Ayadi v Commission (Judgment) [2015] EUECJ T-527/09 (14 April 2015)

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(Referral back after setting aside — Common foreign and security policy — 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 — Freezing of funds and economic resources of a person included on a list drawn up by a United Nations body — Inclusion of the name of that person in the list contained in Annex I to Regulation (EC) No 881/2002 — Action for annulment — Fundamental rights — Rights of defence — Right to effective judicial protection — Right to respect for property)

Chafiq Ayadi, residing in Dublin (Ireland), represented by H. Miller, Solicitor, P. Moser, QC, E. Grieves, Barrister, and R. Graham, Solicitor,

European Commission, represented by E. Paasivirta, T. Scharf and M. Konstantidinis, acting as Agents,

Ireland, represented by E. Creedon, acting as Agent, assisted, initially, by E. Regan and N. Travers, SC, and, subsequently, by M. Travers,

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

APPLICATION for annulment of Commission Regulation (EC) No 954/2009 of 13 October 2009 amending for the 114th 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-Qaida network and the Taliban (OJ 2009 L 269, p. 20), in so far as that act concerns the applicant,

composed of S. Papasavvas, President, N.J. Forwood (Rapporteur) and E. Bieliūnas, Judges,

having regard to the written procedure and further to the hearing on 7 November 2014,

1 The applicant, Mr Chafiq Ayadi, is a Tunisian national. He has lived in the Republic of Ireland with his wife and their six children since 1997. He states that he has bank accounts in Ireland and in the United Kingdom of Great Britain and Northern Ireland.

2 On 19 October 2001, Mr Ayadi’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 (respectively, ‘the Sanctions Committee list’ and ‘the Sanctions Committee’).

3 Mr Ayadi’s name was therefore included in the list of persons and entities whose funds and other economic resources had to be frozen, initially pursuant to Council Regulation (EC) No 467/2001 of 6 March 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, and repealing Regulation No 337/2000 (OJ 2001 L 67, p. 1), and subsequently under 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 Regulation No 467/2001 (OJ 2002 L 139, p. 9).

4 On 26 August 2002, Mr Ayadi brought before the General Court an action for annulment of Regulation No 881/2002 in so far as that act concerned him, on the grounds, inter alia, that it infringed the principles of proportionality and respect for human rights.

5 By its judgment of 12 July 2006 in Ayadi v Council (T‑253/02, ECR, EU:T:2006:200) the General Court dismissed that action.

7 In similar cases that gave rise to the judgment of 3 September 2008 in Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P (‘Kadi I’), ECR, EU:C:2008:461) the Court of Justice upheld the appeals brought by the appellants and, ruling on the actions for annulment they had brought, annulled Regulation No 881/2002 in so far as it included their names in the list of persons and entities covered by the freezing of funds, on the grounds, inter alia, that the rights of the defence, in particular the right to be heard, had patently not been respected.

8 In order to enable the European Commission to comply with that judgment in the case of Mr Ayadi, the Presidency of the Council of the European Union requested that the Sanctions Committee provide it with a statement of the reasons for including Mr Ayadi in that committee’s list.

9 Subsequently, the Commission sent a letter to Mr Ayadi on 24 June 2009, informing him that the freezing of his funds within the European Union was based on the grounds set out in the statement of reasons provided by the Sanctions Committee and attached to that letter. The Commission further stated that the purpose of its letter was to give Mr Ayadi the opportunity to submit observations on the grounds included in the statement of reasons and to provide any information to the Commission that he might consider relevant before it took its final decision. The deadline set for Mr Ayadi for that purpose was 23 July 2009.

10 The statement of reasons attached to that letter (‘the statement of reasons’) is worded as follows:

‘Shafiq ben Mohamed ben Mohamed al-Ayadi (QI.A.25.01) was listed [on the Sanctions Committee list] on 17 October 2001 pursuant to paragraph 8(c) [of Security Council] Resolution 1333 (2000) as being associated with Al-Qaida, Usama bin Laden or the Taliban for “participating in the financing, planning facilitating, preparing, or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf, or in support of”; “recruiting for”; or “otherwise supporting acts or activities of” Al-Qaida (QE.A.4.01) and Usama bin Laden (QI.B.8.01).

In 1992, Shafiq al-Ayadi was hired by Yasin Abdullah Ezzedine [K]adi (QI.Q.22.01) to head the European operations of the Muwafaq Foundation. The Muwafaq Foundation historically operated under the umbrella of Makhtab al-Khidamat (MAK) (QE.M.12.01), an organisation founded by Abdullah Azzam (non-listed [on the Sanctions Committee list]) and Usama bin Laden (QI.B.8.01) and the predecessor to Al-Qaida (QE.A.4.01). Following the dissolution of MAK in early June 2001 and its absorption into Al-Qaida, a number of non-governmental organisations formerly affiliated with MAK, including Muwafaq, also joined with Al-Qaida. Mr Al-Ayadi was hired on the recommendation of known Al-Qaida financier Wa’el Hamza Abd al-Fatah Julaidan (QI.J.79.02), who fought with Usama bin Laden in Afghanistan in the 1980s.

