference, for example, to the act of seriously intimidating a population or seriously destabilising or destroying).
145 As regards the acts found to have been committed by the UK authorities in 2014, it can be noted, for the sake of completeness (see paragraphs 116 and 117 above), that the Council did not specifically identify the terrorist aims pursued by each of them, only a general conclusion listing all of those aims (in this case those referred to in subpoints (a), (c), (d) and (f) to (i) under point (iii) of the first subparagraph of Article 1(3) of Common Position 2001/931), both for the acts found to have occurred in 2001 and for those found to have occurred in 2014, as set out in the statements of reasons (paragraph 19 of Annex A). Therefore, the arguments criticising the Council for having concluded that the acts found to have occurred in 2014 had been attacks on a person’s life (subpoint (a) under point (iii) of the first subparagraph of Article 1(3) of Common Position 2001/931), had given rise to the use of weapons (subpoint (f) under point (iii) of the first subparagraph of Article 1(3) of Common Position 2001/931) or had caused extensive destruction (subpoint (d) under point (iii) of the first subparagraph of Article 1(3) of Common Position 2001/931) – which correspond to only three of the seven aims found to have been pursued – are irrelevant for the purposes of classification as terrorist acts within the meaning of Article 1(3) of Common Position 2001/931, it being specified, moreover, that the 2001 decision of the UK authorities validly found that the acts referred to therein pursued terrorist aims (see paragraph 143 above).
146 Consequently, the plea alleging infringement of Article 1(3) of Common Position 2001/931 must be rejected.
3. Plea in law alleging infringement of Article 1(6) of Common Position 2001/931
147 It should be borne in mind that, in the context of a review carried out pursuant to Article 1(6) of Common Position 2001/931, the Council may retain the person or entity concerned on a fund-freezing list if it concludes that there is an ongoing risk of that person or entity being involved in the terrorist activities which justified their initial inclusion in the list, that retention being, accordingly, in essence, an extension of the initial inclusion of the person or entity concerned in that list. To that end, the Council is required to verify whether, since that initial inclusion, the factual situation has changed in such a way that it is no longer possible to draw the same conclusion in relation to the involvement of that person or entity in terrorist activities (see, to that effect, judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 46 and 51 and the case-law cited; of 20 June 2019, K.P., C‑458/15, EU:C:2019:522, paragraph 43; and of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 49).
148 In the process of verifying whether the risk of the person or entity concerned being involved in terrorist activities is ongoing, the subsequent fate of the national decision that served as the basis for the initial inclusion of that person or entity in the lists relating to the freezing of funds must be duly taken into consideration, in particular the repeal or withdrawal of that national decision as a result of new facts or material or any modification of the competent national authority’s assessment (judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 52, and of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 50).
149 In addition, the mere fact that the national decision that served as the basis for the initial inclusion is still in force may, in view of the passage of time and in the light of changes in the circumstances of the case, no longer be sufficient to support the conclusion that the risk of the person or entity concerned being involved in terrorist activities is ongoing. In such a situation, in particular where the national decision that served as the basis for the initial inclusion has not been reviewed by the competent authority, the Council is required to base the retention of the name of that person or entity on the fund-freezing lists on an up-to-date assessment of the situation, and to take into account more recent facts which demonstrate that that risk still exists (see, to that effect, judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 52, 62 and 72; of 26 July 2017, Council v Hamas, C‑79/15 P, EU:C:2017:584, paragraphs 40 and 50; of 20 June 2019, K.P., C‑458/15, EU:C:2019:522, paragraphs 52, 60 and 61; and of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 51).
150 The conditions triggering that obligation to update, namely the passage of time and changes in the circumstances of the present case, are alternative in nature, notwithstanding the use of the conjunction ‘and’ in the case-law referred to in paragraph 149 above. The Courts of the European Union were accordingly able to confirm the Council’s obligation to update them on the basis of the time which had elapsed, without necessarily also referring to a change in the circumstances during that period (judgment of 26 July 2017, Council v Hamas, C‑79/15 P, EU:C:2017:584, paragraphs 32 and 33), sometimes even stating that the period of time in question constitutes ‘in itself’ a factor justifying that update (judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 176). The mere fact that a significant period of time has elapsed may be sufficient to justify updating the Council’s assessment, since it is a question of assessing whether a risk is ongoing and, accordingly, the development of that risk over time. Similarly, it is difficult to disregard an event which denotes a significant change in circumstances, even if that change occurred only a few months after the adoption of the measure retaining the listing.
151 Where it is justified by the passage of time or changes in the circumstances of the case, the Council may rely, for the purpose of the necessary update to its assessment, on recent material taken not only from national decisions adopted by competent authorities but also from other sources and, accordingly, from its own assessments (see, to that effect, judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 52, 62 and 72; of 26 July 2017, Council v Hamas, C‑79/15 P, EU:C:2017:584, paragraphs 40 and 50; of 20 June 2019, K.P., C‑458/15, EU:C:2019:522, paragraphs 52, 60 and 61; and of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 51).
152 It should be noted, in that regard, in response to the argument put forward by the applicant in Case T‑316/14 RENV, concerning an alleged obligation requiring the national authorities to carry out a review and the necessary reliance by the Council on those reviews, that it is precisely because the regime of restrictive measures established by Common Position 2001/931 does not provide any mechanism that would enable the Council to be provided, if necessary, with national decisions adopted after the initial listing, in order to carry out the reviews it is required to carry out pursuant to Article 1(6) of that common position, that it cannot be held that that regime requires the Council to carry out those reviews entirely on the basis of such national decisions, if the means that are to be available to the Council for that purpose are not to be restricted unduly (judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 63 and 64, and of 26 July 2017, Council v Hamas, C‑79/15 P, EU:C:2017:584, paragraph 45).
153 Moreover, it should be recalled that, as regards more recent events uncovered during an updated assessment of the situation, regardless of whether they are taken from national decisions or other sources, the Courts of the European Union are required to determine, first, whether the obligation to state reasons laid down in Article 296 TFEU has been fulfilled and, therefore, whether the reasons relied on are sufficiently detailed and specific, and, second, whether those reasons are substantiated, which requires those courts to ensure, as part of the review of the substantive legality of those reasons, that those acts have a sufficiently solid factual basis and to verify the facts alleged in the statement of reasons underpinning the retention on the fund-freezing lists (see, to that effect, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 118 and 119; of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 70; and of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 52).
154 In that judicial review, the person or entity concerned may, in the action challenging the retention of his, her or its name on the fund-freezing list at issue, dispute all the material relied on by the Council to demonstrate that the risk of his, her or its involvement in terrorist activities is ongoing, irrespective of whether that material is derived from a national decision adopted by a competent authority or from other sources. In the event of challenge, it is for the Council to establish that the findings of fact are well founded and for the Courts of the European Union to determine whether the events concerned are made out (see judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 71 and the case-law cited; judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 53). It must be emphasised, in that regard, that, in view of the specific system of cooperation between the Council and the Member States established by Common Position 2001/931 and the resulting obligation on the Council to defer as far as possible to the assessment of the national authorities, the decisions of those authorities have special evidential value, and accordingly facilitate the establishment of the facts by the Council and their verification by the Courts of the European Union where those facts have been established previously by competent national authorities.
