JUDGMENT OF THE COURT OF FIRST INSTANCE (Seventh Chamber)
3 April 2008 (*)
(Common foreign and security policy – Restrictive measures directed against certain persons and entities with a view to combating terrorism – Freezing of funds – Action for annulment – Statement of reasons)
In Case T‑253/04,
KONGRA‑GEL, and the nine applicants whose names appear in the annex to this judgment, represented by M. Muller QC, E. Grieves and C. Vine, Barristers, and J.G. Pierce, Solicitor,
applicants,
v
Council of the European Union, represented by E. Finnegan and D. Canga Fano, acting as Agents,
defendant,
supported by
United Kingdom of Great Britain and Northern Ireland, represented initially by R. Caudwell, and subsequently by E. Jenkinson, acting as Agents, assisted by S. Lee, Barrister,
intervener,
APPLICATION, first, for the partial annulment of Council Decision 2004/306/EC of 2 April 2004 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 Decision 2003/902/EC (OJ 2004 L 99, p. 28), and of Regulation No 2580/2001 (OJ 2001 L 344, p. 70), and, secondly, for damages,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Seventh Chamber),
composed of N.J. Forwood (Rapporteur), President, D. Šváby and L. Truchot, Judges,
Registrar: C. Kristensen, Administrator,
having regard to the written procedure and further to the hearing on 31 January 2008,
gives the following
Judgment
Legal framework and background to the dispute
1 On 28 September 2001, the United Nations Security Council (‘the Security Council’) adopted Resolution 1373 (2001) laying down strategies to combat terrorism by all means, in particular the financing thereof. Paragraph 1(c) of that resolution provides, inter alia, that all States are to freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of, such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities.
2 On 27 December 2001, taking the view that Community action was needed to implement Security Council Resolution 1373 (2001), the Council adopted, pursuant to Articles 15 EU and 34 EU, Common Position 2001/930/CFSP on combating terrorism (OJ 2001 L 344, p. 90) and Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93).
3 Article 1(1) of Common Position 2001/931 provides that it applies ‘to persons, groups and entities involved in terrorist acts and listed in the Annex’. KONGRA‑GEL is not included in the list in the Annex.
4 Article 1(2) and (3) of Common Position 2001/931 defines ‘persons, groups and entities involved in terrorist acts’ and ‘terrorist act’, respectively.
5 Article 1(4) of Common Position 2001/931 provides that the list in the Annex is to 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 [sic] for such deeds. ‘Competent authority’ means a judicial authority, or, where judicial authorities have no competence in the area covered, an equivalent competent authority in that area.
6 Article 1(6) of Common Position 2001/931 provides that the names of persons and entities on the list in the Annex are to be reviewed at regular intervals and at least once every six months to ensure that there are grounds for keeping them on the list.
7 Articles 2 and 3 of Common Position 2001/931 provide that the European Community, acting within the limits of the powers conferred on it by the EC Treaty, is to order the freezing of the funds and other financial assets or economic resources of persons, groups and entities listed in the Annex, and is to ensure that funds, financial assets or economic resources or financial or other related services are not made available, directly or indirectly, for the benefit of those persons, groups and entities.
8 Taking the view that a regulation was required in order to implement the measures set out in Common Position 2001/931 at Community level, on 27 December 2001 the Council adopted, on the basis of Articles 60 EC, 301 EC and 308 EC, 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) (‘the contested regulation’). Under that regulation, except as permitted thereby, all funds belonging to a natural or legal person, group, or entity included in the list referred to in Article 2(3) must be frozen. In the same way, it is prohibited to make funds or financial services available to those persons, groups or entities. The Council, acting unanimously, is to establish, review and amend the list of persons, groups and entities to which the Regulation applies, in accordance with the provisions of Article 1(4), (5) and (6) of Common Position 2001/931.
9 The original list of the persons, groups and entities to which the contested regulation applies was established by Council Decision 2001/927/EC of 27 December 2001 establishing the list provided for in Article 2(3) of the contested regulation (OJ 2001 L 344, p. 83).
10 On 2 May 2002, the Council adopted, pursuant to Articles 15 EU and 34 EU, Common Position 2002/340/CFSP updating Common Position 2001/931 (OJ 2002 L 116, p. 75).
11 The annex to Common Position 2002/340 updates the list of persons, groups and entities to which Common Position 2001/931 applies. Part 2 thereof, entitled ‘Groups and entities’, includes, inter alia, the name of the PKK, identified as follows: ‘Kurdistan Workers’ Party (PKK)’.
12 On 2 May 2002, the Council adopted Decision 2002/334/EC implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2001/927/EC (OJ 2002 L 116, p. 33). That decision included the PKK in the list provided for in Article 2(3) of the contested regulation in the same terms as those used in the Annex to Common Position 2002/340.
13 Since then, the Council has adopted various common positions and decisions updating the lists respectively provided for by Common Position 2001/931 of 27 December 2001 and by the contested regulation.
14 The PKK’s name has remained on the lists throughout, under the heading of groups and entities.
15 On 2 April 2004, the Council adopted Common Position 2004/309/CFSP updating Common Position 2001/931 and repealing Common Position 2003/906/CFSP (OJ 2004 L 99, p. 61).
