ORDER OF THE GENERAL COURT (Third Chamber)
6 September 2012 (*)
(Common foreign and security policy – Restrictive measures adopted having regard to the situation in Zimbabwe – Withdrawal from the list of persons concerned – Action for annulment – No need to adjudicate)
In Case T‑145/09,
John Arnold Bredenkamp, residing in Harare (Zimbabwe), and the other applicants whose names appear on the annex to this order, represented by D. Vaughan QC, P. Moser, Barrister, and R. Khan, Solicitor,
applicants,
v
European Commission, represented by P. van Nuffel, T. Scharf and M. Konstantinidis, acting as Agents,
defendant,
supported by
United Kingdom of Great Britain and Northern Ireland, represented initially by E. Jenkinson, I. Rao and F. Penlington, and subsequently by E. Jenkinson, I. Rao and C. Murrell, acting as Agents, and D. Beard QC,
and by
Council of the European Union, represented by M. Bishop and R. Szostak, acting as Agents,
interveners,
APPLICATION for annulment of Commission Regulation (EC) No 77/2009 of 26 January 2009 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2009 L 23, p. 5), as amended by Commission Regulation (EU) No 173/2010 of 25 February 2010 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2010 L 51, p. 13), in so far as they concern the applicants,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz, President, I. Labucka and D. Gratsias (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute, procedure and forms of order sought by the parties
1 Article 6(1) of Council Regulation (EC) No 314/2004 of 19 February 2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2004 L 55, p. 1) provides that all funds and economic resources belonging to individual members of the Government of Zimbabwe and to any natural or legal persons, entities or bodies associated with them as listed in Annex III to that regulation are to be frozen. Article 11(b) of that regulation states that the Commission of the European Communities (now the European Commission) is to be empowered to amend Annex III to the regulation on the basis of decisions taken in respect of the annex to Council Common Position 2004/161/CFSP of 19 February 2004 renewing restrictive measures against Zimbabwe (OJ 2004 L 50, p. 66).
2 Following the amendment to the annex to Common Position 2004/161 by Council Common Position 2009/68/CFSP of 26 January 2009 renewing restrictive measures against Zimbabwe (OJ 2009 L 23, p. 43), the Commission adopted Regulation (EC) No 77/2009 of 26 January 2009 amending Regulation No 314/2004 (OJ 2009 L 23, p. 5). That regulation replaced Annex III to Regulation No 314/2004 with a new annex containing the applicants’ names, inter alia.
3 By application lodged at the Court Registry on 6 April 2009, the applicants brought the present action. They claimed that the Court should:
– annul Regulation No 77/2009 in so far as it concerns them;
– in the alternative, annul Regulation No 77/2009 in so far as it concerns the first applicant and any body referred to in Annex III regarded as belonging to him;
– order the Commission to pay the costs.
4 In its defence, lodged at the Court Registry on 8 September 2009, the Commission claimed that the Court should:
– reject the action as inadmissible, in so far as it has been brought by all the applicants which do not have an interest in bringing an action for annulment, which includes, in any event, the third, fourth, fifth, twelfth, seventeenth and nineteenth applicants, and, at any rate, as unfounded in so far as it has been brought by all the applicants;
– order the applicants to pay the costs.
5 By applications lodged at the Court Registry on 24 and 30 July 2009 respectively, the United Kingdom of Great Britain and Northern Ireland and the Council of the European Union applied for leave to intervene in support of the form of order sought by the Commission. By order of 10 September 2009, the President of the Fifth Chamber of the General Court granted them leave to intervene. The interveners lodged their statements in intervention at the Court Registry on 18 December 2009.
6 The United Kingdom contends that the Court should dismiss the action in accordance with the form of order sought by the Commission.
7 The Council contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
8 Following the amendment of the annex to Common Position 2004/161 by Council Decision 2010/92/CFSP of 15 February 2010 extending restrictive measures against Zimbabwe (OJ 2010 L 41, p. 6), the Commission adopted Commission Regulation (EU) No 173/2010 of 25 February 2010 amending Regulation No 314/2004 (OJ 2010 L 51, p. 13). Annex III to Regulation No 314/2004 was amended pursuant to Article 1 of Regulation No 173/2010. Those amendments did not concern the applicants, whose names remained on that annex, as amended.
9 By a separate document, lodged at the Court Registry on 20 April 2010, the applicants informed the General Court of the adoption of Regulation No 173/2010 and, ‘so as to avoid any doubt’, requested permission to adapt their forms of order sought to include also the annulment of Regulation No 77/2009, as amended by Regulation No 173/2010. The Commission, the United Kingdom and the Council submitted their observations on that request on 20, 13 and 25 May 2010, respectively. The decision on the applicants’ request was reserved.