155 It is in the light of those considerations that the Court must examine whether the 2014 measures, the 2015 to 2017 measures and the 2019 decisions were adopted in accordance with the requirements under Article 1(6) of Common Position 2001/931, by distinguishing those three types of measure in the light of the different material taken into account in the context of the update of the Council’s assessment in the statements of reasons accompanying those measures.
(a) The review carried out by the Council in the 2014 measures (Case T‑316/14 RENV)
156 It is clear from the statements of reasons for the 2014 measures that, in order to retain the applicant’s name on the lists at issue, the Council, taking account of the history of the applicant’s terrorist activities since 1984 and the ceasefires declared unilaterally by the PKK in particular since 2009, relied not only on decisions of US and Turkish authorities which were all issued prior to 2009, but also on the fact that the UK Home Secretary’s 2001 order that had served as a basis for the initial inclusion of the PKK in that list was still in force and on a list of 69 incidents which had occurred between 14 November 2003 and 19 October 2011 which the Council regarded as constituting ‘terrorist acts’ within the meaning of Article 1(3) of Common Position 2001/931, and which were attributable to the applicant (see paragraphs 11 and 12 above).
157 The applicant complains that the Council did not base the decision to retain its name on the lists at issue on an updated assessment of the situation, as required by Article 1(6) of Common Position 2001/931. The Council relied solely on outdated information from national decisions and did not take into account numerous pieces of recent information provided by the applicant relating to the peace process which had begun in 2012, the ceasefire which followed it, the consequent withdrawal of its troops from Turkish territory and its participation in the fight against Da’esh, which led to several calls being made in 2014 to remove it from terrorist lists.
158 First, it must be noted that a significant period of time elapsed between the adoption of the UK Home Secretary’s 2001 order and the adoption of the 2014 measures, which in itself justifies updating the assessment as to whether the risk of the PKK being involved in terrorism was ongoing.
159 Second, during the 13-year period between the issuance of the 2001 order and the adoption of the 2014 measures, several events occurred which showed a change in circumstances within the meaning of the case-law referred to in paragraph 149 above.
160 Accordingly, the 2014 measures refer to several ceasefires unilaterally declared by the PKK in 2005, 2006 and ‘since 2009’ and a ‘three-stage roadmap’ for peace drawn up by the PKK in 2003. Even if the statement of reasons for the 2014 measures does not refer to them, it is also necessary to mention the peace talks which took place between the PKK and the Turkish Government in 2012 and 2013, as well as the call for peace issued on 21 March 2013 by Abdullah Öcalan, the founder and leader of the PKK, both of which were put forward by the applicant (see paragraphs 167 to 171 below).
161 By contrast, the applicant’s participation in the fight against Da’esh does not, at that stage, constitute an event showing a change in circumstances that justifies an update, since, according to material in the case file, that participation began in the second half of 2014, that is to say after the adoption of the 2014 measures.
162 It follows that the Council was obliged to update its assessment of whether there was an ongoing risk of the applicant being involved in terrorism.
163 In order to do so, the Council listed a large number of incidents which occurred between 14 November 2003 and 19 October 2011, including 17 incidents between 17 January 2010 and 19 October 2011, that is to say after the ceasefires unilaterally declared by the PKK since 2009.
164 In that regard, it should be noted, first of all, that the Court of Justice held, in the judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316), that that update contained a sufficient statement of reasons, and the General Court is bound by that assessment. According to the Court of Justice, the statements of reasons relating to the 2014 measures enabled the PKK to know the actual and specific reasons why the Council had considered that, notwithstanding the ceasefires declared unilaterally since 2009, there was still a risk of that organisation being involved in terrorist activities. The Court of Justice stated that the facts set out in those statements of reasons were sufficient to place the PKK in a position to understand the accusations made against it, so that it could, where appropriate, challenge them, and to enable the General Court to exercise its power of review (judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraphs 61 and 62).
165 Next, it can also be noted that the applicant’s challenge in which it claims that incidents did not occur or that it was not responsible for them relates to only some of the incidents concerned. Even though it is clear from the case-law that the person or entity concerned cannot be required, for the purposes of that challenge, to adduce evidence of the negative, namely evidence that those reasons are not well founded (see judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 54 and the case-law cited), it must, at the very least, specifically identify the incidents which it contests (see, to that effect, judgment of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraph 151 and the case-law cited). The applicant specifically identifies only some of the 69 incidents which it disputes. Similarly, in view of the assessment by the Court of Justice referred to above concerning the Council’s fulfilment of its obligation to state reasons, the applicant cannot genuinely retreat behind an allegation that the description of the incidents at issue in the statements of reasons lacks precision in order to claim that it is unable to challenge it. Nor can the applicant criticise the Council for having failed to indicate the sources of the information relating to the incidents relied on, since the Council is not bound to do so, given that the absence of that information does not prevent the entity whose listing is retained from understanding the reasons for that retention and also given that that entity may ask the Council to have access to those documents (see, to that effect, judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 64; see also judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraphs 378 to 380 and the case-law cited). It follows from the above that, in the present case, among the 17 incidents which occurred between 2010 and 2011, the applicant disputed only a limited number of them.
166 It can therefore be concluded, in the light, moreover, of the fact that the incidents at issue were correctly classified as terrorist acts (see paragraphs 116, 117 and 146 above) that the Council fulfilled its obligation to update until 2011. It also follows that there is no need to rule on the criticisms of the Council’s reliance on the UK Home Secretary’s 2006 order proscribing ‘KADEK’ and ‘KONGRA-GEL’ and on the judgments of the Turkish Security Courts, of which the most recent of those taken into account dates from 2006.
167 Nevertheless, between 2011 and 2014, a period which, as such, may be regarded as not requiring an update (see, to that effect, judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 208 and the case-law cited), there was a call for peace made by Mr Öcalan and there were peace talks between the PKK and the Turkish authorities (see paragraph 160 above), which are not mentioned either in the 2014 measures or their statements of reasons, or in the letters communicating those measures to the applicant.
168 Such factors indicate a change in circumstances which justifies an update to the assessment of the situation.
169 First, Mr Öcalan’s call for peace was not an isolated statement, but was made in the context of talks which had started several months previously. Accordingly, this was not merely a temporary cessation or suspension of terrorist activities – which is, by definition, unilateral – but formed part of wider peace talks, which were bilateral, in the context of which that cessation or suspension was declared. The case-law cited by the Council relating to the ongoing threat which may be posed by an organisation which has committed terrorist acts in the past, notwithstanding the suspension of its terrorist activities for a more or less long period, or even their apparent cessation (judgment of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraph 112) is therefore irrelevant. Furthermore, although the Court of Justice held, in paragraphs 61 and 62 of the judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316), that the Council had provided a proper statement of reasons for the ongoing risk that the applicant is involved in terrorism notwithstanding the ceasefires declared, as the Council maintains, it does so by referring to incidents which occurred after those ceasefires were declared.
