Al-Faqih and Others v Commission (Judgment) [2015] EUECJ T-134/11 (28 October 2015)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

(Common foreign and security policy — Restrictive measures directed against persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban — Freezing of funds — Fundamental rights — Right to effective judicial protection)

European Commission, represented initially by S. Boelaert, M. Konstantinidis, E. Paasivirta and T. Scharf, and subsequently by M. Konstantinidis, E. Paasivirta and T. Scharf, acting as Agents,

Council of the European Union, represented initially by E. Finnegan, R. Szostak and G. Étienne, and subsequently by E. Finnegan and G. Étienne, acting as Agents,

United Kingdom of Great Britain and Northern Ireland, represented initially by E. Jenkinson, and subsequently by L. Christie, acting as Agents,

APPLICATION for annulment of Commission Regulation (EU) No 1138/2010 of 7 December 2010 amending for the 140th time Council 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 (OJ 2010 L 322, p. 4), and of Commission Regulation (EU) No 1139/2010 of 7 December 2010 amending for the 141st time Council 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 (OJ 2010 L 322, p. 6), in so far as those measures concern the applicants,

composed of M. van der Woude, President, I. Wiszniewska-Białecka and I. Ulloa Rubio (Rapporteur), Judges,

having regard to the written procedure and further to the hearing on 23 April 2015,

1 Two of the applicants, Mr Al-Bashir Mohammed Al-Faqih and Mr Taher Nasuf, are Libyan nationals who were granted a right of permanent residence in the United Kingdom. A third applicant, Mr Ghunia Abdrabbah, is a national of the United Kingdom. The fourth applicant, Sanabel Relief Agency Ltd (‘Sanabel’), was a charity registered with the Charity Commission of England and Wales from 17 November 2000 to 2012, which was struck off the Companies House register in 2007. Mr Abdrabbah and Mr Nasuf were members of the board of directors of that charity.

2 On 27 March 2006, Mr Al-Faqih was arrested under the Terrorism Act 2000 and, on 30 March 2006, he was charged with two offences under that Act. He pleaded guilty and was sentenced to four years’ imprisonment, of which he served two. He was released on 1 April 2008 and, on 7 April 2008, the Home Secretary of the United Kingdom withdrew the deportation proceedings linked to the conviction for terrorism.

International legal context of the restrictive measures directed against persons and entities associated with Usama Bin Laden

4 In response to infringements of international humanitarian law and taking into account the involvement of the Taliban in terrorism, the United Nations established a system of sanctions against the entities and persons linked to Al-Qaeda and to the Taliban under Resolution 1267 (1999) of 15 October 1999. Under paragraph 6 of that resolution, the United Nations Security Council (‘the Security Council’) decided to establish a sanctions committee (‘the Sanctions Committee’).

5 Since the end of the 1990s, and to a greater extent after the attacks on 11 September 2001 in New York (United States), Washington (United States) and Pennsylvania (United States), the Security Council has made use of its powers under Chapter VII of the United Nations Charter. Accordingly, on 16 January 2002 the Security Council adopted Resolution 1390 (2002) setting out the measures to be taken by all States with respect to Usama bin Laden, members of the Al-Qaida organisation and the Taliban and other individuals, groups, undertakings and entities associated with them, as referred to in the list created pursuant to Security Council Resolutions 1267 (1999) and 1333 (2000). These measures entail, in particular, (1) freezing the funds and other financial assets or economic resources of those individuals, groups, undertakings and entities; (2) preventing the entry into or the transit through the States’ territories of those individuals; and (3) preventing the direct or indirect supply, sale and transfer to these individuals, groups, undertakings and entities of arms and related materiel of all types and technical advice, assistance, or training related to military activities.

6 Paragraphs 1 and 2 of Resolution 1390 (2002) provide, in essence, for the continuation of the fund-freezing measures imposed by paragraph 4(b) of Resolution 1267 (1999) and paragraph 8(c) of Resolution 1333 (2000) of the Security Council. In accordance with paragraph 3 of Resolution 1390 (2002), those measures were to be reviewed by the Security Council 12 months after their adoption, when it would decide whether to allow them to continue or to improve them.

