Case T-341/07

Jose Maria Sison

v

Council of the European Union

‛Common foreign and security policy — Restrictive measures against certain persons and entities with a view to combating terrorism — Common Position 2001/931/CFSP and Regulation (EC) No 2580/2001 — Actions for annulment — Adaptation of heads of claim — Judicial review — Statement of reasons — Conditions for implementation of a Community measure freezing funds’

Judgment of the Court of First Instance (Seventh Chamber), 30 September 2009   II ‐ 3629

Summary of the Judgment

1. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to freeze funds directed against certain persons and entities with a view to combating terrorism

   (Art. 253 EC; Council Common Position No 2001/931, Art. 1(6); Council Regulation No 2580/2001, Art. 2(3))

2. Actions for annulment — Pleas in law — Lack of or inadequate statement of reasons — Plea distinct from that of the lawfulness of the contested measure

   (Arts 230 EC and 253 EC)

3. European Union — Common foreign and security policy — Restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds

   (Council Common Position No 2001/931, Article 1(4); Council Regulation No 2580/2001, Art. 2(3))

4. European Union — Common foreign and security policy — Restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds

   (Council Common Position No 2001/931, recital 1 and Article 1(4); Council Regulation No 2580/2001, Art. 2(3))

5. European Union — Common foreign and security policy — Restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds

   (Council Common Position No 2001/931, Arts 1(4) and 6; Council Regulation No 2580/2001, Art. 2(3))

1.  Both the statement of reasons for an initial decision to freeze funds and the statement of reasons for subsequent decisions must refer not only to the legal conditions of application of Regulation No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, in particular the existence of a national decision taken by a competent authority, but also to the actual and specific reasons why the Council considers, in the exercise of its discretion, that the person concerned must be made the subject of a measure freezing funds.

   Furthermore, it is clear from Article 1(6) of Common Position 2001/931, on the application of specific measures to combat terrorism, also referred to by Article 2(3) of Regulation No 2580/2001, that, while subsequent fund-freezing decisions must indeed be preceded by review of the situation of the person concerned, that is in order to ascertain whether continuing to include him in the list at issue remains justified, where appropriate on the basis of new information or evidence. However, when the grounds of a subsequent decision to freeze funds are in essence the same as those already relied on when a previous decision was adopted, a mere statement to that effect may suffice, particularly when the person concerned is a group or entity.

   In this respect, the broad discretion enjoyed by the Council with regard to the matters to be taken into consideration for the purpose of adopting or of maintaining in force a measure freezing funds extends to the evaluation of the threat that may be represented by an organisation having in the past committed acts of terrorism, notwithstanding the suspension of its terrorist activities for a certain period. In those circumstances, the Council cannot be required to state with greater precision in what way freezing the applicant’s funds may in concrete terms contribute to the fight against terrorism or to produce evidence to show that the applicant might use his funds to commit or facilitate acts of terrorism in the future.

   (see paras 60-62, 65, 66)

2.  With regard to an action for annulment, the obligation to state reasons constitutes an essential procedural requirement which must be distinguished from the issue of the validity of the reasoning, the latter falling within the ambit of the substantive lawfulness of the contested act. Thus, a challenge to the merits of that reasoning may not be examined at the stage of verifying whether the obligation laid down by Article 253 EC has been performed.

   (see para. 67)

3.  When adopting a decision to freeze funds taken pursuant to Regulation No 2580/2001 and Common Position 2001/931 on the application of specific measures to combat terrorism, the Council sends a statement of the reasons for that decision to the persons affected by it. When, in that statement of the reasons, the Council refers to several national decisions which could be alleged in theory to have been taken by competent authorities for the purpose of Article 1(4) of that Common Position, and then affirms in its defence and confirms at the hearing that only certain of those national decisions were used as the basis for the contested decision to freeze funds, in the light of that latter provision such explanations are tantamount to a formal admission which must benefit the applicant, for they are not clearly inconsistent with the actual wording of the decision to freeze funds at issue.

   (see paras 100-103)

4.  In determining the purport of a provision of Community law, its wording, context and objectives must all be taken into account. Having regard both to the wording, context and objectives of the relevant provisions of Common Position 2001/931, on the application of specific measures to combat terrorism, (see, especially, the first recital in the preamble to that Common Position) and Regulation No 2580/2001, on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, and to the major part played by the national authorities in the fund-freezing process provided for in Article 2(3) of that regulation, a decision to ‘instigat[e] … investigations or prosecut[e]’ must, if the Council is to be able validly to invoke it, form part of national proceedings seeking, directly and chiefly, the imposition on the person concerned of measures of a preventive or punitive nature, in connection with the combating of terrorism and by reason of that person’s involvement in terrorism. That requirement is not satisfied by a decision of a national judicial authority ruling only incidentally and indirectly on the possible involvement of the person concerned in such activity, in relation to a dispute concerning, for example, rights and duties of a civil nature.

   (see paras 110, 111)

5.  When the Council contemplates adopting or maintaining, after review, a fund-freezing measure pursuant to Regulation No 2580/2001, on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, on the basis of a national decision for the ‘instigation of investigations or prosecution’ for an act of terrorism, it may not disregard subsequent developments arising out of those investigations or that prosecution. It may thus happen that police or security enquiries are closed without giving rise to any judicial consequences, because it proved impossible to gather sufficient evidence, or that measures of investigation ordered by the investigating judge do not lead to proceedings going to judgment for the same reasons. Similarly, a decision to prosecute may end in the abandoning of the prosecution or in acquittal in the criminal proceedings. It would be unacceptable for the Council not to take account of such matters, which form part of the body of information having to be taken into account in order to assess the situation. To decide otherwise would be tantamount to giving the Council and the Member States the excessive power to freeze a person’s funds indefinitely, beyond review by any court and whatever the result of any judicial proceedings taken.

   (see para. 116)