At the time of his appointment by Mr [K]adi as Muwafaq’s European director, Mr Al-Ayadi was operating under agreements with Bin Laden. Mr Al-Ayadi went to Afghanistan in the early 1990s to receive paramilitary training, and then went to Sudan with others to meet Mr Bin Laden, with whom they concluded a formal agreement regarding the reception and terrorist training of Tunisians. They later met with Mr Bin Laden a second time, securing an agreement for Mr Bin Laden[’s] collaborators in Bosnia and Herzegovina to receive Tunisian fighters from Italy.

Mr Al-Ayadi and Safet Durguti (QI.D.153.03) founded Vezir, a successor to the Al-Haramain Islamic Foundation (AHIF) (QE.A.71.02).

11 By letter of 23 July 2009, Mr Ayadi submitted extensive observations in reply to the Commission, containing detailed factual admissions and denials. In that letter, Mr Ayadi also asked the Commission to provide certain details and additional information concerning, inter alia, the production of evidence in support of the assertions made in the statement of reasons and how the Commission assessed those assertions.

12 On 13 October 2009, the Commission adopted Regulation (EC) No 954/2009 amending for the 114th time Regulation No 881/2002 (OJ 2009 L 269, p. 20, the ‘contested regulation’), which confirmed the entry relating to Mr Ayadi’s name in the list appearing in Annex I to Regulation No 881/2002 (‘the list at issue’).

‘(3) Following the recent case-law of the Court of Justice … the [Sanctions Committee] provided, in Spring 2009, the grounds for its decision … listing [Mr Ayadi]. … [T]he grounds for listing were notified to [Mr Ayadi] … in order to give [him] the opportunity to comment on these grounds and to make [his] point of view known.

(4) The Commission has received comments from [Mr Ayadi] and examined these comments.

(5) The list of persons, groups and entities to whom the freezing of funds and economic resources should apply, drawn up by the [Sanctions Committee], currently comprises [Mr Ayadi].

(6) After having carefully considered the comments received from [Mr Ayadi] in a letter dated 23 July 2009, and given the preventive nature of the freezing of funds and economic resources, the Commission considers that the listing of [Mr Ayadi] is justified for reasons of his association with the Al-Qaida network.

(8) In view of this, the listing decision … concerning [Mr Ayadi] should be replaced by [a] new decision … confirming [his] inclusion in Annex I to Regulation (EC) No 881/2002.

(9) [This] new decision … should apply from 30 May 2002 as regards [Mr Ayadi] …, given the preventive nature and objectives of the freezing of funds and economic resources under Regulation … No 881/2002 and the need to protect legitimate interests of the economic operators, who have been relying on the [decision made in 2002].’

14 Article 1 and the Annex to the contested regulation confirm the entry relating to Mr Ayadi in Annex I to Regulation No 881/2002.

15 Under Article 2 of the contested regulation, that regulation entered into force on the day following its publication in the Official Journal of the European Union and applied from 30 May 2002 as regards Mr Ayadi.

16 By letter of 21 October 2009, the Commission notified Mr Ayadi of its decision to retain his name in the list at issue and also replied to his observations of 23 July 2009, stating, inter alia, that the statement of reasons was the only information or evidence provided to the Commission by the Sanctions Committee and that it comprised the entire case against him.

17 By judgment of 3 December 2009 in Hassan and Ayadi v Council and Commission (C‑399/06 P and C‑403/06 P, ECR, EU:2009:748) the Court of Justice set aside Ayadi v Council, paragraph 5 above (EU:2006:200), and annulled Regulation No 881/2002 in so far as it concerned Mr Ayadi, basing its decision essentially on legal grounds deriving from Kadi I, paragraph 7 above (EU:C:2008:461). In paragraphs 62 to 65 of Hassan and Ayadi v Council and Commission (EU:2009:748), the Court held that the adoption of the contested regulation had not rendered the appeal devoid of purpose, in particular, because that regulation could still form the subject-matter of an action for annulment.

18 By application lodged at the Registry of the General Court on 6 April 2010, Mr Ayadi brought the present action for annulment of the contested regulation in so far as it concerned him.

19 By separate document lodged at the Registry on the same date, Mr Ayadi applied for the case to be dealt with under an expedited procedure pursuant to Article 76a of the Rules of Procedure of the General Court. After the Commission had been heard, that application was dismissed by decision of the General Court (Seventh Chamber) of 18 May 2010.

20 By order of 6 July 2010, after the parties had been heard, the President of the Seventh Chamber of the General Court granted the Council leave to intervene in support of the form of order sought by the Commission.