16 The Annex to Common Position 2004/309 updates the list of persons, groups and entities to which Common Position 2001/931 applies. Part 2 thereof, entitled ‘Groups and entities’, links for the first time the names of KADEK and KONGRA-GEL to that of the PKK, in the following terms:
‘15. Kurdistan Workers’ Party (PKK) (a.k.a. KADEK, a.k.a. KONGRA-GEL)’.
17 On 2 April 2004, the Council adopted Decision 2004/306/EC implementing Article 2(3) of Regulation No 2580/2001 repealing Decision 2003/902/EC (OJ 2004 L 99, p. 28) (‘the contested decision’). That decision included for the first time the names of KADEK and KONGRA-GEL on the list provided for in Article 2(3) of the contested regulation, under the heading ‘Groups and entities’, in the following terms:
‘12. Kurdistan Workers’ Party (PKK) (a.k.a. KADEK, a.k.a. KONGRA-GEL)’.
18 On 14 March 2005, the Council adopted Decision 2005/221/CFSP implementing Article 2(3) of Regulation No 2580/2001 and repealing the contested decision (OJ 2005 L 69, p. 64). The names of KADEK and KONGRA-GEL remained on the list provided for in Article 2(3) of contested regulation, in the same terms as those used in the contested decision.
19 Since then, the Council has adopted various common positions and decisions updating the lists respectively provided for by Common Position 2001/931 of 27 December 2001 and by the contested regulation (see, most recently, Council Common Position 2007/871/CFSP of 20 December 2007 (OJ 2007 L 340, p. 109) updating Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Common Position 2007/448/CFSP, and Council Decision 2007/868/EC of 20 December 2007 (OJ 2007 L 340, p. 100) 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 Decision 2007/445/EC).
20 The names of the PKK, KADEK and KONGRA-GEL have remained on the lists throughout, under the heading of groups and entities.
Facts
21 It appears from the documents before the Court of First Instance and from paragraph 1 of its Order of 15 February 2005 in Case T-229/02 PKK and KNK v Council [2005] ECR II-539 that the PKK emerged in 1978 and engaged in an armed struggle against the Turkish Government to obtain recognition of the Kurds’ rights, in particular their right to self-determination. According to the applicants, on 1 September 1998 the PKK declared a unilateral ceasefire, whilst reserving the right to resort to self-defence. Since then, it has stressed the need for dialogue and advocated a peaceful and democratic solution to the Kurdish problem in Turkey. In April 2002, in order to reflect that reorientation, the Congress of the PKK decided that ‘all activities under the name of “PKK” would end on 4 April 2002 and that any activities taken under the name of the PKK would be deemed illegitimate’. A new group, the Kongreya AzadÓ š Demokrasiya Kurdistan (Kurdistan Freedom and Democracy Congress – KADEK), was founded in order to attain by peaceful means a democratic solution to the Kurdish question. In August 2003 KADEK published a detailed road map to resolve that question through bilateral engagement with Turkey, Iran, Iraq and Syria.
22 According to the applicants, the People’s Congress of Kurdistan (KONGRA‑GEL) was formed on 15 November 2003. The applicants submit that the aims, objectives, organisational structure, base and activities of KONGRA‑GEL demonstrate that it is an organisation fundamentally different and distinct from the PKK.
23 First, with regard to the aims and objectives of KONGRA-GEL, the applicants refer, on the one hand, to its founding constitution and, on the other hand, to its ‘Programme Forward’, both contained in the ‘Declaration of the Foundation Conference of KONGRA-GEL’, published on 11 November 2003 by the Executive Council of that organisation. Those documents attest to the peaceful, democratic and ecological nature of the aims and objectives pursued by KONGRA-GEL and its rejection of any form of terror in the search for a just solution to the Kurdish question.
24 Second, the organisational structure of KONGRA-GEL, as defined by its constitution, is consistent with international standards applicable to democratic civic organisations. It is based on a General Assembly comprising 300 elected representatives from all parts of Kurdistan, which elects a President, an Executive Council comprising 40 members and a Disciplinary Board.
25 Third, the membership base of KONGRA-GEL, as provided for by its constitution, demonstrates that it is a ‘people’s organisation’ in contrast to the PKK. Membership of KONGRA-GEL is open to all persons above the age of 18 years and any party, organisation, group or institution which accepts its aims and principles and strives to realise them.
26 Fourth, the activities of KONGRA-GEL since its inception in November 2003 consist exclusively in promoting the recognition and protection of Kurdish identity and rights throughout the world through peaceful and democratic means. KONGRA-GEL has publicly rejected the use of violence.
27 Zubeyir Aydar presents himself as the President and co-founder of KONGRA‑GEL. The other individual applicants present themselves as members, where appropriate founding members, of KONGRA-GEL.
Procedure and forms of order sought by the parties
28 By application lodged at the Registry of the Court of First Instance on 25 June 2004, Zubeyir Aydar, acting on his own behalf and on behalf of KONGRA-GEL, and 10 other individual applicants, brought this action.
29 On 25 October 2004 the Council lodged its defence at the Registry of the Court.
30 By document lodged at the Registry of the Court on 30 November 2004, the United Kingdom of Great Britain and Northern Ireland sought leave to intervene in the present proceedings in support of the form of order sought by the Council. By order of 17 February 2005, the President of the Second Chamber of the Court of First Instance allowed that intervention. By letter addressed to the Registry of the Court on 5 April 2005, the intervener waived its right to lodge a statement in intervention.