170 Next, the EU authorities, in this case the high authorities in the area of external policy, namely the High Representative of the Union for Foreign Affairs and Security Policy and the Commissioner for Enlargement and European Neighbourhood Policy, had themselves acknowledged what they had described as a ‘peace process’. In a press release dated 21 March 2013, the High Representative of the Union for Foreign Affairs and Security Policy and the Commissioner for Enlargement and European Neighbourhood Policy had made a joint statement in which they welcomed Mr Öcalan’s calling on the PKK to lay down arms and to withdraw beyond the Turkish borders, encouraged all parties to work unremittingly to bring peace and prosperity for all the citizens of Türkiye, and gave full support to the peace process.
171 Lastly, it can be noted that that process had started more than a year before the date of the first 2014 measure and more than 18 months before the date of the second 2014 measure, although there is nothing in either the 2014 measures or the case file to indicate that that process had been brought to an end on the date on which those measures were adopted.
172 It should be stated that, while it does so, in accordance with the judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316, paragraphs 56, 57, 74 and 88), a failure to state reasons cannot be inferred from the Council’s silence. By contrast, it can be inferred from the fact that the Council has made no reference to any examination or any taking into account of the abovementioned factors that the review carried out does not fulfil the requirements of Article 1(6) of Common Position 2001/931.
173 Such an analysis is reaffirmed by the fact that the Council makes no explicit reference to that material in its pleadings, but merely mentions generally the declarations of the cessation of terrorist and armed activities, which, it must be pointed out, first, are not the only ones at issue here, since the relevant declaration of Mr Öcalan forms part of a peace process (see paragraph 169 above) and, second, have previously led, as regards, inter alia, the 2005 and 2006 ceasefires, the Council to verify whether the PKK was continuing to pursue terrorist activities after those ceasefires (see paragraphs 160 and 163 above), which did not happen following the 2012 and 2013 talks and declarations.
174 Mr Öcalan’s declaration of 21 March 2015, calling for the organisation of a Kurdish Congress to decide to put an end to the armed struggle, which was relied on by the Council in its written pleadings and which, in its view, attests to the fact that, before that date, no decision had been taken to that effect, is also irrelevant in that regard. Even though the assessment of whether there is an ongoing risk of terrorist involvement may involve an analysis that is, in part, prospective, it cannot call into question the settled case-law, which includes the case-law relating to restrictive measures, according to which the lawfulness of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (see judgments of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 22 and the case-law cited, and of 4 September 2015, NIOC and Others v Council, T‑577/12, not published, EU:T:2015:596, paragraph 112 and the case-law cited), which means that account may be taken only of the facts as they stood when the contested measures were adopted (see judgment of 24 November 2021, Al Zoubi v Council, T‑257/19, EU:T:2021:819, paragraph 58 (not published) and the case-law cited).
175 It follows that the Council infringed Article 1(6) of Common Position 2001/931, which means that the 2014 measures must be annulled, without it being necessary to examine the plea alleging infringement of Articles 4 and 51 of the Charter, directed solely against the taking into account of the judgments of Turkish Security Courts (see paragraph 166 above), nor the three following pleas put forward in support of the application for annulment of the 2014 measures.
(b) The review carried out by the Council in the 2015 to 2017 measures (Case T‑316/14 RENV)
176 At the outset, it should be noted that, in the statements of reasons for the 2015 to 2017 measures, the Council referred to new material which, in its view, justified retaining the applicant’s name on the lists at issue.
177 In particular, the Council made reference to a new decision of the UK Home Secretary of 3 December 2014 as well as, in addition to mentioning for the first time the dates of the decisions of the US authorities on which the original listing was based (1997 and 2001), the review carried out by those authorities on 21 November 2013 and the ‘administrative file’ of the US State Department, which was also dated 2013, specifying the incidents on which the national decisions concerned were based and those contained in the administrative file. It also relied for the first time on several French judicial decisions delivered between 2011 and 2014. The Council also stated that it had examined whether there was any material in its possession that would support removing the PKK’s name and, having found none, concluded that the reasons for the listing remained valid (see paragraph 13 above).
178 The applicant disputes the incidents on which the 2014 UK decision is based and states that that decision contains no response to a request for the lifting of the proscription which it claims to have lodged, which means that it was not adopted on the basis of all the relevant facts. It maintains, with regard to the 2013 US decision, that it has not been established that the administrative file of the US State Department of the same date is the basis for that decision. As regards the decisions of the French courts of 2011, 2013 and 2014, the applicant states that it was not a party to the proceedings which gave rise to those decisions, that, moreover, those decisions were not based on impartial, objective and substantial evidence, in particular because they were based largely on information from Türkiye, and that they relied on a definition of terrorist act which was broader than that of Common Position 2001/931 and on acts attributed to the applicant prior to 2007. In its observations on the judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316), the applicant infers that the Court’s finding that the French judicial decisions do not constitute a sufficient basis to justify retaining its name on the lists at issue is not called into question, since it was not challenged in the Council’s appeal. Lastly, the applicant complains that the Council failed to take account of the detailed material supported by documentation, submitted in its application and in its reply, according to which it is an important partner in the coalition forces of the United States and Europe in the fight against Da’esh.
179 It is necessary, therefore, to determine whether that new material allows the inference that the Council validly retained the applicant’s name on the lists at issue in the light of the arguments challenging that retention put forward by the applicant, starting with those criticising the Council’s reliance on the UK Home Secretary’s 2014 decision.
180 In the 2015 to 2017 measures, the Council states that that decision is based on the following factors:
– in May 2014, an attack on the construction site for a new Turkish military outpost in the course of which two members of the armed forces were injured;
– in August 2014, an attack on an energy plant and the kidnapping of three Chinese engineers (point 17 of Annex A to the statement of reasons);
– in October 2014, the PKK’s announcement of a break in peace talks with the Republic of Türkiye if the latter did not intervene against Da’esh (paragraph 18 of Annex A to the statement of reasons).
181 Out the outset, it should be noted that the UK Home Secretary’s 2014 decision was adopted by a competent authority within the meaning of Article 1(4) of Common Position 2001/931, since it was adopted by the same authority that adopted the 2001 order (see paragraph 67 above). Accordingly, even if the Council is not required to rely on material derived from decisions of competent national authorities in order to retain the name of an entity on fund-freezing lists (see paragraphs 151 and 152 above), the fact remains that, when it relies on such decisions for the purposes of such retention, the material derived from those decisions must be regarded as having particular evidential value (see paragraph 154 above).
182 It should also be borne in mind that the Court of Justice held, in the judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316), that inadequate reasons were given for the reference to the attack of August 2014, but that, by contrast, sufficient reasons were given for the references to the measures of May and October 2014 (paragraphs 78 to 80). In addition, it held that, in so far as the General Court stated, in paragraph 103 of the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788), that the PKK had put forward arguments challenging whether the incidents referred to in the UK Home Secretary’s review decision of 2014, as described in Annex A to the 2015 to 2017 measures, were attributable to the PKK and whether they could be classified as terrorist acts within the meaning of Article 1(3) of Common Position 2001/931, that line of argument sought to challenge the truth of the facts referred to and their legal classification, which was intended not to establish a failure by the Council to fulfil its obligation to state reasons, but to challenge the substantive legality of those measures and thus to trigger the Council’s obligation to establish that the reasons relied on are well founded (paragraph 81).