7 On 7 February 2006, the Sanctions Committee added the applicants’ names to the list of persons and entities referred to in the fund-freezing measures.

Restrictive measures directed against persons and entities associated with Usama bin Laden at EU level

8 Taking the view that action by the Community was necessary in order to implement Resolution 1390 (2002), on 27 May 2002 the Council of the European Union adopted Common Position 2002/402/CFSP concerning restrictive measures against Usama bin Laden, members of the Al-Qaida organisation and the Taliban and other individuals, groups, undertakings and entities associated with them and repealing Common Positions 96/746/CFSP, 1999/727/CFSP, 2001/154/CFSP and 2001/771/CFSP (OJ 2002 L 139, p. 4). Article 3 of that Common Position prescribes, inter alia, the continuation of the freezing of the funds and other financial assets or economic resources of the individuals, groups, undertakings and entities referred to in the list drawn up by the Sanctions Committee pursuant to Security Council Resolutions 1267 (1999) and 1333 (2000).

9 On the same day, the Council of the European Union also adopted Council 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).

10 According to recital 4 in the preamble to that regulation, the measures laid down, inter alia, by Security Council Resolution 1390 (2002) ‘fall under the scope of the Treaty and, therefore, notably with a view to avoiding distortion of competition, Community legislation is necessary to implement the relevant decisions of the Security Council as far as the territory of the Community is concerned’. Under Article 2 of Regulation No 881/2002:

‘1. All funds and economic resources belonging to, owned, held or controlled by a natural or legal person, entity, body or group listed in Annex I, shall be frozen.

2. No funds or economic resources shall be made available, directly or indirectly, to, or for the benefit of, natural or legal persons, entities, bodies or groups listed in Annex I.

3. Annex I shall consist of natural and legal persons, entities, bodies and groups designated by the UN Security Council or by the Sanctions Committee as being associated with Usama bin Laden, the Al-Qaida network and the Taliban.

4. The prohibition set out in paragraph 2 shall not give rise to liability of any kind on the part of the natural or legal persons, entities, bodies or groups concerned, if they did not know, and had no reasonable cause to suspect, that their actions would infringe these prohibitions.’

11 Annex I to Regulation No 881/2002 contains the list of persons, entities and bodies affected by the freezing of funds imposed by Article 2 of that regulation (‘the list at issue’). Initially, the applicants’ names did not appear on that list.

12 Under Article 7 of Regulation No 881/2002, the Commission is empowered to amend or supplement Annex I on the basis of determinations made by the Security Council or the Sanctions Committee.

13 The applicants’ names were added to the list at issue by Commission Regulation (EC) No 246/2006 of 10 February 2006 amending for the 63rd time Regulation No 881/2002 (OJ 2006 L 40, p. 13). As regards the reasons for the listing, Regulation No 246/2006 refers to the Sanctions Committee’s decision of 7 February 2006 adding the applicants’ names to the United Nations list (see paragraph 7 above).

14 By judgment of 29 September 2010 in Al-Faqih v Council (T‑135/06 to T‑138/06, EU:T:2010:412), the General Court annulled Article 2 of Regulation No 881/2002 in so far as it concerned the applicants.

15 The Commission drew the appropriate conclusions from the judgment in Al-Faqih v Council, cited in paragraph 14 above (EU:T:2010:412), and, on 7 December 2010, adopted Regulation (EU) No 1138/2010 amending for the 140th time Regulation No 881/2002 (OJ 2010 L 322, p. 4). Pursuant to that regulation, Sanabel’s name was retained on the list at issue. As indicated in recital 3 in the preamble to Regulation No 1138/2010, the Commission communicated the Sanction Committee’s statement of reasons to Sanabel on 6 August 2009. On 2 July 2010, it also sent Sanabel a statement of reasons related to that communicated on 6 August 2009, which it had then just received from the Sanctions Committee. Sanabel submitted observations on those two statements of reasons.