21 Following changes in the composition of the Chambers of the General Court with effect from the beginning of the judicial year, the Judge-Rapporteur was assigned to the Second Chamber, to which the case was consequently allocated.

22 By order of the President of the Second Chamber of the General Court of 22 October 2010, Mr Ayadi was granted legal aid and B. Emmerson, S. Cox and H. Miller were appointed to represent him.

23 On 17 October 2011, the Sanctions Committee decided to remove Mr Ayadi’s name from its list.

24 By Commission Implementing Regulation (EU) No 1081/2011 of 25 October 2011 amending for the 160th time Regulation No 881/2002 (OJ 2011 L 280, p. 17), the entry relating to Mr Ayadi was therefore deleted from the list at issue.

25 By document lodged at the Registry of the General Court on 27 October 2011, the Commission asked that court to declare that the action for annulment had become devoid of purpose and that there was no longer any need to adjudicate on it.

26 By order of 31 January 2012 (‘the order that it was not necessary to give judgment’), the General Court (Second Chamber) found that there was no longer any need to adjudicate on the action for annulment. The Court also ordered the Commission to bear Mr Ayadi’s costs in addition to its own.

27 By application lodged at the Registry of the Court of Justice on 12 April 2012, Mr Ayadi brought an appeal against that order.

28 Ireland was granted leave to intervene before the Court of Justice in support of the form of order sought by the Commission.

29 By judgment of 6 June 2013 in Ayadi v Commission (C‑183/12 P, EU:C:2012:369) the Court set aside the order that it was not necessary to give judgment in so far as that order decided that there was no longer any need to adjudicate on the action for annulment, and referred the case back to the General Court for it to rule again on Mr Ayadi’s action for annulment, reserving the costs. In essence, the Court of Justice held that the General Court erred in law by finding that Mr Ayadi no longer had an interest in bringing proceedings for annulment following the adoption of Regulation No 1081/2011.

30 The case was assigned to the Second Chamber of the General Court. Following changes in the composition of the Chambers of the General Court with effect from the beginning of the judicial year, the Judge-Rapporteur was assigned to the Third Chamber, to which the case has therefore been reallocated.

31 By document lodged at the Registry of the General Court on 19 November 2013, Ireland applied for access to the documents in the case at first instance. After the other parties had been heard, the President of the Third Chamber of the General Court granted that application by decision of 17 February 2014.

32 In accordance with Article 119(1) of the Rules of Procedure, the parties filed statements of written observations.

– award him costs in relation to the proceedings before the General Court, both before and after referral by the Court of Justice, and, in any event, in relation to the proceedings before the Court of Justice.

36 On hearing the report of the Judge-Rapporteur, the General Court (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure provided for under Article 64 of the Rules of Procedure, asked the Commission to produce, where appropriate, all information and evidence, confidential or not, available to it concerning the facts put forward in the statement of reasons of the Sanctions Committee which it considers to be relevant for the purpose of the review to be carried out by the General Court, in accordance with the conditions and limits set by the Court of Justice in Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P (‘Kadi II’), ECR, EU:C:2013:518). By letter of 14 October 2014, the Commission notified the General Court that it had no further information. By letter of 4 November 2014, the Commission produced a letter from the Sanctions Committee of 23 October 2014, the only annex to that letter being the statement or reasons.

37 The parties presented oral argument and answered the questions put by the General Court at the hearing on 7 November 2014, after which the oral procedure was closed and the case deliberated. At that hearing, the Commission produced Sanctions Committee Press Release SC/10413 of 17 October 2011, which refers, inter alia, to the removal of Mr Ayadi’s name from that committee’s list. Mr Ayadi did not object to that document being placed on the court file.

Admissibility of the grounds of complaint set out in Mr Ayadi’s observations on the remainder of the proceedings after referral back

38 In his application, Mr Ayadi formally relies on four pleas in law in support of his action, alleging, respectively, misuse of power, infringement of the right to effective judicial protection, infringement of the rights of the defence and infringement of the right to property. By those pleas, Mr Ayadi essentially claims that the Commission failed to comply with its procedural obligations as identified by the Court of Justice in Kadi I, paragraph 7 above (EU:C:2008:461).

39 In his written observations on the remainder of the proceedings after referral back, Mr Ayadi now draws attention to the judgments of 4 June 2013 in ZZ (C‑300/11, ECR, EU:C:2013:363) and Kadi II, paragraph 36 above (EU:C:2013:518), in the light of which his arguments as a whole should be examined. He puts forward in that regard a series of substantive grounds of complaint contesting, as unfounded or unproven, the allegations made against him in the statement of reasons.

40 In its written observations on the remainder of the proceedings after referral back and in its oral submissions, the Commission underlines the fact that the four pleas in law relied on originally in support of the action concerned only the way in which the Commission exercised its powers during the procedure leading to Mr Ayadi’s inclusion in the list at issue, which the Court of Justice confirmed in paragraph 72 of the judgment in Ayadi v Commission, paragraph 29 above (EU:C:2013:369). Unlike the applicant in the case which gave rise to Kadi II, paragraph 36 above (EU:C:2013:518), Mr Ayadi did not raise any plea in respect of the assessment of the facts of the case or the reasons for his inclusion on the list at issue. Nor did he claim that the reasons given lacked detail or specificity.

