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Document 62009CP0550

View of Advocate General Mengozzi delivered on 17 May 2010.
Criminal proceedings against E and F.
Reference for a preliminary ruling: Oberlandesgericht Düsseldorf - Germany.
Common foreign and security policy - Specific restrictive measures directed against certain persons and entities with a view to combating terrorism - Common Position 2001/931/CFSP - Regulation (EC) No 2580/2001 - Articles 2 and 3 - Inclusion of an organisation on the list of persons, groups and entities implicated in acts of terrorism - Transfer to an organisation, by members of that organisation, of funds originating from the collection of donations and the sale of publications.
Case C-550/09.

European Court Reports 2010 I-06213

ECLI identifier: ECLI:EU:C:2010:272

VIEW OF ADVOCATE GENERAL

MENGOZZI

delivered on 17 May 2010 1(1)

Case C‑550/09

Der Generalbundesanwalt beim Bundesgerichtshof

v

E,

F

(Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany))

(Specific restrictive measures directed against certain persons and entities with a view to combating terrorism – Council Decision including an organisation on the list provided for in Article 2(3) of Regulation (EC) No 2580/2001 – Legality – Prohibition on making economic resources available to an organisation on that list – Scope)





1.        This reference for a preliminary ruling concerns (i) the legality of the inclusion on the list of persons, groups and entities covered by Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (2) of an organisation which has not contested before the courts the fund-freezing measures concerning it and (ii) the interpretation of Articles 2 and 3 of that regulation.

I –  Legal framework

A –    United Nations Security Council Resolution 1373 (2001)

2.        On 28 September 2001, the United Nations Security Council (‘the UN Security Council’) adopted Resolution 1373 (2001) on strategies to combat terrorism and, in particular, the financing of terrorism, by any means. Point 1(c) of the Resolution provides, inter alia, that all States are to freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled by such persons; and of persons and entities acting on behalf of or at the direction of such persons and entities.

B –    Common Positions 2001/930/CFSP and 2001/931/CFSP

3.        On 27 December 2001, on the view that action by the European Community was necessary in order to implement Security Council Resolution 1373 (2001), the Council of the European Union adopted, under Articles 15 EU and 34 EU, Common Position 2001/930/CFSP on combating terrorism (3) and Common Position 2001/931/CFSP on the application of specific measures to combat terrorism. (4)

4.        Article 1(1) of Common Position 2001/931 states that the Common Position applies ‘to persons, groups and entities involved in terrorist acts and listed in the Annex’.

5.        Article 1(2) and (3) of Common Position 2001/931 defines what is meant by ‘persons, groups and entities involved in terrorist acts’ and ‘terrorist act’ respectively.

6.        Article 1(4) of Common Position 2001/931 provides that the list in the Annex is to be drawn up on the basis of precise information or material in the relevant file which indicates that a decision has been taken by a competent authority in respect of the persons, groups and entities concerned, irrespective of whether it concerns the instigation of investigations or prosecution for a terrorist act, an attempt to perpetrate, participate in or facilitate such an act based on serious or credible evidence or clues, or condemnation for such deeds. ‘Competent authority’ is defined as a judicial authority or, where judicial authorities have no competence in the matter, an equivalent competent authority in that area.

7.        Article 1(6) of Common Position 2001/931 provides that the names of persons and entities on the list in the Annex are to be reviewed at regular intervals and at least once every six months to ensure that there are grounds for keeping them on the list.

8.        Under Articles 2 and 3 of Common Position 2001/931, the Community, acting within the limits of the powers conferred on it by the EC Treaty, is to order the freezing of the funds and other financial assets or economic resources of persons, groups and entities listed in the Annex and to ensure that funds, financial assets or economic resources or financial services are not made available for their benefit, directly or indirectly.

C –     Regulation No 2580/2001 and the decisions implementing Article 2(3) thereof

9.        On 27 December 2001, on the view that a regulation was necessary in order to implement at Community level the measures described in Common Position 2001/931, the Council adopted Regulation No 2580/2001 on the basis of Articles 60 EC, 301 EC and 308 EC.

10.      Article 2(1)(a) of that regulation provides that, except as otherwise permitted, all funds held by a natural or legal person, group or entity included in the list referred to in Article 2(3) are to be frozen.

11.      Similarly, Article 2(1)(b) of that regulation provides that ‘no funds, other financial assets and economic resources shall be made available, directly or indirectly, to, or for the benefit of, a natural or legal person, group or entity included in the list referred to in [Article 2(3)]’. Article 2(2) prohibits the provision of financial services to, or for the benefit of, such persons, groups or entities.

12.      Under Article 2(3) of Regulation No 2580/2001, the Council, acting by unanimity, is to establish, review and amend the list of persons, groups and entities to which the regulation applies, in accordance with the provisions laid down in Article 1(4), (5) and (6) of Common Position 2001/931.

13.      Article 9 of Regulation No 2580/2001 provides that each Member State is to determine the sanctions to be imposed where the provisions of the regulation are infringed and that such sanctions are to be effective, proportionate and dissuasive.

14.      The initial list of persons, groups and entities to which Regulation No 2580/2001 was to apply was drawn up by Council Decision 2001/927/EC of 27 December 2001 establishing the list provided for in Article 2(3) of Regulation No 2580/2001. (5)

15.      By Decision 2002/334/EC of 2 May 2002 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2001/927, (6) the Council adopted an updated list of the persons, groups and entities to which that regulation was to apply. As entry No 10 of Section 2, entitled ‘Groups and entities’, that list includes the ‘Revolutionary People’s Liberation Army/Front/Party (DHKP-C), (a.k.a. Devrimci Sol (Revolutionary Left), Dev Sol) (“DHKP-C”)’.

16.      The list provided for in Article 2(3) of Regulation No 2580/2001 has been regularly updated by a number of later decisions, including Council Decision 2006/379/EC of 29 May 2006 implementing Article 2(3) of Regulation (EC) No 2580/2001 and repealing Decision 2005/930/EC. (7) Those measures have always kept the name of the DHKP-C on the list.

17.      It emerges from recitals 3 to 7 in the preamble to Council Decision 2007/445/EC of 28 June 2007 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decisions 2006/379/EC and 2006/1008/EC, (8) that the Council provided all the persons, groups and entities for which this was practically possible with a statement of reasons explaining why they were on the list contained in Decision 2006/379. By a notice published in the Official Journal of the European Union of 25 April 2007, (9) the Council informed them of its intention to maintain them on the list and of the fact that they could submit to the Council a request for the statement of reasons. Following a complete review of the list in the light of the observations and documents which had been submitted to it by a number of persons, groups and entities concerned, the Council concluded that the persons, groups and entities listed in the Annex to Decision 2007/445 had been involved in terrorist acts within the meaning of Article 1(2) and (3) of Common Position 2001/931; that a decision had been taken with respect to them by a competent authority within the meaning of Article 1(4) of that Common Position; and that they should continue to be subject to the specific restrictive measures provided for in Regulation No 2580/2001.

18.      The DHKP-C is listed as entry No 26 in Section 2, entitled ‘Groups and Entities’, of the list set out in the Annex to Decision 2007/445, which – pursuant to Articles 1 and 2 of that decision – replaces, inter alia, the list set out in Decision 2006/379.

D –    National law

19.      On the basis of Article 9 of Regulation No 2580/2001, the Federal Republic of Germany decided to provide criminal penalties for infringements of the prohibitions laid down in that regulation.

20.      In the version applicable up until 7 April 2006, Paragraph 34(4) of the German Law on Foreign Trade (Außenwirtschaftsgesetz; ‘the AWG’) was worded as follows:

‘A person who infringes a provision of this law or of a regulation adopted on the basis of this law or a legislative measure of the European Communities aimed at restricting trade and published in the Bundesgesetzblatt or the Bundesanzeiger, which serves to implement an economic sanction adopted by the Security Council … in accordance with Chapter VII of the United Nations Charter shall be liable to punishment in the form of a custodial sentence of not less than two years. In less serious cases, the penalty shall be a prison sentence of between three months and five years.’