183 In the present case, it may be noted, following the applicant’s reply to a question put by the Court at the hearing, that the applicant merely challenges the threat of breaking off peace talks made in October 2014, arguing that it merely warned the Turkish authorities that there was a risk that the peace talks would fail if they did not act against Da’esh, without threatening breaking off those negotiations. By contrast, it was noted in the minutes of the hearing that the applicant had accepted that the acts committed by Kurdish guerrillas of the People’s Defence Forces (HPG) could be imputed to it, from which it may be inferred that it no longer disputes the attack of May 2014. The only ground of challenge raised by the applicant with regard to that attack in its statement of modification was that it should be attributed to the HPG and not to the PKK.
184 In addition, as regards the applicant’s argument that the 2014 decision cannot be taken into account, on the ground that the request to lift the proscription to which it replies does not emanate from the PKK, it is clear from the case-law that the subsequent fate of the national decision that served as the basis for the original listing must be duly taken into consideration and what counts, in that regard, is any repeal or withdrawal or, conversely, the confirmation of that national decision as a result of new facts or material or following any modification of assessment or any adjunct to that assessment, more than the entity which triggered that new assessment (see, to that effect, judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 52, and of 26 July 2017, Council v Hamas, C‑79/15 P, EU:C:2017:584, paragraph 30). That is all the more so in the present case since the UK Home Secretary based her 2014 decision on several new terrorist acts which took place in 2014, at least one of which is not contested by the applicant (see paragraph 183 above). It can be noted, in any event, that the Council stated, in its statements of reasons (paragraph 12 of Annex A), that the PKK itself had unsuccessfully requested that the proscription be lifted on three occasions (in 2001, 2009 and 2014), from which it can be inferred that the competent authority had at its disposal, in particular in 2014, the arguments and material put forward by the PKK in support of its request.
185 It follows that, having regard to the classification of the attack in May 2014 as a terrorist act, which it was fully entitled to make (see paragraphs 135 and 145 above), the Council validly found that the PKK was involved in terrorist acts until 13 May 2014, the date of the uncontested terrorist act found to have occurred in the UK Home Secretary’s 2014 decision. That act also post-dates the 2012 and 2013 events, which were considered to justify updating the assessment of the risk of terrorist involvement.
186 The Council therefore validly updated its assessment of the risk of involvement in terrorism until May 2014, which, in terms of ‘distance in time’ from the date of the 2015 to 2017 measures, namely less than five years, including for the latter measures, is sufficient for the view to be taken that the review under Article 1(6) of Common Position 2001/931 was conducted in due and proper form (see, to that effect, judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 208 and the case-law cited).
187 That finding is not called into question by the applicant’s participation in the fight against Da’esh from the second half of 2014, which it presents as an event marking a change in circumstances justifying an update to the Council’s assessment (see paragraph 178 above) and which the Council correctly concluded did not need to be taken into account. Such participation coincides with the abovementioned warning issued to the Turkish authorities, even if that warning did not have the scope stated in the 2015 to 2017 measures (see paragraph 183 above). It does not, therefore, reveal any improvement whatsoever in the PKK’s relations with the Republic of Türkiye and does not mean, as such, that its conflict with that State and the activities which may be regarded as terrorist activities carried out in that context had ceased. Therefore, those circumstances are not such as to allow the inference to be drawn that there had been a change of such a kind as to oblige the Council to satisfy itself that there was still a risk of the PKK being involved in terrorism.
188 It follows that the plea alleging infringement of Article 1(6) of Common Position 2001/931 must be rejected in so far as it relates to the 2015 to 2017 measures, without it being necessary to examine the arguments criticising the Council’s reliance on the decisions of the US and French authorities which are based on incidents which occurred prior to 2014.
(c) The review carried out by the Council in the context of the 2019 decisions (Case T‑148/19)
189 The 2019 decisions are virtually identical to the 2015 to 2017 measures. The arguments put forward by the applicant against those decisions are, moreover, similar to those challenging the review which gave rise to the 2015 to 2017 measures.
190 The only difference between the 2015 to 2017 measures and the 2019 decisions concerns Decision 2019/1341 in isolation, which mentions an additional incident attributed to the PKK dated 23 October 2017. That incident was an attack on a Turkish military vehicle with an explosive device in the southern province of Hakkari, during which a Turkish soldier was killed (point 16, last indent, of the statement of reasons). That attack is presented as appearing in the 2019 administrative file of the US authorities. The source of that information, namely the Reuters news agency, is cited.
191 It should be noted at the outset that the applicant does not dispute that that attack occurred, or that it was responsible for the attack, but merely disputes its classification as a terrorist act within the meaning of Article 1(3) of Common Position 2001/931, on the irrelevant ground that that act forms part of the armed conflict between it and the Republic of Türkiye (see paragraphs 134 and 135 above). A sufficient statement of reasons is provided for the reference to that attack in Decision 2019/1341 (see paragraph 231 below).
192 It is important also to point out that the fact that the acts which allegedly constitute terrorist acts and were used to retain names on the lists at issue – acts the occurrence of which the applicant does dispute and for which it does not deny that it was responsible – have been established by a national authority that cannot be classified as a competent authority within the meaning of Common Position 2001/931 does not prevent the Council from validly relying on such acts in its review of the risk of involvement in terrorism. When reviewing the substance of the listing of an entity, the Council is not required to rely on evidence established in a decision of a competent authority that meets the criteria laid down in Article 1(4) of Common Position 2001/931 (see, to that effect, judgments of 4 September 2019, Hamas v Council, T‑308/18, EU:T:2019:557, paragraph 150, and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 143).
193 It is therefore not decisive in the present case, as is apparent from paragraph 96 above, that the US authorities cannot be classified as a competent authority. Nor is it important that, as the applicant claims, it is not clear from the 2019 decisions that the incidents concerned, in addition to being included in the US administrative file, formed the basis for continuing to designate it as a terrorist organisation following the reviews carried out by the US authorities.
194 It must also be noted that, unlike in Case T‑316/14 RENV, with the exception of the kidnapping of three Chinese engineers, the applicant does not dispute that the acts which formed the basis of the UK Home Secretary’s 2014 decision actually occurred or that it was involved in them.
195 Account must also be taken of the inadequacy of the statement of reasons found by the Court of Justice in relation to the attack on the energy plant in August 2014, which led to the kidnapping of three Chinese engineers (judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 78). Even though the applicant does not allege in Case T‑148/19 that the statement of reasons was inadequate, in its observations on the judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316), that consideration is a matter of public policy and the parties were given an opportunity to submit their observations in that regard.
196 It follows, as regards, first, Decision 2019/25, that the most recent act committed by the PKK validly relied on and classified as a terrorist act by the Council (see paragraphs 135 and 145 above) dates back to May 2014, which corresponds to a distance in time of approximately four and a half years from that decision, which means that an update was not necessary, as is apparent from paragraph 167 above.
197 That act also post-dates the 2012 and 2013 events which were considered to justify an update to the assessment of the risk of involvement in terrorism, which can therefore be regarded as having been carried out correctly in that regard.
