CELEX: 62010TJ0400(01)
Common foreign and security policy
Restrictive measures taken against certain persons and entities with a view to combating terrorism
Freezing of funds
Possibility for an authority of a third country to be classified as a competent authority within the meaning of Common Position 2001/931/CFSP
Factual basis of the decisions to freeze funds
Obligation to state reasons
Error of assessment
Right to effective judicial protection
Rights of the defence
Right to property

I.

Background to the dispute and events subsequent to the bringing of the present action
A.

Resolution 1373 (2001) of the United Nations Security Council
On 28 September 2001, the United Nations Security Council adopted Resolution 1373 (2001) laying out wide-ranging strategies to combat terrorism and in particular the financing of terrorism. Paragraph 1(c) of that resolution provides, inter alia, that all States are to freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled by such persons; and of persons and entities acting on behalf of, or at the direction of, such persons and entities.
That resolution does not provide a list of persons, entities or groups to whom those restrictive measures must be applied.
B.

EU Law
On 27 December 2001, as it took the view that action by the European Union was necessary in order to implement Resolution 1373 (2001), the Council of the European Union adopted Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (
OJ 2001 L 344, p. 93
). In particular, Article 2 of Common Position 2001/931 provides for the freezing of the funds and other financial assets or economic resources of persons, groups and entities involved in terrorist acts and set out on the list in the annex to that common position.
On the same day, in order to implement at EU level the measures set out in Common Position 2001/931, the Council adopted Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (
OJ 2001 L 344, p. 70
) and Decision 2001/927/EC establishing the list provided for in Article 2(3) of Regulation No 2580/2001 (
OJ 2001 L 344, p. 83
).
The name ‘Hamas-Izz al-Din al-Qassem (terrorist wing of Hamas)’ appeared on the lists annexed to Common Position 2001/931 and Decision 2001/927. Those two measures were regularly updated, in accordance with Article 1(6) of Common Position 2001/931 and Article 2(3) of Regulation No 2580/2001, and the name ‘Hamas-Izz al-Din al-Qassem (terrorist wing of Hamas)’ remained on those lists.
On 12 September 2003, the Council adopted Common Position 2003/651/CFSP updating Common Position 2001/931 (
OJ 2003 L 229, p. 42
) and Decision 2003/646/EC implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2003/480/EC (
OJ 2003 L 229, p. 22
). The name of the organisation included on the lists annexed to those measures is ‘Hamas (including Hamas-Izz al-Din al-Qassem)’.
The name of that organisation has continued to be included on the lists annexed to subsequent measures.
C.

Contested measures
1.

July 2010 measures
On 12 July 2010, the Council adopted Decision 2010/386/CFSP updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931 (
OJ 2010 L 178, p. 28
) and Implementing Regulation (EU) No 610/2010 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation (EU) No 1285/2009 (
OJ 2010 L 178, p. 1
) (together, ‘the July 2010 measures’).
The name ‘Hamas (including Hamas-Izz al-Din al-Qassem)’ continued to be included on the lists annexed to those measures (‘the July 2010 lists at issue’).
On 13 July 2010, the Council published in the
Official Journal of the European Union
the notice for the attention of the persons, groups and entities on the list provided for in Article 2(3) of Regulation No 2580/2001 (
OJ 2010 C 188, p. 13
; ‘the July 2010 notice’).
By that notice, the Council, inter alia, informed the persons and entities concerned, first, that it had determined that the reasons for including their names on the lists adopted under Regulation No 2580/2001 were still valid, and therefore it had decided to maintain their name on the July 2010 lists at issue; secondly, that they could make an application to the competent national authorities to obtain an authorisation to use frozen funds for certain needs; thirdly, that they could submit a request to the Council to obtain the statement of reasons for maintaining their name on those lists; fourthly, that they could submit at any time a request to the Council that the decision to include their name on the lists in question should be reconsidered; fifthly, that, in order for requests to be considered at the next review, in accordance with Article 1(6) of Common Position 2001/931, they had to be submitted within two months from the date of publication of that notice; and, sixthly, that they had the possibility of bringing an action before the EU Courts.
The applicant did not respond to that notice.
2.

