Abdulrahim, residing in London (United Kingdom), v Council of the European Union [2013] EUECJ C-239/12 (28 May 2013)

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(Appeal – Common foreign and security policy (CFSP) – Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban – Regulation (EC) No 881/2002 – Action for annulment – Removal of the interested party from the list of persons and entities concerned – Interest in bringing proceedings)

Abdulbasit Abdulrahim, residing in London (United Kingdom), represented by P. Moser QC and E. Grieves, Barrister, instructed by H. Miller, Solicitor,

Council of the European Union, represented by E. Finnegan and G. Étienne, acting as Agents,

European Commission, represented by E. Paasivirta and G. Valero Jordana, acting as Agents, with an address for service in Luxembourg,

composed of V. Skouris, President, K. Lenaerts, Vice-President, M. Ilešič, L. Bay Larsen, T. von Danwitz, A. Rosas (Rapporteur), G. Arestis, J. Malenovský and E. Jarašiūnas, Presidents of Chambers, E. Juhász, A. Borg Barthet, C. Toader, C.G. Fernlund, J.L. da Cruz Vilaça and C. Vajda, Judges,

1 By his appeal, Mr Abdulrahim requests the Court to set aside the order of the General Court of the European Union of 28 February 2012 in Case T-127/09 Abdulrahim v Council and Commission (‘the order under appeal’), by which the General Court held, in particular, that there was no longer any need to adjudicate on the action which he had brought seeking 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-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), as amended by Commission Regulation (EC) No 1330/2008 of 22 December 2008 (OJ 2008 L 345, p. 60), or of Regulation No 1330/2008.

2 On 21 October 2008, Mr Abdulrahim’s name was added to the list drawn up by the Sanctions Committee established by United Nations Security Council Resolution 1267 (1999) of 15 October 1999 on the situation in Afghanistan (‘the Sanctions Committee list’).

3 By Regulation No 1330/2008, Mr Abdulrahim’s name was accordingly added to the list of persons and entities whose funds and other economic resources must be frozen under Regulation No 881/2002 (‘the list at issue’).

4 Point 1 of the annex to Regulation No 1330/2008 provides the following reasons for adding Mr Abdulrahim’s name to the list:

‘… Other information: (a) …; (b) Involved in fundraising on behalf of the Libyan Islamic Fighting Group [“the LIFG”]; (c) Held senior positions within the LIFG in the United Kingdom; (d) Associated with the Directors of the SANABEL Relief Agency, Ghuma Abd’rabbah, Taher Nasuf and Abdulbaqi Mohammed Khaled and with members of the LIFG in the United Kingdom, including Ismail Kamoka, a senior member of the LIFG in the United Kingdom who has been convicted and sentenced in the United Kingdom in June 2007 based on charges of terrorist funding.’

5 By application, the signed original of which was received at the Registry of the Court of First Instance (now ‘the General Court’) on 15 April 2009, Mr Abdulrahim brought an action against the Council of the European Union and the European Commission, seeking essentially: (i) annulment of Regulation No 881/2002, as amended by Regulation No 1330/2008, or of Regulation No 1330/2008, in so far as those acts concern him; and (ii) compensation for the damage allegedly caused by those acts. That action was registered as Case T-127/09.

6 In his application, Mr Abdulrahim submitted that neither the Council nor the Commission had explained the reasons for his inclusion on the list at issue. He had not been informed of the evidence used against him and had not been heard in that regard. He argued that the measure freezing funds belonging to him infringed his right to property and to private life and was disproportionate. Finally, Mr Abdulrahim contended that he had never been associated with Usama bin Laden, the Al-Qaida network or the Taliban. Referring to a letter from the Foreign and Commonwealth Office of 5 November 2008 that indicated a link with Al-Qaida through the LIFG, he submitted that, whilst some of the Afghan group of the LIFG joined Al-Qaida in 2007, that was not true of all the members of the group. Mr Abdulrahim stated that, in any event, he ceased to be involved in the LIFG from 2001.

7 On 22 December 2010, Mr Abdulrahim’s name was removed from the Sanctions Committee list.

8 On 6 January 2011, Mr Abdulrahim’s lawyers wrote to the Commission asking for his name to be removed from the list at issue.

9 By Commission Regulation (EU) No 36/2011 of 18 January 2011 amending for the 143rd time Regulation No 881/2002 (OJ 2011 L 14, p. 11), Mr Abdulrahim’s name was removed from the list at issue.

10 By letter received at the Registry of the General Court on 27 July 2011, the Commission sent the General Court a copy of Regulation No 36/2011.

11 By letter from the Registry of the General Court of 17 November 2011, the parties were requested to express their views in writing on the conclusions to be drawn, especially in the light of the purpose of Mr Abdulrahim’s action, from the adoption of Regulation No 36/2011.