21.      Following an amendment of that law, the current version of Paragraph 34(4)(2) of the AWG is worded as follows:

‘A person who

Subparagraph 4:

2.      infringes a directly applicable prohibition, published in the Bundesanzeiger, on exports, … sales, supply, provision, transmission, delivery of services, investment, support or circumvention, laid down in a legislative measure of the … Communities which serves to implement an economic sanction adopted by the Council … in the area of the Common Foreign and Security Policy, shall be liable to punishment in the form of a custodial sentence of between six months and five years.’

22.      Paragraph 34(6)(2) of the AWG provides that ‘a person who, in the course of business or as a member of a gang formed with a view to the continuing commission of such offences, in collaboration with another member of the gang, commits an act referred to in subparagraphs 1, 2 or 4 shall be liable to punishment in the form of a custodial sentence of not less than two years’.

E –    Judgments of the Court of First Instance of the European Communities (‘now the General Court’) on the lawfulness of decisions concerning inclusion on the list referred to in Article 2(3) of Regulation No 2580/2001

23.      By a series of judgments delivered between 2006 and 2008, the General Court upheld actions brought by individuals or organisations on the list provided for in Article 2(3) of Regulation No 2580/2001 for annulment of the Council measures by which they had been included on that list.

24.      In the first of those judgments, delivered on 12 December 2006 in Case T‑228/02 Organisation des Modjahedines du peuple d’Iran v Council, (10) the General Court annulled the Council decision making the measures provided for in Regulation No 2580/2001 applicable to the applicant organisation.

25.      In the grounds of that judgment, with regard first of all to the infringement of the applicant organisation’s right to a fair hearing, the General Court began by pointing out that respect for those rights is a fundamental principle of Community law and that that principle requires that any person on whom a penalty could be imposed be placed in a position in which he can effectively make known his view of the matters on which the penalty is based. (11)

26.      The Court went on to dismiss the argument put forward by the Council and the United Kingdom of Great Britain and Northern Ireland to the effect that such a safeguard could not be invoked in the context of the adoption of a decision to freeze funds under Regulation No 2580/2001, (12) pointing out in this regard that the decision contested by the OMPI, while being of a legislative nature and of general application, was of direct and individual concern to the applicant, in relation to which it constituted an act imposing an individual economic and financial sanction. (13)

27.      Accordingly, the Court went on to define the purpose of safeguarding the right to a fair hearing in the context of the dispute, drawing a distinction to that end between, on the one hand, the initial decision to freeze funds, referred to in Article 1(4) of Common Position 2001/931, and, on the other, the subsequent decisions – referred to in Article 1(6) of that Common Position – to maintain the freezing of funds following periodic review. According to the Court, in the former case, observance of the right to a fair hearing requires in principle, first, that the party concerned be informed by the Council of the specific information or material in the file which indicates that a decision meeting the definition given in Article 1(4) of Common Position 2001/931 has been taken in respect of it by a competent authority of a Member State and, secondly, that it must be placed in a position in which it can effectively make known its view on the information or material in the file. In the latter case, observance of the right to a fair hearing similarly requires, first, that the party concerned be informed of the information or material in the file which, in the view of the Council, justifies maintaining it on the disputed lists and, secondly, that it must be afforded the opportunity effectively to make known its view on the matter. (14)

28.      With regard, secondly, to the obligation to state reasons, the Court held that, unless precluded by overriding considerations concerning the security of the Community or its Member States, or the conduct of their international relations, the statement of reasons for an initial decision to freeze funds must at least make actual and specific reference to each of the aspects justifying its adoption, in accordance with Article 1(4) of Common Position 2001/931, as well as, where applicable, to any new evidence, and state the reasons why the Council considers, in the exercise of its discretion, that such a measure must be taken in respect of the party concerned. The Court also held, subject to the same reservations, that the statement of reasons for a subsequent decision to freeze funds must state the actual and specific reasons why the Council considers, following re-examination, that the freezing of the funds of the party concerned remains justified.

29.      With regard, thirdly, to the right to effective judicial protection, the Court emphasised that the review of the lawfulness of a decision to freeze funds taken under Article 2(3) of Regulation No 2580/2001 extends to the assessment of the facts and circumstances relied on as justifying it, and to verification of the evidence and information on which that assessment is based. That review must also cover observance of the right to a fair hearing and the requirement of a statement of reasons, as well as, where applicable, the question whether the overriding considerations relied on exceptionally by the Council in disregarding those rights are well founded. (15) The Court pointed out that that review ‘is all the more imperative because it constitutes the only procedural safeguard ensuring that a fair balance is struck between the need to combat international terrorism and the protection of fundamental rights’. (16)

30.      Applying the principles thus developed to the case before it, the Court noted, first, that ‘the relevant legislation, namely Regulation No 2580/2001 and Common Position 2001/931 to which it refers, does not explicitly provide for any procedure for notification of the evidence adduced or for a hearing of the parties concerned, either before or concomitantly with the adoption of an initial decision to freeze their funds or, in the context of the adoption of subsequent decisions, with a view to having them removed from the disputed list’. (17) Next, the Court found that at no time before the action was brought had the evidence adduced against the applicant been notified to it. The same considerations were considered to be applicable, mutatis mutandis, to the determination of whether the obligation to state reasons had been fulfilled. Lastly, the Court stated that, in the absence of any statement, in the contested decision, of the actual and specific grounds justifying that decision, it was not in a position to review the lawfulness of that decision. It therefore concluded that the contested decision did not state the reasons on which it was based; that it had been adopted in a procedure during which the applicant’s right to a fair hearing had not been observed; and that it, the Court, was not in a position to review the lawfulness of that decision.

31.      The Court therefore annulled the contested decision ‘in so far as it concerns the applicant’.

32.      In a number of later judgments, the General Court upheld actions brought by organisations (18) or individuals (19) on the list in question, on grounds broadly similar to those set out above. In all those cases, the Court annulled the contested decisions only in so far as they concerned the applicant organisation or individual.

II –  The main proceedings and the questions referred

33.      The criminal proceedings concerning E and F (‘the defendants) are based on an indictment issued by the Generalbundesanwalt beim Bundesgerichtshof (Germany) (Federal Attorney General at the German Federal Court of Justice; the ‘Generalbundesanwalt’) on 6 October 2009 in which they are charged with having been members of the DHKP-C from 30 August 2002 until 5 November 2008, the date of their arrest, the aim of that organisation being, according to that indictment, to overthrow the Turkish political order by means of armed struggle. Those charges of belonging to a terrorist group abroad are the basis on which they were placed in pre-trial detention.

34.      The indictment further states that, throughout the period of their membership of the DHKP-C, the defendants were responsible for running geographical sub-units (‘Bölge’) of that organisation in Germany and, as part of their main task of raising funds for that organisation, organised annual campaigns to collect donations, which they transferred to its leadership. In addition, they played a crucial role in the organisation and conduct of events and in the sale of party publications intended to generate income for the DHKP-C, and transferred those funds to the latter. They were not unaware that the funds thus raised were intended, at least in part, to finance the organisation’s terrorist activities.

35.      One of the two defendants is also alleged to have selected suitable couriers for transporting weapons and explosives to Turkey and to have procured inking and embossing seals for the purpose of forging identity documents for DHKP-C members.

36.      During the period covered by the indictment, one of the defendants is alleged to have collected and transferred to the organisation at least EUR 215 809 and the other at least EUR 105 051.

37.      In that context, the referring court has a number of doubts concerning Regulation No 2580/2001.

38.      First of all, it states that the judgments of the General Court referred to in points 23 to 32 of this View (‘the judgments of the General Court’) give rise to doubts as to the legality of the DHKP-C’s inclusion on the list provided for in Article 2(3) of that regulation.

39.      It notes, however, that, in the indictment issued by the Generalbundesanwalt, it is alleged, first, that the inclusion of the DHKP-C on the list is ‘effective’ from the outset as it has not been found to be invalid in the course of judicial proceedings and, secondly, that, even if the organisation’s inclusion was not legal initially, it was legitimated ex post facto by means of the amended procedure for the implementation of Article 2(3) of Regulation No 2580/2001, which was followed for the purposes of adopting Decision 2007/445.

40.      According to the referring court, however, one of the defendants maintains that the DHKP-C’s inclusion on the list is invalid at the very least in relation to the period prior to the amendment of the procedure in question and that such inclusion cannot therefore constitute the basis for categorising as criminal offences the acts of which he is accused, notwithstanding the fact that the organisation in question has not contested its inclusion on the list before the courts.