16 The statement of reasons communicated to Sanabel contained the following information:

‘associated with Al-Qaida, Usama bin Laden or the Taliban for participating in the financing, planning, facilitating, preparing or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf or in support of the [LIFG]. ’

17 On 7 December 2010, the Commission also adopted Regulation (EU) No 1139/2010 amending for the 141st time Regulation No 881/2002 (OJ 2010 L 322, p. 6). Under that regulation, the names of Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah were re-introduced into the list at issue. As indicated in recital 3 in the preamble to Regulation No 1139/2010, the Sanctions Committee’s statement of reasons was provided by the Commission to Mr Abdrabbah, Mr Al-Faqih and Mr Nasuf, respectively, on 22 September, 7 August and 11 August 2009.

18 The statements of reasons communicated to Mr Abdrabbah, Mr Al-Faqih and Mr Nasuf contained the following information:

19 By Commission Implementing Regulation (EU) No 640/2011 of 30 June 2011 amending for the 152nd time Regulation No 881/2002 (OJ 2011 L 173, p. 1), the names of Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah were removed from the list at issue following the Sanctions Committee’s decision of 22 June 2011.

20 By Commission Implementing Regulation (EU) No 996/2013 of 17 October 2013 amending for the 205th time Regulation No 881/2002 (OJ 2013 L 277, p. 1), Sanabel was also removed from the list at issue following the Sanctions Committee’s decision of 8 October 2013.

21 By application lodged at the Court Registry on 3 March 2011, the applicants brought the present action.

22 By document lodged at the Court Registry on 14 March 2011, Mr Al-Faqih applied to the Court for legal aid, under Article 94 of the Rules of Procedure of the General Court of 2 May 1991.

23 By order of 7 June 2011, the President of the Sixth Chamber of the General Court stayed the proceedings pending the final ruling of the Court of Justice in the cases that subsequently gave rise to the judgment of 18 July 2013 in Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, ECR, ‘Kadi II’, EU:C:2013:518).

24 The proceedings before the General Court were resumed on the same day on which the judgment in Kadi II, cited in paragraph 23 above (EU:C:2013:518), was delivered.

25 By documents lodged at the Court Registry on 16 and 20 June 2011 respectively, the United Kingdom of Great Britain and Northern Ireland and the Council applied for leave to intervene in the present proceedings in support of the Commission.

26 The case having been reassigned to the Seventh Chamber, the President of the General Court designated a new Judge-Rapporteur.

27 On 9 and 27 September 2013, the applicants, and subsequently the Commission in the defence, submitted their respective observations on the consequences of the judgment in Kadi II, cited in paragraph 23 above (EU:C:2013:518).

28 By decision of 25 October 2013, the Court, pursuant to Article 47(1) of the Rules of Procedure of 2 May 1991, decided that a second exchange of pleadings was not necessary, having regard in particular to the comprehensive nature of the applicants’ observations on the consequences of the judgment in Kadi II, cited in paragraph 23 above (EU:C:2013:518).

29 By order of 6 November 2013, the President of the Seventh Chamber of the General Court granted the Council and the United Kingdom leave to intervene. By letter lodged at the Court Registry on 15 November 2013, the United Kingdom waived its right to submit a statement in intervention.

30 On 19 December 2013, the Council submitted its observations in its statement in intervention.

31 By decision of 13 November 2013, the President of the Seventh Chamber of the General Court decided to add to the file the letter dated 22 October 2013, in which the Commission had informed the Court of the fact that Sanabel had also been removed from the list at issue, by Implementing Regulation No 996/2013.

32 By order of 13 January 2014, the President of the Seventh Chamber of the General Court granted Mr Al-Faqih legal aid.

33 By way of a measure of organisation of procedure, the main parties were requested on 4 June 2014 to provide copies of any individual notifications that had been sent to the applicants. On 20 June 2014, the Commission provided the copies in its possession.