12 In their written observations, lodged at the Registry of the General Court on 6 December 2011, the Council and the Commission requested the General Court to declare that the application for annulment had become devoid of purpose and that there was no longer any need to adjudicate in that regard. Those institutions maintained their earlier heads of claim as regards the claim for damages and the costs.

13 In his written observations, lodged at the Registry of the General Court on 6 December 2011, Mr Abdulrahim opposed the making of an order declaring that there was no need to adjudicate on the claims for annulment of Regulation No 1330/2008. Relying, inter alia, on paragraphs 46 to 51 of the judgment of 3 April 2008 in Case T-229/02 PKK v Council, he put forward the arguments summarised in paragraph 19 of the order under appeal, to which the General Court responded in that order.

14 The order under appeal was made on the basis of Article 113 of the Rules of Procedure of the General Court, according to which the General Court may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding with an action or declare that the action has become devoid of purpose and that there is no need to adjudicate on it.

15 In paragraph 22 of the order under appeal, the General Court recalled the case-law according to which the purpose of the action, like an applicant’s interest in bringing proceedings, must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (see Case C-362/05 P Wunenburger v Commission [2007] ECR I-4333, paragraph 42 and the case-law cited; see also, to that effect, Joined Cases T-494/08 to T-500/08 and T-509/08 Ryanair v Commission [2010] ECR II-5723, paragraphs 42 and 43).

16 In paragraph 24 of the order under appeal, the General Court also recalled the case-law according to which the withdrawal – or, in certain circumstances, the repeal – of the contested act by the defendant institution divests the action for annulment of its purpose, since it leads, for the applicant, to the desired outcome and gives him full satisfaction (see the order of 28 March 2006 in Case T-451/04 Mediocurso v Commission, paragraph 26 and the case-law cited, and the orders of 6 July 2011 in Case T-142/11 SIR v Council, paragraph 18, and in Case T-160/11 Petroci v Council, paragraph 15).

17 In paragraph 27 of the order under appeal, the General Court stated that, by Regulation No 36/2011, the Commission had deleted the entry relating to Mr Abdulrahim’s name from the list at issue, an entry originally made by Regulation No 1330/2008. According to the General Court, such a deletion entailed the repeal of Regulation No 1330/2008 in so far as that act concerned Mr Abdulrahim.

18 In paragraphs 29 and 30 of the order under appeal, the General Court recalled that it is true that the applicant may, in an action for annulment, retain an interest in the annulment of a measure which is repealed in the course of the proceedings if the annulment of that measure may in itself have legal consequences (orders in Case T-25/96 Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission [1997] ECR II-363, paragraph 16, and in Case T-184/01 IMS Health v Commission [2005] ECR II-817, paragraph 38). Where an act is annulled, the institution which adopted it is required under Article 266 TFEU to take the necessary measures to comply with the related judgment. Those measures do not involve the elimination of the act as such from the legal order of the European Union because that is the very essence of its annulment by the Court. They involve, rather, the removal of the effects of the illegalities found in the judgment annulling the act. The institution concerned may thus be required to take adequate steps to restore the applicant to his original situation or to refrain from the adoption of an identical measure (see Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission, paragraph 17 and the case-law cited).

19 In paragraph 31 of the order under appeal, the General Court ruled, however, that in the case in point it was not apparent from the case file or Mr Abdulrahim’s arguments that, following the adoption of Regulation No 36/2011, the action for annulment was liable to procure for him an advantage for the purposes of the case-law referred to in paragraph 22 of that order, leading him to retain an interest in bringing proceedings.

20 In particular, as regards, first, the fact that the repeal of an act of an institution of the European Union does not amount to recognition of its illegality and takes effect ex nunc, by contrast with a judgment annulling an act, by virtue of which the act annulled is removed retroactively from the legal order of the European Union and deemed never to have existed (see, to that effect, Joined Cases T-481/93 and T-484/93 Exporteurs in Levende Varkens and Others v Commission [1995] ECR II-2941, paragraph 46), the General Court observed, in paragraph 32 of the order under appeal, that that fact cannot establish an interest on the part of Mr Abdulrahim in securing the annulment of Regulation No 1330/2008.

21 In paragraph 33 of the order under appeal, the General Court explained that there is nothing to indicate that the removal ex tunc of Regulation No 1330/2008 would procure any advantage for Mr Abdulrahim. In particular, there is nothing to establish that, in the event of a judgment annulling that regulation, the Commission would be required, pursuant to Article 266 TFEU, to adopt measures designed to remove the effects of the illegality held to exist.

22 In paragraph 34 of the order under appeal, the General Court further stated that recognition of the alleged illegality itself may admittedly constitute one of the forms of reparation sought through a claim for damages under Articles 268 TFEU and 340 TFEU. On the other hand, according to the General Court, such recognition is not sufficient to establish a continuing interest in bringing proceedings under Articles 263 TFEU and 264 TFEU for the annulment of acts of the institutions. Were the position otherwise, an applicant would continue to retain an interest in seeking the annulment of an act, notwithstanding its withdrawal or repeal, and that would be incompatible with the case-law referred to in paragraphs 24 and 29 of the order under appeal and recalled in paragraphs 16 and 18 respectively of the present judgment.

