Al-Faqih v Council [2010] EUECJ T-137/06 (29 September 2010)

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(Common foreign and security policy – Combating terrorism – Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – Freezing of funds – Fundamental rights – Right to respect for property, right to be heard and right to effective judicial review)

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

Commission of the European Communities, represented initially by P.J. Kuijper, and subsequently by C. O’Reilly and J. Aquilina, and subsequently by E. Paasivirta and P. Aalto, and finally by E. Paasivirta and M. Konstantinidis, acting as Agents,

United Kingdom of Great Britain and Northern Ireland, represented by C. Gibbs, Z. Bryanston-Cross and S. Ossowski, acting as Agents, assisted by A.A. Dashwood, Barrister,

1 On 16 January 2002, the United Nations Security Council (‘the Security Council’) adopted Resolution 1390 (2002), which lays down the measures to be directed against Usama bin Laden, members of the Al-Qaeda network and the Taliban and other associated individuals, groups, undertakings and entities. Paragraphs 1 and 2 of that resolution provide, in essence, for the continuance of the measures freezing funds imposed by paragraphs 4(b) of Resolution 1267 (1999) and 8(c) of Resolution 1333 (2000). In accordance with paragraph 3 of Resolution 1390 (2002), those measures were to be reviewed by the Security Council 12 months after their adoption, at the end of which period the Council would either allow those measures to continue or decide to improve them.

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

3 On 27 May 2002, on the basis of Articles 60 EC, 301 EC and 308 EC, the Council adopted Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-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 freezing of funds and other financial resources in respect of the Taliban of Afghanistan (OJ 2002 L 139, p. 9).

6 The applicants, Mr Al-Bashir Mohammed Al-Faqih and Mr Taher Nasuf, are Libyan nationals who were in possession of residence permits of unlimited duration for the territory of the United Kingdom. Mr Ghunia Abdrabbah, also an applicant, is a citizen of the United Kingdom. The applicant, Sanabel Relief Agency Ltd, is a charity registered with the Charity Commission of England and Wales since 17 November 2000. Mr Abdrabbah and Mr Nasuf are members of the board of directors of that charity.

7 On 3 October 2005 Mr Al-Faqih was arrested and notified that the British Home Secretary had taken a decision to deport him from the United Kingdom on grounds of national security. Mr Al-Faqih appealed to the Special Immigration Appeals Commission (‘the SIAC’). On 22 December 2005, the SIAC ordered Mr Al-Faqih’s release on bail pending a decision on his appeal. At the date of the application in Case T-�135/06, Mr Al-Faqih therefore still had the right of permanent residence.

8 On 7 February 2006, the Sanctions Committee added the names of the applicants to the list of persons referred to in the measures freezing funds.

9 Commission Regulation No 246/2006 of 10 February 2006, amending for the sixty-�third time Regulation No 881/2002 (OJ 2006 L 40, p. 13) came into force on 11 February 2006, and added the applicants’ names to Annex I to Regulation No 881/2002 as natural or legal persons, groups or entities whom or to which Article 2 applies.

10 On 27 March 2006, Mr Al-Faqih was arrested under the Terrorism Act 2000 and charged, on 30 March 2006, with offences under that Act. The prosecution is pending and, at the date of the application lodged in Case T-�135/06, the prosecution was pending and Mr Al-Faqih was still in custody.

11 The applicants brought the present actions by applications lodged at the Registry of this Court on 5 May 2006.

12 By documents lodged at the Registry of this Court on 25 August 2006 and 5 September 2006, the Commission of the European Communities and the United Kingdom of Great Britain and Northern Ireland, respectively, sought leave to intervene in the present proceedings in support of the Council. By orders of 17 October 2006, the President of the First Chamber of the Court of First Instance (now ‘the General Court’) granted them leave to intervene.

