Case T-85/09

Yassin Abdullah Kadi

v

European Commission

(Common foreign and security policy – Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – Regulation (EC) No 881/2002 – Freezing of a person’s funds and economic resources as a result of his inclusion in a list drawn up by a body of the United Nations – Sanctions Committee – Subsequent inclusion in Annex I to Regulation No 881/2002 – Action for annulment – Fundamental rights – Right to be heard, right to effective judicial review and right to respect for property)

Summary of the Judgment

1.      Procedure – Division of competences between the Court of Justice and the General Court – Re-examination of points of law decided by the Court of Justice in a previous appeal

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 – Review in the light of fundamental rights – Scope

(Council Regulation No 881/2002; Commission Regulation No 1190/2008)

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 – Rights of the defence

(Council Regulation No 881/2002; Commission Regulation No 1190/2008)

4.      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 – General and long-lasting freezing of the funds, assets and other resources of those persons and entities without them being heard – Infringement of the right to property

(Council Regulation No 881/2002; Commission Regulation No 1190/2008)

1.      In circumstances where the matter at issue is a measure adopted by the Commission to replace an earlier measure annulled by the Court of Justice in an appeal against a judgment of the General Court dismissing an action for annulment of the earlier measure, the appellate principle itself and the hierarchical judicial structure which is its corollary generally advise against the General Court revisiting points of law which have been decided by the Court of Justice. That is a fortiori the case when the Court of Justice was sitting in Grand Chamber formation and clearly intended to deliver a judgment establishing certain principles. Accordingly, if an answer is to be given to the questions raised by the institutions, Member States and interested legal quarters, it is for the Court of Justice itself to provide that answer in the context of future cases before it. Moreover, in such circumstances, it falls in principle not to the General Court but to the Court of Justice to reverse precedent in that way, if it were to consider this to be justified in light, in particular, of the serious difficulties referred to by the institutions and governments of the Member States.

(see paras 121, 123)

2.      In an action for annulment brought against Regulation No 1190/2008 amending for the 101st time Council 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, it is for the General Court to ensure in principle the full review of the lawfulness of that regulation in the light of fundamental rights, without affording the regulation any immunity from jurisdiction on the ground that it gives effect to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations.

That must remain the case, at the very least, so long as the re-examination procedure operated by the Sanctions Committee of the United Nations clearly fails to offer guarantees of effective judicial protection. In that regard, since the Security Council has still not deemed it appropriate to establish an independent and impartial body responsible for hearing and determining, as regards matters of law and fact, actions against individual decisions taken by the Sanctions Committee, the review carried out by the Community judicature of Community measures to freeze funds can be regarded as effective only if it concerns, indirectly, the substantive assessments of the Sanctions Committee itself and the evidence underlying them.

The principle of a full and rigorous judicial review of freezing measures is all the more justified given that such measures have a marked and long-lasting effect on the fundamental rights of the persons concerned.

(see paras 126-129, 151)

3.      Since Regulation No 1190/2008 amending for the 101st time Council Regulation No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden imposes restrictive measures on a person as a result of his inclusion on the list in Annex I to Regulation No 881/2002, without any real guarantee being given to that person as to the disclosure of the evidence used against him or as to his actually being properly heard in that regard, it must be concluded that Regulation No 1190/2008 was adopted according to a procedure in which the rights of the defence were not observed.

Furthermore, given the lack of any proper access to the information and evidence used against him and having regard to the relationship between the rights of the defence and the right to effective judicial review, that person has also been 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 effective judicial review has also been infringed.

(see paras 181, 184)

4.      The imposition on a person of the restrictive measures (such as the freezing of funds) entailed by Regulation No 1190/2008 amending for the 101st time Council Regulation No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, as a result of his inclusion on the list in Annex I to Regulation No 881/2002, constitutes an unjustified restriction of his right to property, since Regulation No 1190/2008 was adopted without furnishing any real safeguard enabling the 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 duration of the freezing measures to which he is subject.

(see paras 192-193)