31 In their reply, the applicants stated that two persons, Hugo Charlton and Mark Thomas, had been included by error in the list, contained in the application, of the individual applicants who had brought this action and that it was therefore necessary to amend the procedural documents in order to remove the names of those two persons.
32 By order of the President of the Second Chamber of the Court of First Instance of 5 July 2005, the names of the applicants Hugo Charlton and Mark Thomas were removed from the register of the Court of First Instance.
33 By letter of 21 February 2007, the Court of First Instance requested the parties to the present case and to Case T-229/02 PKK v Council to submit their observations, inter alia, on the possibility of joining the said cases.
34 By document lodged at the Registry of the Court on 2 May 2007, the applicants in both abovementioned cases raised no objection to the joinder of the cases.
35 By document lodged at the Registry of the Court on 2 May 2007, the Council raised no objection to the joinder.
36 By order of 23 May 2007, the President of the Second Chamber of the Court of First Instance joined Cases T-229/02 and T-253/04 for the purposes of the oral hearing.
37 The Court put questions to the parties by way of measures of organisation of the procedure under Article 64 of the Rules of Procedure. The parties duly complied with those requests.
38 Following a change in composition of the Chambers of the Court, the Judge-Rapporteur was transferred to the Seventh Chamber, to which the present case has, in consequence, been assigned.
39 Upon hearing the report of the Judge-Rapporteur, the Court (Seventh Chamber) decided to open the oral procedure.
40 In their written pleadings, the applicants claim that the Court of First Instance should:
– annul the contested decision, in so far as it applies to KONGRA-GEL as an alias of the PKK, and the contested regulation;
– in the alternative, declare the contested regulation to be illegal, in so far as it applies to the applicants;
– take such further action as the Court of First Instance may deem appropriate;
– order the Council to pay damages;
– order the Council to pay the costs.
41 The Council, supported by the United Kingdom, contends that the Court should:
– dismiss the claim for annulment of the contested decision in so far as it is brought by Zubeyir Aydar in his own name and by the other individual applicants as inadmissible and, in the alternative, as unfounded;
– dismiss the claim, brought by Zubeyir Aydar in his own name and by the other individual applicants, for a declaration of inapplicability of the contested regulation as inadmissible and, in the alternative, as unfounded;
– dismiss the claim for annulment of the contested regulation as inadmissible;
– dismiss the claim requesting the Court to take such further action as it deems appropriate as inadmissible;
– dismiss KONGRA-GEL’s claim for partial annulment of the contested decision and for a declaration of inapplicability of the contested regulation as unfounded;
– dismiss the claim for damages as inadmissible and, in the alternative, as unfounded;
– order the applicants to pay the costs.
42 The parties presented oral argument and replied to the questions put by the Court at the hearing of 31 January 2008.
43 At the hearing, the applicants withdrew their claim for damages, of which formal note was taken in the minutes of the hearing.
General findings of fact
Arguments of the parties
44 In the application, the applicants invite the Court to make certain general findings of fact in support of the applicants’ claim. These facts concern the situation of the Kurds in Turkey. One of the applicants’ heads of claim is that the Court should take such further action as the Court may deem appropriate.
45 The Council contends that the request for the Court of First Instance to make certain general findings of fact concerning the situation of the Kurds and the attitude of the Turkish Government towards the Kurds in Turkey is inadmissible. In the context of an application pursuant to Article 230 EC, the Court of First Instance is not obliged to make such findings and is entitled to concentrate on those facts which are directly relevant to the contested acts. In this case, none of the general facts relied on by the applicants requires a determination by the Court of First Instance for the purposes of the present proceedings.
46 To the extent that the applicants’ request goes beyond this, the Council points out that it is settled case-law that the Community Courts’ jurisdiction pursuant to Article 230 EC is limited to reviewing the legality of the acts challenged and does not extend to other measures, such as issuing directions to the institutions or assuming the role assigned to them (Joined Cases T-374/94, T-375/94, T-384/94 and T-388/94 European Night Services and Others v Commission [1998] ECR II‑3141, paragraph 53). Thus, the Council argues that the claim requesting the Court of First Instance ‘to take such further action as the Court deems appropriate’ is inadmissible.
Findings of the Court
47 As regards the request that the Court make certain general findings of fact in support of the applicants’ claim, the Court notes that it does not have the power to grant such a request since such fact-finding goes beyond the scope of the present action for annulment of which the Court is seized. Thus, the applicants’ request must be regarded as inadmissible in that regard.
48 As regards the applicants’ request that the Court ‘take such further action as the Court deems appropriate’, the Council correctly pointed out that it is settled case-law that the Community Courts’ jurisdiction pursuant to Article 230 EC is limited to reviewing the legality of the acts challenged and does not extend to other measures, such as issuing directions to the institutions or assuming the role assigned to them (European Night Services and Others v Commission, paragraph 46 above, paragraph 53). It follows that this request is also inadmissible.
The claim for annulment
Admissibility
Arguments of the parties
49 In their application, the applicants maintain that they are all directly and individually concerned by both the contested regulation and the contested decision.