41.      Secondly, the referring court has doubts as to the applicability of Regulation No 2580/2001 to a person who is himself a member of an organisation included on the list drawn up pursuant to Article 2(3) of that regulation, where that person provides funds, other financial assets and economic resources to that organisation, or participates in such provision or in activities designed to circumvent Article 2 of the regulation.

42.      Thirdly, assuming that the scope ratione personae of Regulation No 2580/2001 covers the members of a listed organisation, the referring court is uncertain whether the receipt of funds by a member responsible for collecting donations and their subsequent transfer within the organisation by that member fall within the scope ratione materiae of Articles 2 and 3 of the regulation.

43.      In the light of those various doubts, the Oberlandesgericht Düsseldorf (Germany) decided to refer the following questions to the Court:

‘(1)      Taking account, if appropriate, of the amended procedure resulting from [Decision 2007/445], is the listing on the basis of Article 2 of [Regulation No 2580/2001] of an organisation which has not brought proceedings contesting the decisions concerning it to be regarded as effective (“wirksam”) from the outset even if basic procedural guarantees were infringed in listing it?

(2)      Are Articles 2 and 3 of [Regulation No 2580/2001] to be interpreted as meaning that funds, financial assets and economic resources are made available to a legal person, group or entity included in the list referred to in Article 2(3) of the regulation, that there is involvement in such provision or that there is participation in activities to circumvent Article 2 of the regulation even where the provider is, himself, a member of the legal person, group or entity?

(3)      Are Articles 2 and 3 of [Regulation No 2580/2001] to be interpreted as meaning that funds, financial assets and economic resources are made available to a legal person, group or entity included in the list referred to in Article 2(3) of the regulation, that there is involvement is such provision or that there is participation in activities to circumvent Article 2 of the regulation even where the asset to be provided already is, if only in the broader sense, accessible to the legal person, group or entity?’

III –  Procedure before the Court of Justice

44.      The order for reference, dated 21 December 2009, was received at the Court on 29 December 2009. It contained a reference to the fourth paragraph of Article 267 TFEU.

45.      By separate document of 5 February 2010 which was received at the Court Registry on 11 February 2010, the referring court asked the Court of Justice to apply the accelerated procedure to this case. In support of its request, it stated that, by order of 25 January 2010, it had opened the defendants’ criminal trial and set the hearings for the period between 11 March 2010 and 31 August 2010. It expressed the view that, given the likely duration of the trial and the importance, for the case before it, of the questions referred, a ruling on those questions was a matter of exceptional urgency.

46.      By order of the President of the Court of 1 March 2010, it was decided to apply the accelerated procedure to the case.

47.      Written observations have been lodged by the Generalbundesanwalt, E, F, the French Government, the Council and the Commission. With the exception of the French Government, those interested parties also presented oral argument at the hearing on 12 May 2010.

IV –  Question 1

A –    Preliminary remarks

48.      By way of preface, it is appropriate to give some thought, briefly, to the role played by Regulation No 2580/2001 in the criminal proceedings before the referring court and to the interplay between rules of criminal and civil law, at both national and Community level, which characterises the legislative context in which the charges have been brought against the defendants. It is appropriate next to consider the scope of the question referred to the Court for a preliminary ruling.

1.      The role played in the criminal proceedings before the referring court by Regulation No 2580/2001

49.      It is true that, as the Generalbundesanwalt states, neither the provisions of Regulation No 2580/2001 nor the measures adopted by the Council pursuant to Article 2(3) of that regulation are penal in nature. (20)

50.      Nor does that regulation require – at least, not in so many words – that failure to comply with the rules laid down therein should constitute a criminal offence at national level. Indeed, Article 9 of that regulation, which provides that each Member State is to determine the sanctions to be imposed for infringement of the regulation, states merely that such sanctions must be ‘effective, proportionate and dissuasive’.

51.      However, by virtue of the reference made by the German legislature, the provisions of Regulation No 2580/2001, read in conjunction with the Council decisions drawing up and updating the list provided for in Article 2(3) of the regulation, determine the content of the penal provision on which the indictment issued against the defendants is based. That mechanism is illustrated by the very wording of that penal provision.

52.      As we saw earlier, (21) Paragraph 34(4) of the AWG, in the various versions applicable to the facts of the case ratione temporis, simply provides for a custodial sentence (of not less than two years in the version of that provision applicable until 7 April 2006 and of between six months and five years in the version applicable subsequently), and states that the penalty is to apply to ‘any person who infringes a legislative measure of the … Communities aimed at restricting external trade … which serves to implement an economic sanction adopted by the Security Council … in accordance with Chapter VII of the United Nations Charter’ (version applicable up until 7 April 2006) or to ‘a person who infringes a … prohibition on exports, … sales, supply, provision, transmission, delivery of services, investment, support or circumvention, laid down in a legislative measure of the … Communities which serves to implement an economic sanction adopted by the Council … in the area of the Common Foreign and Security Policy’ (version applicable after 7 April 2006).

53.      Thus, in Paragraph 34(4) of the AWG, the German legislature had recourse to the technique of attributing criminal liability through a reference to other legislation. Accordingly, as the Generalbundesanwalt points out in its written observations, ‘the punishability under German law of the acts at issue [in the main proceedings] flows from that provision and from the [EU] measures to which that provision refers, that is to say, from Regulation No 2580/2001, read in conjunction with the various Council decisions’ which have included and kept the name of the DHKP-C on the list provided for in Article 2 of the regulation.

54.      More specifically, as a result of that reference, the EU measures in question whollydetermine the punishable conduct: they do not merely determine one of the elements – a legal or factual premiss – which go to make up that conduct. As we shall see, such a finding is not without its significance in relation to the answer to be given to Question 1.

2.      The scope of the question referred to the Court

55.      As it is worded, Question 1 would seem to be asking the Court only about the effectiveness, in the light of the judgments of the General Court, of including on the list provided for in Article 2(3) of Regulation No 2580/2001 (‘the list’) an organisation which has not challenged the Council decisions by which this was done. That is how the question is construed by the French Government, which maintains in its written observations before the Court that the referring court refrained from raising any question as to the validity of the decisions to freeze DHKP‑C’s funds.

56.      However, such an interpretation, which the Council adopted at the hearing, does not seem to me to be correct in the light of the considerations set out in the order for reference, taken as a whole.

57.      First, the fact that the question is framed in terms of the ‘effectiveness’ (‘wirksam[keit]’) rather than the ‘validity’ (‘Gültigkeit’) of the measures in question seems to be due essentially to the fact that the referring court is also uncertain as to the consequences of the amended procedure for inclusion on the list, in particular – as was explained in the grounds of the order for reference – as regards the possibility that, in introducing that amendment, Decision 2007/445 rectified those measures retroactively.

58.      Secondly, it emerges from the order for reference that the question of the validity and/or the existence of the measures including the DHKP-C on the list was indeed raised by the defendants in the course of the main proceedings.

59.      Thirdly, paragraph 40 of the order for reference states that ‘[i]n the view of the referring Chamber, reference to the Court of Justice under the preliminary ruling procedure in accordance with point (b) of the first paragraph and the second paragraph of Article 267 TFEU is not inadmissible simply because the DHKP-C has not brought proceedings … challenging the decisions taken against it for the purposes of implementing Article 2(3) of Regulation No 2580/2001’. That statement is followed, inter alia, by an assessment of the applicability to this case of the principles established by the Court in TWD Textilwerke Deggendorf, (22) to which I shall return. That statement and the assessment that follows would not have been necessary if the referring court had not intended to ask the Court about the lawfulness of the measures in question.

60.      Nevertheless, it is for the Court of Justice to extract from all the information provided by the national court those points of EU law whose validity, having regard to the subject-matter of the dispute, requires appraisal. (23)

61.      On the basis of the above considerations, it is therefore appropriate to take the view that, by Question 1, the Oberlandesgericht Düsseldorf is asking the Court, in essence, to give a ruling, in the light of the judgments of the General Court, on the effectiveness and the validity of the measures adopted by the Council prior to Decision 2007/445 and by which an organisation – in this case, the DHKP-C, which has not contested those measures before the courts – was first of all included and then maintained on the list, account being taken where appropriate of the amendment of the detailed rules governing the inclusion procedure introduced by Decision 2007/445.

