Case T-318/01

Omar Mohammed Othman

v

Council of the European Union and Commission of the European Communities

(Common foreign and security policy – Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – Freezing of funds – Action for annulment – Adaptation of heads of claim – Fundamental rights – Right to respect for property, right to be heard and right to effective judicial review)

Summary of the Judgment

1.      Procedure – Decision replacing the contested decision during the proceedings – New factor – Extension of the original form of order sought and pleas in law

2.      European Communities – Judicial review of the legality of the acts of the institutions – Regulation imposing restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban

3.      European Communities – Judicial review of the legality of the acts of the institutions – Regulation imposing restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban

1.      When, during the proceedings, one decision is replaced by another having the same subject-matter, this must be considered a new factor allowing the applicant to adapt its pleas in law and claims for relief. It would indeed be contrary to the due administration of justice and the requirements of procedural economy to oblige the applicant to make a fresh application. Moreover, it would be inequitable if the defendant institution were able, in order to counter criticisms of a decision contained in an application made to the Community judicature, to amend the contested decision or to substitute another for it and to rely in the proceedings on such an amendment or substitution in order to deprive the other party of the opportunity of extending his original pleas in law and form of order sought to the later decision or of submitting supplementary pleadings directed against that decision.

That solution may be applied to a situation in which a regulation of direct and individual concern to a person is replaced, during the proceedings, by another regulation having the same subject-matter.

(see paras 53-54)

2.      Because the Council never either communicated to a person the evidence used against him to justify the restrictive measures imposed on him on the basis of Regulation No 881/2002, imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, or afforded him the right to be informed of that evidence within a reasonable period after those measures were enacted, that person was not in a position to make his point of view in that respect known to advantage. Therefore, that person’s rights of defence, in particular the right to be heard, were not respected.

In addition, given the failure to inform him of the evidence adduced against him and having regard to the relationship between rights of defence and the right to an effective legal remedy, that person was also unable to defend his rights with regard to that evidence in satisfactory conditions before the Community judicature, with the result that it must be held that his right to an effective legal remedy has also been infringed.

(see paras 85-86)

3.      Imposition of restrictive measures, such as the freezing of funds, on the basis of Regulation No 881/2002, imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden and the Taliban, on a person, by reason of his being included in the list contained in Annex I to that regulation, constitutes an unjustified restriction of his right to property, for that regulation was adopted without furnishing any guarantee enabling that person to put his case to the competent authorities, in a situation in which the restriction of his property rights must be regarded as significant, having regard to the general application and actual duration of the restrictive measures affecting him.

(see paras 91-92)