10 Owing to a change in the composition of the Chambers of the Court, the Judge-Rapporteur initially designated was appointed to the Third Chamber, to which the present case was accordingly assigned. By reason of the partial renewal of the Court, the present case was assigned to a new Judge-Rapporteur sitting in the same Chamber.
11 By order of 15 December 2010 in Case T‑145/09 Bredenkamp and Others v Commission, not published in the ECR, after hearing the parties, the President of the Third Chamber of the General Court suspended the procedure in the present case, in accordance with Article 77(d) of the Rules of Procedure of the General Court, until delivery of the judgment in Case C‑376/10 P Tay Za v Council.
12 Following the adoption of Council Decision 2012/97/CFSP of 17 February 2012 amending Decision 2011/101/CFSP concerning restrictive measures against Zimbabwe (OJ 2012 L 47, p. 50), the Commission adopted Implementing Regulation (EU) No 151/2012 of 21 February 2012 amending Regulation No 314/2004 (OJ 2012 L 49, p. 2). Pursuant to Article 1 of that regulation, Annex III to Regulation No 314/2004 was replaced by a new annex, which no longer contains the applicants’ names.
13 Following delivery of the judgment on 13 March 2012 in Case C‑376/10 P Tay Za v Council, not yet published in the ECR, the procedure in the present case was resumed.
14 On 15 March 2012, the Court invited the parties to submit their observations on the consequences to be drawn, for the present case, from the adoption of Decision 2012/97 and Regulation No 151/2012, in particular in relation to the possible disappearance of the subject-matter of the dispute, with the result that there would no longer be any need to adjudicate on it. The parties complied with that request within the time-limit prescribed.
15 In their observations, lodged at the Court Registry on 4 April 2012, the applicants stated that they considered that the subject-matter of the case remained, even after the adoption of the measures referred to in the preceding paragraph. For their part, the Commission and the Council, in their observations lodged at the Court Registry on 2 and 4 April 2012, respectively, requested the Court to find that the case had become devoid of purpose and that there was no longer any need to adjudicate on it. The United Kingdom did not wish to make any observations in that regard.
Law
16 Under Article 113 of its Rules of Procedure, the General Court may at any time, of its own motion, after hearing the parties, declare that the action has become devoid of purpose and that there is no longer any need to adjudicate on it. Unless the General Court otherwise decides, the remainder of the proceedings are to be oral.
17 In this case, the Court considers that it has sufficient information from the documents before it to enable it to give judgment without opening the oral procedure
18 According to settled case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the time at which the action is brought, failing which it will be inadmissible. That objective of the dispute must, like the interest in bringing proceedings, persist until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it. If the applicant’s interest in bringing proceedings disappears in the course of proceedings, a decision of the General Court on the merits cannot bring him any benefit (see Case C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraphs 42 and 43 and the case-law cited).
19 The Court notes that, in essence, annulment is sought in the present case of the act which imposes on the applicant the restrictive measures in dispute, namely the fund-freezing measures provided for under Article 6(1) of Regulation No 314/2004. However, it is clear from paragraph 12 above that that act has been repealed.
20 It has been repeatedly held that the withdrawing in certain circumstances of the contested act by the defendant institution deprives an action for annulment of its purpose, in so far as it leaves the applicant with the result he desires and gives him complete satisfaction (see the order of 28 march 2006 in Case T‑451/04 Mediocurso v Commission, not published in the ECR, paragraph 26 and the case-law cited, and the unpublished orders of 6 July 2011 in Case T‑142/11 SIR v Council, paragraph 18, and Case T‑160/11 Petroci v Council, paragraph 15).
21 In order to determine the particular circumstances in which that case-law is applicable, the Court notes that, according to settled case-law, an applicant may retain an interest in the annulment of a measure withdrawn in the course of proceedings if the annulment of that measure may in itself have legal consequences (orders in Case T‑25/96 Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission [1997] ECR II‑363, paragraph 16, and Case T‑184/01 IMS Health v Commission [2005] ECR II‑817, paragraph 38).
22 Where an act is annulled, the institution which adopted it is required under Article 266 TFEU to take the necessary measures to comply with the judgment. Those measures do not relate to the elimination of the act itself from the European Union legal order, because the very annulment by the Court has that effect. They involve, rather, the removal of the effects of the illegalities found in the judgment annulling the act. The institution may thus be required to take adequate steps to restore the applicant to its original situation or to avoid the adoption of an identical measure (see the order in Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission, paragraph 17 and the case-law cited).