34 By way of a measure of organisation of procedure of 2 December 2014, the applicants were asked to indicate the dates of receipt of the letters relisting them in, and removing them from, the list at issue. Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah were also requested to substantiate their legal interest in bringing proceedings. The Commission was requested to provide a copy of the acknowledgement of receipt of the letter sent to the applicants’ counsel informing them of their re-inclusion in the list at issue, and a copy of the acknowledgment of receipt of the letter informing the applicants of their removal from the list at issue.

35 By letters lodged at the Court Registry on 18 December 2014, the applicants and the Commission complied with those requests.

36 Upon hearing the report of the Judge-Rapporteur, the General Court (Seventh Chamber) decided to open the oral procedure.

37 The parties presented oral argument and answered the questions put to them by the Court at the hearing on 23 April 2015.

– annul Regulation No 1138/2010 and Regulation No 1139/2010 in so far as they concern the applicants;

40 The Commission, supported by the Council, argues that because Sanabel ceased to exist on 26 January 2012 there is no need for the Court to adjudicate in this respect.

41 It must be noted in that regard that it is apparent from the letter of 26 September 2013 from the Foreign and Commonwealth Office of the United Kingdom of Great Britain and Northern Ireland that Sanabel has not been included on the Companies House register since 2007 and that it was removed from the Charity Commission register in 2012. The letter also makes clear that Sanabel has ceased to exist.

42 It follows that Sanabel no longer has any existence in law within the meaning of Article 78(3) of the Rules of Procedure of the General Court, and that it therefore no longer has the capacity to bring legal proceedings before the Court.

43 The arguments put forward by the applicants cannot cast doubt on that finding.

44 First of all, the fact that Sanabel might perhaps pursue or resume its activities as a de facto association and that it still has members and directors does not confer on it the legal personality required. Furthermore, the interests on which that de facto association might perhaps rely would be indissociable from those of its members and directors, who include Mr Abdrabbah and Mr Nasuf, who are also applicants in this case.

45 It is also true that it is apparent from paragraph 112 of the judgment of 18 January 2007 in PKK and KNK v Council (C‑229/05 P, ECR, EU:C:2007:32) that if the EU legislature has taken the view that an association had an existence sufficient for it to be subject to restrictive measures, it must be accepted, on grounds of consistency and justice, that that entity continues to have an existence sufficient to contest that measure, and that the effect of any other conclusion would be that an organisation could be included on the list at issue without being able to bring an action challenging its inclusion. However, in the present case, Sanabel has not been subject to restrictive measures since 17 October 2013 (see paragraph 20 above).

46 There is, therefore, no longer any need to adjudicate on the action in so far as it concerns Sanabel.

The legal interest of Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah in bringing proceedings

47 In their observations concerning the resumption of the written procedure of 12 September 2013, the applicants submit that, despite the removal of their names from the list at issue by Implementing Regulation No 640/2011, they still have a legal interest in bringing proceedings. They rely in this regard on the case-law resulting from the judgment of 28 May 2013 in Abdulrahim v Council and Commission (C‑239/12 P, ECR, EU:C:2013:331).

48 First, it should be borne in mind that, 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 the action will be inadmissible. That interest 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 to the party bringing it (see judgment of 7 June 2007 in Wunenburger v Commission, C‑362/05 P, ECR, EU:C:2007:322, paragraph 42 and the case-law cited, and judgment in Abdulrahim v Council and Commission, cited in paragraph 47 above, EU:C:2013:331, paragraph 61 and the case-law cited).

49 However, the Court of Justice has acknowledged that an applicant’s interest in bringing proceedings did not necessarily disappear because the act challenged by him had ceased to have effect in the course of proceedings. Thus, the question whether an applicant retains his interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained (judgment in Abdulrahim v Council and Commission, cited in paragraph 47 above, EU:C:2013:331, paragraphs 62 and 65).

50 Secondly, the restrictive measures adopted under Regulation No 881/2002 have substantial negative consequences and a considerable impact on the rights and freedoms of the persons covered. Apart from the freezing of funds as such which, through its broad scope, seriously disrupts both the working and the family life of the persons covered and impedes the conclusion of numerous legal acts, account must be taken of the opprobrium and suspicion that accompany the public designation of the persons covered as being associated with a terrorist organisation (see judgment in Abdulrahim v Council and Commission, cited in paragraph 47 above, EU:C:2013:331, paragraph 70 and the case-law cited).