62.      On the other hand, no question has been raised in relation to the validity of Decision 2007/445, despite the issues which appear to have been raised in the written observations lodged by F. Indeed, at no point does the order for reference express any doubt as to the lawfulness of that measure.

B –    Assessment

1.      The effectiveness of the measures freezing the DHKP-C’s funds which were adopted before the entry into force of Decision 2007/445

63.      It is settled law that measures of the EU institutions are in principle presumed to be valid and accordingly produce legal effects until such time as they are withdrawn, annulled in an action for annulment or declared invalid following a reference for a preliminary ruling or a plea of illegality. (24)

64.      In the circumstances of this case, the question immediately arises whether such a presumption also covers measures which, in the context of a direct action, have been found to be flawed – such as some of the decisions including the DHKP-C on the list – even though, as a result of that finding, they have been annulled only in so far as that flaw, which affects the measure as a whole, (25) concerned the party which brought the action. (26) In any event, whatever the answer may be, the fact remains that a measure, even if unlawful, produces its effects, if it is capable of so doing, until such time as it is repealed, withdrawn or amended by the authority from which it emanates or it is annulled following review of its lawfulness by the Courts.

65.      In the present case, it is common ground that the organisation to which the defendants belonged never challenged the decisions freezing its funds.

66.      Moreover, the judgments of the General Court annulled the measures submitted for review only in so far as they concerned the applicant parties. Those judgments did not therefore exercise any influence over such measures in so far as the latter concern persons other than those parties, and certainly not over other measures, even if flawed by defects equal or comparable to those identified by the Court.

67.      It is also settled law, however, that, by way of exception to the principle of the presumption of validity, measures which are tainted by a flaw the seriousness of which is so obvious that it cannot be tolerated by the Community legal order must be deemed to have produced no legal effects, even provisional, that is to say, they must be regarded as legally non‑existent. The purpose of that exception is to maintain a balance between two fundamental, but sometimes conflicting, requirements with which a legal order must comply: the stability of legal relations and respect for legality. (27) According to that same case-law, the gravity of the consequences attaching to a finding that a measure adopted by EU institutions is non-existent means that, for reasons of legal certainty, such a finding must be reserved for situations which are quite extreme. (28)

68.      Relying on that case-law, the defendants maintain in their observations before the Court that the Council decision including the DHKP-C on the list and the successive measures by which the DHKP-C was maintained on the list, at the very least until the entry into force of Decision 2007/445, should be regarded as legally non-existent.

69.      I do not share that opinion.

70.      Notwithstanding the objective gravity of the procedural and formal defects identified in its judgments by the General Court – the former relating to the fundamental right to a fair hearing and the latter to the lack of a statement of reasons, making it impossible for the Court to review the measure in question – the particularly stringent conditions laid down by the above case-law do not seem to me to be satisfied in this case. Moreover, the General Court gave a ruling to that effect in a second action for annulment brought by the applicant in the case which gave rise to OMPI I. (29)

71.      This all means that the measures which were adopted by the Council prior to Decision 2007/445 and by which the DHKP-C was first included and then maintained on the list produced their effects from their entry into force until their repeal, freezing that organisation’s funds without interruption from 3 May 2002, when Decision 2002/334 entered into force, until 29 June 2007, when Decision 2007/445, repealing Decision 2006/379, was published.

72.      It follows that those measures produced their legal effects for part of the period during which the ongoing offence in respect of which proceedings have been brought against the defendants was committed.

73.      The French Government, in its written observations, and the Council, in its oral submissions, essentially ask the Court to make a finding to that effect in reply to the first question.

74.      For my part, I do not think such an approach should be adopted, in so far as it would not provide an exhaustive answer to the questions raised by the referring court – which, as we have seen in points 56 to 60 of this View – relate not only to the effectiveness but also to the lawfulness of the measures freezing the DHKP‑C’s funds.

75.      It is therefore appropriate to examine the lawfulness of the measures in question.

2.      The validity of the measures freezing the DHKP-C’s funds which were adopted prior to Decision 2007/445

76.      In their observations, the Generalbundesanwalt and the Commission maintain that, for reasons relating essentially to legal certainty and the definitive nature of uncontested measures, the Court may not, in these preliminary ruling proceedings, rule on the validity of the measures at issue.

77.      Before looking at any flaws in those measures (see Section (c) below), it is therefore appropriate to examine the merits of those various arguments (see Section (a) below).

78.      Next, it is necessary to consider the consequences of the entry into force of Decision 2007/445 for the validity of the earlier fund-freezing measures (see Section (b) below).

a)      The circumstances that would prevent the Court from carrying out an assessment of validity in the present case

i)      The fact that the fund-freezing measures in question were not challenged by the defendants

79.      While an action for annulment under Article 263 TFEU and a reference for a preliminary ruling on validity on the basis of Article 267 TFEU are independent remedies, each subject to separate conditions for admissibility, the case-law of the Court has nevertheless recognised some exceptions to that rule.

80.      Thus, in TWDTextilwerkeDeggendorf,(30) the Court, referring to the case‑law to the effect that a Member State which fails to challenge a decision of which it is the addressee within the relevant time-limits cannot call in question the validity of that decision in infringement proceedings, held that it was not possible for a recipient of aid, in respect of whom a Commission decision had been adopted on the basis of Article 108 TFEU and who could have challenged that decision, but allowed the deadline for so doing to expire, to call in question the lawfulness of that decision before the national courts in an action brought against the national measures implementing that decision. According to the Court, that time-barring effect is designed to safeguard legal certainty by ensuring that Community measures entailing legal effects are not called in question indefinitely. If it were accepted that, in such circumstances, the person concerned could challenge the enforcement of the decision before the national court on the ground that the decision is unlawful, that person would – in effect – have the right to circumvent the definitive authority exerted by the decision in his regard once the deadline for bringing an action has expired.

81.      According to that case-law, not only the person to whom a decision is addressed but also any natural or legal person who, although not the addressee of a decision, is directly and individually concerned by it for the purposes of Article 263 TFEU can be time-barred from pleading the illegality of that decision by means of a reference for a preliminary ruling on validity. The same applies, according to the Court, to an individual who has not within the relevant time‑limits challenged a regulation which must be treated as an individual decision in his regard. (31)

82.      However, in order for such a time-barring effect to be capable of being relied on in practice as against a natural or legal person who pleads the illegality of an EU measure before a national court, that person must have been able, indisputably, to seek the annulment of that measure under Article 263 TFEU, (32) which means that such an action would have had to be manifestly admissible.

83.      That condition flows from the general principle, which the Court has extrapolated from Article 277 TFEU, which ensures that everyone has or has had the opportunity to challenge a Community measure on which a decision addressed to him is based. (33)

84.      It seems to me that, in the present case, the time-barring effect established by the line of authority flowing from TWD Textilwerke Deggendorf cannot properly be relied on against the defendants.

85.      First, and generally, it is legitimate to ask whether such time-barring is applicable where it limits the possibility for a party to defend himself against criminal charges brought against him, particularly in a situation such as that in the case before the referring court, where the defendants plead the illegality of EU measures which, through the mechanism – illustrated in points 49 to 53 of this View – of attributing criminal liability by reference, combine to determine the content of the penal provision applied.

86.      As Advocate General Jacobs pointed out in his Opinion in the case giving rise to the judgment in TWD Textilwerke Deggendorf, legal certainty is not an absolute requirement. (34) In my opinion, legal certainty must not take precedence over the right not to be prosecuted on the basis of measures which are not in conformity with the legal order from which they emanate, particularly where such non-conformity affects the observance of fundamental rights and essential procedural requirements.

87.      Secondly, and in any event, the conditions required by the aforementioned case-law do not appear to me to be satisfied in the present case. After all, it is not manifestly the case that an action brought by the defendants, on the basis of Article 263 TFEU, against the Council decisions freezing the DHKP-C’s funds would have been admissible.

88.      First of all, it is common ground that their names have never appeared on the list drawn up and updated by those measures.