50 The applicants argue that the contested decision is of clear direct and individual concern to KONGRA-GEL, as the latter was expressly addressed in that decision. It produces binding legal effects capable of substantially affecting the rights of KONGRA-GEL and those of the applicants (Joined Cases T‑125/97 and T‑127/97 Coca-Cola v Commission [2000] ECR II‑1733).
51 In particular, the contested decision affects the individual applicants by reason of certain attributes which are peculiar to them, and by reason of circumstances which differentiate them from other individuals, namely their membership of KONGRA-GEL (Case 25/62 Plaumann v Commission [1963] ECR 95; Joined Cases 106/63 and 107/63 Toepfer v Commission [1965] ECR 405, and Case 169/84 COFAZ v Commission [1986] ECR 391). The contested decision produces direct binding legal effects that affect their economic positions. The applicants therefore have an interest in bringing proceedings against the contested decision. Furthermore, the contested decision leaves no discretion to the Member States responsible for its implementation.
52 In any event, as members of KONGRA-GEL, the individual applicants clearly constitute an ascertained and fixed category of individuals whose legal interests have been affected as contemplated in the judgment in Coca-Cola v Commission (paragraph 50 above).
53 The contested regulation is of direct and individual concern to KONGRA-GEL and the individual applicants, since it clearly has an adverse affect on the legal position of KONGRA-GEL and its members in the European Union. Its immediate and direct effect is to freeze all of KONGRA-GEL’s funds, assets and economic resources and to prevent its members and supporters from providing it with such funds, assets and resources. It therefore hinders the exercise of their fundamental rights to freedom of expression and association.
54 The applicants add, in their reply, that the contested regulation and decision also interfere with the exercise of their right to peaceful possession and enjoyment of their property and that they therefore affect, in law and in fact, their economic position, irrespective of whether this leads to any practical detriment. KONGRA‑GEL cannot operate at all without having recourse to financial means.
55 The freezing of the funds of KONGRA-GEL as an alias of the PKK also has the effect of stigmatising the activities of its members, who are labelled as terrorists, and of deterring them from freely associating and expressing themselves in respect of the fight for recognition of Kurdish rights within Turkey. It also increases the likelihood of other criminal and economic sanctions being imposed upon members of KONGRA-GEL within their Member State. The applicants cite by way of example the fact that in the United Kingdom the PKK is a proscribed organisation under the Terrorism Act 2000. Activities such as membership and fund-raising, organising and holding meetings are all illegal activities in the United Kingdom and subject to criminal sanction. The Council’s designation of KONGRA-GEL as a mere alias of the PKK manifestly opens the door to possible criminal sanctions in the United Kingdom. This has a direct consequence for KONGRA-GEL members situated in the United Kingdom, such as some of the applicants.
56 In any event, the freezing of the funds is sufficient to affect the applicants directly and individually irrespective of the fact that there has been no action to date against KONGRA-GEL members (see judgments of the European Court of Human Rights, Norris v Ireland of 26 October 1988, Series A, No 142 § 31; Bowman v United Kingdom of 19 February 1998, Reports of Judgments and Decisions, 1998-I; Sutherland v United Kingdom of 22 March 2001, No 25186/94, not yet published in the Reports of Judgments and Decisions).
57 In their reply and in response to the Council’s argument that the contested decision has an economic effect only on KONGRA-GEL and not on its members as individuals, the applicants submit that that line of argument can apply only if the Council is able to distinguish and divorce in its entirety KONGRA-GEL as an entity from its membership, and the financial resources of the entity from those of its members. In the applicants’ view, such a distinction is highly relevant as the Council already accepts that the freezing of the funds of KONGRA-GEL gives KONGRA-GEL, as a free-standing entity, standing to bring proceedings.
58 However, according to the applicants, there is no difference between KONGRA‑GEL and its membership in terms of the effect of the contested decision. The freezing of funds necessarily affects the legal position of KONGRA-GEL. It also affects that of its members since the organisation has no independent legal personality. The applicants argue that the only difference between KONGRA-GEL and its individual membership on which the Council can rely is the fact that the contested decision is addressed only to the organisation. Yet even here such a distinction is without merit. In practice, the freezing of funds results in certain prohibitions being placed on both the organisation and its membership. In particular, it demonstrably affects each of the applicants’ ability as an individual to use assets to assist KONGRA-GEL.
59 According to the applicants, application of the restrictive test for the capacity to bring proceedings should be confined to commercial disputes and those falling within competition law, since that test has historically emerged in relation to such disputes (Plaumann v Commission, paragraph 51 above; Case 147/83 Binderer v Commission [1985] ECR 257; Case C-152/88 Sofrimport v Commission [1990] ECR I‑2477; Case C-309/89 Codorniu v Council [1994] ECR I‑1853).
60 The applicants add that there is no other court before which they could challenge the contested decision. They take the view that to dismiss their claim as inadmissible would be incompatible with the principle of the rule of law, the right of access to a court, the right to a fair trial and the right to an effective remedy enshrined both in Articles 6 and 13 of the European Convention on Human Rights and Fundamental Freedoms and in Article 47 of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 20).