23 With regard to its case-law according to which an applicant may retain an interest in securing the annulment of a decision imposing restrictive measures which has been repealed and replaced (see to that effect, in addition to PKK v Council, paragraphs 46 to 51, Case T-228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II-4665, paragraph 35; the judgment of 11 July 2007 in Case T-327/03 Al-Aqsa v Council, paragraph 39; and Case T-256/07 People’s Mojahedin Organization of Iran v Council [2008] ECR II-3019, paragraph 48), the General Court held, in paragraph 35 of the order under appeal, that that case-law was developed in a specific context which differs from that in the case in point. Unlike Regulation No 1330/2008, the acts at issue in those cases had not only been repealed, but had also been replaced by new acts, and the restrictive measures relating to the entities concerned had been maintained. The original effects of the acts which had been repealed thus continued, in relation to the entities concerned, through the acts which replaced them. Here, however, according to the General Court, Regulation No 36/2011 quite simply removes Mr Abdulrahim’s name from the list at issue, thereby implicitly repealing Regulation No 1330/2008 in so far as it concerns him, but not replacing the measures laid down by it. The effects produced by Regulation No 1330/2008 do not therefore persist vis-à-vis Mr Abdulrahim. In addition, according to the General Court, that case-law is based on the difference between the effects of the repeal of an act and the effects of its annulment, a factor which is not relevant here, as is apparent from paragraph 32 of the order under appeal.

24 In paragraph 36 of the order under appeal, the General Court stated that the above distinction is confirmed by the judgment in Joined Cases C-399/06 P and C-403/06 P Hassan and Ayadi v Council and Commission [2009] ECR I-11393. Firstly, instead of concluding automatically that the applicants concerned retained an interest in bringing proceedings in the cases which gave rise to that judgment, the Court of Justice raised, of its own motion, in paragraph 57 of the judgment, the question whether, in the light of the withdrawal of the contested regulation and its retroactive replacement by another act, it was still necessary to adjudicate on the cases concerned. Secondly, in paragraphs 59 to 63 of that judgment, the Court of Justice pointed out a certain number of particular circumstances in the cases before it, which led it to conclude, in paragraphs 64 and 65 of the judgment, that, ‘in these particular circumstances’, and in contrast to what had been held in the order in Case C-123/92 Lezzi Pietro v Commission [1993] ECR I-809, the adoption of the new act, and the concomitant repeal of the regulation at issue, could not be regarded as equivalent to the annulment, pure and simple, of that regulation. Those particular circumstances do not, however, according to the General Court, obtain in the case in point. More specifically, in the case in point, Regulation No 36/2011 is definitive inasmuch as it may no longer be the subject of an action for annulment. Consequently, it is inconceivable that Regulation No 1330/2008 might come back into force so far as Mr Abdulrahim is concerned, contrary to the finding made by the Court of Justice in paragraph 63 of Hassan and Ayadi v Council and Commission.

25 As regards, secondly, the fact that an applicant may retain an interest in seeking the annulment of an act of a European Union institution in order to prevent its alleged unlawfulness recurring in the future, the General Court recalled, in paragraph 37 of the order under appeal, that such an interest in bringing proceedings, which follows from the first paragraph of Article 266 TFEU, can exist only if the alleged unlawfulness is liable to recur in the future independently of the circumstances of the case which gave rise to the action (Wunenburger v Commission, paragraphs 51 and 52). In the case in point, however, according to the General Court, there was nothing in the file to suggest that this might happen. On the contrary, as Regulation No 36/2011 was adopted in view of the specific circumstances of Mr Abdulrahim and, apparently, of developments in the situation in Libya, the General Court considered that it did not appear likely that the alleged unlawfulness might recur in the future independently of the circumstances which had given rise to the action.

26 As regards, thirdly, the argument that there is an overriding public interest in having the alleged infringement of a mandatory rule of international law penalised, the General Court considered, in paragraph 38 of the order under appeal, that, whilst the Commission should not be acknowledged as having any impunity in that regard, that argument was not sufficient to establish that Mr Abdulrahim had a personal interest in the continuation of the action. Even though, as observed by Mr Abdulrahim, the Commission must comply with the mandatory rules of international law and is not entitled to adopt a decision based on information obtained through torture, Mr Abdulrahim is not, according to the General Court, entitled to act in the interests of the law or of the institutions and may put forward only such interests and claims as relate to him personally (see, to that effect, Case 85/82 Schloh v Council [1983] ECR 2105, paragraph 14).

