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‑222/11,
Muller Conrad Rautenbach, residing in Harare (Zimbabwe), represented by S. Smith QC, M. Lester, Barrister, and W. Osmond, Solicitor,
applicant,
v
Council of the European Union, represented by B. Driessen and J. Herrmann, acting as Agents,
and
European Commission, represented by E. Paasivirta, M. Konstantinidis and T. Scharf, acting as Agents,
defendants,
APPLICATION for annulment of Council Decision 2011/101/CFSP of 15 February 2011 concerning restrictive measures against Zimbabwe (OJ 2011 L 42, p. 6) and of Commission Regulation (EU) No 174/2011 of 23 February 2011 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2011 L 49, p. 23), in so far as they concern the applicant,
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2 Common Position 2004/161 was repealed pursuant to Article 9 of Council Decision 2011/101/CFSP of 15 February 2011 concerning restrictive measures against Zimbabwe (OJ 2011 L 42, p. 6). However, in relation to persons whose names appeared on a list annexed to that decision, Article 5(1) of Decision 2011/101 provided for fund-freezing measures identical to those provided for in Decision 2004/161. The applicant, Muller Conrad Rautenbach, whose name was already on the list of persons concerned by the restrictive measures imposed by Common Position 2004/161, was added to the list annexed to Decision 2011/101.
3 After adopting Decision 2011/101, the European Commission adopted Regulation (EU) No 174/2011 of 23 February 2011 amending Regulation No 314/2004 (OJ 2011 L 49, p. 23). Article 1 of Regulation No 174/2011 amended Annex III to Regulation No 314/2004 to take account of the amendments made to the list of persons subject to the restrictive measures applicable to Zimbabwe. The applicant’s name was added to Annex III to Regulation No 314/2004 following the amendment to that regulation by Commission Regulation (EC) No 77/2009 of 26 January 2009 (OJ 2009 L 23, p. 5), and Regulation No 174/2011 did not amend the entry of the applicant’s name.
4 By application lodged at the Registry of the General Court on 20 April 2011, the applicant brought the present action. He claims that the Court should:
– annul Decision 2011/101 and Regulation No 174/2011 in so far as they concern him;
– order the Council of the European Union and the Commission to pay the costs.
5 In its defence, lodged at the Court Registry on 28 July 2011, the Council contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
6 In its defence, lodged at the Court Registry on 29 July 2011, the Commission contends that the Court should:
– dismiss the action as inadmissible in so far as it concerns Regulation No 174/2011;
– dismiss the action, if deemed to be admissible, as unfounded;
– order the applicant to pay the costs.
7 Following the adoption of Council Decision 2012/97/CFSP of 17 February 2012 amending Decision 2011/101 (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 thereof, Annex III to Regulation No 314/2004 was replaced by a new annex, which no longer contains the applicant’s name. By letter lodged at the Registry of the General Court on 28 February 2012, the Council brought this information to the Court’s attention.
8 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 and all indicated that they considered that the case had become devoid of purpose and that there was no longer any need to adjudicate on it.
Law
9 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.
10 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.
11 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).
12 The Court notes that, in essence, annulment is sought in the present case of acts which impose 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 8 above that those measures have been repealed.
13 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).
14 In order to determine the particular circumstances in which that case‑law is applicable, the Court notes that, according to settled case-law, the applicant may retain an interest in the annulment of an act withdrawn in the course of proceedings if the annulment of that act 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).
15 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 Community 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).
16 However, in the present case, the applicant has not raised any arguments capable of showing that, in spite of the contested measures having been withdrawn, he retained an interest in their annulment. On the contrary, in response to the question put by the Court to the parties on 15 March 2012, the applicant, as also the other parties, stated that he considered that the case had become devoid of purpose. That statement can be understood only as meaning that he no longer has any interest in the annulment of the acts concerned by the present action. The Court must take formal note of such a statement and find that the applicant’s interest in bringing proceedings has ceased to exist in the course of the proceedings (order of 22 March 2012 in Case T‑114/09 Viasat Broadcasting UK v Commission, not published in the ECR, paragraph 22).