89.      Next, it is far from being a foregone conclusion that, if they had brought an action against such measures in their own names, relying solely on their status as members of the DHKP‑C for the purposes of establishing locus standi, their action would have been admissible. (35)

90.      Lastly, it is also legitimate to question the admissibility of any action they might have brought on behalf of the DHKP‑C as representatives of that organisation. It should be pointed out in this regard that, in PKK and KNK v Council, the Court held that, in order to be permitted to bring an action on behalf of an organisation on the list, ‘it is necessary to show that the organisation concerned does indeed wish to bring the action and that the lawyers who claim to represent it have in fact been instructed for that purpose’. (36) In that judgment, while pointing out the need to avoid excessive formalism in the application of the procedural rules governing the admissibility of actions for annulment brought by organisations lacking legal personality, the Court nevertheless noted that, in that particular case, the validity of the applicant organisation’s representation by Mr Osman Ocalan, who had brought the action, was in doubt because ‘he presents himself in the power of attorney as a former member of the PKK, without his entitlement to represent it being justified on any other basis’. That doubt was dispelled only by statements made by one of the lawyers instructed to the effect that the leader of the PKK and ‘several other high-ranking representatives of the PKK and its successor, KADEK’ had instructed him to pursue the proceedings brought by way of the application made to the General Court.

91.      As it is, although the defendants in the main proceedings are charged with having been members of the DHKP-C, and even leaders of local cells of that organisation, it in no way emerges from the order for reference that they played within that organisation such a prominent role as to support the view that they could have acted on its behalf in proceedings before the General Court. On the contrary, the order for reference shows that their role was essentially confined to collecting funds to finance the organisation’s activities.

92.      In the light of the foregoing, I therefore take the view that the defendants are not to be regarded as being time-barred, pursuant to the principles extrapolated from TWD Textilwerke Deggendorf, from pleading before the national court the illegality of the measures freezing the DHKP-C’s funds in criminal proceedings in which they are accused of having infringed such measures.

ii)    Whether the defendants can plead breach of the DHKP-C’s procedural rights

93.      The Generalbundesanwalt and the Commission dispute the right of the defendants to contend, in support of their objection of illegality, that the DHKP‑C’s procedural rights have been breached. In particular, the Commission argues that, for reasons of legal certainty, Article 277 TFEU must be interpreted as meaning that third parties, such as the defendants, cannot raise pleas which only the person directly and individually concerned – in this case, the DHKP-C – could have relied on in a direct action for annulment under Article 263 TFEU.

94.      I do not find those arguments convincing.

95.      I note first of all that the reference to Article 277 TFEU does not seem relevant. It is settled case-law that the possibility under that provision of pleading the inapplicability of a regulation ‘may only be exercised incidentally in proceedings brought before the Court of Justice itself pursuant to a separate provision of the Treaty’. (37) It follows that, since Article 277 TFEU cannot be invoked before the Court of Justice in the absence of a main action brought before it, that provision cannot as such be applied in the context of the preliminary ruling procedure provided for in Article 267 TFEU. As the Court has pointed out, Article 267 TFEU ‘itself provides for a procedure for resolution of a question which arises with regard to the validity of a Community measure, where such a question arises incidentally in a dispute before a national court’. (38)

96.      The argument put forward by the Commission seems to conflict with the Court’s view of the scope of its own jurisdiction in the context of a request from a national court, under Article 267 TFEU, to rule on the validity of measures adopted by the institutions of the European Union. Indeed, according to the Court, such jurisdiction cannot be limited by the grounds on which the validity of those measures may be contested and therefore extends to all grounds capable of vitiating those measures. (39)

97.      Moreover, in the circumstances of the present case, to accept that line of argument would mean in essence to disregard, in the interests of legal certainty, the right of defendants in criminal proceedings to use any legal means to defend themselves against the charges brought against them by contending that the measures on which those charges are based are illegal. In the present case, since, as we have seen, there is nothing to prevent the defendants from pleading the illegality of the measures freezing the DHKP-C’s funds, they must in my opinion be able to rely, in support of that preliminary objection, on any plea capable of demonstrating such illegality. Moreover, E and F are clearly affected by any defect, even purely formal, which flaws the measures freezing the DHKP-C’s funds, since it is on the basis of those measures that their conduct is categorised as punishable under criminal law. (40)

98.      Moreover, the argument put forward by the Commission overlooks the fact that the power to refer to the Court a question concerning the validity of a measure lies with the national court. While it is true that, in the case giving rise to the judgment in TWD Textilwerke Deggendorf, the Court essentially recognised that there are limits to that power where the party which would benefit from a declaration that the measure is invalid has not challenged it directly even though it unquestionably has standing to do so, (41) this is not in any event true of the defendants, as has been demonstrated above.

99.      What is more, it should not be forgotten that the judgments of the General Court also revealed that the contested measures lacked an adequate statement of reasons. Assuming that the measures freezing the DHKP-C’s funds are flawed in the same way, it would have to be concluded that since the defendants were unaware of the reasons why the Council included that organisation on the list, they could not easily have challenged the legal soundness of that inclusion by arguing, for example, that the Council had made errors of assessment. (42)

100. The Commission also maintains that the breach of the obligation to state reasons, as established by the General Court with respect to the applicant organisations – but not generally – existed, like the alleged infringements of the DHKP‑C’s right to a fair hearing, only in relation to that organisation.

101. However, first of all, such a statement is itself open to challenge, in my view, in the light of the grounds of the judgments of the General Court. (43)

102. Secondly, even assuming that such a flaw, if found to exist in the present case, can be said to exist only in relation to the DHKP-C, the fact remains that, in the present case, it is the defendants who, in the absence of any statement of the reasons for that organisation’s inclusion on the list, are in fact limited in their ability to challenge the legal soundness of that inclusion (44) and, as a consequence, to defend themselves against the charges brought against them.

103. Lastly, even assuming that – as the Commission maintains – the defendants were not entitled to raise, in support of their objection of illegality, a plea of failure to state the reasons on which the decisions to freeze the DHKP-C’s funds were based, and that even the referring court had no power to do so, there would, by contrast, be nothing to prevent the Court from raising and establishing such a flaw of its own motion when undertaking the assessment of validity as requested by the present reference for a preliminary ruling. (45)

iii) The fact that the fund-freezing measures in question have been repealed

104. Although none of the interested parties who have taken part in the proceedings has expressly addressed this question, it is nevertheless legitimate to consider whether the fact that the measures at issue are no longer in force, all of them having in the meantime been replaced by other measures, up to the entry into force of Decision 2007/445, has any bearing on the jurisdiction of the Court to rule on the validity of such measures under point (b) of the first paragraph of Article 267 TFEU.

105. In my view, that question must be answered in the negative. It is sufficient in this regard to point out that the repeal of a measure cannot be equated with its annulment or with a declaration, following a reference for a preliminary ruling, that it is invalid, in so far as repeal does not imply recognition of illegality and generally produces effects ex nunc, whereas an annulment or a declaration of invalidity produces effects ex tunc. Only in the case of annulment or a declaration of invalidity would the measure be considered nul and void within the meaning of Article 264 TFEU.

106. Moreover, the fact that measures submitted for their review had been repealed has not prevented the Court of Justice or the General Court from ruling on their lawfulness in the course of annulment proceedings, after emphasising that, despite having been repealed, such measures had produced binding legal effects affecting the applicants’ interests by changing their legal situation and that, consequently, the applicants continued to have an interest in a finding of illegality. (46)

107. The fact that, in the present case, the Court is seised under point (b) of the first paragraph of Article 267 TFEU and not under Article 263 TFEU does not call for a different solution. On the other hand, there is all the more reason for review by the Court in the present case, given that the measures in question, despite having been repealed, continue to produce effects, as the proceedings brought against the defendants demonstrate, and given that the defendants are pleading the illegality of those measures as a defence against the charges brought against them.

b)      The consequences of the amendment of the procedure for inclusion on the list introduced by Decision 2007/445

108. As we have seen, in order to comply with the judgments of the General Court, the Council – beginning with Decision 2007/445 – amended the procedure for inclusion on the list.

109. The Generalbundesanwalt, the Council and the Commission maintain that Decision 2007/445 retroactively cured the earlier fund‑freezing decisions.