51 Thus, the applicants’ interest in bringing proceedings is retained, despite the removal of their names from the list at issue. Whilst recognition of the illegality of the contested act cannot, as such, compensate for material harm or for interference with one’s private life, it is nevertheless capable of rehabilitating them or of constituting a form of reparation for the non-material harm which they have suffered by reason of that illegality, and of thereby establishing that they retain their interest in bringing proceedings (see judgment in Abdulrahim v Council and Commission, cited in paragraph 47 above, EU:C:2013:331, paragraphs 71 and 72). Consequently, the applicants still have an interest in bringing proceedings irrespective of the removal of their names from the list at issue.

52 It follows from the foregoing that the action is admissible in so far as it concerns Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah.

53 In support of the action, Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah rely on four pleas in law, one of which concerns the review procedure adopted in respect of Sanabel. Since there is no longer any need to adjudicate on the action brought by Sanabel, it is appropriate for the Court to confine itself to addressing the following three pleas. The first plea alleges that the Commission deliberately ignored the binding case-law of the Court of Justice and failed to carry out an independent review of the inclusion of Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah on the list at issue or to require reasons for that listing. The second plea alleges, essentially, breach of the obligation to state reasons. The third plea alleges breach of the right to property and of the right to respect for private life.

The first plea in law, alleging procedural irregularity in the review conducted by the Commission

54 In the first place, Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah submit that the Commission did not take account of the principles set out in the following: the judgment of 3 September 2008 in Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, ECR, EU:C:2008:461); the judgment of 30 September 2010 in Kadi v Commission (T‑85/09, ECR, EU:T:2010:418); and the judgment in Kadi II, cited in paragraph 23 above (EU:C:2013:518). They emphasise most particularly that the Commission did not take into account the fact that it was required to supply Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah with the necessary information to allow them to contest the allegations against them. They also allege that the Commission failed to take into account their request for new information or evidence.

55 In the second place, Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah submit that the Commission took its decision without having undertaken a proper review of their situation. They maintain that the Commission gave its decision solely on the basis of the statement of reasons supplied by the Sanctions Committee, without having received the information or details on which that statement was based.

56 In the third place, Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah argue that the review procedure took an excessively long time and that they were therefore unable to seek a legal remedy because of the absence of any substantive decision.

57 In the fourth place, Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah criticise the Commission’s failure to conduct a proper review of their situation because it reproduced the conclusions of the Sanctions Committee automatically and without a hearing.

58 The Commission, supported by the Council, disputes the arguments put forward by Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah.

59 In the present case, as regards the review procedure adopted in this instance, it must be noted that, according to settled case-law, respect for the rights of the defence, which is affirmed in Article 41(2) of the Charter of Fundamental Rights of the European Union, includes the right to be heard and the right to have access to the file, subject to legitimate interests in maintaining confidentiality (see judgment in Kadi II, cited in paragraph 23 above, EU:C:2013:518, paragraph 99 and the case-law cited).

60 The right to effective judicial protection, affirmed in Article 47 of the Charter of Fundamental Rights, requires, moreover, that the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based, either by reading the decision itself or by requesting and obtaining disclosure of those reasons, without prejudice to the power of the court having jurisdiction to require the authority concerned to disclose that information, so as to make it possible for him to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his applying to the court having jurisdiction, and in order to put the latter fully in a position to review the lawfulness of the decision in question (see judgment in Kadi II, cited in paragraph 23 above, EU:C:2013:518, paragraph 100 and the case-law cited).

61 Article 52(1) of the Charter of Fundamental Rights nevertheless allows limitations on the exercise of the rights enshrined in the Charter, subject to the conditions that the limitation concerned respects the essence of the fundamental right in question and, subject to the principle of proportionality, that it is necessary and genuinely meets objectives of general interest recognised by the European Union (see judgment in Kadi II, cited in paragraph 23 above, EU:C:2013:518, paragraph 101 and the case-law cited).

