ORDER OF THE GENERAL COURT (Sixth Chamber)
15 May 2013 (*)
(Common foreign and security policy – Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban – Freezing of funds – Withdrawal from the list of persons concerned – No need to adjudicate)
In Case T‑322/09,
Saad Al-Faqih, residing in London (United Kingdom),
Movement for Islamic Reform in Arabia (MIRA), established in London,
represented by J. Jones, Barrister, and A. Raja, Solicitor,
applicants,
v
Council of the European Union, represented initially by R. Szostak and E. Finnegan, and subsequently by Ms Finnegan and J.-P. Hix, acting as Agents,
and
European Commission, represented by T. Scharf and M. Konstantinidis, acting as Agents,
defendants,
APPLICATION for annulment of Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ 2002 L 139, p. 9), as amended for the 42nd time by Commission Regulation (EC) No 14/2005 of 5 January 2005 (OJ 2005 L 5, p. 10), for the 48th time by Commission Regulation (EC) No 1190/2005 of 20 July 2005 (OJ 2005 L 193, p. 27), for the 75th time by Commission Regulation (EC) No 492/2007 of 3 May 2007 (OJ 2007 L 116, p. 5) and for the 116th time by Commission Regulation (EC) No 1102/2009 of 16 November 2009 (OJ 2009 L 303, p. 39), and/or an application for annulment of Regulations Nos 14/2005, 1190/2005, 492/2007 and 1102/2009, in so far as they concern the applicants,
THE GENERAL COURT (Sixth Chamber),
composed of H. Kanninen, President, S. Soldevila Fragoso (Rapporteur) and G. Berardis, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 In the international fight against terrorism, the Council of the European Union, on 27 May 2002, adopted Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ 2002 L 139, p. 9). By Regulation No 881/2002, the funds and economic resources of the persons and entities whose names appear on the list annexed to that act were frozen.
2 By Regulation (EC) No 14/2005 of 5 January 2005 amending for the 42nd time Regulation No 881/2002 (OJ 2005 L 5, p. 10), by Regulation (EC) No 1190/2005 of 20 July 2005 amending for the 48th time Regulation No 881/2002 (OJ 2005 L 193, p. 27), by Regulation (EC) No 492/2007 of 3 May 2007 amending for the 75th time Regulation No 881/2002 (OJ 2007 L 116, p. 5), and by Regulation (EC) No 1102/2009 of 16 November 2009 amending for the 116th time Regulation No 881/2002 (OJ 2009 L 303, p. 39), the Commission of the European Communities included and maintained the names of the applicants, Mr Saad Al-Faqih and the Movement for Islamic Reform in Arabia (MIRA), on the list annexed to Regulation No 881/2002 (collectively, ‘the contested acts’).
3 By Implementing Regulation (EU) No 619/2012 of 10 July 2012 amending for the 173rd time Regulation No 881/2002 (OJ 2012 L 179, p. 11), the Commission withdrew the names of the applicants from the list of persons, groups and entities covered by Regulation No 881/2002.
Procedure and forms of order sought
4 By application lodged at the Registry of the General Court on 14 August 2009, the applicants brought the present proceedings.
5 By a separate document lodged on the same date, the applicants applied for their case to be decided under an expedited procedure.
6 By separate documents lodged at the Registry of the General Court on 9 and 12 February 2010, the Council and the Commission, respectively, submitted two pleas of inadmissibility. On 12 April 2010, the applicants lodged their observations on those objections.
7 On 11 August 2010, the applicants lodged an application to amend the form of order sought, seeking to have added to the subject-matter of the proceedings an application for annulment of Regulation No 1102/2009. The Council and the Commission lodged their observations on that application to amend the form of order sought on 13 September 2010.
8 By order of the General Court (Sixth Chamber) of 3 October 2011, the pleas of inadmissibility submitted were reserved for the final judgment.
9 The Council and the Commission lodged their defences at the Registry of the General Court on 17 and 16 November 2011, respectively, in which they contended that the General Court should dismiss the action and order the applicants to pay the costs.
10 By order of the President of the Sixth Chamber of the General Court of 6 February 2012, after hearing the parties, it was decided to stay the proceedings until the Court of Justice had given its final ruling in Commission v Kadi (C‑584/10 P), Council v Kadi (C‑593/10 P) and United Kingdom v Kadi (C‑595/10 P).
11 By letter of 18 October 2012, the Commission made an application for an order that there was no need to adjudicate on the action on the ground that, by Implementing Regulation No 619/2012, the names of the applicants had been deleted from Annex I to Regulation No 881/2002 following their removal from the United Nations list. The Commission, moreover, maintained its claim that the applicants should be ordered to pay the costs. By letter of 3 December 2012, the Council endorsed the Commission’s application for an order that there was no need to adjudicate on the action.
12 The applicants did not, within the prescribed period, lodge observations on the application for an order that there is no need to adjudicate.
Law
13 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 need to adjudicate on it. In the present case the Court considers itself sufficiently informed by the documents in the file to give a decision without taking further steps in the proceedings.
14 According to settled case-law, the interest in bringing proceedings must continue 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 (Case C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 42, and order of 7 December 2011 in Case T‑255/11 Fellah v Council, not published in the ECR, paragraph 12).
15 In the present case, by Implementing Regulation No 619/2012, the Commission deleted the names of the applicants from the list annexed to Regulation No 881/2002, as amended by the acts referred to in paragraph 2 above. That deletion entails the repeal of the contested acts, in so far as they concerned the applicants.
16 That repeal leads, for the applicants, to the desired outcome and gives them complete satisfaction as they are no longer subject to the restrictive measures that affected them (see, to that effect, order of 3 July 2012 in Case T‑543/11 Ghreiwati v Council, not published in the ECR, paragraph 11 and the case-law cited).
17 However, according to settled case-law, in an action for annulment, the applicant may retain an interest in the annulment of an act repealed during the proceedings if the annulment of that act may in itself have legal consequences (see order in Ghreiwati v Council, paragraph 12 and the case-law cited).
18 However, as the applicants have not provided any evidence to show that, even though the contested acts have been repealed in their regard, they retain an interest in obtaining their annulment, it must be held that the applicants no longer have an interest in seeking annulment of the contested acts.
19 Accordingly, there is no need to adjudicate on the present action.
Costs
20 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.
21 In the particular circumstances of the present case, the Court considers that it is appropriate to order the Council and the Commission jointly and severally to pay the costs.
22 The applicants cannot be criticised for having brought an action for annulment of acts of the Council and of the Commission that included their names in a list resulting in the freezing of their funds. Moreover, the subject-matter of the dispute has disappeared as a result of the deletion of the applicants’ names from such lists on the initiative of the Commission.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1. There is no need to adjudicate on the action.
2. The Council of the European Union and the European Commission shall jointly and severally pay the costs.
Luxembourg, 15 May 2013.