27 As regards, fourthly, the possibility that detrimental consequences might, as the case may be, follow from the alleged unlawfulness of Regulation No 1330/2008, the General Court pointed out, in paragraph 39 of the order under appeal, that the application made by the defendant institutions for a declaration that there was no need to adjudicate related only to the claims for annulment of that regulation. Mr Abdulrahim could therefore still seek compensation for the damage which, in his claim for damages under Article 268 TFEU and the second and third paragraphs of Article 340 TFEU, he purported to have sustained.

28 As regards, fifthly and lastly, the argument relating to the alleged need to secure a decision on the merits of the action for the purposes of the recovery of the costs incurred by Mr Abdulrahim, the General Court referred in paragraph 40 of the order under appeal to its decision on costs.

29 The General Court concluded, in paragraph 41 of the order under appeal, that there was no longer any need to adjudicate on the claims for annulment of Regulation No 1330/2008.

30 As for the claim for damages, the General Court considered that it appeared to be manifestly lacking any foundation in law – or even to be manifestly inadmissible – in the light of the procedural documents, the information in the case-file and the explanations provided by the parties in their written pleadings.

31 After recalling, in paragraph 45 of the order under appeal, the conditions necessary for the European Union to incur non-contractual liability on account of unlawful conduct on the part of its institutions, the General Court held, in paragraph 48 of the order, that the damage was neither quantified nor proven.

32 The General Court also held, in paragraph 52 of the order under appeal, that the causal link between the acts at issue in the case and the alleged damage was not established, since the direct and immediate cause of the material damage purportedly sustained by Mr Abdulrahim, arising from the unavailability of his funds, financial assets and other economic resources and consisting in his being deprived of their use, was not the adoption of those acts, but the adoption of earlier decisions, that is to say, the Sanctions Committee’s decision of 21 October 2008 adding his name to its list and the United Kingdom authorities’ decision adopting restrictive measures in his regard.

– order the Commission to pay the costs of this appeal and the costs in the General Court, including the costs of making representations upon the General Court’s invitation.

34 The Council and the Commission contend that the Court should dismiss the appeal and order Mr Abdulrahim to pay the costs.

35 In support of his appeal, Mr Abdulrahim asserts his right to an effective remedy and to effective judicial protection. In addition to the Court’s case-law (Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraphs 38 and 39, and Case C-229/05 PKK and KNK v Council [2007] ECR I-439, paragraphs 76 and 77), he relies upon Articles 47 and 52(3) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and upon Article 7 of the Charter, a provision which is equivalent to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), and which provides that everyone has the right to respect for his or her private and family life, home and communications.

36 More specifically, Mr Abdulrahim relies, in support of his arguments, upon two pleas in law, the first of which is in three parts.

First part of the first plea: error of law committed by the General Court in failing to hear the Advocate General

37 Mr Abdulrahim contends that, in failing to hear the Advocate General before giving its decision, the General Court infringed Article 114(4) of its Rules of Procedure, which is referred to by Article 113 thereof on the basis of which the order under appeal was adopted.

38 However, as the Council and the Commission have correctly pointed out, the General Court’s obligation to hear the Advocate General before giving a decision on an action must be read in the light of Articles 2(2), 18 and 19 of its Rules of Procedure, from which it is apparent, first, that the designation of a Judge of the General Court as Advocate General is optional where the General Court sits as a Chamber and, second, that references to the Advocate General in those Rules of Procedure are to apply only where a Judge has in fact been designated as Advocate General (order of 25 June 2009 in Case C-580/08 P Srinivasan v Ombudsman, paragraph 35; order of 22 October 2010 in Case C-266/10 P Seacid v Parliament and Council, paragraph 11; and Case C-426/10 P Bell & Ross v OHIM [2011] ECR I-0000, paragraph 28).

39 Since no Advocate General was designated for the purpose of dealing with the action brought by Mr Abdulrahim before the General Court, which was assigned to its Second Chamber, there was no obligation to hear an Advocate General before declaring that there was no longer any need to adjudicate.

41 Mr Abdulrahim contends that, by failing to invite him to make representations relating to the need for the oral part of the procedure, the General Court infringed the right to a fair hearing. He points out that Article 120 of the Rules of Procedure of the Court of Justice, in the version applicable on the date when the appeal was brought, provides that a party may make representations prior to any decision being taken as to whether there is an oral part of the procedure. In Mr Abdulrahim’s submission, there is no justification for a different approach before the General Court and Article 114 of the Rules of Procedure of the General Court, as interpreted by the latter, does not comply with Article 47 of the Charter.

42 It must be pointed out that the application of Article 113 of the Rules of Procedure of the General Court does not guarantee that an oral procedure will be opened, as the General Court may, under Article 114(3) of its Rules of Procedure, to which Article 113 refers, give its decision following a solely written procedure (Case C-547/03 P AIT v Commission [2006] ECR I-845, paragraph 35, and Case C-417/04 P Regione Siciliana [2006] ECR I-3881, paragraph 37).