110. I do not agree.

111. Even assuming that flaws such as those found by the General Court can be cured retroactively, it is clear from the recitals in the preamble to Decision 2007/445 that such rectification would at most have related to Decisions 2006/379 and 2006/1008, in respect of which the Council did indeed provide ex post facto the persons, groups and entities concerned with a statement of the reasons for their inclusion on the list. (47)

112. Otherwise, the notice published in the Official Journal of the European Union on 25 April 2007 (48) shows that the possibility afforded to the groups or entities concerned of submitting a request to the Council to obtain a statement of the reasons why they were included on the list is intended to enable them to submit observations on the Council’s intention to ‘maintain’ their name on that list. Similarly, the possibility of requesting ‘that the decision to include them on the abovementioned lists should be reconsidered’ does not seem to create for the parties concerned the right to call in question all successive decisions by which their names were included and maintained on the list.

113. That being so, it is nevertheless appropriate to consider whether Decision 2007/445, while not entailing rectificationex post facto of the defects by which the earlier fund-freezing decisions are said to be vitiated, none the less has retroactive scope.

114. Such a possibility has not been ruled out by the General Court, (49) which, in assessing the conformity of Decision 2007/445 with OMPI I, considered to be applicable by analogy the case-law to the effect that, where a measure has been annulled for formal or procedural defects, the institution concerned is entitled to adopt afresh an identical measure, this time observing the formal and procedural rules in question, and even to give that measure retroactive effect if that is essential to the attainment of the public interest objective pursued and if the legitimate expectations of the persons concerned are duly protected. (50)

115. However, even supposing that Decision 2007/445 does have such an effect, even though this is not apparent from any of its recitals, it cannot, in my opinion, be relied on against the defendants in the main proceedings.

116. Such a result is after all precluded by the principle of the non‑retroactivity of criminal law, a corollary of the principle of the legality of criminal offences and penalties enshrined in Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in Article 49 of the Charter of Fundamental Rights of the European Union.

117. That principle also applies to provisions of law which are not themselves penal in nature but which combine, as Regulation No 2580/2001 and the Council decisions freezing the funds of the DHKP-C do in the present case, to determine the content of the offence created.

118. Indeed, the Court has referred to that principle in a comparable context in order to rule that the retroactivity of a provision of a Community regulation may not have the effect of validating ex post facto the imposition of criminal penalties on the basis of a national measure which was invalid because it was incompatible with Community law. (51) Similarly, in Fedesa and Others, the Court held that the retroactivity of the provisions of a directive adopted following annulment of an earlier directive may not ‘provide a basis for criminal proceedings instituted under provisions of national law which may have been adopted in implementation of the annulled directive and whose sole basis is to be found in that directive’. (52)

c)      The existence of defects affecting the validity of the measures freezing the DHKP-C’s funds which were adopted prior to the entry into force of Decision 2007/445

119. It is common ground that, up until the entry into force of Decision 2007/445, the procedure for drawing up the list made no provision for prior communication to the individuals and entities concerned of the evidence adduced against them justifying their inclusion on that list. (53) Nor, indeed, was provision made for such communication to be effected after their inclusion.

120. At the hearing, those circumstances were confirmed by the Council in relation to the measures freezing the DHKP-C’s funds which were adopted prior to Decision 2007/445.

121. It is also common ground that none of the fund-freezing decisions adopted in accordance with Regulation No 2580/2001 prior to the entry into force of Decision 2007/445 contained a statement of reasons, the recitals of those decisions being framed merely in generic and standardised terms, and that, as the General Court held in OMPI I, such a defect prevented the Court from reviewing the substance of such measures.

122. As I have explained, the General Court found in that judgment that such defects affected the lawfulness of the measures submitted for review. The Court of Justice, too, when assessing the lawfulness of fund‑freezing decisions adopted by the Council in accordance with Regulation No 881/2002, (54) arrived at a similar conclusion, based on breach of the right to a fair hearing and of the principle of effective judicial protection. (55)

123. It follows that, up until the entry into force of Decision 2007/445, all the Council decisions freezing the DHKP-C’s funds were flawed by defects affecting their validity.

3.      The answer to the first question

124. With regard to the inferences to be drawn from the finding that the measures freezing the DHKP-C’s funds which were adopted before the entry into force of Decision 2007/445 are illegal, it should be borne in mind that, as in the case of a judgment annulling a measure pursuant to the second paragraph of Article 264 TFEU, which is applicable by analogy to a reference for a preliminary ruling on validity, the Court has discretion to state, in each particular case, which of the effects of the measure concerned are to be considered definitive (56) and, more generally, to lay down rules governing the effects of the declaration of invalidity. (57)

125. In the present case, particularly in view of the context in which the case in the main proceedings arose, I consider that the effects of the finding that the measures at issue are illegal should be confined solely to the penal consequences entailed by their application in conjunction with the prohibitions laid down in Regulation No 2580/2001.

126. Such an approach would go some way towards satisfying the pre-requisites for legal certainty referred to by the Council and the Commission, in that it would not have the effect of calling in question the definitive nature of those measures in relation to the DHKP‑C as a result of its having failed to exercise its right to contest them before the courts.

127. On the basis of all the foregoing considerations, I propose that the Court’s answer to the first question should be that an infringement of the provisions of Regulation No 2580/2001 cannot give rise to criminal prosecution where it relates to measures freezing the funds of an organisation – such as the organisation to which the defendants in the main proceedings belonged – which was included on the list, and kept there until the entry into force of Decision 2007/445, in breach of the right of that organisation to a fair hearing and of the obligation to state reasons incumbent on the Community institutions. That is the position notwithstanding the following circumstances:

–        the fund-freezing measures in question were not contested before the courts by the organisation concerned;

–        since those measures were not annulled in the context of an action for annulment or declared invalid in the context of a reference for a preliminary ruling, each such measure produced its effects in relation to that organisation until the date of its repeal;

–        the procedure for inclusion on the list was amended as from Decision 2007/445, the organisation concerned being kept on that list under the new procedure.

V –  The second and third questions

128. By its second and third questions, which should be examined together, the referring court wishes in essence to ascertain, first, whether the prohibitions laid down in Articles 2 and 3 of Regulation No 2580/2001 on making funds, financial assets or economic resources available to a legal person, group or entity on the list or on participating in activities to circumvent Article 2 also apply to the members of the legal person, group or entity concerned and, secondly, whether those prohibitions also apply where the funds, financial assets or economic resources in question are already accessible – albeit only indirectly – to the legal person, group or entity concerned.

129. It should first of all be pointed out that the wording of Article 2(1)(b) and (2) of Regulation No 2580/2001 and of Article 3(1) of that regulation does not in any way support an interpretation limiting their scope ratione personae. On the contrary, the very terms of those provisions and, in particular, the use of passive verb forms and impersonal constructions such as ‘no funds … shall be made available’, (58) ‘it shall be prohibited to provide financial services’, (59) ‘theparticipation … in activities, the object or effect of which is … to circumvent Article 2 shall be prohibited’ (60) indicate that the prohibitions for which they provide are of general application, irrespective of the relations between the person engaging in the conduct described in those provisions and the legal person, group or entity benefiting from that conduct.

130. Nor, indeed, is such a limitation ratione personae justified in the light of Articles 2 and 3 of Common Position 2001/931 or paragraph 1 of Security Council Resolution 1373 (2001).

131. It should be pointed out, next, that there is nothing in the wording of Article 2(1) and (2) of Regulation No 2580/2001 to support the inference that that provision does not cover the obtaining of funds by a legal person, group or entity on the list in a context such as that of the case before the referring court, that is to say, where the funds are obtained through the transfer of income from the collection of donations and through the sale of publications by one of its members.

132. On the contrary, the prohibition laid down in Article 2 is framed in particularly broad terms, as evidenced by the use of the words ‘directly or indirectly’. Similarly, the expression ‘made available’ has a wide meaning, encompassing not only all the acts necessary under the applicable national law if a person is effectively to obtain full power of disposal in relation to the assets or resources concerned – as the Court of Justice has already found with respect to Regulation No 881/2002 (61) – but also, in the case of a legal person, group or entity on the list, all transfers – even if internal to that legal person, group or entity – which enable it to allocate those assets or resources specifically to the ends which it pursues.

