(Common foreign and security policy – Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – Regulation (EC) No 881/2002 – Freezing of a person’s funds and economic resources as a result of his inclusion in a list drawn up by a body of the United Nations – Sanctions Committee – Subsequent inclusion in Annex I to Regulation No 881/2002 – Action for annulment – Fundamental rights – Right to be heard, right to effective judicial review and right to respect for property)

Summary of the Judgment

1.<i>Procedure – Division of competences between the Court of Justice and the General Court – Re-examination of points of law decided by the Court of Justice in a previous appeal</i>

2.<i>European Communities – Judicial review of the legality of the acts of the institutions – Regulation imposing restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – Review in the light of fundamental rights – Scope</i>

(Council Regulation No 881/2002; Commission Regulation No 1190/2008)

3.<i>European Communities – Judicial review of the legality of the acts of the institutions – Regulation imposing restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – Rights of the defence</i>

(Council Regulation No 881/2002; Commission Regulation No 1190/2008)

4.<i>European Communities – Judicial review of the legality of the acts of the institutions – Regulation imposing restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – General and long-lasting freezing of the funds, assets and other resources of those persons and entities without them being heard – Infringement of the right to property</i>

(Council Regulation No 881/2002; Commission Regulation No 1190/2008)

1.In circumstances where the matter at issue is a measure adopted by the Commission to replace an earlier measure annulled by the Court of Justice in an appeal against a judgment of the General Court dismissing an action for annulment of the earlier measure, the appellate principle itself and the hierarchical judicial structure which is its corollary generally advise against the General Court revisiting points of law which have been decided by the Court of Justice. That is <i>a fortiori</i> the case when the Court of Justice was sitting in Grand Chamber formation and clearly intended to deliver a judgment establishing certain principles. Accordingly, if an answer is to be given to the questions raised by the institutions, Member States and interested legal quarters, it is for the Court of Justice itself to provide that answer in the context of future cases before it. Moreover, in such circumstances, it falls in principle not to the General Court but to the Court of Justice to reverse precedent in that way, if it were to consider this to be justified in light, in particular, of the serious difficulties referred to by the institutions and governments of the Member States.

(see paras 121, 123)

2.In an action for annulment brought against Regulation No 1190/2008 amending for the 101st time Council Regulation No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, it is for the General Court to ensure in principle the full review of the lawfulness of that regulation in the light of fundamental rights, without affording the regulation any immunity from jurisdiction on the ground that it gives effect to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations.

That must remain the case, at the very least, so long as the re-examination procedure operated by the Sanctions Committee of the United Nations clearly fails to offer guarantees of effective judicial protection. In that regard, since the Security Council has still not deemed it appropriate to establish an independent and impartial body responsible for hearing and determining, as regards matters of law and fact, actions against individual decisions taken by the Sanctions Committee, the review carried out by the Community judicature of Community measures to freeze funds can be regarded as effective only if it concerns, indirectly, the substantive assessments of the Sanctions Committee itself and the evidence underlying them.

The principle of a full and rigorous judicial review of freezing measures is all the more justified given that such measures have a marked and long-lasting effect on the fundamental rights of the persons concerned.

(see paras 126-129, 151)

3.Since Regulation No 1190/2008 amending for the 101st time Council Regulation No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden imposes restrictive measures on a person as a result of his inclusion on the list in Annex I to Regulation No 881/2002, without any real guarantee being given to that person as to the disclosure of the evidence used against him or as to his actually being properly heard in that regard, it must be concluded that Regulation No 1190/2008 was adopted according to a procedure in which the rights of the defence were not observed.

Furthermore, given the lack of any proper access to the information and evidence used against him and having regard to the relationship between the rights of the defence and the right to effective judicial review, that person has also been unable to defend his rights with regard to that evidence in satisfactory conditions before the Community judicature, with the result that it must be held that his right to effective judicial review has also been infringed.

(see paras 181, 184)

4.The imposition on a person of the restrictive measures (such as the freezing of funds) entailed by Regulation No 1190/2008 amending for the 101st time Council Regulation No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, as a result of his inclusion on the list in Annex I to Regulation No 881/2002, constitutes an unjustified restriction of his right to property, since Regulation No 1190/2008 was adopted without furnishing any real safeguard enabling the person to put his case to the competent authorities, in a situation in which the restriction of his property rights must be regarded as significant, having regard to the general application and duration of the freezing measures to which he is subject.