198 It can also be concluded, as was the case with the assessment made in relation to the 2015 to 2017 acts, that the Council validly took the view that the PKK’s participation in the campaign against Da’esh after the May 2014 attack did not constitute a change in circumstances that gave rise to an obligation on it to check that there was an ongoing risk that the PKK was involved in terrorism (see paragraph 187 above). That is all the more so since the applicant claims, in Case T‑148/19, that the transformation of the Turkish State into a totalitarian State that suppresses the Kurdish people constitutes another change in circumstances, thereby demonstrating its ongoing hostility towards the Turkish authorities. Moreover, since that oppression is relied on, in essence, in support of the PKK’s arguments relating to the armed conflict between it and the Republic of Türkiye, it does not reflect changes entailing the PKK becoming more peaceful as such.
199 The same applies to Mr Öcalan’s statements indicating his openness to political negotiations and the need to reach a democratic solution rather than maintaining conflict behaviour and the use of physical violence. Irrespective of their wording, which was much less solemn and affirmative than the abovementioned 2013 statement, and the fact that the PKK is not mentioned in it at all, those statements collected by Mr Öcalan’s lawyers and then made public, which date from May to August 2019, post-date Decision 2019/25.
200 As regards, second, Decision 2019/1341, the most recent act committed by the PKK validly relied on and classified as a terrorist act by the Council (see paragraph 191 above) dates from 2017, that is to say less than two years before that decision, which is a fortiori a distance in time which does not make it necessary to update the assessment as to whether there is an ongoing risk of involvement in terrorism.
201 Since the 2017 attack was well after the 2012 and 2013 events and the beginning of the PKK’s participation in the fight against Da’esh, it can also be concluded that that attack substantiated the Council confirming, after its review, that there was an ongoing risk that the PKK was involved in terrorism and retaining the listing at issue by the adoption of Decision 2019/1341, despite those events and that participation. The abovementioned statements made by Mr Öcalan between May and August 2019 are too recent vis-à-vis Decision 2019/1341, which was adopted on 8 August 2019, to justify, at that stage, an update of the Council’s assessment, as insufficient time had passed to show the follow-up steps taken in response to those declarations in the form of any cessation of violence or the triggering of a peace process.
202 It follows that the Council fulfilled the requirements under Article 1(6) of Common Position 2001/931 when it reviewed the ongoing risk of the PKK’s involvement in terrorism in the 2019 decisions.
203 Accordingly, it follows from all of the foregoing that the plea alleging infringement of Article 1(6) of Common Position 2001/931 must be upheld as regards the 2014 measures alone, without it being necessary, therefore, to examine the plea alleging infringement of Articles 4 and 51 of the Charter raised only against those 2014 measures (see paragraph 175 above), nor the three following pleas put forward in support of the application for annulment of those measures. By contrast, the plea alleging infringement of Article 1(6) of Common Position 2001/931 must be rejected as regards the 2015 to 2017 measures and the 2019 decisions.
4. Plea in law alleging infringement of the principle of proportionality
204 The applicant claims that retaining its name on the lists at issue is a disproportionate means of pursuing the objective of combating terrorism, in view of the change in circumstances since 2002 and the repercussions of that listing in the Member States, including in terms of freedom of expression and freedom of assembly, on the political actions of the PKK and Kurds in general. The applicant also points out that the duration of the listing in question appears to be unlimited and that there are less restrictive measures to combat terrorism.
205 In view of the finding that the 2014 measures were unlawful, the present plea, alleging breach of the principle of proportionality, will, for reasons of procedural economy, be examined only in so far as it concerns the 2015 to 2017 measures and the 2019 decisions.
206 It should be recalled, in that regard, that fundamental rights, including the right to property, freedom of expression or the right of assembly, do not enjoy absolute protection under EU law. The exercise of those rights may be restricted, provided, first, that those restrictions are duly justified by objectives of public interest pursued by the European Union and, second, that they do not constitute, in relation to those objectives, a disproportionate or intolerable interference, impairing the very substance of those rights (see, to that effect, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 121 and the case-law cited).
207 As regards the first condition, it is settled case-law that the freezing of the funds, financial assets and other economic resources of the persons and entities identified in accordance with the rules laid down in Regulation No 2580/2001 and Common Position 2001/931 on the basis that they are involved in the financing of terrorism pursue an objective of public interest since it forms part of the fight against terrorist acts posing a threat to international peace and security (see, to that effect, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 123 and the case-law cited).
208 As to the second condition, it must be pointed out that the measures for the freezing of funds are not, in principle, considered disproportionate or intolerable, or to impair the very substance of some or all fundamental rights.
209 Indeed, that type of measure is necessary, in a democratic society, to combat terrorism (see, to that effect, judgment of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraph 129 and the case-law cited). Moreover, the measures freezing funds are not absolute, in view of the fact that Articles 5 and 6 of Regulation No 2580/2001 provide for the possibility, first, to authorise the use of frozen funds to meet essential needs or to satisfy certain commitments and, second, to grant specific authorisation, in certain circumstances, to unfreeze funds, other financial assets or other economic resources (see judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 127 and the case-law cited).
210 Furthermore, the freezing of funds is not a permanent measure, since, pursuant to Article 1(6) of Common Position 2001/931, the names of persons and entities on fund-freezing lists are periodically reviewed in order to ensure that the names of those who no longer meet the criteria for inclusion are removed (judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 129).
211 It follows, in the present case, that, in so far as it was held that the Council had correctly reviewed whether there was an ongoing risk of the applicant being involved in terrorism, having regard in particular to the changes in circumstances alleged by the applicant, in the 2015 to 2017 measures (see paragraph 188 above) and the 2019 decisions (see paragraph 202 above), it can be concluded that the principle of proportionality has been observed.
212 That conclusion is not called into question by the alleged ineffectiveness of the fund-freezing measures at issue and, therefore, their allegedly inappropriate nature, in that they did not prevent violence against Kurds and did not lead to a peaceful and democratic resolution of the conflict between Kurds and the Turkish authorities. That is not the objective of the 2015 to 2017 measures or the 2019 decisions, as is apparent, moreover, from some of their titles reproducing the title of Common Position 2001/931 and the reference to the objective of combating terrorism, an objective which, moreover, is not disputed by the applicant either as to its existence or as to its legitimacy, which is moreover confirmed by the case-law referred to in paragraph 207 above.
213 The alleged effects on Kurds and, more generally, on any person wishing to support Kurds are also irrelevant. The 2015 to 2017 measures and the 2019 decisions relate exclusively to the fight against terrorism and the PKK – which is mentioned only in the annexes to those measures and decisions – as a party involved in terrorist acts. Accordingly, even if the actions complained of by the applicant taken against persons unconnected with it, such as arrests or obstacles to freedom of movement, are proved, whether they are caused by actions of authorities of Member States or of the Turkish authorities, to which the 2015 to 2017 measures and the 2019 decisions do not apply, those actions could not be regarded as resulting from those measures or decisions, which merely freeze funds, and thus are not disproportionate.
214 As regards the applicant’s argument that less restrictive measures would make it possible to combat terrorism, it does not explain the form such measures should take. The Court is therefore not in a position to assess whether those measures would make it possible to attain the objective pursued by the fund-freezing measures, namely combating the financing of terrorism, as effectively as those fund-freezing measures (see, to that effect, judgment of 24 November 2021, LTTE v Council, T‑160/19, EU:T:2021:817, paragraphs 317 and 318).
215 It follows that the plea alleging infringement of the principle of proportionality must be rejected in so far as it concerns the 2015 to 2017 measures and the 2019 decisions.