133. Moreover, as the Court of Justice held in relation to Regulation No 881/2002, the objective of Regulation No 2580/2001 must be regarded as being to prevent the legal persons, groups or entities on the list from having at their disposal any financial or economic resources, so as to impede the financing of terrorist activities. (62) That objective is made explicit in recital 2 in the preamble to the regulation, which states that combating the funding of terrorism is a decisive aspect of the fight against terrorism, and follows from recitals 2 and 3 of Common Position 2001/931, which refer to the European Union’s determination to attack the sources which fund terrorism.

134. It would be manifestly contrary to that objective to exclude from the scope of the prohibitions laid down in Article 2 of Regulation No 2580/2001 the making available of financial assets or economic resources to a legal person, group or entity on the list simply because they are made available by a person who is a member of the beneficiary organisation. By the same token, it would not be consistent with that objective to exclude transfers of assets or resources by a member to the leadership of such a person, group or entity on the ground that those assets or resources are already materially at the disposal of that person, group or entity. Indeed, in so far as such transfers are intended to make it possible or easier to put the resources in question, by way of end use, towards achieving the aims pursued by the organisation, they participate in the activity of financing terrorism which Regulation No 2580/2001 targets and must therefore be regarded as acts of ‘making available’ within the meaning of Article 2 of that regulation.

135. Lastly, even if it had to be concluded that such acts – the making available by a member and transfers internal to the organisation – are not covered by Article 2 of Regulation No 2580/2001, this would not for that matter mean that they fall outside the scope of Regulation No 2580/2001, since they are in any event caught by Article 3 of the regulation, which prohibits ‘the participation, knowingly and intentionally, in activities, the object or effect of which is, directly or indirectly, to circumvent Article 2’. After all, such acts would have the effect in practice of circumventing the freezing of funds provided for under Article 2(1)(a) of Regulation No 2580/2001, which refers to funds ‘belonging to, or owned or held by, a … legal person, group or entity included in the list referred to in [Article 2(3)]’, in so far as they enable such persons, groups or entities to release those funds and to use them for the purposes they pursue.

136. In the light of the foregoing, I take the view that the prohibitions laid down in Articles 2 and 3 of Regulation No 2580/2001 also apply in cases where the provider of the resources is himself a member of the legal person, group or entity for which they are intended and in cases where such resources are already materially accessible to such a person, group or entity, given that they are held by one of its members.

137. Thus, the fact that the members of an organisation on the list make the donations or other assets collected from third parties available to the leadership of that organisation constitutes an infringement of those provisions.

138. Such a conclusion is not, in my opinion, called in question by the argument, set out in the opinion of the European Centre for Constitutional and Human Rights (ECCHR), annexed to F’s observations, to the effect that the fact that neither Common Position 2001/931 nor Regulation No 2580/2001 makes express reference to the collection of funds for the benefit of the organisations on the lists drawn up in implementation of those measures, contrary to paragraph 1(b) of Security Council Resolution 1373 (2001), (63) shows that it was the intention of the EU legislature to exclude such conduct from their scope.

139. After all, even if correct, such an interpretation would not support the conclusion that the making available to a legal person, group or entity on the list of the funds so collected does not – as conduct distinct from the activity of collection – fall within the scope of the prohibitions laid down in Article 2 of that regulation, whether or not the provider of those funds is a member of the legal person, group or entity concerned.

140. On the basis of all the foregoing considerations, I propose that the Court’s answer to the second question should be that Articles 2 and 3 of Regulation No 2580/2001 must be interpreted as meaning that funds, financial assets and economic resources may be regarded as made available to a legal person, group or entity on the list, or there may be said to be participation in activities to circumvent that provision, even where the provider of those resources is himself a member of the legal person, group or entity in question.

141. Similarly, I propose that the Court’s answer to the third question should be that Articles 2 and 3 of Regulation No 2580/2001 must be interpreted as meaning that funds, financial assets and economic resources may be regarded as made available to a legal person, group or entity on the list, or there may be said to be participation in activities to circumvent that provision, even where the financial assets intended for the legal person, group or entity in question are already accessible – albeit only indirectly – to the latter.

VI –  Conclusion

142. In the light of all the foregoing considerations, I propose that the following answers be given to the questions referred for a preliminary ruling by the Oberlandesgericht Düsseldorf:

(1)      An infringement of the provisions of Regulation No 2580/2001/EC cannot give rise to criminal prosecution where it relates to measures freezing the funds of an organisation – such as the organisation to which the defendants in the main proceedings belonged – which was included on the list provided for in Article 2(3) of that regulation, and kept there until the entry into force of Decision 2007/445/EC, in breach of the right of that organisation to a fair hearing and of the obligation to state reasons incumbent on the Community institutions. That is the position notwithstanding the following circumstances:

–        the fund-freezing measures in question were not contested before the courts by the organisation concerned;

–        since those measures were not annulled in the context of an action for annulment or declared invalid in the context of a reference for a preliminary ruling, each such measure produced its effects in relation to that organisation until the date of its repeal;

–        the procedure for inclusion on the list was amended as from Decision 2007/445, the organisation concerned being kept on that list under the new procedure.

(2)      Articles 2 and 3 of Regulation No 2580/2001 must be interpreted as meaning that funds, financial assets and economic resources may be regarded as made available to a legal person, group or entity on the list provided for in Article 2(3) of that regulation, or there may be said to be participation in activities to circumvent that provision, even where the provider of those resources is himself a member of the legal person, group or entity in question.

(3)      Articles 2 and 3 of Regulation No 2580/2001 must be interpreted as meaning that funds, financial assets and economic resources may be regarded as made available to a legal person, group or entity on the list provided for in Article 2(3) of that regulation, or there may be said to be participation in activities to circumvent that provision, even where the financial assets intended for the legal person, group or entity in question are already accessible – albeit only indirectly – to the latter.


1 – Original language: French.


2 – OJ 2001 L 344, p. 70.


3 – OJ 2001 L 344, p. 90.


4 – OJ 2001 L 344, p. 93.


5 – OJ 2001 L 344, p. 83.


6 – OJ 2002 L 116, p. 33.


7 – OJ 2006 L 144, p. 21.


8 – OJ 2007 L 169, p. 58.


9 – OJ 2007 C 90, p. 1.


10 – [2006] ECR II‑4665, ‘OMPI I’.


11 – Paragraph 91.


12 – The Council and the European Commission argued that neither the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, nor the general principles of Community law confer on individuals any right whatsoever to be heard before the adoption of an act of a legislative nature.


13 – Paragraphs 96 to 98.


14 – Paragraph 126. The General Court goes on to say that, unless precluded by overriding considerations concerning the security of the Community or its Member States, or the conduct of their international relations, the evidence, so identified, adduced against the party concerned must be notified to it, in so far as possible, either concomitantly with or as soon as possible after the adoption of an initial decision to freeze funds. Subject to the same reservations, any subsequent decision to freeze funds must, in principle, be preceded by a notification of any new evidence adduced and a hearing. However, observance of the right to a fair hearing does not, in the view of the General Court, require either that the evidence adduced against the party concerned be notified to it before the adoption of an initial measure to freeze funds, or that the party automatically be heard after the event in such a context (paragraph 137).


15 – Paragraph 154.


16 – According to the Court, ‘since the restrictions imposed by the Council on the right of the parties concerned to a fair hearing must be offset by a strict judicial review that is independent and impartial …, the Community courts must be able to review the lawfulness and merits of the measures to freeze funds without it being possible to raise objections that the evidence and information used by the Council is secret or confidential’ (paragraph 155).


17 – Paragraph 160.


18 – Judgment of 11 July 2007 in Case T‑327/03 Al-Aqsa v Council and judgments of 3 April 2008 in Case T‑229/02 PKK v Council and Case T‑253/04 Kongra-Gel and Others v Council. In all those judgments, the annulment was based only on the absence of a statement of reasons, which was the only plea in law examined by the Court.


19 – Judgment of 11 July 2007 in Case T‑47/03 Sison v Council.