(see paras 192-193)

—

30 September 2010 (*)

(Common foreign and security policy – Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – Regulation (EC) No 881/2002 – Freezing of a person’s funds and economic resources as a result of his inclusion in a list drawn up by a body of the United Nations – Sanctions Committee – Subsequent inclusion in Annex I to Regulation No 881/2002 – Action for annulment – Fundamental rights – Right to be heard, right to effective judicial review and right to respect for property)

In Case T‑85/09,

Yassin Abdullah Kadi, residing in Jeddah (Saudi Arabia), represented by D. Anderson QC, M. Lester, Barrister, and G. Martin, Solicitor,

applicant,

European Commission, represented initially by P. Hetsch, P. Aalto and F. Hoffmeister, and subsequently by P. Hetsch, F. Hoffmeister and E. Paasivirta, acting as Agents,

defendant,

supported by

Council of the European Union, represented by M. Bishop, E. Finnegan and R. Szostak, acting as Agents,

French Republic, represented by G. de Bergues and L. Butel, acting as Agents,

and by

United Kingdom of Great Britain and Northern Ireland, represented by S. Behzadi-Spencer and E. Jenkinson, acting as Agents, assisted by D. Beard, Barrister,

interveners,

APPLICATION for annulment of Commission Regulation (EC) No 1190/2008 of 28 November 2008 amending for the 101st time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban (OJ 2008 L 322, p. 25), in so far as it concerns the applicant,

THE GENERAL COURT (Seventh Chamber),

composed of N.J. Forwood (Rapporteur), President, E. Moavero Milanesi and J. Schwarcz, Judges,

Registrar: E. Coulon,

having regard to the written procedure and further to the hearing on 17 June 2010,

gives the following

Legal context and background to the dispute

1.1 For a detailed account of the background to the dispute and the applicable legal context, reference is made to paragraphs 3 to 45 of the judgment of the Court of Justice in Joined Cases C‑402/05 P and C‑415/05 P <i>Kadi and Al Barakaat International Foundation</i> v <i>Council and Commission </i>[2008] ECR I‑6351 (‘the judgment of the Court of Justice in <i>Kadi</i>’), which was delivered on appeal against the judgment of this Court in Case T‑315/01 <i>Kadi</i> v <i>Council and Commission</i> [2005] ECR II‑3649 (‘the judgment of this Court in <i>Kadi</i>’), which was delivered on the application by the applicant, Mr Yassin Abdullah Kadi, for annulment of Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda 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), in so far as that measure concerned the applicant.

2.2 For the purposes of this judgment, the legal framework and the background to the dispute may be summarised as follows.

<i>The Charter of the United Nations and the EC Treaty</i>

3.3 The Charter of the United Nations was signed in San Francisco (United States) on 26 June 1945, towards the end of the Second World War. The preamble to that Charter records the determination of the peoples of the United Nations to save succeeding generations from the scourge of war, to reaffirm faith in fundamental human rights and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained. According to Article 1 of that Charter, the purposes of the United Nations are, in particular, to maintain international peace and security and, to that end, to take effective collective measures for the prevention and removal of threats to the peace but also to promote and encourage respect for human rights and fundamental freedoms.

4.4 Under Article 24(1) of the Charter of the United Nations, the United Nations Security Council (‘the Security Council’) was given primary responsibility for the maintenance of international peace and security. According to Article 25 of that Charter, the members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with that Charter.

5.5 Chapter VII of the Charter of the United Nations defines the action to be taken with respect to threats to the peace, breaches of the peace and acts of aggression. Article 39, which introduces that chapter, provides that the Security Council is to determine the existence of any such threat and make recommendations, or decide what measures are to be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. According to Article 41 of the Charter of the United Nations, the Security Council may decide which measures, not involving the use of armed force, are to be employed to give effect to its decisions and it may call upon the members of the United Nations to apply such measures.

6.6 By virtue of Article 48(2) of the Charter of the United Nations, the decisions of the Security Council for the maintenance of international peace and security are to be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.

7.7 Article 103 of the Charter of the United Nations states in the event of conflict between the obligations of the Members of the United Nations under the Charter and their obligations under any other international agreement, the former are to prevail.

8.8 Under the first paragraph of Article 307 EC (now, after amendment, Article 351 TFEU), ‘[t]he rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty’.

