4 September 2019 (*1)

(Common foreign and security policy – Restrictive measures against persons, groups and entities with a view to combating terrorism – Freezing of funds – Whether an authority of a third State can be classified as a competent authority within the meaning of Common Position 2001/931/CFSP – Factual basis of the decisions to freeze funds – Obligation to state reasons – Error of assessment – Principle of non-interference – Rights of the defence – Right to effective judicial protection – Authentication of the Council measures)

In Case T‑308/18,

Hamas, established in Doha (Qatar), represented by L. Glock, lawyer,

applicant,

Council of the European Union, represented initially by B. Driessen and A. Sikora-Kalėda, then by M. Driessen and S. Van Overmeire, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU for annulment, first, of Council Decision (CFSP) 2018/475 of 21 March 2018 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision (CFSP) 2017/1426 (OJ 2018 L 79, p. 26) and of Council Implementing Regulation (EU) 2018/468 of 21 March 2018 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation (EU) 2017/1420 (OJ 2018 L 79, p. 7), and, second, of Council Decision (CFSP) 2018/1084 of 30 July 2018 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2018/475 (OJ 2018 L 194, p. 144) and of Council Implementing Regulation (EU) 2018/1071 of 30 July 2018 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation 2018/468 (OJ 2018 L 194, p. 23),

THE GENERAL COURT (First Chamber),

composed of I. Pelikánová, President, P. Nihoul (Rapporteur) and J. Svenningsen, Judges,

Registrar: E. Coulon,

gives the following

Background to the dispute

United Nations Security Council Resolution 1373 (2001)

On 28 September 2001, the United Nations Security Council adopted Resolution 1373 (2001) setting out wide-ranging strategies to combat terrorism and, in particular, the funding of terrorism. Paragraph 1(c) of that resolution provided, in particular, that all States were to freeze without delay funds and other financial assets or economic resources of persons who committed, or attempted to commit, terrorist acts or participated in or facilitated the commission of terrorist acts, of entities owned or controlled by them, and of persons and entities acting on behalf of, or at the direction of such persons and entities.

That resolution did not provide for a list of persons, entities or groups to whom those measures were to be applied.

EU law

On 27 December 2001, noting that action by the European Union was necessary in order to implement Resolution 1373 (2001), the Council of the European Union adopted Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93). In particular, Article 2 of Common Position 2001/931 provided for the freezing of the funds and other financial assets or economic resources of persons, groups and entities involved in terrorist acts and listed in the annex to that common position.

On the same day, in order to implement at EU level the measures described in Common Position 2001/931, the Council adopted Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70), and Decision 2001/927/EC establishing the list provided for in Article 2(3) of Regulation No 2580/2001 (OJ 2001 L 344, p. 83).

The name ‘Hamas-Izz al-Din al-Qassem (terrorist wing of Hamas)’ appeared on the list annexed to Common Position 2001/931 and on the list in Decision 2001/927. Those two measures were regularly updated in application of Article 1(6) of Common Position 2001/931 and Article 2(3) of Regulation No 2580/2001, and the name ‘Hamas-Izz al-Din al-Qassem’ remained on those lists.

On 12 September 2003, the Council adopted Common Position 2003/651/CFSP updating Common Position 2001/931 and repealing Common Position 2003/482/CFSP (OJ 2003 L 229, p. 42), and Decision 2003/646/EC implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2003/480/EC (OJ 2003 L 229, p. 22). The name of the organisation included on the lists associated with those measures was ‘Hamas (including Hamas-Izz al-Din al-Qassem)’.

The name of that organisation remained on the lists annexed to subsequent measures.

The contested measures

The measures of March 2018

On 30 November 2017, the Council wrote to the applicant’s lawyer informing her that it had received new information relevant for the establishment of the list of persons, groups and entities subject to the restrictive measures provided for in Regulation No 2580/2001 and that it had amended the statement of reasons accordingly. It invited the applicant to submit its comments on that updated statement of reasons by 15 December 2017.

The applicant did not respond to that letter.

On 21 March 2018, the Council adopted, first, Decision (CFSP) 2018/475 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931 and repealing Decision (CFSP) 2017/1426 (OJ 2018 L 79, p. 26), and, second, Implementing Regulation (EU) 2018/468 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation (EU) 2017/1420 (OJ 2018 L 79, p. 7) (together, ‘the measures of March 2018’). The name ‘“Hamas”, including “Hamas-Izz al-Din al-Qassem”’ was retained on the lists annexed to those measures (‘the lists at issue of March 2018’).

