Case T-49/07

Sofiane Fahas

v

Council of the European Union

(Common foreign and security policy – Restrictive measures with a view to combating terrorism – Freezing of funds – Action for annulment – Rights of the defence – Right to effective judicial protection – Statement of reasons – Action for damages)

Summary of the Judgment

1.      Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Decision to freeze funds directed against certain persons and entities suspected of terrorist activities – Decision reviewing the list of persons, groups or entities concerned and supplementing the list without repealing the earlier decision – Action brought by a person not referred to in that decision – Admissibility

(Art. 263 TFEU; Council Common Position 2001/931, Art. 1(6); Council Regulation No 2580/2001, Art. 2(3); Council Decisions 2006/379 and 2006/1008)

2.      Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to freeze funds directed against certain persons and entities suspected of terrorist activities – Decision reviewing the list of persons, groups or entities concerned and maintaining some of them in the list

(Art. 296 TFEU; Council Common Position 2001/931, Art. 1(6); Council Regulation No 2580/2001, Art. 2(3))

3.      European Union law – Principles – Right to effective judicial protection – Decision to freeze funds directed against certain persons and entities suspected of terrorist activities – Decision reviewing the list of persons, groups or entities concerned and maintaining some of them in the list – Review by the judicature of the European Union – Conditions

(Charter of Fundamental Rights of the European Union, Art. 47; Council Common Position 2001/931, Art. 1(6); Council Regulation No 2580/2001, Art. 2(3))

1.      Decision 2006/1008 implementing Article 2(3) of Regulation No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism does not repeal Decision 2006/379 but simply adds certain names and entities to the list established by the latter decision.

Therefore, the assessment whether an action brought against Decision 2006/1008 by a person not expressly mentioned in the decision is admissible must be made in the light of two principal considerations. First, the Council is required to review the list of persons, groups and entities involved in terrorist acts at least once every six months, in accordance with Article 2(3) of Regulation No 2580/2001 and Article 1(6) of Common Position 2001/931 on the application of specific measures to combat terrorism. Second, it is apparent from recital 2 in the preamble to Decision 2006/1008 that that decision supplements the list established by Decision 2006/379 but does not repeal that decision. That is a manifestation of the Council’s intention to maintain in the list the persons whose names are included in that decision, the effect of which is that their funds remain frozen. A person referred to in Decision 2006/379 must therefore also be regarded as being directly and individually concerned by Decision 2006/1008 and his action against that decision regarded as admissible.

(see paras 34-36)

2.      Both the statement of reasons for an initial decision to freeze funds and the statement of reasons for subsequent decisions must refer not only to the legal conditions of application of Regulation No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, in particular the existence of a national decision taken by a competent authority, but also to the actual and specific reasons why the Council considers, in the exercise of its discretion, that the person concerned must be made the subject of a measure freezing funds.

While, under Article 1(6) of Common Position 2001/931 on the application of specific measures to combat terrorism, to which Article 2(3) of Regulation No 2580/2001 also refers, subsequent decisions to freeze funds must be preceded by review of the situation of the person concerned, that is in order to ascertain whether continuing to include that person in the list of persons, groups and entities involved in terrorist acts remains justified, where appropriate on the basis of new information or evidence. However, where the grounds of a subsequent decision to freeze funds are in essence the same as those already relied on when a previous decision was adopted, a mere statement to that effect may suffice, particularly where the person concerned is a group or entity.

Moreover, as the Council enjoys broad discretion with regard to the matters to be taken into consideration for the purpose of adopting or of maintaining in force a measure freezing funds, it cannot be required to state with greater precision in what way freezing the funds of a person at whom such a measure is directed may in concrete terms contribute to the fight against terrorism or to produce evidence to show that the person concerned might use his funds to commit or facilitate acts of terrorism in the future.

(see paras 53-55, 57)

3.      The principle of effective judicial protection is a general principle of Community law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention on Human Rights and has also been reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union.

If judicial review – which must be able to have regard, in particular, to the legality of the grounds on which the decision to include the name of a person or entity in the list annexed to Common Position 2001/931 on the application of specific measures to combat terrorism is based, that decision entailing a series of restrictive measures being imposed on the person concerned – is to be effective, the Community authority in question must communicate those grounds to the person or entity concerned, so far as possible, either when that inclusion is decided on or, at the very least, as swiftly as possible after that decision, in order to enable its addressees to exercise, within the periods prescribed, their right to bring an action.

As regards subsequent decisions to freeze funds adopted by the Council in the context of the review conducted at regular intervals, at least every six months, of the justification for maintaining the parties concerned in the disputed list, required under Article 1(6) of Common Position 2001/931, it is no longer necessary to ensure a surprise effect in order to guarantee the effectiveness of the sanctions. Any subsequent decision to freeze funds must therefore be preceded by the possibility of a further hearing and, where appropriate, notification of any new inculpatory evidence.

(see paras 59-60)