9.9 Under Article 297 EC (now, after amendment, Article 347 TFEU), ‘Member States shall consult each other with a view to taking together the steps needed to prevent the functioning of the internal market being affected by measures which a Member State may be called upon to take … in order to carry out obligations it has accepted for the purpose of maintaining peace and international security’.

<i>Actions of the Security Council against international terrorism</i>

10.10 Since the late 1990s, and even more since the attacks of 11 September 2001 in New York, Washington and Pennsylvania (United States), the Security Council has employed its powers under Chapter VII of the Charter of the United Nations in order to combat by all means, in accordance with that Charter and international law, threats to international peace and security caused by terrorist acts.

11.11 Thus, on 15 October 1999, the Security Council, in response to the attacks on the United States Embassies in Nairobi (Kenya) and Dar Es Salaam (Tanzania), adopted Resolution 1267 (1999), paragraph 4(b) of which requires all States, inter alia, to freeze funds and other financial resources of the Taliban of Afghanistan, owing to their support for Usama Bin Laden.

12.12 At paragraph 6 of that resolution, the Security Council decided to establish a committee of the Security Council (‘the Sanctions Committee’, also commonly known as ‘the 1267 Committee’), consisting of all its members, responsible in particular for ensuring that States implement the measures imposed by paragraph 4 of that resolution.

13.13 Resolution 1333 (2000) of the Security Council of 19 December 2000 considerably extended and strengthened that system of restrictive measures, initially aimed solely at the Taliban. Thus, paragraph 8(c) provides, in particular, that all States are to freeze, without delay, funds and other financial assets of Usama bin Laden and individuals or entities associated with him, as designated by the Sanctions Committee, and to ensure that no funds or financial resources are made available or used for the benefit of Usama bin Laden or his associates, including the Al-Qaeda organisation.

14.14 Resolution 1333 (2000) was followed by a series of other Security Council resolutions which amended, strengthened and updated the system of restrictive measures aimed at Usama bin Laden, the Al-Qaeda organisation, the Taliban and the persons, groups, undertakings and entities associated with them. Those resolutions were, in particular, Resolutions 1390 (2002) of 16 January 2002, 1455 (2003) of 17 January 2003, 1526 (2004) of 30 January 2004, 1617 (2005) of 29 July 2005, 1735 (2006) of 22 December 2006, 1822 (2008) of 30 June 2008 and 1904 (2009) of 17 December 2009. Those resolutions, which were all adopted under Chapter VII of the Charter of the United Nations, required, in particular, all Members of the United Nations to freeze the funds and other economic resources of any person or entity associated with Usama bin Laden, Al-Qaeda or the Taliban, as designated by the Sanctions Committee.

15.15 As well as monitoring the application of those restrictive measures by the States, the Sanctions Committee maintains a recapitulative list (‘the Sanctions Committee’s list’) of the persons and entities whose funds and other economic resources must be frozen under the abovementioned Security Council resolutions. States may request the Sanctions Committee to add names to that list. The Sanctions Committee also considers requests to remove names from that list and also requests to derogate from the freezing of assets submitted under Resolution 1452 (2002) of the Security Council. The procedures to be followed for those purposes are currently defined in Resolutions 1735 (2006), 1822 (2008) and 1904 (2009) of the Security Council and in the directives governing the conduct of the works of the Sanctions Committee, drawn up by the latter.

16.16 According to paragraph 5 of Resolution 1735 (2006), when proposing names to the Sanctions Committee for inclusion on its list, States must provide a statement of case, which should provide as much detail as possible on the bases for the listing, including: (i) specific information supporting a determination that the individual or entity meets the criteria referred to; (ii) the nature of the information; and (iii) supporting information or documents that can be provided. According to paragraph 6 of that resolution, at the time of submitting a request for listing, States are requested to identify those parts of the statement of case which may be publicly released for the purposes of notifying the listed individual or entity, and those parts which may be released on request to interested States.

17.17 In the context of its commitment to ensure that fair and clear procedures exist for placing individuals and entities on the Sanctions Committee’s list and for removing them from that list, as well as for granting humanitarian exemptions, the Security Council also adopted, on 19 December 2006, Resolution 1730 (2006), whereby it requested the Secretary-General of the United Nations to establish within the Secretariat (Security Council Subsidiary Organs Branch) a focal point to receive delisting requests and to perform the tasks described in the annex to that resolution (‘the focal point’). Those wishing to submit a request for delisting are now able to do so through that focal point, according to the procedure described in Resolution 1730 (2006) and the annex thereto, or through their State of residence or nationality. By letter (S/2007/178) of 30 March 2007, the Secretary-General of the United Nations informed the President of the Security Council that the focal point for delisting requests had been established.