13 By order of 5 June 2007, the President of the First Chamber of the General Court, after hearing the parties, decided to join the four cases for the purposes of the written procedure and the oral procedure. Since the present cases are related and after hearing the views of the parties on that matter, the Court considers that these cases should also be joined for the purposes of the judgment, in accordance with Article 50 of the Rules of Procedure of this Court.

14 By order of 5 June 2007, the President of the First Chamber of the General Court stayed the four cases pending the final decision in Joined Cases C-�402/05 P and C-�415/05 P Kadi and Al Barakaat International Foundation v Council and Commission.

15 By decision of 25 September 2007, the four cases were reassigned to the Second Chamber of the General Court.

16 On 3 September 2008, the Court of Justice delivered judgment in Joined Cases C-�402/05 P and C-�415/05 P.

17 By document lodged at the Registry of the General Court on 9 September 2009, Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah requested the General Court to grant them legal aid, under Article 94 of the Rules of Procedure.

18 By order of 14 December 2009, the President of the Second Chamber of the General Court granted Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah legal aid.

23 The applicants raise four pleas in their applications. The first plea alleges that the Council was not competent to adopt Article 2 of the contested regulation, because the combined provisions of Articles 60 EC, 301 EC and 308 EC did not give it the power to do so. The second plea alleges a misuse of powers on the part of the Council and the Commission, in that Article 2 of Regulation No 881/2002 does not in fact pursue the objectives of Articles 60 EC, 301 EC and 308 EC. The third plea alleges infringement of the principles of subsidiarity, proportionality and ‘respect for fundamental human rights’ by Article 2 of the contested regulation. The fourth plea alleges infringement of an essential procedural requirement, namely, that the Council and the Commission should state adequate reasons why the measures which they considered to be necessary cannot be adopted by the Member States individually.

24 In their observations lodged at the Registry of this Court on 11 September 2009, the applicants invited the Court to adopt the approach taken in Case T-�318/01 Othman v Council and Commission [2009] ECR II-1627, ‘the Othman judgment’), while stating that, in view of the judgment delivered by the Court of Justice on 3 September 2008, 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 (‘Kadi’) they relinquished all the pleas put forward other than the plea relating to the infringement of their fundamental rights.

25 At the hearing, the applicants asked the Court to extend the scope of the procedure to future decisions of the Council considering the merits of their inclusion in the list of persons to whom the fund-freezing measures apply, in particular by examining whether the Council has sufficient evidence to submit them to the fund-freezing provided for by European Union legislation.

26 With regard to the applicants’ request made at the hearing stage, it must be held that the General Court does not have jurisdiction to review the legality of possible future decisions of the institutions (see Case T-�327/03 Al-Aqsa v Council [2007] ECR II-�79, paragraph 36 and the case-law cited). Therefore, the argument advanced in support of that request must be regarded as constituting a new plea in law which cannot be introduced in the course of proceedings, as Article 48(2) of the Rules of Procedure provides, and consequently must be rejected as inadmissible.

27 The applicants stated in their application that they ‘[adopt] the arguments advanced by Mr Kadi’, referring to the judgment of 21 September 2005 in Case T-�315/01 Kadi v Council and Commission [2005] ECR II-�3649 (‘Kadi at first instance’) and the judgment in Kadi. Further to their observations submitted on 11 September 2009, the applicants maintained only the plea alleging infringement of their fundamental rights.

28 Supported by the Commission and the United Kingdom, the Council in its defence challenged the applicant’s arguments. In their observations lodged on 6 October 2009, the Council and the Commission admitted that the applicants were, as in the case which gave rise to the Court’s judgment in Othman, in a factual and legal situation in every way comparable to that of the appellants in the cases giving rise to Kadi.

29 At the hearing, the Council and the Commission acknowledged that, in the judgments in Kadi and Othman, the contested regulation had been adopted in the course of a procedure during which the applicants’ rights of the defence had not been observed.