5. Plea in law alleging failure to fulfil the obligation to state reasons
216 It should be recalled that, according to settled case-law, the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure for the purpose of assessing whether it is well founded and to enable the court having jurisdiction to exercise its power of review (see judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 47 and the case-law cited).
217 The statement of reasons thus required must be appropriate to the measure at issue and to the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom the measure is of concern within the meaning of the fourth subparagraph of Article 263 TFEU, may have in obtaining explanations. In particular, it is not necessary for the reasoning to go into all the relevant facts and points of law or to provide a detailed answer to the considerations set out by the person concerned when consulted prior to the adoption of that same measure, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. Consequently, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him or her to understand the scope of the measure concerning him or her (see judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 48 and the case-law cited).
218 As regards, specifically, the retention of the listing of a person or entity on a fund-freezing list, the Courts of the European Union are required, when examining whether the obligation to state reasons laid down in Article 296 TFEU has been fulfilled, to determine whether the reasons relied on are sufficiently detailed and specific (see judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraphs 52 and 56 and the case-law cited).
219 It follows that, in order to fulfil the obligation to state reasons laid down in Article 296 TFEU, it was, in the present case, for the Council to provide sufficiently detailed and specific reasons to enable the applicant to know the reasons substantiating the continued inclusion of its name in the list at issue and to enable the Court to exercise its power of review.
220 The applicant puts forward, in essence, six complaints in support of the plea alleging failure to fulfil the obligation to state reasons in the contested measures. Given that the plea alleging infringement of Article 1(4) of Common Position 2001/931 as regards the 1997 and 2001 decisions of the US authorities was upheld and that the plea alleging infringement of Article 1(6) of that common position was upheld in so far as it relates to the 2014 measures, there is no need to examine the complaints criticising the statement of reasons for those measures or the statement of reasons justifying the reliance on the US decisions referred to above. Accordingly, in particular, in so far as, by one of its six complaints, the applicant claims that the Council failed to fulfil its obligation to state reasons by failing to verify whether the rights of the defence and the right to effective judicial protection had been guaranteed by the US authorities when they adopted their 1997 and 2001 decisions, the examination below will cover only five complaints in support of the plea alleging that the Council failed to fulfil its obligation to state reasons concerning the 2015 to 2017 measures and the 2019 decisions.
221 First, the applicant claims that the Council did not fulfil its obligation to state reasons by failing to explain how the national decisions on which it relied were decisions within the meaning of Article 1(4) of Common Position 2001/931.
222 The Court held, in the judgment of 24 November 2021, LTTE v Council (T‑160/19, not published, EU:T:2021:817, paragraphs 329 and 330), that it was not for the Council to explain how the national decision on which it relied constituted a decision of a competent authority within the meaning of Common Position 2001/931 and that it was only if that classification was challenged in a detailed manner by the person or entity concerned during the administrative procedure before the Council, which is not the case here, that the Council would have to explain further its reasons for the measures adopted on that point.
223 In any event, in the 2015 to 2017 measures and in the 2019 decisions, in a section of the statements of reasons specifically devoted to ‘the match with the requirements for the competent national authority contemplated under [Common Position 2001/931]’, the Council provided that reasoning, recalling the case-law of the Court in which similar decisions from UK authorities are examined in the context of Article 1(4) of that common position, and concluded that the UK Home Secretary was a competent national authority (paragraph 3).
224 It follows, in the present case, that the first complaint, alleging an inadequate statement of reasons, must be rejected.
225 Second, the applicant claims that the Council failed to fulfil its obligation to state reasons by failing to state the actual and precise reasons on which the national decisions taken into account were based. That second complaint is put forward as regards all the decisions taken into account in the 2015 to 2017 measures and solely in relation to the 2013 and 2019 US decisions taken into account in the 2019 decisions.
226 Third, the applicant claims that the Council failed to fulfil its obligation to state reasons by failing to state the actual and precise reasons for retaining its name on the lists after review. That third complaint is raised only with regard to the 2015 to 2017 measures.
227 It should be recalled, as regards those second and third complaints, that the Court of Justice held, in the judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316, paragraphs 76 to 89), in response to the sixth and seventh grounds of appeal, that, with the exception of one of the incidents taken into account, the reasons given for the 2015 to 2017 measures were sufficient, in that they were based on the 2014 UK decision and in that they had retained the applicant’s name on the lists at issue, and the General Court is bound by that assessment.
228 As regards the 2019 decisions, the statement of reasons of which is contested as insufficient in so far as they are based on decisions of the US authorities, in this case the reviews carried out by those authorities in 2013 and 2019, a distinction should be drawn between Decision 2019/25 and Decision 2019/1341.
229 As regards Decision 2019/25, in so far as it follows from the examination of the plea alleging infringement of Article 1(6) of Common Position 2001/931 that the retention of the applicant’s name on the lists at issue by that decision complies with that provision, irrespective of whether the US decisions are taken into account (see paragraphs 196 and 198 above), there is no need to rule on the alleged inadequacy of the statement of reasons, which concerns only the latter decisions.
230 As regards Decision 2019/1341, in so far as the rejection of the plea alleging infringement of Article 1(6) of Common Position 2001/931 is based, inter alia, on the 2017 attack found to have occurred by the US authorities during their 2019 review being taken into account (see paragraphs 191 and 200 above), it is appropriate to verify whether the statement of reasons in respect of that item of evidence is sufficient. It is important to point out, in that regard, that, in so far as that item of evidence is taken into account under Article 1(6) of Common Position 2001/931, it is irrelevant that it was not found to have occurred by a competent authority, just as it is therefore irrelevant that, as the applicant claims, it is not clear from the statement of reasons for Decision 2019/1341 whether that incident, as part of the 2019 administrative file of the US State Department, also formed the basis of the US authorities’ decision to continue to designate the applicant as a terrorist organisation.
231 As regards the relevant actions which substantiate retaining the applicant on the fund-freezing lists, fulfilling the obligation to state reasons involves specifying the nature of those actions, the precise date on which they occurred (that is to say, the day) and where they occurred, with a certain degree of approximation being permitted in that regard, provided that reference can be made to the region or province, although this need not be to the exact city or town (see, to that effect, judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraphs 61, 62, and 78 to 80). Such details appear in the statement of reasons for Decision 2019/1341, which mentions the nature of the attack in question (attack on a Turkish military vehicle with explosive device), the date of the attack (23 June 2017) and the place where it occurred (southern province of Hakkari). The allegations that the statement of reasons for Decision 2019/1341 was inadequate must therefore be rejected.
232 Fourth, the applicant claims that the Council failed to fulfil its obligation to state reasons by failing to ascertain whether the acts examined by the national authorities could be classified as terrorist acts within the meaning of Article 1(3) of Common Position 2001/931.
233 Fifth, the failure to fulfil the obligation to state reasons stems from the failure to show that the UK and French decisions taken into account are relevant, having regard in particular to the period of time which had elapsed.
234 As regards the last two complaints, it must be borne in mind that the obligation to state reasons established by Article 296 TFEU is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect. It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a plea alleging an inadequate statement of reasons or a lack of such a statement (see judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 37 and the case-law cited; judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 143). It should be pointed out, in that regard, that if the examination carried out by the Council is inadequate, that is an error vitiating the substantive lawfulness of the contested measure (see, to that effect, judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 72).