41 The Commission therefore submits that Mr Ayadi’s observations on the remainder of the proceedings contain new pleas in law relating to the assessment of the facts and the obligation to state reasons. It considers that these new pleas should be dismissed as inadmissible under Article 48(2) of the Rules of Procedure of the General Court. It is not possible to introduce new pleas in law in a procedure after referral back by the Court of Justice unless they are based on matters of law or of fact which come to light in the course of the procedure. The Commission is of the view that Kadi II, paragraph 36 above (EU:C:2013:518), cannot be regarded as such a matter.

42 The Commission accepts that if Mr Ayadi had challenged the assessment of the facts, it would have been for the General Court to verify the allegations set out in the statement of reasons. To that end, that court could have asked the Commission, if necessary, to produce information or evidence, confidential or not, relevant to such an examination (Kadi II, paragraph 36 above, EU:C:2013:518, paragraphs 117 to 120). However, in the present case, the Commission submits that there is no need for such an examination.

43 In their written observations as to the remainder of the proceedings after referral back, the Council and Ireland support the arguments put forward by the Commission.

44 In so far as the Commission’s arguments concern the assertion of a new plea alleging failure to state reasons, it is sufficient to point out that, in an action for annulment, a plea alleging failure to state or failure sufficiently to state the reasons on which an act is based is a matter of public policy which may, or even must, be raised by the Courts of the European Union of their own motion and which, in consequence, may be invoked by the parties at any stage of the proceedings (see judgment in Alliance One International v Commission (T‑41/05, ECR, EU:T:2011:586, paragraph 170 and the case-law cited).

45 In so far as the Commission’s arguments concern the assertion of a new plea alleging an error of assessment as to the facts, the Court observes that it is settled case-law that a plea or an argument which may be regarded as amplifying a plea put forward previously, whether directly or by implication, in the original application and which is closely connected therewith must be declared admissible (see judgment of 11 July 2013 in Ziegler v Commission, C‑439/11 P, ECR, EU:C:2013:513, paragraph 46 and the case-law cited; see also judgment of 18 September 2014 in Holcim (Romania) v Commission, T‑317/12, ECR, EU:T:2014:782, paragraph 218 and the case-law cited).

46 It is, admittedly, true that, considered in the light of their wording alone, none of the four pleas set out in the application expressly seeks to challenge the Commission’s assessment of the facts.

47 None the less, during the procedure leading to the adoption of the contested regulation, Mr Ayadi vigorously challenged, point by point, the claims made concerning him in the statement of reasons and, since that time, has repeatedly maintained that those allegations are unfounded or unsubstantiated.

48 The Court finds that Mr Ayadi has adhered to the core substance of his arguments in that regard in the present proceedings.

49 Thus, at paragraph 16 of the application, Mr Ayadi referred to the letter sent by his solicitors to the Commission on 23 July 2009, stating that this ‘contained detailed factual admissions and denials of the applicant relating to the factual allegations in the Sanctions Committee statement’. That letter, which contains Mr Ayadi’s detailed observations on the facts and asks the Commission to clarify a number of points and provide additional information concerning, inter alia, the production of evidence corroborating the claims made in the statement of reasons and how the Commission assessed that evidence, was also attached to the application as Annex 5.

50 Moreover, there is nothing else in the application to indicate that Mr Ayadi altered his position regarding what he admits and the allegations he disputes.

51 On the contrary, in his first plea in law, formally alleging misuse of power, Mr Ayadi makes the following submissions, referring once again to his observations of 23 July 2009 and the Commission’s letter in reply of 21 October 2009, at paragraphs 27 to 30 of the application:

‘27 The Commission directed itself to consider whether there are grounds for suspecting or believing that the applicant is a terrorist or funds terrorism. The applicant submits that such “grounds” can only exist if there is sufficient evidence. The Commission’s obligation to examine all aspects of the case is therefore an obligation to examine the evidence — both inculpatory and exculpatory — to see whether it shows such grounds.

28 The Commission’s letter of 21 October 2009 shows that the Commission had no information or evidence other than the Sanctions Committee statement. That statement did not contain any indication of the evidential basis for its assertions. Because the Commission had no other material, it cannot have considered any evidence said to show that the factual assertions in that statement were well founded.

29 The Commission gave no reason why it had not obtained, from the Sanctions Committee or other sources, evidence for and/or against the allegations in the Sanctions Committee statement and the statements of fact made by the applicant.

30 It follows that the Commission misused its powers by failing to examine all relevant elements of the case.’

52 Similarly, in his second plea in law, alleging infringement of the right to effective judicial protection, Mr Ayadi submitted, at paragraph 36 of the application, that ‘there is no evidential basis for the decision taken [by the Commission concerning him]’.