30 Since the applicants and the Council have expressed their agreement in writing and at the hearing with the approach taken by the Court in the Othman judgment, following the Kadi judgment, it is appropriate to proceed directly to the examination of the third plea, alleging, after the limitation of the pleas by the applicants, infringement of the rights of the defence, the right to effective judicial review and the right to property.

31 It is established that, both in respect of the procedure leading to the adoption of the contested regulation and in respect of the extent, effects and justification, if any, of the restriction of the use of their right to property arising from the restrictive measures laid down by that regulation, the applicants find themselves in a factual and legal situation in every way comparable to that of the applicants in the cases giving rise to Kadi.

– Infringement of the rights of the defence, in particular the right to be heard, and the right to effective judicial review

32 With regard to the procedure leading to the adoption of the contested regulation, it must be pointed out that the Council at no time informed the applicants of the evidence adduced against them that allegedly justified their inclusion for the first time in Annex I to that regulation and, consequently, the imposition of the restrictive measures laid down by the latter.

33 It is not contested that no information was supplied in that regard to the applicants, whether in Regulation No 246/2006, mentioning their name for the first time in a list of legal or natural persons, entities or bodies to whom and to which a measure freezing funds applies or at any later stage.

34 Since the Council neither communicated to the applicants the evidence used against them to justify the restrictive measures imposed on them nor afforded them the right to be informed of that evidence within a reasonable period after those measures were enacted, the applicants were not in a position to make their point of view in that respect known to advantage. Therefore, the applicants’ rights of defence, in particular the right to be heard, were not respected (see, to that effect, Kadi, paragraph 348).

35 In addition, given the failure to inform them of the evidence adduced against them and having regard to the relationship, referred to by the Court of Justice in paragraphs 336 and 337 of Kadi, between rights of defence and the right to an effective legal remedy, the applicants were also unable to defend their rights with regard to that evidence in satisfactory conditions before the European Union judicature, with the result that it must be held that their right to an effective legal remedy has also been infringed (see, to that effect, Kadi, paragraph 349).

36 Lastly, it must be stated that that infringement has not been remedied in the course of this action, the Council having adduced no evidence for that purpose (see, to that effect, Kadi, paragraph 350).

37 The Court cannot, therefore, do other than find that it is not able to undertake the review of the lawfulness of the contested regulation in so far as it concerns the applicants, with the result that it must be held that, for that reason too, the fundamental right to an effective legal remedy which they enjoy has not, in the circumstances, been observed (see, to that effect, Kadi, paragraph 351).

38 It must, therefore, be held that the contested regulation, in so far as it concerns the applicants, was adopted without any guarantee being given as to the communication of the inculpatory evidence against them or as to their being heard in that connection, so that it must be found that that regulation was adopted according to a procedure in which the applicants’ rights of defence were not observed, which has had the further consequence that the principle of effective judicial protection has been infringed (see, to that effect, Kadi, paragraph 352).

39 It follows from the foregoing considerations that the grounds of challenge put forward by the applicants in support of their claim for annulment of the contested regulation and alleging breach of their rights of defence, especially the rules of evidence, and of the right to effective judicial review, are well founded (see, to that effect, Kadi, paragraph 353 and Othman, paragraph 90).

40 With regard to the extent, effects and justification, if any, of the restriction of the use of the right to property arising from the restrictive measures laid down by the contested regulation, it must be added that that regulation, in so far as it concerns the applicants, was adopted without furnishing any guarantee enabling them to put their case to the competent authorities, in a situation in which the restriction of their property rights must be regarded as significant, having regard to the general application and actual continuation of the restrictive measures affecting them (see, to that effect, Kadi, paragraph 369).

41 It must therefore be held that, in the circumstances of the case, the imposition of the restrictive measures laid down by the contested regulation in respect of the applicants, by including them in the list contained in Annex I to that regulation, constitutes an unjustified restriction of their right to property (see, to that effect, Kadi, paragraph 370).