235 In the present case, the fourth and fifth complaints put forward by the applicant in support of its plea alleging that the Council failed to fulfil its obligation to state reasons in fact criticise the scope and the content of the review carried out by the Council when it adopted the contested decisions, as is also apparent from the reference made by the applicant to its previous pleas alleging substantive errors.
236 Whether the Council fulfilled its obligation to ensure that the acts that the national authorities found to have been committed fell within the definition of terrorist acts in Common Position 2001/931 (fourth complaint) was examined in response to the plea alleging infringement of Article 1(3) of Common Position 2001/931.
237 What applies to the Council’s obligations in the context of its reviews of the lists at issue and of its reviews of the taking into account, in that regard, of the time which had elapsed also applies to its reviews of the national decisions taken following those which formed the basis of the initial listing (fifth complaint), which were examined in the context of the plea alleging infringement of Article 1(6) of Common Position 2001/931, which was upheld in part without any examination of the French decisions being required for that purpose.
238 It follows from all the foregoing that the plea alleging that the Council failed to fulfil its obligation to state reasons must be rejected for the most part, that is to say, with the exception of the statement of reasons for the August 2014 incident found to have occurred by the UK authorities, which was found to be inadequate in the judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316) (see paragraphs 182 and 227 above).
6. Plea in law alleging that the rights of the defence and the right to effective judicial protection have been infringed
239 The applicant puts forward three complaints in support of that plea. First, the Council failed to communicate to it the evidence on which the UK and US authorities relied, and thereby disregarded the criteria identified in the judgment of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518). Second, the Council has also failed to show that the rights of the defence and the right to effective judicial protection were guaranteed before the French and US authorities. Third, the applicant further claims that its rights of defence and its right to effective judicial protection were also infringed on account of the Council’s flagrant disregard for the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788).
240 As regards the first complaint, it is settled case-law that when sufficiently precise information has been communicated, enabling the entity that is the subject of the restrictive measure properly to state its point of view regarding the evidence adduced against it by the Council, the principle of observance of the rights of the defence does not mean that that institution is obliged spontaneously to grant access to the documents in its file. It is only on the request of the party concerned that the Council is required to provide access to all non-confidential official documents concerning the measure at issue (see judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 367 and the case-law cited).
241 In the present case, first, sufficiently precise information was communicated to the applicant as regards the evidence relied on for the purpose of retaining its name on the lists at issue in the statements of reasons annexed to the 2015 to 2017 measures and to the 2019 decisions, which were the only ones examined here for reasons of procedural economy in view of the finding that the 2014 measures were unlawful. Second, in response to a question put by the Court, the applicant produced, as regards those measures and decisions, a single letter, which was dated 6 March 2015 and was sent to the Council before the adoption of the 2015 measures. That letter, as regards the incidents taken from the decisions of the UK and US authorities relied on by the Council for the purpose of retaining the applicant on the lists at issue, which are the only incidents at issue in the plea, in so far as the applicant is able to challenge whether they actually occurred and whether it was responsible for those incidents alone (see paragraphs 37 and 80 above), merely criticises the lack of further details (fourth and sixth paragraphs of the letter), which, it claims, prevents those incidents from being classified as terrorist acts. Such a reference relates to the question of classification as terrorist acts, and not to the question of whether the incidents at issue occurred or who is responsible for them, which could justify the relevant evidence bring communicated. Furthermore, accepting that that reference constitutes a request for access, albeit implicit, would amount to calling into question the principle of access by way of exception and upon request, whereby the spontaneous communication of material in the file is regarded as an excessive requirement (see, to that effect, judgment of 14 October 2009, Bank Melli Iran v Council, T‑390/08, EU:T:2009:401, paragraph 97).
242 It follows that, in the present case, it was not for the Council to communicate to the applicant the relevant evidence which was not requested by the applicant, with the result that the first complaint must be rejected.
243 As regards the second complaint, it may be noted that, as regards the US decisions, that complaint is indissociable from the complaint relied on in support of the plea alleging infringement of Article 1(4) of Common Position 2001/931, criticising the Council for failing to verify whether those decisions were adopted in observance of the rights of the defence and the right to effective judicial protection. Since that last complaint was upheld (see paragraph 96 above), the present complaint must also be upheld in so far as it makes the same criticism of the Council.
244 As regards the French decisions, there is no need to rule on the complaint at issue, since a ruling can be given on the present action without taking them into account (see paragraph 188 above).
245 As regards the third complaint relied on in Case T‑148/19 alone, alleging that the Council failed to have regard to the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788), it should be noted that, following a question put by the Court, the applicant stated that its complaint could be interpreted as being based on an infringement of Article 266 TFEU, which was recorded in the minutes of the hearing. Moreover, the Council has not challenged that interpretation of that complaint.
246 Article 266 TFEU provides that an institution whose act has been declared void is to be required to take the necessary measures to comply with the judgment declaring that act void. When a judgment declaring an act to be void relates to decisions, that obligation is incumbent on it as soon as the judgment is delivered – as in the present case, since the 2014 measures and the 2015 to 2017 measures declared void by the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788), include a number of decisions – which is different from judgments declaring regulations void, which, pursuant to the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union, take effect only as from the expiry of the period for bringing an appeal or, in the event an appeal, as from the date of dismissal of the appeal (see, to that effect, judgment of 21 February 2018, Klyuyev v Council, T‑731/15, EU:T:2018:90, paragraphs 259 to 262 and the case-law cited).
247 Specifically, under Article 266 TFEU, an illegality found in the grounds of a judgment declaring a measure void obliges the institution which adopted the measure to eliminate that illegality in the measure intended to replace the annulled measure. However, that obligation may also, in so far as it relates to a provision with a specific content in a given field, give rise to other consequences for that institution, including the obligation to ensure that new legislation adopted following the judgment declaring the previous measure void contains no provisions having the same effect as the provisions held to be illegal (see, to that effect, judgment of 26 April 1988, Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraphs 28 and 29).
248 Accordingly, on the date of adoption of the 2019 decisions, in order to comply with its obligations under Article 266 TFEU, if it intended to retain the applicant’s name on the lists in question, the Council was required to adopt a re-listing measure in accordance with the grounds of the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788). The Council was subject to such an obligation, having regard in particular to the measures concerned in the present case, the effects of which are limited to a defined period of time meaning that the Council is not required to replace the annulled measure for the period concerned (see, to that effect, judgment of 26 April 1988, Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraph 29) and which, moreover, as regards the review of whether there is an ongoing risk of involvement in terrorism under Article 1(6) of Common Position 2001/931, often typically reproduce in subsequent measures the statement of reasons that appears in previous measures, updated where appropriate. Without that obligation, the annulment ordered by the EU judicature would not prevent the repetition in subsequent measures of grounds vitiated by illegality (see, to that effect, judgment of 14 March 2017, Bank Tejarat v Council, T‑346/15, not published, EU:T:2017:164, paragraph 31) and would consequently be deprived of practical effect.