43 However, under Article 113 of its Rules of Procedure the General Court is required to hear the parties before deciding whether there exists any absolute bar to proceeding with an action or before declaring that the action has become devoid of purpose and that there is no need to adjudicate on it. In accordance with that provision, Mr Abdulrahim was requested to express his views in writing on the conclusions to be drawn from the adoption of Regulation No 36/2011, especially in the light of the purpose of his action. He could therefore expect that, in the event that the General Court considered that the action had become devoid of purpose, it would give its decision by means of an order, since that is one of the situations, referred to in Article 113 of the Rules of Procedure, in which the General Court may give its decision at any time.

44 Accordingly, contrary to Mr Abdulrahim’s assertions, the General Court did not infringe the right to a fair hearing guaranteed by Article 47 of the Charter by requesting him to express his views on whether the action retained a purpose and by not asking him whether it was desirable to open the oral part of the procedure.

45 It follows from the foregoing that the second part of the first plea is unfounded.

Third part of the first plea: error of law committed by the General Court in failing to open the oral part of the procedure

46 By the third part of the first plea, Mr Abdulrahim submits that the General Court erred in law by failing to open the oral part of the procedure. He contends that it is only in exceptional circumstances that the General Court has the option of omitting the oral part of the procedure, which is an important component of the means available to an applicant to advance his case effectively. In Mr Abdulrahim’s submission, the oral part of the procedure should be dispensed with only in cases which raise no crucial issue of law and/or fact. He notes that, following the response which he sent to the General Court relating to the retention of his interest in bringing proceedings, and the short observations of the Council and of the Commission, the General Court moved straight to judgment.

47 Mr Abdulrahim contends that almost the entirety of the General Court’s reasoning comprises issues and case-law which were not subject to discussion and concerning which he has had no opportunity to be heard either in writing or orally. Leaving aside the case-law cited by the General Court, the latter in particular raised factual issues concerning the situation in Libya and the fact that it does not appear likely that the alleged unlawfulness may recur in the future.

48 As the Commission points out, the General Court could, in accordance with Articles 113 and 114(3) of its Rules of Procedure, make the order under appeal without opening the oral part of the procedure, since it considered that it had sufficient information and Mr Abdulrahim had had the opportunity – of which he, moreover, made use – to present, at the request of the General Court, his written observations on the claims of the defendant institutions that there was no need to adjudicate, and thereby to put forward the arguments on the basis of which he opposed those claims.

49 As regards the grounds of the order under appeal and the case-law mentioned in it, it should be pointed out that, whilst it is incumbent upon the General Court to respect the parties’ rights of defence, it cannot, however, be obliged to request them to comment on the reasoning which it is minded to adopt in order to decide the case before it.

50 It follows from the foregoing that the third part of the first plea is likewise unfounded and that, therefore, the first plea cannot be upheld.

Second plea: error of law committed by the General Court in holding that the action had become devoid of purpose

51 Mr Abdulrahim contends that the General Court applied too high a test for the concept of an interest in bringing proceedings. In his submission, an action is not to be declared devoid of purpose if the slightest prejudice suffered is capable of being remedied by continuing to examine that action, since that procures an advantage for the applicant. In the case in point, he considers that his action for annulment is capable of ending the continuous breach of his right, referred to in Article 8 of the ECHR, to respect for his private and family life, of restoring his reputation, of removing bars to employment and travel, and of removing the effects of his inclusion on the list at issue on him in that it affects and restricts his family.

52 He submits that the General Court erred in law and misapplied the test of advantage from the annulment in paragraph 33 of the order under appeal, by making the existence of an advantage dependent upon the adoption by the Commission and/or the Council, pursuant to Article 266 TFEU, of measures designed to remove the effects of the illegality held to exist. In certain situations, annulment of an act does not require the adoption of any subsequent measure. Nor can a declaration of nullity be dependent on whether the author of the act is required to act subsequently in a certain way.

53 According to Mr Abdulrahim, the General Court’s decision infringes the procedural guarantee, flowing from Article 8 of the ECHR, that he must be able to challenge the assertions made against him so that the prejudice caused by the institution is rectified. Acceptance that there is no interest in bringing proceedings would enable the Commission, through repealing the contested measure, to circumvent review by the Courts of the European Union, which is inconsistent with the principle of the rule of law and would remove accountability of that institution.

54 Mr Abdulrahim states that the General Court accepts that, notwithstanding a lack of prejudice, the possibility of future repetition of the illegality is sufficient for it to be considered that an interest in the proceedings is retained (Wunenburger v Commission, paragraphs 58 and 59). He submits that, here, the breach of Article 8 of the ECHR is based upon the use of material obtained through torture. However, the General Court ignored the systemic nature of the irregularities relied upon in support of his action, which are liable to be repeated. He therefore has a clear interest in this point being adjudicated upon since it provides the basis for his designation as a person associated with a terrorist organisation.