42 Therefore, in so far as certain complaints, made by the applicants in support of their claim for annulment of the contested regulation, may be understood to allege breach of the fundamental right to property, they too are well founded (see, to that effect, Kadi, paragraph 371 and Othman, paragraph 93).

43 It follows from all the foregoing that Article 2 of the contested regulation, in so far as it concerns the applicants, must be annulled.

44 With regard to the temporal effects of that annulment, the period already elapsed since the delivery of the judgment in Kadi, on 3 September 2008, far exceeds the maximum period of three months from the date of delivery of that judgment considered reasonable by the Court of Justice in order to allow the Council to remedy the infringements found in that case, while taking account of the considerable impact of the restrictive measures concerned on the rights and freedoms of the persons concerned (see, to that effect, Kadi, paragraphs 375 and 376).

45 Although that period was determined by reference only to the case of the two persons involved in the cases giving rise to Kadi, namely, Mr Kadi and the Al Barakaat International Foundation, the fact remains that the Council could not have been unaware that the applicants’ situation, which is in all respects comparable, necessarily called for the same response on its part. Furthermore, the institutions that are parties to these proceedings have stated that they have taken steps, in particular by approaching the Sanctions Committee, immediately after the delivery of that judgment, for the purpose of making the Community fund-�freezing procedures consistent with the principles laid down in that judgment.

46 What is more, in accordance with the second paragraph of Article 60 of the Statute of the Court of Justice, by way of derogation from Article 280 TFEU, decisions of the General Court declaring a regulation to be void, take effect only from the date of expiry of the period referred to in the first paragraph of Article 56 of the Statute or, if an appeal has been brought within that period, as from the date of dismissal of the appeal. As well as the time elapsed since the delivery of Kadi, the Council in any event has available to it a period of at least two months, and in addition the extension of the time-limit on account of distance by 10 days, running from the date of notification of this judgment, in order to remedy the infringements found by adopting, if appropriate, a new restrictive measure to be imposed on the applicants. This fact distinguishes the instant case from that giving rise to the judgment in Kadi, which was enforceable ipso jure, in accordance with Article 244 EC.

47 In those circumstances, the danger of serious and irreversible prejudice to the effectiveness of the restrictive measures imposed by the contested regulation and which the European Union is required to implement (Kadi, paragraph 373), does not appear to be sufficiently great in the present case, having regard to the considerable impact of the restrictive measures concerned on the applicants’ rights and freedoms, to justify the maintenance of the effects of that regulation for a period exceeding that laid down in Article 60 of the Statute of the Court of Justice (Othman, paragraphs 95 to 99).

48 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been unsuccessful, it must be ordered to pay the costs.

49 In accordance with Article 97(3) of the Rules of Procedure, the applicants having been granted legal aid and the General Court having ordered the Council to pay the costs incurred by the applicant, the Council will be required to refund to the Court cashier the sums advanced by way of legal aid.

50 Under Article 87(4) of those Rules of Procedure, Member States and institutions which have intervened in the proceedings are to bear their own costs. Consequently, the United Kingdom and the Commission are to bear their own costs.

2. Annuls Article 2 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 freezing of funds and other financial resources in respect of the Taliban of Afghanistan, and amending for the sixty-�third time by Commission Regulation (EC) No 246/2006 of 10 February 2006 in so far as it concerns the applicants Al-Bashir Mohammed Al-Faqih, Taher Nasuf, Ghunia Abdrabbah, and Sanabel Relief Agency Ltd;

3. Orders the Council of the European Union to pay, in addition to its own costs, those incurred by the applicants, and the sums advanced by way of legal aid by the cashier of the General Court;

4. Orders the United Kingdom of Great Britain and Northern Ireland and the European Commission to bear their own costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Al-Faqih v Council [2010] EUECJ T-137/06 (29 September 2010) URL: http://www.bailii.org/eu/cases/EUECJ/2010/T13706.html Cite as: [2010] EUECJ T-137/6, [2010] EUECJ T-137/06

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