61 Moreover, the applicants submit that they would undoubtedly have standing to bring a human rights claim before the European Court of Human Rights (‘ECHR’) (see, in particular, judgments of the ECHR in Klass v Germany of 6 September 1978, Series A, No 28; Norris v Ireland, paragraph 56 above; Amuur v France of 26 June 1996, Reports of Judgments and Decisions, 1996-III; Bowman v United Kingdom, paragraph 56 above; Sutherland v United Kingdom, paragraph 56 above). That court’s case-law concerning standing is relevant as, according to the applicants, the general principles of Community law plainly require that the European Court of Justice follow such case-law. The applicants rely, in that regard, on the arguments put forward by the Commission of the European Communities before the ECHR in the dispute giving rise to the judgment of the ECHR in Bosphorus Airways v Ireland of 30 June 2005, No 45036/98, not yet published in the Reports of Judgments and Decisions. The applicants take the view that the Commission disputed the assertion that the ECHR should have jurisdiction on the ground that an equivalent protection to the standards of the European Convention on Human Rights is ensured in the Community legal orders. It follows from those arguments, as set out by the applicants, that the Court of First Instance and the Court of Justice are duty-bound to offer equivalent procedural and substantive protection to that guaranteed by the European Convention on Human Rights. The applicants argue that the test on standing should be altered in order to ensure adequate protection of fundamental rights.
62 In their reply, the applicants also respond to the Council’s argument that the application for annulment of the contested regulation is time-barred. They rely on the wording of Article 230 EC and claim that KONGRA-GEL did not know, and should not have been expected to know, about the contested regulation until the decision to include it in the disputed list was taken. Accordingly, since no dispute could have arisen prior to the adoption of the contested decision, the application for annulment of the contested regulation was brought before the expiry of the period provided for in the last paragraph of Article 230 EC.
63 Finally, the applicants request that consideration of the admissibility of the application be joined to consideration of the substance, relying on the purported practice of the ECHR in that regard where a complicated issue of substance arises which affects both the admissibility and the merits of the action (see Abdullah Öcalan v Turkey, judgment of the ECHR of 12 March 2003, Reports of Judgments and Decisions, 2005).
64 As regards the application for a declaration of inapplicability, the applicants submit in their reply that the Council accepted the admissibility of that application in so far as it relates to the contested decision and the contested regulation.
65 The Council contends, first of all, that the application for annulment of the contested decision and the claim for a declaration of inapplicability of the contested regulation are inadmissible in so far as they were brought by Zubeyir Aydar in his own name and by the other individual applicants. Those individuals are not directly and individually concerned by the contested decision within the meaning of the case-law. That decision has an economic effect only on KONGRA-GEL, and not on its members in their individual capacity. Their freedom of action, expression and association is unimpaired by it. The Council submits that its arguments, to the effect that there is a distinction between KONGRA-GEL and its members as regards locus standi, are supported by the order in PKK and KNK v Council (paragraph 21 above).
66 In response to the argument put forward by those applicants that the contested decision leaves them open to the risk of ‘other criminal sanctions’ being imposed on them by the national authorities, the Council points out, first, that the placing of KONGRA-GEL on the disputed lists is not a criminal sanction and, second, that the imposition of any such criminal sanctions by national authorities is a matter falling within their sphere of competence and cannot be attributed to it. The same is true of any action taken by national authorities in relation to the financial assets of those applicants. In any event, the latter have adduced no evidence to indicate that any such action affecting them has been taken.
67 Nor does the Council agree that those individual applicants’ claims must be considered admissible simply because of the alleged lack of other avenues of judicial redress open to them at the national level. It relies, in that regard, on the judgment of the Court of Justice in Case C-50/00 Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraphs 43 and 44).
68 The Council considers that the argument that those applicants have standing to bring a claim before the ECHR is not pertinent to the present case, since the test for admissibility of a claim under Article 34 of the European Convention on Human Rights is different from the test for admissibility of an application for annulment under Article 230 EC.
69 With regard to the applicants’ argument that the Court of First Instance and the Court of Justice must follow the case-law of the ECHR on locus standi, the Council points out that Article 6(2) EU provides that the Union is to respect fundamental rights as guaranteed, inter alia, by the European Convention on Human Rights as general principles of Community law. The special significance of the Convention on Human Rights as a source of inspiration concerning general principles has long been recognised by the Community Courts. However, the European Community has not actually acceded to the European Convention on Human Rights and the rulings of the ECHR do not apply directly in the Community legal order. The Community Courts are bound by the relevant rules of the EC Treaty on the question of admissibility. Accordingly, the Council argues that the Court of First Instance cannot declare an action admissible where the applicants are not directly and individually concerned as stipulated in the fourth paragraph of Article 230 EC, as interpreted by the Community Courts. The judgment in Unión de Pequeños Agricultores v Council (paragraph 67 above) also makes clear that the alleged lack of other avenues of judicial redress is not a factor which the Community Courts may take into consideration when ruling on the admissibility of an action.
70 Therefore, the Council concludes that the claim for annulment of the contested decision and the ancillary claim for a declaration of inapplicability of the contested regulation should be treated as admissible only to the extent that they are made by KONGRA-GEL itself.
71 The Council argues, second, that the application is inadmissible in so far as it seeks annulment of the contested regulation. The applicants (including KONGRA‑GEL) are time-barred in this regard, the regulation in question having been published on 28 December 2001. The Council observes that the time-limit for instituting proceedings concerning a Community regulation published in the Official Journal is within two months of such publication. The date on which such a text came to the knowledge of any party subsequently is totally irrelevant. Accordingly, the applicants’ arguments concerning the legality of that regulation should be taken to relate only to KONGRA‑GEL’s claim for a declaration of inapplicability of that regulation pursuant to Article 241 EC.