18.18 In the preamble to Resolution 1822 (2008), which was the relevant resolution at the date of adoption of the measure contested by the present action, the Security Council reaffirms that terrorism in all its forms and manifestations constitutes one of the most serious threats to peace and security, reiterates its condemnation of the Al-Qaeda network, Usama bin Laden, the Taliban and other individuals, groups, undertakings and entities associated with them, stresses that terrorism can be defeated only by a sustained and comprehensive approach involving the active participation and collaboration of all States and international and regional organisations, stresses the need for robust implementation of the restrictive measures referred to in paragraph 1 of that resolution, and also takes note of the challenges to those measures and recognises the efforts made by States and the Sanctions Committee to ensure that fair and clear procedures exist for placing those concerned on the Sanction Committee’s list and for removing them from that list, and welcomes the establishment of the focal point. That preamble also reiterates that the measures in question are preventative in nature and are not reliant upon criminal standards set out under national law.

19.19 Paragraph 1 of Resolution 1822 (2008) provides that the restrictive measures already resulting from the earlier Resolutions 1267 (1999), 1333 (2000) and 1390 (2002) are to be maintained. Paragraph 8 of that resolution reiterates the obligation of all States to implement and enforce the measures set out in paragraph 1 and urges all States to redouble their efforts in that regard. Paragraphs 9 to 18, 19 to 23 and 24 to 26 of that resolution concern, respectively, the procedures for listing on the Sanction Committee’s list, for delisting and for review and maintenance of the list.

20.20 As regards the listing procedure, the Security Council, at paragraph 12 of Resolution 1822 (2008), reaffirms that when proposing names to the Sanctions Committee for inclusion on its list, States must act in accordance with paragraph 5 of Resolution 1735 (2006) and provide a detailed statement of case, and decides, moreover, that, for each listing proposal, States are to identify those parts of the relevant statement of case that may be publicly released, including for use by the Sanctions Committee for development of the summary described at paragraph 13 or for the purpose of notifying or informing the individual or entity whose name is placed on the list. Paragraph 13 of that resolution provides, in particular, first, that when the Sanctions Committee adds a name to its list it is to publish on its website, in coordination with the States which have requested the corresponding listing, a ‘summary of reasons for listing’ and, second, that the committee is to endeavour to publish on its website, in coordination with the relevant designating States, ‘summaries of reasons for listing’ the names included on the list before the date of adoption of that resolution. Paragraph 17 of that resolution requires that the States concerned take, in accordance with their domestic laws and practices, all possible measures to notify or inform in a timely manner the person or entity concerned that their name has been entered on the Sanctions Committee’s list and to include with such notification a copy of the publicly releasable portion of the statement of case, any information on reasons for listing appearing on the Sanctions Committee’s website; a description of the effects of designation, as provided in the relevant resolutions; the Sanctions Committee’s procedures for considering delisting requests; and the possibilities for exemptions.

21.21 As regards the delisting procedure, paragraph 19 of Resolution 1822 (2008) states that listed individuals, groups, undertakings or entities are entitled to submit a petition for delisting directly to the focal point. Paragraph 21 of that resolution directs the Sanctions Committee to consider, in accordance with its guidelines, petitions for the removal from its list of the names of members of Al Qaeda or the Taliban or associates of Al Qaeda, Usama bin Laden or the Taliban who no longer meet the criteria established in the relevant resolutions.

22.22 The preamble to Resolution 1904 (2009) emphasises that sanctions are an important tool under the Charter of the United Nations in the maintenance and restoration of international peace and security, as is the need for robust implementation of the measures referred to in paragraph 1 of that resolution. It is stated there that the Security Council takes note of the legal and other challenges to the measures implemented by Member States under paragraph 1, welcomes improvements to the Sanctions Committee’s procedures and expresses its intent to continue efforts to ensure that those procedures are fair and clear.

23.23 Paragraph 1 of Resolution 1904 (2009) provides that the restrictive measures already provided for in Resolutions 1267 (1999), 1333 (2000) and 1390 (2002) are to be maintained. Paragraphs 8 to 19, 20 to 27 and 28 to 32 of that resolution concern, respectively, the procedures for listing on the Sanctions Committee’s list, for delisting and for the review and maintenance of that list.

24.24