17 In addition, the Court notes that the contested measures did not bring about changes in the applicant’s position in terms of his assets, such as the transfer of ownership of some form of his 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 applicant, 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 applicant and, thus, to put an end to the fund-freezing measures on his assets. That is precisely the result of the withdrawal of the contested measures. Moreover, it must be found that the applicant 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.
18 Admittedly, it is true that an applicant may retain an interest in claiming the annulment of an act 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).
19 In the present case, since the acts concerned by the action were adopted, in so far as they concern the applicant, in the light of the latter’s specific situation and the situation in Zimbabwe at the time of their adoption, and since they were 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).
20 Consequently, the action has become devoid of purpose and there is no longer any need to adjudicate on it.
Costs
21 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.
22 In this regard, the applicant submits that, in removing his name from the list of persons subject to the restrictive measures against Zimbabwe, the Council recognised that there were no valid grounds for applying those measures to him. Consequently, he seeks reimbursement of the costs which he has incurred in the context of the present proceedings.
23 For their part, the Council and the Commission submit that the contested restrictive measures were withdrawn in relation to the applicant in the light of political developments in Zimbabwe, and reject the claim that the adoption of those measures was unlawful from the outset. They consider that, in the circumstances of the present case, it would be equitable for each party to be ordered to pay its own costs. The Council notes, moreover, that the Court adopted a similar solution in the unpublished orders of 15 December 2011 in Case T‑285/11 Gooré v Council, and of 17 January 2012 in Case T‑436/11 Afriqiyah Airways v Council.
24 In the light of the wording of Article 87(6) of the Rules of Procedure, the Court notes that the application of a general rule cannot be accepted in relation to the division of costs in a case where there is no need to adjudicate as a result of the withdrawal of the measures in respect of which annulment is sought. Rather, the Court must take account of the specific circumstances of each case and solutions regarding the division of costs adopted in different cases necessarily have only limited value as precedents (see, by analogy, the order of the President of the Fifth Chamber of the General Court of 13 July 2010 in Case T‑121/09 Al Shanfari v Council and Commission, not published in the ECR, paragraph 18).
25 In that regard, it must be noted that that the Court has repeatedly considered that the fact that an applicant was led to bring an action for annulment after being added to the list of persons subject to restrictive measures justified the ordering of the defendant institution to pay the costs incurred by the applicant if there was no need to adjudicate on the action following the subsequent repeal of those measures (see, to that effect, the orders in SIR v Council, paragraph 32; Petroci v Council, paragraph 29; and of 7 December 2011 in Case T‑255/11 Fellah v Council, not published in the ECR, paragraph 21).
26 The order in Gooré v Council, referred to by the Council, does not contradict that approach in so far as the Court reiterated, in that order, the consideration set out in the preceding paragraph, but ordered each of the parties in that case to bear its own costs, taking account of the fact that the action also contained a claim for compensation, which had been rejected as manifestly unfounded (order in Gooré v Council, paragraphs 30 to 32).
27 It is only in the order in Afriqiyah Airways v Council that the Court ordered each party to bear its own costs, following the withdrawal of the restrictive measures adopted against the applicant in the case which gave rise to that order. However, as is apparent from paragraphs 4 and 5 of that order, those measures were only applicable for less than four months and they had been withdrawn approximately one month after the action had been brought. Those particular circumstances are not similar to those in the present case, in which the contested restrictive measures were not withdrawn until approximately one year after the bringing of the action and after the written procedure in the case had been closed.
28 In those circumstances, without it being necessary to rule on the dispute between the parties regarding the reasons why, in relation to the applicant, Decision 2011/101 was repealed by Decision 2012/97, the Court concludes, in the light of the considerations and the case‑law set out in paragraph 25 above, that it will make an equitable assessment of the present case in ruling that the Council is to bear, in addition to its own costs, those incurred by the applicant.
29 By contrast, since Regulation No 174/2011 did not change in any way the position of applicant, whose name was already included in Annex III to Regulation No 314/2004 even before Regulation No 174/2011 was adopted, it is appropriate to order the Commission to bear its own costs.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1. There is no need to adjudicate on this action.
2. The Council of the European Union shall bear, in addition to its own costs, those incurred by Muller Conrad Rautenbach.
3. The European Commission shall bear its own costs.
Luxembourg, 6 September 2012.