72 In its rejoinder, the Council also argues that it is not appropriate to join consideration of the question as to admissibility to consideration of the merits of the case.
73 Finally, the Council argues that, contrary to the arguments put forward by the applicants, it does not accept the admissibility of the claim for a declaration of inapplicability of the contested decision, since such a request was never made by the applicants in their application.
Findings of the Court
– The contested regulation
74 As regards the admissibility of the action challenging the contested regulation, the Court notes that the said regulation was published on 28 December 2001. It follows that the applicants’ claim for annulment of the said regulation is time-barred, since it was lodged after the expiration of the time-limit for instituting proceedings set out in Article 230 EC.
75 The claim seeking annulment of the contested regulation is therefore inadmissible.
– The contested decision
76 Firstly, as regards the admissibility of the action brought by KONGRA-GEL, the Court notes that the contested decision, which includes KONGRA-GEL in the disputed list, has the same general scope as Regulation No 2580/2001 and, like that regulation, is directly applicable in all Member States. Thus, despite its title, it is an integral part of that regulation for the purposes of Article 249 EC (see, by analogy, order in Case T‑45/02 DOW AgroSciences v Parliament and Council [2003] ECR II‑1973, paragraphs 31 to 33, and case-law cited, Case T‑306/01 Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533, appeal pending, paragraphs 184 to 188, and Case T-228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II-4665 (‘OMPI’), paragraph 97).
77 In the instant case, however, the contested decision is not of an exclusively legislative nature. Whilst being of general application, it is of direct and individual concern to KONGRA-GEL, to whom it refers by name as having to be included in the list of persons, groups and entities whose funds are to be frozen pursuant to Regulation No 2580/2001. Furthermore, it is an act which imposes an individual economic and financial sanction (the freezing of funds) on KONGRA-GEL, thereby adversely affecting the latter entity (OMPI, paragraph 76 above, paragraphs 92 and 98).
78 It follows that KONGRA-GEL is directly and individually concerned by the contested decision. Its action must therefore be held to be admissible.
79 Secondly, as regards the admissibility of the action brought by the nine individuals, the Court notes that since the present case concerns one and the same action which is admissible so far as KONGRA-GEL is concerned, it is not necessary to examine whether the nine individual applicants are entitled to bring proceedings (see Case C-313/90 CIRFS and Others v Commission [1993] ECR I‑1125, paragraphs 30 and 31, Joined Cases T‑125/96 and T‑152/96 Boehringer v Council and Commission [1999] ECR II‑3427, paragraph 175, and Case T‑112/05 AKZO Nobel v Commission [2007] ECR II‑0000, paragraph 31).
The existence of a continuing interest
Arguments of the parties
80 In reply to a question put to the parties by the Court the Council submits that, in view of the fact that it has adopted Council Decision 2007/445/EC of 28 June 2007 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 Decisions 2006/379/EC and 2006/1008/EC (OJ 2007 L 169, p. 58), which was adopted following a different procedure from that preceding the adoption of the contested decision, the applicants no longer have a continuing interest in pursuing their action for annulment in the present case.
81 The applicants argue that they have a real and continuing interest in their action for annulment of the contested decision despite the fact that the said decision has been repealed and replaced on numerous occasions by subsequent decisions of the Council maintaining them on the list. The applicants justify their submission by the fact that they seek the annulment of an illegal decision which otherwise would continue to exist in the Community order.
Findings of the Court
82 It is settled law that a claim for annulment is not admissible unless the applicant has an interest in seeing the contested measure annulled (see, for example, Case T‑46/92 Scottish Football Association v Commission [1994] ECR II‑1039, paragraph 14). Such an interest can be present only if the annulment of the measure is of itself capable of having legal consequences (see Case 53/85 AKZO Chemie v Commission [1986] ECR 1965, paragraph 21).
83 In that regard, it must be borne in mind that, under Article 233 EC, an institution whose act has been declared void is required to take the necessary measures to comply with the judgment. Those measures do not concern the elimination of the act as such from the Community legal order, since that is the very essence of its annulment by the Court. They involve, rather, the removal of the effects of the illegalities found in the judgment annulling the act. The annulment of an act which has already been implemented or which has in the mean time been repealed from a certain date is thus still capable of having legal consequences. Such annulment places a duty on the institution concerned to take the necessary measures to comply with the judgment. The institution may thus be required to take adequate steps to restore the applicants to their original situation or to avoid the adoption of an identical measure (see Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraph 32; AKZO Chemie, cited above, paragraph 21; Case 207/86 Apesco v Commission [1988] ECR 2151, paragraph 16; Joined Cases T‑480/93 and T‑483/93 Antillean Rice Mills NV v Commission [1995] ECR II‑2305, paragraph 60; and Case T‑327/03 Stichting Al-Aqsa v Council [2007] ECR II‑0000, paragraph 39).
84 In the present case, it is sufficiently established that the contested act produced binding legal effects such as to affect the interests of the applicants by bringing about a distinct change in their legal position (see, to that effect, Case T‑212/02 Commune de Champagne v Council [2007] ECR II‑0000, paragraph 128), and that this change in their legal position had real effects on the applicants.