23 It is in the light of the foregoing considerations that it is necessary to determine, in the present case, whether the annulment of the act concerned by the present action is likely to procure an advantage for the applicants, in spite of the withdrawal of that act.
24 In that regard, the Court dismisses, from the outset, the argument which the applicants seek to draw from the ‘interest which the [European Union] legal order itself has in preserving the rule of law’. Such an argument essentially contradicts the case-law set out in paragraph 18 above, pursuant to which, in essence, the admissibility of an action for annulment presupposes a specific interest on the part of the applicant in seeing the measure concerned annulled as a result of its action. The Court notes, in that regard, that an applicant is not entitled to act in the interests of the law and may put forward only such claims as relate to him personally (see, to that effect, Case 85/82 Schloh v Council [1983] ECR 2015, paragraph 14).
25 It is also necessary to dismiss as irrelevant the applicants’ argument that the withdrawal of the contested measures in the present case was decided on the premiss, which later proved to be correct, that the comparable measures at issue in the case which gave rise to the judgement in Tay Za v Council were annulled by the Court of Justice and that that annulment is decisive also to the outcome of the action in the present case, given that the procedure was stayed pending that judgment.
26 That argument raises the issue of the lawfulness of the contested measures, which concerns the substance of the case, and does not address the issue of the existence of an interest on the part of the applicants in seeing those measures annulled, in spite of their withdrawal. For the same reason, it is also necessary to dismiss the applicants’ arguments alleging a lack of precise and concrete evidence justifying the adoption of the contested measures and the existence of new exculpatory evidence.
27 Moreover, the applicants devoted part of their observations regarding the issue of the possible disappearance of the subject-matter of the dispute to address the adverse effects of the adoption of the contested measures and submitted, in conclusion, that they had suffered ‘effects which have adversely affected their interests by bringing about a distinct change in their legal position, whereby they [had] a continuing interest in these proceedings’.
28 The Court notes, however, that, in that part of their arguments, the applicants refer to the consequences of the adoption of those measures which are indisputably harmful to their interests, without explaining why, and how exactly, those consequences are likely to persist, in spite of the withdrawal of the measures. The same conclusion must be reached in relation to the applicants’ brief and unsubstantiated assertion that the adverse effects of the contested measures ‘continue [to this day]’
29 The Court notes that the contested measures did not bring about changes in the applicants’ position in terms of their assets, such as the transfer of ownership of some form of their assets, but, specifically, prohibited any such changes during the period of their application. In those circumstances and in the absence of any arguments to the contrary on the part of the applicants, it is apparent that the finding that those measures were unlawful could, at best, lead the institutions concerned not to adopt any similar measures in the future in relation to the applicants and, thus, to put an end to the fund-freezing measures on their assets. That is precisely the result of the withdrawal of the contested measures. In addition, it must be found that the applicants did not refer to any national administrative or legal proceedings in the context of which the issue of the lawfulness of the contested measures may have been relevant.
30 Moreover, the applicants submit that the annulment of the contested measures is necessary also to prevent any similar measures from being taken against them in the future.
31 Admittedly, in that regard, it is true that an applicant may retain an interest in claiming the annulment of a measure of an institution of the European Union in order to prevent its alleged unlawfulness recurring in the future (see, to that effect, Wunenburger v Commission, paragraph 50). However, it should be noted that such an interest in bringing proceedings, which results from the first paragraph of Article 266 TFEU, can exist only if the alleged unlawfulness is liable to recur in the future independently of the circumstances of the case which gave rise to the action brought by the applicant (Wunenburger v Commission, paragraphs 51 and 52).
32 However, in the present case, nothing in the applicants’ arguments or in the file indicates that that might be the case. On the contrary, since Regulation No 77/2009 was adopted, in so far as it concerns the applicants, in the light of their specific situation and the situation in Zimbabwe at the time of its adoption, and since it was then withdrawn, leading to the finding, set out in recital 3 in the preamble to Decision 2012/97, that there were no longer grounds for keeping the restrictive measures in place as regards the applicant, it does not appear that the alleged unlawfulness is liable to recur in the future regardless of the circumstances particular to the case which gave rise to the present action (see, by analogy, the order in SIR v Council, paragraph 26).