55 In any event, Mr Abdulrahim considers that, having regard to the fact that the political situations that give rise to restrictive measures such as those laid down by Regulation No 1330/2008 change rapidly, the General Court’s approach is particularly worrying. No reasons are stated for the removal of his name from the list at issue and the General Court is not able to conclude that he will not be entered on that list again. His inclusion on that list could be relied upon as a basis, or in support, of any future application by a Member State to have him relisted. Finally, the impact of fast-changing political situations cannot be ruled out, as accepted by the General Court by reference to the situation in Libya.

56 The Council and the Commission point out that Mr Abdulrahim sought the lifting of the restrictive measures concerning him and that the adoption of Regulation No 36/2011 had that effect. They recall in this connection the case-law according to which an interest in obtaining the annulment of a repealed measure presupposes that the annulment of that measure may in itself have legal consequences.

57 In that regard, the Council and the Commission contest Mr Abdulrahim’s arguments that he retains an interest in bringing proceedings on account of restoration of his reputation and prevention of his reinclusion on the list at issue. The Commission notes that a judgment could not have referred to the time before 22 December 2008, the date upon which Mr Abdulrahim was included on the list at issue. Furthermore, in his action Mr Abdulrahim raised pleas concerning infringement of rights of the defence, of the right to judicial protection and of his right to property, but he did not plead that there was an error of assessment as to whether or not he was associated with Al-Qaida. In those circumstances, a judgment annulling Regulation No 1330/2008 on the basis of procedural pleas would not have had the effect of rehabilitating him.

58 The Council and the Commission also submit that the absence of a judgment by the General Court on the merits does not represent a risk that the inclusion of Mr Abdulrahim on the list will come back into force. Council Regulation (EU) No 1286/2009 of 22 December 2009 amending Regulation No 881/2002 (OJ 2009 L 346, p. 42) inserted into Regulation No 881/2002 Article 7a, under which a new listing decision can be taken only if the Commission obtains a statement of reasons from the United Nations Security Council, which it must communicate to the person concerned without delay after adoption of its listing decision so that that person may put forward his observations for the purposes of any review by the Commission of its decision. In the case in point, the decision of the United Nations Security Council to remove Mr Abdulrahim from the Sanctions Committee list leaves no doubt that he will not be re-entered on that list in the absence of a change in the factual circumstances. Moreover, a judgment by the General Court would have no bearing on the Security Council’s decision to remove Mr Abdulrahim from that list in December 2010.

59 As regards the systemic nature of the alleged unlawful acts, the Council and the Commission reiterate that the action for annulment concerned solely Mr Abdulrahim’s inclusion on the list at issue and that an annulment would have concerned only him. The question of a systemic effect therefore does not arise.

60 The Council and the Commission dwell, finally, upon the distinction between the present case and those which gave rise to the judgment in PKK v Council and to the other judgments cited in the appeal. They point out that in those cases the applicants were still listed when their applications for annulment were decided upon, whereas here Mr Abdulrahim’s name had been removed from the list at issue. The Commission also compares the present case with the case which gave rise to the judgment in Case C-27/09 P France v People’s Mojahedin Organization of Iran [2011] ECR I-0000, paragraphs 43 to 50, in which the French Republic considered that the appeal still had a purpose because it maintained that the decision to include the People’s Mojahedin Organization of Iran in the list set out in the annex to Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93) should be retained in the European Union legal order. In the case in point, there is no dispute between Mr Abdulrahim and the Commission regarding his removal from the list at issue.

61 In paragraph 22 of the order under appeal, the General Court recalled the settled case-law according to which an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. That purpose must, like the interest in bringing proceedings, continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (see Wunenburger v Commission, paragraph 42 and the case-law cited, and Joined Cases C-373/06 P, C-379/06 P and C-382/06 P Flaherty and Others v Commission [2008] ECR I-2649, paragraph 25).

62 In various circumstances the Court of Justice has acknowledged that an applicant’s interest in bringing proceedings does not necessarily disappear because the act challenged by him has ceased to have effect in the course of proceedings.

63 The Court has thus held, in particular, that an applicant may retain an interest in claiming the annulment of a decision either in order to be restored to his original position (Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraph 32) or in order to induce the author of the contested act to make suitable amendments in the future, and thereby avoid the risk that the unlawfulness alleged in respect of that act will be repeated (see, to that effect, Simmenthal v Commission, paragraph 32; Case 53/85 AKZO Chemie and AKZO Chemie UK v Commission [1986] ECR 1965, paragraph 21; and Wunenburger v Commission, paragraph 50).

64 In a case between an undertaking which had been unlawfully excluded from a tender procedure and the Commission, the Court held that even where, because of the circumstances, it proves impossible to fulfil the obligation, owed by the institution whose act has been annulled, to take the necessary measures to comply with the judgment annulling the act, the application for annulment may retain an interest as the basis for possible proceedings for damages (Case 76/79 Könecke Fleischwarenfabrik v Commission [1980] ECR 665, paragraph 9).