By letter of 22 March 2018, the Council sent the applicant’s lawyer the statement of reasons that justified retaining the name ‘“Hamas”, including “Hamas-Izz al-Din al-Qassem”’ on the lists at issue of March 2018 and informed her of the possibility of requesting a review of those lists under Article 2(3) of Regulation No 2580/2001 and Article 1(6) of Common Position 2001/931.

In addition, on 22 March 2018 the Council published in the Official Journal of the European Union a Notice for the attention of the persons, groups and entities mentioned on the list referred to in Article 2(3) of Regulation No 2580/2001 (OJ 2018 C 107, p. 6).

By that notice, the Council, inter alia, informed the persons and entities concerned, first, that it had determined that the reasons for including their names on the lists adopted pursuant to Regulation No 2580/2001 were still valid and that it had therefore decided to keep their names on the lists at issue of March 2018; second, that they could submit a request to the Council to obtain its statement of reasons for keeping their names on those lists; third, that they could at any time submit a request for the Council to reconsider the decision to include their names on the lists in question; and, fourth, that requests to be taken into account in the next review, in accordance with Article 1(6) of Common Position 2001/931, were to be submitted to the Council by 25 May 2018.

The applicant did not respond to that letter or that notice.

It is apparent from the statements of reasons relating to the measures of March 2018 that, in order to include ‘“Hamas”, including “Hamas-Izz al-Din al-Qassem”’ on the lists at issue of March 2018, the Council relied on four national decisions.

The first national decision was Order No 1261 of the United Kingdom Secretary of State for the Home Department of 29 March 2001 amending the United Kingdom Terrorism Act 2000 and proscribing Hamas-Izz al-Din al-Qassem, considered to be an organisation concerned in terrorism (‘the Home Secretary’s decision’).

The second national decision was a decision of the United States Secretary of State of 8 October 1997 designating, for the purposes of the United States Immigration and Nationality Act (‘the INA’), Hamas as a foreign terrorist organisation (‘the 1997 US decision’).

The third national decision was issued by the United States Secretary of State and had been adopted on 31 October 2001 pursuant to Executive Order 13224 (‘the 2001 US decision’).

The fourth national decision was dated 23 January 1995 and had been adopted pursuant to Executive Order 12947 (‘the 1995 US decision’).

In the main part of the statements of reasons relating to the measures of March 2018, the Council stated, first of all, that those national decisions constituted decisions of competent authorities within the meaning of Article 1(4) of Common Position 2001/931 and that they were still in force. Next, it stated that it had considered whether it had in its possession material indicating that the applicant’s name should be removed from the lists at issue of March 2018 and had found none. Last, it stated that the reasons for including the applicant’s name on the lists of funds to be frozen remained valid and concluded that it should be maintained on the lists at issue of March 2018.

In addition, the statement of reasons relating to the measures of March 2018 contained an Annex A concerning the ‘decision of the competent authority of the United Kingdom’ and an Annex B concerning the ‘decisions of the authorities of the United States’. Each of those annexes contained a description of the national legislation under which the decisions of the competent national authorities had been adopted, a presentation of the definitions of the concepts of terrorism that appeared in that legislation, a description of the procedures for reconsideration of those decisions, a description of the facts on which those authorities had relied and the finding that those facts constituted acts of terrorism within the meaning of Article 1(3) of Common Position 2001/931.

In paragraph 14 of Annex A to the statement of reasons relating to the measures of March 2018, the Council set out different facts taken into consideration by the Home Secretary in order to proscribe Hamas-Izz al-Din al-Qassem. Those facts had occurred in 1994 and 1996.

In paragraph 15 of Annex A of the statement of reasons relating to the measures of March 2018, the Council added that, in the United Kingdom, the proscription had been reconsidered in September 2016 by the inter-ministerial group responsible for reviewing proscriptions and that that group had concluded, on the basis of the material to which it referred, that it was reasonable to think that Hamas-Izz al-Din al-Qassem continued to be involved in terrorism.

In paragraph 10 of Annex B to the statement of reasons relating to the measures of March 2018, the Council stated that the most recent review of the designation of Hamas as a foreign terrorist organisation had taken place on 27 July 2012 and had led the United States Government to conclude that the circumstances on which the 1997 US decision was based had not changed in such a way as to justify cancelling the designation.

Last, in paragraph 17 of Annex B to the statement of reasons relating to the measures of March 2018, the Council listed various facts that had occurred between 2003 and 2016 on which the United States authorities had relied in order to classify the applicant as a foreign terrorist organisation, without specifying the decisions in which they originated.

The measures of July 2018

On 30 July 2018, the Council adopted, first, Decision (CFSP) 2018/1084 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931, and repealing Decision 2018/475 (OJ 2018 L 194, p. 144), and, second, Implementing Regulation (EU) 2018/1071 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation 2018/468 (OJ 2018 L 194, p. 23)