33 Moreover, in support of their claim that they retain an interest in seeing the contested measures annulled, the applicants rely on the judgment of 3 April 2008 in Case T‑229/02 PKK v Council, not published in the ECR, paragraphs 48 to 51. However, the Court notes that the findings in that case on which the applicants rely relate to a particular context, which is different from that in the present case. In the case which gave rise to the judgment in PKK v Council the acts at issue had not only been withdrawn, but also replaced by new acts, by which the restrictive measures at issue were maintained. The initial effects of the withdrawn acts thus remained, in relation to the entity concerned, as a result of the acts which replaced them. However, in the present case, the contested restrictive measures were purely and simply withdrawn, without being replaced, and the effects produced by them no longer remain. In such a context, the difference – which is indisputably real – between the effects of the withdrawal and those of the annulment of a measure is not sufficient, in itself, to justify an applicant’s interest in pursuing the procedure (see, by analogy, the order in SIR v Council, paragraph 27).
34 That distinction between circumstances such as those in the present case and those which gave rise to the judgment in PKK v Council is supported by the judgment in Joined Cases C‑399/06 P and C‑403/06 P Hassan and Ayadi v Council and Commission [2009] ECR I‑11393. First, instead of automatically concluding that the applicants concerned retained their interest in bringing proceedings in the cases at issue, in paragraph 57 of that judgment, the Court of Justice raised, of its own motion, the question whether, in the light of the withdrawal of the contested regulation and its retroactive replacement by another act, it was still necessary to adjudicate on those cases. Second, in paragraphs 59 to 63 of that judgment, the Court of Justice set out a number of particularities of the case before it, including, inter alia, the fact, noted in paragraph 61 of that judgment, that the applicants’ names in the cases at issue remained on the list of persons subject to the restrictive measures in question, although the purpose of their actions was, precisely, to have their names removed from that list, and then concluded, in paragraphs 64 and 65 of the judgment, that, ‘[i]n these particular circumstances’, the adoption of the new act and the retroactive withdrawal of the contested regulation could not be regarded as equivalent to annulment pure and simple of the regulation. However, such particularities are not present in this instance, as has been noted in the paragraph above.
35 Finally, the Court notes that the mere fact that the applicants wish to recover the expenses which they have incurred throughout the procedure is not sufficient, contrary to what they claim to justify their interest in pursuing the present procedure, since, as is apparent from Article 87(6) of its Rules of Procedure, where a case does not proceed to judgment, the General Court is entitled to rule on the costs.
36 It is apparent from all of the foregoing considerations that, following the withdrawal of the contested measures, the applicants no longer have an interest in bringing proceedings and, consequently, there is no longer any need to adjudicate on the present action.
Costs
37 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment the costs are in the discretion of the Court.
38 The Court notes that it was the entering of the applicants’ names on Annex III to Regulation No 314/2004, following its amendment by Regulation No 77/2009, which led them to bring the present action. Consequently, that circumstance justifies the ordering of the Commission to bear its own costs, in addition to those incurred by the applicants (see, by analogy, the order in SIR v Council, paragraph 32). As for the interveners, the Court finds it appropriate to order them to bear their own costs.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1. There is no need to adjudicate on this action.
2. The European Commission shall bear, in addition to its own costs, those incurred by John Arnold Bredenkamp, Alpha International (PVT) Ltd, Breco (Asia Pacific) Ltd, Breco (Eastern Europe) Ltd, Breco (South Africa) Ltd, Breco (UK) Ltd, Breco Group, Breco International, Breco Nominees Ltd, Breco Services Ltd, Corybantes Ltd, Echo Delta Holdings, Masters International Ltd, Piedmont (UK) Ltd, Raceview Enterprises, Scottlee Holdings (PVT) Ltd, Scottlee Resorts Ltd, Timpani Exports Ltd and Tremalt Ltd.
3. The United Kingdom of Great Britain and Northern Ireland and the Council of the European Union shall each bear their own costs.
Luxembourg, 6 September 2012.
Annex
List of other applicants
Alpha International (PVT) Ltd, established in Camberley (United Kingdom),
Breco (Asia Pacific) Ltd, established in Douglas, Isle of Man (United Kingdom),
Breco (Eastern Europe) Ltd, established in Douglas, Isle of Man,
Breco (South Africa) Ltd, established in Douglas, Isle of Man,
Breco (UK) Ltd, established in Ascot (United Kingdom),
Breco Group, established in Harare (Zimbabwe),
Breco International, established in Jersey (United Kingdom),
Breco Nominees Ltd, established in Ascot,
Breco Services Ltd, established in Ascot,
Corybantes Ltd, established in Ascot,
Echo Delta Holdings, established in Reading (United Kingdom),
Masters International Ltd, established in Ascot,
Piedmont (UK) Ltd, established in Ascot,
Raceview Enterprises, established in Harare,
Scottlee Holdings (PVT) Ltd, established in Harare,
Scottlee Resorts Ltd, established in Harare,
Timpani Exports Ltd, established in Douglas, Isle of Man,
Tremalt Ltd, established in Harare.