62 Further, the question whether there is an infringement of the rights of the defence and of the right to effective judicial protection must be examined in relation to the specific circumstances of each particular case, including the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question (see judgment in Kadi II, cited in paragraph 23 above, EU:C:2013:518, paragraph 102 and the case-law cited).

63 In proceedings relating to the adoption of the decision to include the name of an individual on the list at issue, respect for the rights of the defence and the right to effective judicial protection requires that the competent EU authority disclose to the individual concerned the evidence against that person available to that authority and relied on as the basis of its decision, that is to say, at the very least, the summary of reasons provided by the Sanctions Committee, so that that individual is in a position to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in bringing an action before the Courts of the European Union (judgment in Kadi II, cited in paragraph 23 above, EU:C:2013:518, paragraph 111).

64 When that disclosure takes place, the competent EU authority must ensure that that individual is placed in a position in which he may effectively make known his views on the grounds advanced against him (see judgment in Kadi II, cited in paragraph 23 above, EU:C:2013:518, paragraph 112 and the case-law cited).

65 Thus, when comments are made by the individual or entity concerned on the summary of reasons, the competent EU authority is under an obligation to examine, carefully and impartially, whether the alleged reasons are well founded, in the light of those comments and any exculpatory evidence provided with those comments (see judgment in Kadi II, cited in paragraph 23 above, EU:C:2013:518, paragraph 114 and the case-law cited).

66 In the present case, first, it must be noted that Article 7c(3) of Regulation No 881/2002, as amended by Council Regulation (EU) No 1286/2009 of 22 December 2009 amending Regulation No 881/2002 (OJ 2009 L 346, p. 42), provides for a review procedure where the persons concerned submit observations in relation to their listing. Accordingly, where observations are submitted, the Commission is to review the decision to include the person concerned in the list at issue, in the light of those observations, in accordance with the procedure referred to in Article 7a(3) of Regulation No 881/2002. That procedure, expressly mentioned in recital 6 in the preamble to Regulation No 1139/2010, entails consultation of the EU Committee for Review of Listings. The Commission consulted that committee on 16 April 2010, eight months before Regulation No 1139/2010 was published, and, under point 4.2 of its agenda, the grounds for the listings of Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah were reviewed.

67 Furthermore, it must be noted that the Commission contacted the Sanctions Committee on 27 May 2010, sent it the observations submitted by Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah concerning their listings, and invited it to submit observations in that respect. The Sanctions Committee confirmed the listings of Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah to the Commission by letter of 14 September 2010, and also informed it of the fact that a request for removal had not been approved, which gave rise to a further letter from the Commission of 26 October 2010 seeking clarification of the reasons for the rejection of that request. On 3 May 2011, the Commission received a reply from the Sanctions Committee informing it of the removal of the three applicants’ names from the list, which prompted the Commission to interrupt the review procedure and remove the names of Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah from the list by means of Implementing Regulation No 640/2011.

68 Secondly, it is apparent from the documents in the file and the submissions at the hearing that the Commission informed Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah of the grounds for their inclusion on the list at issue. Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah were, moreover, able to communicate their observations to the Commission by letter of 13 August 2010. Consequently, Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah are not justified in maintaining that they did not have the necessary information for the review procedure.

69 Thirdly, as regards the Commission’s alleged delay in the review procedure, invoked by Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah, it must be noted that Article 7c of Regulation No 1286/2009 does not impose a fixed time-limit in respect of the review procedure and, moreover, that the names of Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah were removed from the list at issue by Implementing Regulation No 640/2011, that is six months after they were listed. That removal resulted in the closure of the review procedure previously initiated, since that procedure had become devoid of purpose. Furthermore, a matter being dealt with within the six months following the listing does not appear to constitute an excessively long administrative procedure. In addition, it is apparent from the documents in the file that the Commission was not inactive in dealing with the matter during that period, since, inter alia, it contacted the Member States and the Sanctions Committee. Consequently, Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah are wrong to criticise the Commission for delay in the review procedure in view, in particular, of the need for the Commission to consult the Sanctions Committee.