85 It follows that in the present case the applicants retain a continuing interest in the pursuit of their action.
Substance
86 In support of their claims for both the annulment of the contested decision and, in the alternative, a declaration that the contested regulation is unlawful, the applicants rely, essentially, on five pleas in law. The first plea alleges failure to apply accessible, objective criteria to the correct facts. The second plea alleges infringement of fundamental rights and general principles of Community law, in particular the right to freedom of expression and association, the principle of proportionality, the principle of legal certainty and non-retroactivity, the principle of equal treatment and non-discrimination, the right to a fair hearing, the right to an effective judicial remedy and the right to property. The third plea alleges misuse of power. The fourth plea alleges infringement of the obligation to state reasons. The fifth plea alleges that the choice of legal basis was incorrect.
87 It is appropriate to examine first of all the plea alleging infringement of the obligation to state reasons.
The plea alleging infringement of the obligation to state reasons
– Arguments of the parties
88 The applicants claim that there has been an infringement of the obligation to state reasons provided for in Article 253 EC. They argue that the contested decision contains no facts or grounds justifying the freezing of the funds of KONGRA-GEL as an alias of the PKK despite Article 1(4) of Common Position 2001/931 stating that the disputed list is to 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 it.
89 Furthermore, the applicants note that the Council has provided no information from any public source to justify the freezing of funds, nor does it allege that any applicant has committed, attempted to commit or participated in or facilitated the commission of a terrorist act.
90 The applicants reject the contention that the Council was under no obligation to disclose the specific factual elements justifying why KONGRA-GEL should be placed on the disputed list as an alias of the PKK. The principle of confidentiality cannot by itself overturn the case-law concerning the obligation to state reasons.
91 Lastly, the applicants submit that, without disclosure of the material which, according to the Council, was ‘crucial’, there can be no satisfactory determination of the applicants’ rights as provided for under Article 6(1) of the European Convention on Human Rights. It is therefore incumbent upon the Council to provide information, confidential if necessary, to the Court so that it can determine the issue. That information is essential in order that the Court may exercise its powers of review in accordance with Article 253 EC.
92 The Council observes that, according to the case-law, the statement of reasons required by Article 253 EC must be appropriate to the nature of the measure in question, and the reasoning of the institution which adopted the measure must be stated clearly and unequivocally, so as to inform the persons concerned of the justification for the measure adopted and to enable the Community Courts to exercise their powers of review (Cases C‑466/93 Atlanta II [1995] ECR I‑3799, paragraph 16, and Case C‑122/94 Commission v Council [1996] ECR I‑881, paragraphs 29 and 30).
93 In this case, the Council contends, in its written pleadings, that the contested decision contained a sufficient statement of reasons in accordance with those requirements, in the light of the comprehensive reasons already provided in the contested regulation, which is the legal basis for it. Those reasons clearly explain the background to and the purpose of the establishment of the list of persons, groups and entities involved in terrorist acts, which are themselves defined in Common Position 2001/931. It is not surprising that the contested decision does not itself contain a detailed statement of reasons, since it merely updates the list laid down in the contested regulation. In the light of the contested measures, the applicants have been left in no doubt as to why KONGRA‑GEL was included in the disputed list and the Court is in a position to exercise its judicial review.
94 The Council further argues that it was not under any obligation to disclose the specific factual elements which led it to conclude that KONGRA‑GEL should be placed on the disputed list as an alias of the PKK in April 2004. Updates of that list are prepared on the basis of precise information which it will not in principle be appropriate to disclose in a text destined for publication in the Official Journal. In the present case, the information in question was exclusively of a confidential nature and, according to the Council, could not therefore have been referred to in the recitals in the preamble to the contested decision. In that regard, the Council relies on the case-law to the effect that it is not necessary for details of all relevant factual and legal aspects to be given in a statement of reasons; whether a statement of the grounds for a decision is adequate 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, and the degree of precision of the statement of the reasons for a decision must be weighed against practical realities (Case C‑350/88 Delacre and Others v Commission [1990] ECR I‑395, paragraph 16, and the case-law cited).
– Findings of the Court
95 According to settled case-law, the statement of reasons required by Article 253 EC must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review of the lawfulness thereof. It is not necessary for the statement of reasons to specify all the relevant matters of fact and law, since the question whether the statement of reasons meets the requirements of Article 253 EC 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. In particular, the reasons given for an act adversely affecting a party are sufficient if it was adopted in circumstances known to the party concerned which enable him to understand the scope of the measure concerning him (OMPI, paragraph 141, and the case-law cited, and Stichting Al‑Aqsa v Council, paragraph 83 above, paragraph 58).
96 In OMPI (paragraph 109), the Court held that, as a rule, the safeguard relating to the obligation to state reasons provided by Article 253 EC is fully applicable in the context of the adoption of a decision to freeze funds under the contested regulation. That principle has not been called into question by any of the parties.