53 Moreover, in the third plea in law, alleging infringement of the rights of the defence, Mr Ayadi argued, at paragraph 37 of the application, that the Commission had failed to provide him with ‘a statement of the evidence against him’. He added, at paragraph 39 of the application, that, in the absence of such evidence, he was ‘unable to address the Commission on defects in that evidence or misunderstandings of it’.

54 Lastly, Mr Ayadi produced as Annexes 1 to 3 to the reply certain judgments handed down by the English courts, with a view to establishing that some of the evidence produced to substantiate the claims made in the statement of reasons may have been obtained as a result of torture and that it was therefore inadmissible in judicial proceedings.

55 Accordingly, there is no support for the contention that Mr Ayadi did not intend to challenge, in the present proceedings, the assessment of the facts in the statement of reasons and the probative nature of the supporting evidence and information.

56 On the contrary, under the umbrella of pleas formally alleging misuse of power or infringement of his procedural rights, Mr Ayadi intended to call into question that assessment and the probative nature of the evidence put forward in support of that assessment. By those pleas, Mr Ayadi sought primarily to be placed in a position to mount an effective challenge before the General Court, if necessary in reliance on the Court’s powers of inquiry, to the allegations relating to his purported links with Al-Qaida, which also constitutes the substance of the observations he sent to the Commission in response to the statement of reasons.

57 It should be noted that such a procedural approach is essentially consistent with that adopted by the Court of Justice in Kadi II, paragraph 36 above (EU:C:2013:518), in which the person concerned claimed that the grounds for including his name in the list at issue were unlawful (see, inter alia, paragraphs 119 and 120 of that judgment). Thus, for instance, the Court of Justice examined in detail at paragraphs 154 to 156 of Kadi II, paragraph 36 above (EU:C:2013:518) the issue of the relationship between Mr Kadi and Mr Julaidan — which is also relevant for the purpose of the present case in view of the claim in the statement or reasons concerning Mr Ayadi’s association with the Muwafaq Foundation — even though Mr Julaidan’s name was not mentioned in Mr Kadi’s pleadings but only in the written observations of 10 November 2008 to the Commission, which he annexed to those pleadings. Similarly, the Court of Justice examined, at paragraphs 157 to 159 of Kadi II, paragraph 36 above (EU:C:2013:518), the issue of the relationship between Mr Kadi and Mr Talad Fuad Kassem, even though the latter’s name was not mentioned in Mr Kadi’s pleadings but only in the written observations of 10 November 2008 referred to above. The same applies to the Court of Justice’s examination, at paragraphs 160 to 162 of Kadi II, paragraph 36 above (EU:C:2013:518), of the issue of Mr Kadi’s association with the Depozitna Bank, which was carried out in the light of the same written observations of 10 November 2008 and not merely in the light of factual arguments set out in Mr Kadi’s pleadings.

58 It should be added that a ground of complaint such as that alleging failure to disclose evidence in support of allegations made against a person or that that evidence lacks probative value can be effective in judicial proceedings and can indeed have meaning only if the person concerned also challenges the substance of the allegations. Such a challenge therefore constitutes the premiss which, though unstated, is none the less certain on which any complaint of that nature must be based.

59 In the present case, Mr Ayadi has indeed put forward such grounds of complaint in support of his action.

60 It must be acknowledged, at the very least, that Mr Ayadi has also challenged, by implication but undeniably, the allegations made against him in the statement of reasons and that he is entitled to ask the General Court to consider whether those allegations and the items of information and evidence supporting them are well founded, as ruled by the Court of Justice in Kadi II, paragraph 36 above (EU:C:2013:518).

61 In the light of the foregoing considerations, it is appropriate to examine together the four pleas in law in the light of Mr Ayadi’s written observations on the remainder of the proceedings after referral back and of his written observations to the Commission of 23 July 2009, which deal principally with whether the allegations made against him in the statement of reasons and the information and evidence supporting those allegations are well founded.

62 With regard to judicial proceedings, the Court of Justice held in Kadi II, paragraph 36 above (EU:C:2013:518, paragraph 119), that in the event that the person concerned challenges the lawfulness of the decision to include or maintain his name on the list at issue, the Courts of the European Union must, inter alia, as part of the judicial review of the lawfulness of the grounds on which such a decision is based, ensure that that decision was taken on a sufficiently solid factual basis. That entails a verification of the allegations in the statement of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated.

63 To that end, it is for the Courts of the European Union, in order to carry out that examination, to request the competent European Union authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination (Kadi II, paragraph 36 above, EU:C:2013:518, paragraph 120; see also, by analogy, judgment in ZZ, paragraph 39 above, EU:C:2013:363, paragraph 59). It is precisely with a view to complying, in the present case, with that procedure, which the Court of Justice has decreed must be followed by the Courts of the European Union when carrying out a judicial review, that the General Court adopted the measure of organisation of procedure described at paragraph 36 above.