70 Fourthly, as regards the argument of Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah that the Commission reproduced the conclusions of the Sanctions Committee automatically and without a hearing, it is evident from the documents provided by the Commission and, in particular, its correspondence with the Sanctions Committee, first, that the Commission carried out a careful, independent and critical review of the parties’ observations, as well as of the listing decided upon by the Sanctions Committee, and, secondly, that the conclusions of the Sanctions Committee were not reproduced automatically, but on the contrary were subject to thorough personal scrutiny. Accordingly, the Commission has respected the three procedural guarantees referred to by the Court of Justice in the judgment in Kadi II, cited in paragraph 23 above (EU:C:2013:518), in particular the careful and impartial examination as to whether the alleged reasons are well founded in the light of the comments made and any evidence provided.

72 Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah claim that the review undertaken by the Commission was flawed because of the vague and insufficient nature of the statements of reasons, which prevented the applicants from being able to contest the allegations made against them. Moreover, the Commission neither gave details of the evidence on which those grounds were based nor responded to the observations or to the factual assertions made by Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah.

73 The Commission, supported by the Council, disputes the arguments put forward by Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah.

74 As regards the obligation to state reasons, it must be borne in mind that, according to a consistent body of case-law, the purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, secondly, to enable those Courts to review the legality of that act (judgments of 2 October 2003 in Corus UK v Commission, C‑199/99 P, ECR, EU:C:2003:531, paragraph 145; of 29 September 2011 in Elf Aquitaine v Commission, C‑521/09 P, ECR, EU:C:2011:260, paragraph 148; and of 15 November 2012 in Council v Bamba, C‑417/11 P, ECR, EU:C:2012:718, paragraph 49).

75 It is also settled case-law that the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review (judgments of 2 April 1998 in Commission v Sytraval and Brink’s France, C‑367/95 P, ECR, EU:C:1998:154, paragraph 63; of 10 July 2008 in Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, ECR, EU:C:2008:392, paragraph 166; and of 15 November 2012 in Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 138).

76 Lastly, without going so far as to require a detailed response to the comments made by the individual concerned, the obligation to state reasons laid down in Article 296 TFEU entails in all circumstances, not least when the reasons stated for the EU measure represent reasons stated by an international body, that that statement of reasons identifies the individual, specific and concrete reasons why the competent authorities consider that the individual concerned must be subject to restrictive measures (judgment in Kadi II, cited in paragraph 23 above, EU:C:2013:518, paragraph 116).

77 Consequently, it would be possible to rely solely on the statement of reasons placing the names of the persons concerned on the list at issue, provided that that statement contains the individual, specific and concrete reasons and those reasons remain valid in the light of the observations of the persons listed.

78 In the present case, recital 6 in the preamble to Regulation No 1139/2010 indicates that Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah have had an opportunity to submit observations on the Commission’s statements of reasons. In addition, as regards the reasons given in those statements, it must be noted, as does the Commission, that the statements of reasons provided to Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah give an explanation with names, dates and specific facts to support the reasons for including them on the list at issue, thus enabling them to articulate their defence. Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah admitted that they were aware of the content of the statements of reasons, as is evident from the documents in the file and exchanges during the hearing.

79 The reasons given in the statements of reasons are also based on additional detailed information, containing indicia common to Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah, namely fundraising, the provision of identity documents, transfer of funds for terrorist activities, involvement in the management of Sanabel and membership of the LIFG. Furthermore, as regards Mr Al-Faqih, mention must also be made of his conviction by the criminal courts of a Member State and of a third country. This information is, moreover, contained in the annexes to the application.

The third plea in law, alleging breach of the right to property and of the right to respect for private life

81 Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah argue that the Commission has not established to the requisite standard of proof that, at the time of the present application, they met the criteria set out in United Nations Security Council Resolution 1617 (2005). The ‘criminal standard of proof’ is relevant, according to Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah, in light of the length of time for which they have been listed and the severe and harsh impact of the listings on them.

82 The Commission, supported by the Council, disputes the arguments put forward by Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah.