20 – Indeed, the General Court expressly held as much in Sison v Conseil, footnote 19 above, in which it stated that, inasmuch as they do not provide for the assets of the persons concerned to be confiscated as the proceeds of crime but rather to be frozen as a precautionary measure, the restrictive measures introduced by Regulation No 2580/2001 do not constitute criminal sanctions and do not imply any accusation of a criminal nature (paragraph 101).


21 – Points 20 and 21 of this View.


22 – Case C‑188/92 [1994] ECR I‑833.


23 – Case 145/79 Roquette Frères [1980] ECR 2917, paragraph 7.


24 – See, to that effect, Case 11/81 Dürbeck v Commission [1982] ECR 1251, paragraph 17; Case 15/85 Consorzio Cooperative d’Abruzzo v Commission [1987] ECR 1005, paragraph 10; Case C‑137/92 P Commission v BASF and Others [1994] ECR I‑2555, paragraph 48; Case C‑245/92 P Chemie Linz v Commission [1999] ECR I‑4643, paragraph 93; and Case C‑475/01 Commission v Greece [2004] ECR I‑8923, paragraph 18.


25 – That is true, at the very least, of the absence of a statement of reasons, even though the General Court, while stressing the legislative nature of the measures under review, analysed them essentially as a bundle of decisions of individual concern to the persons on the list.


26 – In Case T‑256/07 People’s Mojahedin Organization of Iran v Council [2008] ECR II‑3019, the General Court held, however, that such a presumption also covered the decision which had been adopted after the closure of the oral procedure in the case giving rise to OMPI I and which had not been annulled by the Court (paragraph 55).


27 – See Commission v BASF and Others, footnote 24 above, paragraph 49; Chemie Linz v Commission, footnote 24 above, paragraph 94; and Commission v Greece, footnote 24 above, paragraph 19.


28 – See Commission v BASF and Others, footnote 24 above, paragraph 50; Chemie Linz v Commission, footnote 24 above, paragraph 95; and Commission v Greece, footnote 24 above, paragraph 20.


29 – See People’s Mojahedin Organization of Iran v Council, footnote 26 above, paragraph 58.


30 – Footnote 22 above, paragraphs 16 and 17.


31 – Case C‑239/99 Nachi Europe [2001] ECR I‑1197, paragraph 35, and Case C‑441/05 Roquette Frères [2007] ECR I‑1993, paragraph 39.


32 – See, inter alia, TWD Textilwerke Deggendorf, footnote 22 above, paragraph 24; Case C‑241/95 Accrington Beef and Others [1996] ECR I‑6699, paragraphs 15 and 16; Case C‑408/95 Eurotunnel and Others [1997] ECR I‑6315, paragraph 28; and Nachi Europe, footnote 31 above, paragraph 37.


33 – Case 216/82 Universität Hamburg [1983] ECR 2771, paragraphs 10 and 12, and Nachi Europe, footnote 31 above, paragraph 35.


34 – Point 18.


35 – That question was specifically raised in the case which gave rise to the judgment in Kongra-Gel and Others v Council, footnote 18 above, but it was not settled by the General Court.


36 – Case C‑229/05 P [2007] ECR I‑439, paragraph 113.


37 – Joined Cases 31/62 and 33/62 Wöhrmann and Lütticke v Commission [1962] ECR 501, at 507; Case 33/80 Albini v Council and Commission [1981] ECR 2141, paragraph 17; Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523, paragraph 36; order in Case C‑64/93 Donatab and Others v Commission [1993] ECR I‑3595, paragraph 19; and Nachi Europe, footnote 31 above, paragraph 33.


38 – Nachi Europe, footnote 31 above, paragraph 34.


39 – Joined Cases 21/72 to 24/72 International Fruit Company and Others [1972] ECR 1219, paragraphs 5 and 6, and Case C‑162/96 Racke [1998] ECR I‑3655, paragraphs 26 and 27.


40 – Moreover, a breach of the right to a fair hearing such as that established in the judgments of the General Court does not simply mean that the procedural rights of the person concerned have been infringed, since such a breach materially prevents that person from effectively adducing evidence which, as the case may be, may result in the non-adoption of measures affecting his legal situation.


41 – See, however, Case C‑222/04 Cassa di Risparmio di Firenze and Others [2006] ECR I‑289, paragraphs 72 to 74, in which the Court appears to consider the line of authority flowing from TWD Textilwerke Deggendorf as inapplicable where the question of validity is raised by the national court of its own motion.


42 – As they were no doubt entitled to do once it was established that the time bar provided for in accordance with the line of authority flowing from TWD Textilwerke Deggendorf did not apply to them.


43 – The findings made by the General Court in paragraphs 160 and 164 of OMPI I, with respect to observance both of the right to a fair hearing and of the obligation to state reasons, are of general application and are not confined to the situation of the applicant organisation.


44 – At the very least with respect to the period prior to Decision 2007/445. It goes without saying that the merits of a decision to include a natural or legal person, a group or an entity on the list must be assessed on the basis of the information justifying such inclusion and that, in the case of a person, group or entity whose name is kept on the list for a certain period, that information may vary over time, as is demonstrated by the case of the People’s Mojahedin Organisation of Iran, which was placed on the list on the basis of information sent to the Council by the United Kingdom authorities and which, as from a certain date, was maintained on the list on the basis of new information sent by the French authorities (see Case T‑284/08 People’s Mojahedin Organization of Iran v Council [2008] ECR II‑3487).


45 – See Joined Cases 73/63 and 74/63 Rotterdam and Putterskoek [1964] ECR 745.


46 – See, to that effect, Joined Cases 7/54 and 9/54 Groupement des industries sidérurgiques luxembourgeoises v High Authority [1956] ECR 175 and Joined Cases 16/59 to 18/59 Geitling and Others v High Authority [1960] ECR 47; see also, inter alia, the order in Case T‑25/96 Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission [1997] ECR II‑363.


47 – See Recital 3.


48 – See point 17 of this View.


49 – Case T-256/07 People’s Mojahedin Organization of Iran v Council, paragraph 65 et seq.


50 – Case 108/81 Amylum v Council [1982] ECR 3107, paragraphs 4 to 17; Case C‑331/88 Fedesa and Others [1990] ECR I‑4023, paragraphs 45 to 47; and Case T‑26/89 de Compte v Parliament [1991] ECR II‑781, paragraph 66. According to the General Court, following OMPI I, the Council was entitled to maintain in force the measure which had repealed or replaced the annulled measure, after the close of the oral procedure in that case, for so long as was strictly needed for it to adopt a new measure in conformity with the formal and procedural rules concerned. The Court goes on to explain that, in that very specific case, ‘it would clearly run counter to the attainment of the public interest objective pursued to require the Council first to withdraw the measure inconsistent with those rules and then, subsequently, to authorise it to give retroactive effect to the measure newly adopted in keeping with those rules’ (paragraph 66).


51 – Case 63/83 Kirk [1984] ECR 2689, paragraphs 21 and 22.


52 – Paragraph 43.


53 – See OMPI I, paragraph 160.


54 – Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Osama 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).


55 – See, inter alia, Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351.


56 – Case 300/86 Van Landschoot [1988] ECR 3443, paragraph 24, and Case C‑333/07 Régie Networks [2008] ECR I‑10807, paragraph 121.


57 – Van Landschoot, footnote 56 above, paragraph 24.


58 – Article 2(1)(b). My emphasis. In German: ‘werden [nicht] Gelder … bereitgestellt’.


59 – Article 2(2). My emphasis. In German: ‘… ist die Erbringung von Finanzdienstleistungen untersagt’.


60 – Article 3(1). My emphasis. In German: ‘Die … Beteiligung an Maßnahmen, deren Ziel oder Folge … die Umgehung des Artikels 2 ist, ist untersagt’.


61 – See Case C‑117/06 Möllendorf and Möllendorf-Niehuus [2007] ECR I‑8361, paragraphs 49 and 50.


62 – See Case C‑340/08 M and Others [2010] ECR I‑0000, paragraph 52; Möllendorf and Möllendorf-Niehuus, footnote 61 above, paragraph 63; and Kadi and Al Barakaat International Foundation v Conseil and Commission, footnote 55 above, paragraph 169.


63 – This provides that all States are to ‘criminalise the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts’. The implementation of that provision at the level of the European Union is provided for in Article 1 of Common Provision 2001/930.

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