64 That is because it is the task of the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that is, that those reasons are not well founded (Kadi II, paragraph 36 above, EU:C:2013:518, paragraph 121).

65 For that purpose, there is no requirement that that authority produce before the Courts of the European Union all the information and evidence underlying the reasons alleged in the summary provided by the Sanctions Committee. It is however necessary that the information or evidence produced should support the reasons relied on against the person concerned (Kadi II, paragraph 36 above, EU:C:2013:518, paragraph 122).

66 If the competent European Union authority finds itself unable to comply with the request by the Courts of the European Union, it is then the duty of those Courts to base their decision solely on the material which has been disclosed to them, namely, in this case, the indications contained in the statement of reasons provided by the Sanctions Committee, the observations and exculpatory evidence produced by the person concerned and the response of the competent European Union authority to those observations. If that material is insufficient to allow a finding that a reason is well founded, the Courts of the European Union must disregard that reason as a possible basis for the contested decision to list or maintain a listing (Kadi II, paragraph 36 above, EU:C:2013:518, paragraph 123).

67 If, on the other hand, the competent European Union authority provides relevant information or evidence, the Courts of the European Union must then determine whether the facts alleged are made out in the light of that information or evidence and assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person concerned (Kadi II, paragraph 36 above, EU:C:2013:518, paragraph 124), by applying, where appropriate, techniques which accommodate, on the one hand, legitimate security considerations about the nature and sources of information taken into account in the adoption of the act concerned and, on the other, the need sufficiently to guarantee to an individual respect for his procedural rights, following the approach indicated by the Court of Justice at paragraphs 125 to 129 of Kadi II, paragraph 36 above (EU:C:2013:518).

68 Having regard to the preventive nature of the restrictive measures at issue, if, in the course of its review of the lawfulness of the contested measure, as defined in paragraphs 117 to 129 of Kadi II, paragraph 36 above (EU:C:2013:518), the Courts of the European Union consider that, at the very least, one of the reasons mentioned in the statement of reasons provided by the Sanctions Committee is sufficiently detailed and specific, that it is substantiated and that it constitutes in itself a sufficient basis to support that measure, the fact that the same cannot be said of other such reasons cannot justify the annulment of that measure. In the absence of one such reason, the Courts of the European Union will annul the contested measure (Kadi II, paragraph 36 above, EU:C:2013:518, paragraph 130).

69 It follows from the criteria analysed above that, for the rights of the defence and the right to effective judicial protection to be respected, first, the competent European Union authority must (i) disclose to the person concerned the statement of reasons provided by the Sanctions Committee which is the basis of the decision to include or maintain the name of that person on the list at issue, (ii) enable him effectively to make known his observations on that subject and (iii) examine, carefully and impartially, whether the reasons alleged are well founded, in the light of the observations presented by that person and any exculpatory evidence that may be produced by him (Kadi II, paragraph 36 above, EU:C:2013:518, paragraph 135).

70 Second, respect for those rights implies that, in the event of a legal challenge, the Courts of the European Union are to review, in the light of the information and evidence which have been disclosed, inter alia whether the reasons relied on in the statement of reasons provided by the Sanctions Committee are sufficiently detailed and specific and, where appropriate, whether the accuracy of the facts relating to the reason concerned has been established (Kadi II, paragraph 36 above, EU:C:2013:518, paragraph 136).

71 On the other hand, the fact that the competent European Union authority does not grant the person concerned and, subsequently, the Courts of the European Union, access to information or evidence which is in the sole possession of the Sanctions Committee or the Member of the United Nations (UN) concerned and which relates to the statement of reasons underpinning the decision at issue, cannot, as such, justify a finding that those rights have been infringed. However, in such a situation, the Courts of the European Union, which are called upon to review whether the reasons contained in the summary provided by the Sanctions Committee are well founded in fact, taking into consideration any observations and exculpatory evidence produced by the person concerned and the response of the competent European Union authority to those observations, will not have available to them supplementary information or evidence. Consequently, if it is impossible for those Courts to find that those reasons are well founded, those reasons cannot be relied on as the basis for the contested listing decision (Kadi II, paragraph 36 above, EU:C:2013:518, paragraph 137).

72 In the present case, with regard to whether the procedure followed by the Commission in relation to Mr Ayadi in 2009 was properly conducted, Mr Ayadi’s grounds of complaint are essentially the same as those made by Mr Kadi in the case which gave rise to Kadi II, paragraph 36 above (EU:C:2013:518). He claims, in essence, that the Commission failed to discharge its duty to examine, on its own behalf, carefully and impartially, whether the alleged reasons are well founded in the light of his comments and the exculpatory evidence provided with those comments (see Kadi II, paragraph 36 above, EU:C:2013:518, paragraph 114). The Commission also failed to obtain, or indeed request, the disclosure of information or evidence, confidential or not, which would have enabled it to discharge its duty of careful and impartial examination (see Kadi II, paragraph 36 above, EU:C:2013:518, paragraph 115). Moreover and in any event, the Commission had no intention of departing from the opinion of the Sanctions Committee, as is apparent from both its pleadings in the present case and its explanations in other similar cases. Such an approach is incompatible with Kadi II, paragraph 36 above (EU:C:2013:518).