83 It will be recalled that, under Article 44(1)(c) of the Rules of Procedure of 2 May 1991, an application initiating proceedings must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based, and that statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the application. It is therefore necessary for the essential points of law and of fact on which a case is based to be indicated coherently and intelligibly in the application itself (judgment of 9 January 2003 in Italy v Commission, C‑178/00, ECR, EU:C:2003:7, paragraph 6).

84 The application must accordingly specify the nature of the grounds on which the action is based, so that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure of 2 May 1991 (judgments of 12 January 1995 in Viho v Commission, T‑102/92, ECR, EU:T:1995:3, paragraph 68, and of 22 November 2006 in Italy v Commission, T‑282/04, EU:T:2006:358, paragraph 60).

85 Moreover, since the requirements under Article 44(1) of the Rules of Procedure of 2 May 1991 are a matter of public policy, it is for the Court to raise of its own motion the argument that those requirements have not been satisfied (judgments of 10 July 1990 in Automec v Commission, T‑64/89, ECR, EU:T:1990:42, paragraph 74, and of 14 February 2012 in Italy v Commission, T‑267/06, EU:T:2012:69, paragraphs 35 to 38).

86 In the present case, it must be noted that the arguments put forward by Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah in respect of breach of the right to property have not been developed. On the contrary, the points emphasised in the application relate to evidential requirements under criminal law.

87 At the hearing, the Court questioned Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah about the scope of the present plea. They explained that, by that plea, they were seeking to challenge the substance of the statements of reasons on which the Commission had based their relisting in the contested measures. They referred to that effect to paragraphs 65, 94 and 95 of the application and to their observations on the consequences of the judgment in Kadi II, cited in paragraph 23 above (EU:C:2013:518, paragraph 5) (see paragraph 28 above).

88 In that regard, it must be borne in mind that, according to the case-law cited in paragraph 82 above, the pleas on which the action is based must be set out in the application. The few references to paragraphs 94 and 95 of the application are purely abstract and do not relate to any of the grounds set out in the statements of reasons referred to above. Contrary to what is asserted by Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah, the failure to provide a clear and comprehensible explanation of the reasoning in the application cannot be cured by a reference to the annexes to the application, as is suggested in paragraph 65 of the application.

89 It is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (judgments of 7 November 1997 in Cipeke v Commission, T‑84/96, ECR, EU:T:1996:174, paragraph 34; of 21 March 2002 in Joynson v Commission, T‑231/99, ECR, EU:T:2002:84, paragraph 154; and of 14 December 2005 in Honeywell v Commission, T‑209/01, ECR, EU:T:2005:455, paragraph 57). The annexes cannot therefore serve as a basis for developing a plea set out in summary form in the application by putting forward complaints or arguments which are not contained in that application (see judgments of 30 January 2007 in France Télécom v Commission, T‑340/03, ECR, EU:T:2007:22, paragraph 167 and the case-law cited, and of 29 March 2012 in Telefónica and Telefónica de España v Commission, T‑336/07, ECR, EU:T:2012:172, paragraphs 59 and 60 and the case-law cited).

90 Consequently, the third plea in law must be rejected, and the action must therefore be dismissed in its entirety.

91 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.

92 Under Article 137 of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.

93 However, under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. The United Kingdom of Great Britain and Northern Ireland and the Council shall thus bear their own costs.

2) Orders Mr Al-Bashir Mohammed Al-Faqih, Mr Ghunia Abdrabbah and Mr Taher Nasuf to bear their own costs and to pay those incurred by the European Commission;

3) Orders the United Kingdom of Great Britain and Northern Ireland and the Council of the European Union to bear their own costs.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Al-Faqih and Others v Commission (Judgment) [2015] EUECJ T-134/11 (28 October 2015) URL: http://www.bailii.org/eu/cases/EUECJ/2015/T13411.html Cite as: ECLI:EU:T:2015:812, [2015] EUECJ T-134/11, EU:T:2015:812

Court of Justice of the European Communities (including Court of First Instance Decisions)