97 Again in OMPI (paragraph 151 and, by reference, paragraphs 116, 125 and 126), the Court has inferred from that principle, interpreted in the light of the case-law, that the statement of reasons for an initial decision to freeze funds as referred to in Article 1(4) of Common Position 2001/931 must at least make actual and specific reference to the reasons why the Council considers, having regard to the precise information or material in the relevant file available to it, that a decision satisfying the definition given in Article 1(4) has been taken by a competent authority of a Member State in respect of the person or entity concerned, unless overriding considerations concerning the security of the Community and its Member States, or the conduct of their international relations, militate against it, and subject also to the possibility of publishing a non-confidential version of that decision in the Official Journal, in accordance with what was held in paragraph 147 of that judgment. The statement of the reasons for such a decision must, furthermore, indicate why the Council takes the view, in the exercise of its discretion, that the person or entity concerned must be the subject of such a measure. Moreover, the statement of reasons for a subsequent decision to freeze funds as referred to in Article 1(6) of Common Position 2001/931 must, subject to the same reservations, indicate the actual and specific reasons why the Council considers, following re-examination, that there are still grounds for the freezing of the funds of the party concerned, where appropriate on the basis of fresh information or evidence. Furthermore, when the grounds of such a subsequent decision 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 when the party concerned is a group or entity.
98 In the circumstances of the present case, the contested decision, which is an initial decision to freeze the funds of KONGRA‑GEL, does not satisfy the requirement of a statement of reasons as set out above, since it does no more than state, in the second recital in the preamble thereto, that it is ‘desirable’ or that it has been ‘decided’ to adopt an up-to-date list of the persons, groups and entities to which the contested regulation applies. It makes no reference to the reasons why the Council considers that a decision satisfying the definition given in Article 1(4) has been taken by a competent authority of a Member State in respect of KONGRA‑GEL. Nor does it indicate why the Council takes the view, in the exercise of its discretion, that KONGRA‑GEL must be the subject of such a measure.
99 That finding is not called into question by the argument, advanced by the Council at the hearing, that the obligation to state reasons was complied with in this case as regards the contested decision, since a statement of reasons in respect of KONGRA-GEL and the PKK was subsequently provided by the Council, which contains the reasons for the listing of KONGRA‑GEL as an alias of the PKK. According to the Council, that statement of reasons was made available to the PKK in April 2007, which was as soon as reasonably possible after the adoption of the contested decision in the light of the guidance provided by the Court in OMPI, and it follows that it complies with the obligations set out by the Court in the OMPI judgment.
100 That argument is based on the mistaken premiss that the statement of reasons can be provided to the party concerned after the action before the Community Courts has been commenced.
101 Indeed, according to the case-law, a failure to state reasons cannot be remedied by the fact that the person concerned learns the reasons for the act during the proceedings before the Community judicature (OMPI, paragraph 139, and the case-law cited). In fact, the possibility of remedying the total absence of a statement of reasons after an action has been brought would prejudice the rights of the defence because the applicant would have only the reply in which to set out his pleas contesting the reasons which he would not know until after he had lodged his application. The principle of equality of the parties before the Community judicature would accordingly be adversely affected (OMPI, paragraphs 139 and 165, and the case-law cited, and Stichting Al‑Aqsa v Council, paragraph 83 above, paragraph 65).
102 In the present case, as a result of the absence of any reasoning expressly appearing in the contested decision or provided immediately thereafter, the applicants have not been put in a position in which they are able to understand, clearly and unequivocally, the reasoning by which the Council took the view that the conditions laid down in Article 1(4) of Common Position 2001/931 and in Article 2(3) of the contested regulation had been satisfied in the circumstances of the case.
103 It follows that, in the absence of any indication, in the contested decision, of the actual and specific reasons justifying it, the applicants were not placed in a position to avail themselves of their right of action before the Court, given the connection between the safeguarding of the obligation to state reasons and the safeguarding of the right to an effective legal remedy (OMPI, paragraph 89).
104 The foregoing considerations must lead to the annulment of the contested decision, in so far as it concerns KONGRA‑GEL, and there is no need to give a ruling on the other pleas in law and arguments advanced.
105 Furthermore, since the claim for a declaration of illegality of the contested regulation was pleaded in the alternative, it is no longer necessary to rule on the issue.
Costs
106 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the defendant has been unsuccessful and the applicants have applied for costs, the Council must be ordered to pay the costs.
107 Under the first subparagraph of Article 87(4) of those Rules, the Member States which have intervened in the proceedings are to bear their own costs. The United Kingdom must therefore bear its own costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Seventh Chamber)
hereby:
1. Annuls Council Decision 2004/306/EC of 2 April 2004 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 Decision 2003/902/EC in so far as it concerns KONGRA-GEL;
2. Orders the Council to bear, in addition to its own costs, all the costs incurred by the applicants;
3. Orders the United Kingdom of Great Britain and Northern Ireland to pay its own costs.
Delivered in open court in Luxembourg on 3 April 2008.
ANNEX
Zubeyir Aydar, residing in Fribourg (Switzerland)
Haydar Isik, residing in Maisoich (Germany)
Kazim Baba, residing in Berlin (Germany)
George Aryo, residing in Oldenzaal (Netherlands)
Sait Uzun, residing in Egg/Flawil (Switzerland)
Lord Nicolas Rea, residing in London (United Kingdom)
Roger Manning Tomplins, residing in Droucha (Cyprus)
Hugo Van Rompaey, residing in Geel (Belgium)
Jean Paul Nunex, residing in Montpellier (France)