73 The Court finds that those grounds of complaints are justified, both in the light of the evidence in the file available to the Court and in the light of the Commission’s procedural conduct as already established in parallel cases involving the imposition of restrictive measures dating from the same period. That explains why, at paragraph 171 of the judgment of 30 September 2010 in Kadi v Commission (T‑85/09, ECR, EU:T:2010:418) the General Court held that, in the light of the arguments and explanations advanced by the Commission and the Council — particularly in their preliminary observations on the appropriate standard of judicial review in the circumstances of that case — it was ‘quite [clear]’ that the rights of defence of the applicant, Mr Kadi, had been ‘observed’ only in the most formal and superficial sense, as the Commission in actual fact considered itself strictly bound by the Sanctions Committee’s findings and therefore at no time envisaged calling those findings into question in the light of the applicant’s observations. That assessment, which was not called into question by the Court of Justice in the appeal against that judgment, which gave rise to Kadi II, paragraph 36 above (EU:C:2013:518), is also applicable in the present case, notwithstanding the change in the line of argument put forward by the Commission, which maintains, in its observations on the remainder of the procedure after referral back, that it fully complied with its procedural obligations as laid down by the Court of Justice in Kadi II, paragraph 36 above (EU:C:2013:518) and that, in particular, it carefully considered the comments and information provided by Mr Ayadi.

74 With regard, second, to the reply to the claims made against Mr Ayadi in the statement of reasons, it is clear, first of all, that those claims have, for the most part, already been examined and rejected by the Court of Justice in Kadi II, paragraph 36 above (EU:C:2013:518), on the ground either that they had not been proven or, in view of period of time that had elapsed since they were made, did not justify the freezing of the funds of the person concerned.

75 Accordingly, with regard, in the first place, to the allegation in the statement of reasons concerning Mr Ayadi’s association with the Muwafaq Foundation and with Mr Julaidan, which was repeated in the Commission’s letter of 21 October 2009 in response to Mr Ayadi’s observations of 23 July 2009, Mr Ayadi observes, correctly, that the Court of Justice has already examined that allegation in Kadi II, paragraph 36 above (EU:C:2013:518), since the allegation had also been made against Mr Kadi (see paragraph 28 of that judgment). At paragraph 153 of that judgment, the Court of Justice considered Mr Kadi’s alleged link with Al-Qaida through his association with the Muwafaq Foundation and found that ‘no information or evidence [had] been produced to substantiate the allegations of the Muwafaq Foundation’s involvement in international terrorism in the form of links with Makhtab al-Khidamat/Al Kifah and Al-Qaida’. It therefore concluded that the indications of the role and duties of Mr Kadi in relation to that foundation were not such as to justify the adoption, at EU level, of restrictive measures against him.

76 Although it is not legally bound by that finding by the Court of Justice, the General Court considers that it may be applied, by analogy, to Mr Ayadi’s case in the absence of any other information or inculpatory evidence concerning Mr Ayadi.

77 It should be added that Mr Ayadi also provided, inter alia in his observations of 23 July 2009 to the Commission, a detailed account of his involvement with the Muwafaq Foundation and his humanitarian tasks in the conflict in Bosnia, which ceased in 1998. Mr Ayadi stated that he met Mr Julaidan while working for a humanitarian organisation in Pakistan. Mr Julaidan was one of the directors of that humanitarian organisation and he agreed to recommend him to Mr Kadi to work at the Muwafaq Foundation. Mr Ayadi also stated that he had only minimal contact with Mr Julaidan between 1992 and 1999 and that, since 1999, he had received only one telephone call from Mr Julaidan, when his daughter was killed in a road accident in Ireland. None of those statements is such as to call into question the finding made in the preceding paragraph.

78 With regard, in the second place, to the allegation in the statement of reasons concerning My Kadi’s recruitment of Mr Ayadi in 1992 (which was also repeated in the Commission’s letter of 21 October 2009 in response to Mr Ayadi’s observations of 23 July 2009), the Court of Justice made the following observations at paragraph 156 of Kadi II, paragraph 36 above (EU:C:2013:518):

‘[W]hile it is conceivable that the material relied on in the summary of reasons provided by the Sanctions Committee as regards the recruitment by Mr Kadi, in 1992, of Mr Al-Ayadi on the recommendation of Mr Julaidan and the alleged involvement of Mr Al-Ayadi and Mr Julaidan in terrorist activities in association with Usama bin Laden might have been deemed sufficient to justify the initial inclusion, in 2002, of Mr Kadi’s name in the list of persons in the Annex to Regulation No 881/2002, it must be observed that that same material, not otherwise substantiated, cannot justify maintaining, after 2008, the listing of Mr Kadi’s name in that regulation, as amended by the contested regulation. Given how far apart in time those two measures are, that material, which refers to 1992, is no longer sufficient in itself to justify, in 2008, maintaining, at EU level, the name of Mr Kadi in the list of persons and entities subject to the restrictive measures at issue.’