249 In the present case, the Council reproduced in the 2019 decisions the same reasons as those on which it had relied in the 2015 to 2017 measures and which had been declared unlawful by the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788). It is true that the Council brought an appeal against that judgment. However, as regards the effects of the annulment by the Court of the contested decisions, that appeal did not have suspensory effect and was not accompanied by an application seeking suspension of the effects of the judgment annulling the decisions, which it was open to the Council to submit. Such a refusal by the Council to draw the appropriate conclusions from res judicata is liable to harm the confidence placed by individuals in compliance with judicial decisions.
250 The Council’s failure to meet its obligations under Article 266 TFEU cannot, however, result in the annulment of the 2019 decisions in the present case. The judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788), was set aside by the judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316), in particular in so far as it had itself annulled the 2015 to 2017 measures. In view of the retroactive nature of that annulment by the Court of Justice, the legality of the 2019 decisions can no longer be challenged on the ground that the Council infringed the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788) (see, to that effect, order of 14 April 2014, Manufacturing Support & Procurement Kala Naft v Council, T‑263/12, not published, EU:T:2014:228, paragraph 37). The third complaint must therefore be rejected.
251 However, despite the rejection of that third complaint, the fact remains that, at the time of the adoption of the 2019 decisions and the bringing of the action in Case T‑148/19, the Council was required to draw the appropriate conclusions from the illegalities found by the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788), by not repeating the grounds vitiated by those illegalities in the statements of reasons. The applicant was therefore entitled to believe that it was justified in bringing the present action, which must be taken into account when determining costs.
252 It follows that the present plea must be upheld only in so far as criticises the Council for having failed to verify whether the decisions of the US authorities were adopted in observance of the rights of the defence and the right to effective judicial protection.
7. Conclusion
253 It follows, therefore, from all of the foregoing that, in light of the fact that the Court has upheld the plea alleging infringement of Article 1(6) of Common Position 2001/931 as regards the 2014 measures, they must be annulled.
254 On the other hand, the fact that the pleas alleging infringement of Article 1(4) of Common Position 2001/931, failure to fulfil the obligation to state reasons and infringement of the rights of the defence and of the right to effective judicial protection have been upheld in part cannot result in the annulment of the 2015 to 2017 measures and of the 2019 decisions. The corresponding illegalities, regardless of whether they concern the 1997 and 2001 decisions of the US authorities or the August 2014 incident imputed to the PKK, do not call into question the Council’s assessment that there is an ongoing risk that the PKK is involved in terrorism, which is still validly based on the UK Home Secretary’s order, which remains in force, and, as the case may be, on other incidents which occurred in 2014 or on an event dating from 2017 (see paragraphs 188 and 202 above). Therefore, the head of claim put forward in Case T‑148/19 asking the Court to order the Council to adopt a measure that is less restrictive than inclusion on the lists at issue must also be rejected, without there being any need to rule on the admissibility of that head of claim.
IV. Costs
255 In accordance with Article 133 of the Rules of Procedure, a decision as to costs is to be given in the judgment which closes the proceedings. Under Article 219 of those rules, it is for the General Court, when it rules after the Court of Justice has set the judgment aside and referred the case back to the General Court, to decide on the costs relating, first, to the proceedings instituted before it and, second, to the proceedings on the appeal before the Court of Justice. Lastly, according to Article 134(1) and (3) 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, and the parties are to bear their own costs where each party succeeds on some and fails on other heads.
256 In the present case, the Court of Justice, in the judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316), set aside the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788), and reserved the costs. It is therefore appropriate to rule, in the present judgment, on the costs relating to the initial proceedings before the General Court (Case T‑316/14), the appeal proceedings before the Court of Justice (Case C‑46/19 P), the present referral proceedings (Case T‑316/14 RENV) and those relating to Case T‑148/19.
257 It follows from all the findings above that the applicant is entitled to seek annulment of the 2014 measures, but that it has been unsuccessful in its claims in relation to all the other contested measures.
258 However, as regards the 2019 decisions, it should be recalled that, under Article 135(2) of the Rules of Procedure, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if he or she has made the opposite party incur costs which the Court holds to be unreasonable or vexatious. According to case-law, Article 135(2) of the Rules of Procedure must be applied where the conduct of an EU institution was a factor that caused the dispute to arise (see, to that effect, judgment of 22 May 2019, Ertico – ITS Europe v Commission, T‑604/15, EU:T:2019:348, paragraph 182 and the case-law cited). In the present case, as is apparent from paragraph 249 above, the Council’s failure to comply with its obligation to draw the appropriate conclusions from the illegalities found by the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788), when adopting the 2019 decisions may have led the applicant to bring the action in Case T‑148/19.
259 Thus, a fair assessment of all the circumstances justifies ordering the applicant and the Council to bear their own costs relating to each of the sets of proceedings referred to in paragraph 256 above.
260 In addition, under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. It is appropriate to rule that the Commission, the French Republic and the Kingdom of the Netherlands are to bear their own costs relating to the proceedings in which they took part.
On those grounds,
THE GENERAL COURT (Fourth Chamber, Extended Composition)
hereby:
1. Annuls Council Implementing Regulation (EU) No 125/2014 of 10 February 2014 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 Implementing Regulation (EU) No 714/2013 and Council Implementing Regulation (EU) No 790/2014 of 22 July 2014 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 Implementing Regulation No 125/2014 in so far as they concern the Kurdistan Workers’ Party (PKK);
2. Dismisses the action in Case T‑316/14 RENV as to the remainder;
3. Dismisses the action in Case T‑148/19;
4. Orders the PKK and the Council of the European Union each to bear their own costs relating to Cases T‑316/14, C‑46/19 P, T‑316/14 RENV and T‑148/19;
5. Orders the European Commission, the French Republic and the Kingdom of the Netherlands each to bear their own costs.
Frendo | | Martín y Pérez de Nanclares |
Delivered in open court in Luxembourg on 30 November 2022.
E. Coulon | | M. van der Woude |
Table of contents
I. Background to the dispute
II. Forms of order sought
III. Law
A. Admissibility
B. Substance
1. Plea in law alleging infringement of Article 1(4) of Common Position 2001/931
(a) The UK decision
(1) Classification of the UK Home Secretary as a ‘competent authority’
(2) ‘Precise information or material in the relevant file which indicates that a decision has been taken by a competent authority’
(3) The date of the acts of terrorism on the basis of which the PKK was proscribed by the UK Home Secretary
(b) The US decisions
2. Plea in law alleging infringement of Article 1(3) of Common Position 2001/931
(a) Admissibility of the plea
(b) Effectiveness of the arguments
(c) Substance of the plea
(1) Line of argument that the aims referred to in Article 1(3) of Common Position 2001/931 should be interpreted in the light of legitimate armed conflict for the self-determination of the Kurdish people
(2) Challenge to the terrorist nature of the aims pursued by some of the acts ascribed to the applicant
3. Plea in law alleging infringement of Article 1(6) of Common Position 2001/931
(a) The review carried out by the Council in the 2014 measures (Case T316/14 RENV)
(b) The review carried out by the Council in the 2015 to 2017 measures (Case T316/14 RENV)
(c) The review carried out by the Council in the context of the 2019 decisions (Case T148/19)
4. Plea in law alleging infringement of the principle of proportionality
5. Plea in law alleging failure to fulfil the obligation to state reasons
6. Plea in law alleging that the rights of the defence and the right to effective judicial protection have been infringed
7. Conclusion
IV. Costs