65 It is apparent from that case-law that the question whether an applicant retains his interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained.

66 Before both the General Court and the Court of Justice, Mr Abdulrahim has put forward various reasons which, in his submission, show that he retains his interest in bringing proceedings despite the fact that Regulation No 36/2011 removed his name from the section ‘Natural persons’ in Annex I to Regulation No 881/2002, as amended by Regulation No 1330/2008. However, it is not necessary to examine all the grounds relied upon by Mr Abdulrahim if one of them is sufficient to establish retention of the interest in bringing proceedings.

67 In paragraphs 28 and 31 of the order under appeal, the General Court held that, inasmuch as Regulation No 36/2011 deleted the entry relating to Mr Abdulrahim’s name from the list at issue, its adoption gave him full satisfaction, so that his action for annulment was no longer liable to procure an advantage for him and, consequently, his interest in bringing proceedings had disappeared.

68 It is true that, in paragraph 32 of the order under appeal, the General Court correctly recalled the distinction between the repeal of an act of an institution of the European Union, which does not amount to recognition of its illegality and takes effect ex nunc, and a judgment annulling an act, by virtue of which the act annulled is removed retroactively from the legal order and is deemed never to have existed.

69 However, the General Court wrongly concluded, in the final sentence of paragraph 32 of the order under appeal, that that difference would not be able to substantiate an interest on the part of Mr Abdulrahim in securing the annulment of Regulation No 1330/2008.

70 It is to be borne in mind that restrictive measures adopted under Regulation No 881/2002 have substantial negative consequences and a considerable impact on the rights and freedoms of the persons covered (see, to that effect, 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, paragraphs 361 and 375). Apart from the freezing of funds as such which, through its broad scope, seriously disrupts both the working and the family life of the persons covered (see, inter alia, Case C-340/08 M and Others [2010] ECR I-3913) and impedes the conclusion of numerous legal acts (see, inter alia, Case C-117/06 Möllendorf and Möllendorf-Niehuus [2007] ECR I-8361), account must be taken of the opprobrium and suspicion that accompany the public designation of the persons covered as being associated with a terrorist organisation.

71 As the Advocate General has observed in points 61 to 67 of his Opinion, the interest of an applicant such as Mr Abdulrahim in bringing proceedings is retained, despite the removal of his name from the list at issue, for the purpose of having the Courts of the European Union recognise that he should never have been included on the list or that he should not have been included under the procedure which was adopted by the European Union institutions.

72 Indeed, whilst recognition of the illegality of the contested act cannot, as such, compensate for material harm or for interference with one’s private life, it is nevertheless capable, as Mr Abdulrahim has submitted, of rehabilitating him or constituting a form of reparation for the non-material harm which he has suffered by reason of that illegality, and of thereby establishing that he retains his interest in bringing proceedings (see, to that effect, Case 155/78 M. v Commission [1980] ECR 1797, paragraph 6, and Case C-343/87 Culin v Commission [1990] ECR I-225, paragraph 26 and the case-law cited).

73 Therefore the General Court, in paragraphs 28 and 31 of the order under appeal, incorrectly inferred from the removal by Regulation No 36/2011 of Mr Abdulrahim’s name from the list at issue that he had obtained full satisfaction and that his action for annulment was accordingly no longer such as to procure for him an advantage.

74 Contrary to the submissions of the Council and the Commission, it is unimportant that the pleas for annulment relied upon in the judicial proceedings relate to the statement of reasons for the act in question or to compliance with an applicant’s procedural rights. Annulment on such grounds of a decision freezing funds would be liable to give the applicant satisfaction in that it gives rise to serious doubts as to the way in which the body concerned exercised its powers in his regard.

75 In any event, before the General Court Mr Abdulrahim did not solely rely on pleas alleging infringement of rights of the defence, but he also disputed that he had been associated with Al-Qaida. As is apparent from paragraphs 142 to 150 of the application before the General Court, Mr Abdulrahim denied that he was involved in terrorist activities or associated with Al-Qaida and contended that he had been included on the list at issue simply because he formed part of a community of Libyan refugees some of whom, according to the United Kingdom authorities, were involved in terrorist activities.

76 It is also unimportant that a judgment ordering annulment cannot refer to the period before Regulation No 1330/2008 was adopted. Although, as the General Court pointed out in paragraph 52 of the order under appeal, Mr Abdulrahim was already included on the Sanctions Committee list and was already the subject of restrictive measures taken by the United Kingdom authorities before that regulation was adopted, the fact remains that including him on the list at issue could have increased the opprobrium and suspicion in his regard and, consequently, the non-material harm which he claims to have suffered.