79 Mr Ayadi claims, rightly, that he is also entitled to the benefit of the ‘principle of distance in time’ applied by the Court of Justice in the case of Mr Kadi, in the absence of any other evidence that might justify a different approach. It should be noted in that regard that the statement of reasons concerning Mr Ayadi relates solely to the ‘early 1990s’, whereas the contested regulation was adopted in October 2009.

80 In the third place, in addition to those allegations concerning the Muwafaq Foundation, Mr Julaidan and Mr Kadi, Mr Ayadi also challenges, most vigorously, the other allegations in the statement of reasons. In his observations of 23 July 2009 to the Commission, he denied, inter alia, receiving paramilitary training in Afghanistan in the early 1990s. He further denied ever travelling to Sudan, alone or with others. He stated that he had never met Usama bin Laden and denied concluding any agreement with him or his representatives at any time. Mr Ayadi also denied knowing or meeting, to his knowledge, Safet Durguti, and maintained that he is not acquainted with the Vezir organisation. Lastly, he stated that he has never worked for, nor undertaken any activities on behalf of, the Al-Haramain Islamic Foundation.

81 The Commission did not make any comment in response to those observations, either in its letter of 21 October 2009 or in its pleadings in the present proceedings, and it confirmed, at paragraph 7 of that letter, that the Sanctions Committee had not disclosed any further information or evidence and that the statement of reasons comprised the entirety of the case against Mr Ayadi.

82 It is therefore apparent that the various reasons given in the statement of reasons, as disclosed by the Sanctions Committee, are not substantiated by any information or evidence, even though they are challenged, point by point, vigorously and in detail, by Mr Ayadi.

83 In this case, there is no information to be extracted from the statement of reasons from which it is possible to establish to the requisite legal standard that Mr Ayadi was materially linked to Al-Qaida on the date when he was included in the list at issue.

84 Nor do the documents annexed to the Commission’s response to the measure of organisation of procedure, lodged at the Court’s Registry on 4 November 2014, permit the Court to hold that the grounds applied to Mr Ayadi are well founded, as they consist simply of a letter from the Sanctions Committee disclosing once more, as an attachment to that letter, the statement of reasons already provided to the Commission in 2009.

85 The same applies to the document produced by the Commission at the hearing, which consists simply of a Sanctions Committee press release referring, among other things, to the removal of Mr Ayadi’s name from that committee’s list in November 2011.

86 It follows from the foregoing analysis and from the only material in the file available to the Court that none of the allegations made against Mr Ayadi in the statement of reasons provided by the Sanctions Committee was such as to justify the adoption, at EU level, of restrictive measures against him, either because the reasons stated are insufficient, or because information or evidence which might substantiate the reasons concerned, in the face of detailed rebuttals submitted by the party concerned, is lacking (see, to that effect, Kadi II, paragraph 36 above, EU:C:2013:518, paragraph 163).

87 In those circumstances, the contested regulation must be annulled, on the legal grounds stated in the preceding paragraph (see, to that effect, Kadi II, paragraph 36 above, EU:C:2013:518, paragraph 164), and there is therefore no need to rule on Mr Ayadi’s other pleas, complaints and arguments.

88 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 Commission has been unsuccessful, it must be ordered to pay the costs, including those relating to the appeal proceedings before the Court of Justice, in accordance with the form of order sought by Mr Ayadi.

89 In accordance with Article 97(3) of those Rules, since Mr Ayadi was granted legal aid and the Court has ordered the defendant institution to pay the costs, that institution will be required to refund to the Court cashier the sums advanced by way of legal aid.

90 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.

1. Annuls Commission Regulation (EC) No 954/2009 of 13 October 2009 amending for the 114th 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-Qaida network and the Taliban, in so far as that measure concerns Mr Chafiq Ayadi.

2. Orders the European Commission to bear its own costs and to pay both the costs incurred by Mr Ayadi and the sums advanced by the General Court by way of legal aid.

3. Orders the Republic Ireland and the Council of the European Union to bear their own costs.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Ayadi v Commission (Judgment) [2015] EUECJ T-527/09 (14 April 2015) URL: http://www.bailii.org/eu/cases/EUECJ/2015/T52709.html Cite as: [2015] EUECJ T-527/9, EU:T:2015:205, ECLI:EU:T:2015:205, [2015] EUECJ T-527/09

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