77 It should be added that the lists established by directly applicable European Union regulations are not of the same nature and do not have the same legal effect, in the territory of the European Union, as the Sanctions Committee list.

78 In paragraph 34 of the order under appeal, the General Court held that recognition of the alleged illegality is not sufficient to establish a continuing interest in bringing proceedings under Articles 263 TFEU and 264 TFEU for the annulment of acts of the institutions because, were the position otherwise, an applicant would continue to retain an interest in seeking the annulment of an act, notwithstanding its withdrawal or repeal, and that would be incompatible with the case-law referred to in paragraphs 24 and 29 of the order under appeal and recalled in paragraphs 16 and 18 of the present judgment.

79 That conclusion contradicts, however, the Court of Justice’s case-law, from which it is apparent that if, as in the case in point, recognition of the alleged illegality is such as to procure an advantage for the applicant, it establishes that his interest in bringing proceedings for annulment is retained even where the contested act has ceased to have effect after he brought his action (see, to that effect, M. v Commission, paragraphs 5 and 6; AKZO Chemie and AKZO Chemie UK v Commission; and Culin v Commission, paragraphs 27 to 29).

80 Finally, that conclusion can likewise not be inferred from the case-law of the General Court mentioned by the latter in paragraph 29 of the order under appeal and recalled in paragraph 18 of the present judgment, because that case-law is founded on the premiss, explained in paragraph 30 of the order under appeal, that an interest in bringing proceedings exists only where the annulment of an act makes it necessary for measures to be taken by the institution which adopted the act, in accordance with Article 266 TFEU. However, the interest in securing the annulment of the contested act is retained where, as in the case in point, its annulment is such as to procure an advantage for the applicant, irrespective of whether it will be unnecessary or in practice impossible for the defendant institution to adopt measures under Article 266 TFEU to comply with the judgment annulling that act (see, to that effect, Könecke Fleischwarenfabrik v Commission, paragraph 9; M. v Commission, paragraph 6; AKZO Chemie and AKZO Chemie UK v Commission, paragraph 21; and Culin v Commission, paragraph 26).

81 It follows from the foregoing that the General Court’s conclusion set out in paragraph 34 of the order under appeal is vitiated by an error of law.

82 Also, the General Court erred in law by concluding, in paragraphs 35 and 36 of the order under appeal, that Mr Abdulrahim lacks an interest in bringing proceedings, inter alia, because the restrictive measures adopted in his regard by Regulation No 1330/2008 were not maintained and the abolition of those measures by Regulation No 36/2011 is definitive, contrary to the situation covered in PKK v Council, a judgment relied upon by Mr Abdulrahim in support of his line of argument. The definitive repeal of Regulation No 1330/2008, by the removal of Mr Abdulrahim’s name from the list at issue, does not prevent an interest in bringing proceedings from continuing to exist so far as concerns the effects of Regulation No 1330/2008 between the date of its entry into force and that of its repeal.

83 In any event, in the light of the circumstances of the present case and, in particular, the extent of the damage to Mr Abdulrahim’s reputation resulting from his inclusion on the list at issue, his interest in bringing proceedings continues to exist for the purpose of seeking annulment of Regulation No 1330/2008 in so far as it concerns him and of securing, should his action be upheld, his rehabilitation and, thus, some form of reparation for the non-material harm suffered by him.

84 It follows from all the foregoing that the General Court erred in law in holding that Mr Abdulrahim lacked an interest in bringing proceedings and that, accordingly, there was no longer any need to adjudicate on his action for annulment of Regulation No 1330/2008 in so far as it concerns him.

85 Consequently, the order under appeal must be set aside in so far as it decides that there is no longer any need to adjudicate on the action for annulment brought before the General Court by Mr Abdulrahim.

86 Under the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the latter may, where the decision of the General Court has been set aside, either itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.

87 Since the General Court held that there was no longer any need to adjudicate on the action for annulment without having examined its admissibility or the substance of the dispute, the Court considers that the state of the proceedings do not permit final judgment to be given in the matter and that it is appropriate to refer the case back to the General Court and to reserve the costs.

1. Sets aside the order of the General Court of the European Union of 28 February 2012 in Case T-127/09 Abdulrahim v Council and Commission in so far as the order decides that there is no longer any need to adjudicate on the action for annulment brought before the General Court by Mr Abdulbasit Abdulrahim;

2. Refers the case back to the General Court of the European Union for it to rule again on Mr Abdulbasit Abdulrahim’s action for annulment;

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Abdulrahim, residing in London (United Kingdom), v Council of the European Union [2013] EUECJ C-239/12 (28 May 2013) URL: http://www.bailii.org/eu/cases/EUECJ/2013/C23912.html Cite as: [2013] WLR(D) 208, ECLI:EU:C:2013:331, [2013] EUECJ C-239/12, EU:C:2013:331

Court of Justice of the European Communities (including Court of First Instance Decisions)