January 2011 measures
By a notice published in the
Official Journal of the European Union
of 20 November 2010, the Council informed the persons, groups and entities concerned by Implementing Regulation No 610/2010 that it had been provided with new information relevant to those listings and that it had amended the statement of reasons concerning that regulation accordingly. According to that notice, a request to obtain the statement of reasons could be submitted to the Council within two weeks from the date of publication of the notice.
By letter of 10 December 2010, the Council, which, as a result of the bringing of the present action, on 12 September 2010, had the applicant’s lawyer’s address, sent that lawyer its statement of reasons as to why it intended to maintain the applicant’s name on the fund-freezing lists and indicated to the lawyer that she could, within one month from the date of that letter, submit observations to the Council regarding that retention and send to it any supporting documents.
The applicant did not respond to that notice or to that letter.
On 31 January 2011, the Council adopted Decision 2011/70/CFSP updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931 (
OJ 2011 L 28, p. 57
) and Implementing Regulation (EU) No 83/2011 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation (EU) No 610/2010 (
OJ 2011 L 28, p. 14
) (together, ‘the January 2011 measures’). The name ‘Hamas (including Hamas-Izz al-Din al-Qassem)’ was maintained on the lists annexed to those measures (‘the January 2011 lists at issue’).
By letter of 2 February 2011, the Council sent to the applicant’s lawyer the statement of reasons justifying the retention of ‘Hamas (including Hamas-Izz al-Din al-Qassem)’ on the January 2011 lists at issue.
That statement of reasons was set out as follows.
First, the Council summarised the history of the activities of ‘Hamas (including Hamas-Izz al-Din al-Qassem)’. In particular, that organisation was said to have committed a number of attacks against Israeli targets from 1988 to 2010 which were classified as terrorist acts within the meaning of Article 1(3) of Common Position 2001/931.
Secondly, the Council stated that, during 2001, ‘Hamas-Izz al-Din al-Qassem’ had been the subject of two decisions adopted by the authorities of the United Kingdom of Great Britain and Northern Ireland and of two decisions adopted by the authorities of the United States of America.
The first decision taken by the United Kingdom authorities came from the Secretary of State for the Home Department (‘the Home Secretary’). That decision of 29 March 2001 was adopted under the UK Terrorism Act 2000 and proscribed Hamas-Izz al-Din al-Qassem, which was considered to be an organisation involved in acts of terrorism (‘the Home Secretary’s decision’). The second decision taken by the United Kingdom authorities came from the UK Treasury. By that decision of 6 December 2001, the UK Treasury froze the assets of Hamas-Izz al-Din al-Qassem and issued instructions in that regard in accordance with the powers conferred on it by article 4 of the Terrorism (United Nations Measures) Order 2001. The Council stated that the Home Secretary’s decision had been reviewed regularly by an internal government committee and that the order that formed the basis of the UK Treasury’s decision contained provisions regarding the judicial review of that decision and actions against it.
The decisions of the United States authorities consisted, first, in a government decision designating Hamas as a ‘foreign terrorist organisation’, pursuant to section 219 of the US Immigration and Nationality Act, as amended, and, secondly, in a decision designating Hamas as ‘an entity expressly identified as an international terrorist entity’, pursuant to Executive Order No 13224) (together, ‘the United States decisions’). The Council observed that the first designation was amenable to judicial review and the second to administrative and judicial review, in accordance with United States legislation.
The Council classified those decisions as ‘decisions of competent authorities’, in accordance with Article 1(4) of Common Position 2001/931.
Thirdly, the Council found that those decisions were still in force and took the view that the reasons for including ‘Hamas (including Hamas-Izz al-Din al-Qassem)’ on the fund-freezing lists remained valid.
In its letter of 2 February 2011, the Council stated, first, that the applicant could submit to it at any time a request for reconsideration of the January 2011 lists at issue under Article 2(3) of Regulation No 2580/2001 and Article 1(6) of Common Position 2001/931; secondly, that, in order for requests to be considered at the next review, in accordance with Article 1(6) of Common Position 2001/931, they had to be submitted to the Council within two months from the date of that letter; thirdly, that the applicant had the possibility of bringing an action before the EU Courts; and, fourthly, that it could make an application to the competent national authorities to obtain an authorisation to use frozen funds for certain needs.
3.

July 2011 measures
On 30 May 2011, the Council sent to the applicant’s lawyer a letter informing her that it had been provided with new information relevant to the listing of persons, groups and entities subject to the restrictive measures provided for in Regulation No 2580/2001 and that it had amended the statement of reasons accordingly. It accorded the applicant a period of three weeks in which to submit its observations.
The applicant did not respond to that letter.
On 18 July 2011, the Council adopted Decision 2011/430/CFSP updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931 (
OJ 2011 L 188, p. 47
) and Implementing Regulation (EU) No 687/2011 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulations (EU) No 610/2010 and No 83/2011 (
OJ 2011 L 188, p. 2
) (together, ‘the July 2011 measures’). The name ‘Hamas (including Hamas-Izz al-Din al-Qassem)’ was maintained on the lists annexed to those measures (‘the July 2011 lists at issue’).
By letter of 19 July 2011, the Council sent to the applicant’s lawyer the statement of reasons justifying the retention of the name ‘Hamas (including Hamas-Izz al-Din al-Qassem)’ on the July 2011 lists at issue, informing her, first, that the applicant could submit to it at any time a request for reconsideration of those lists under Article 2(3) of Regulation No 2580/2001 and Article 1(6) of Common Position 2001/931; secondly, that, in order for requests to be considered at the next review, in accordance with Article 1(6) of Common Position 2001/931, they had to be submitted to it within two months from the date of that letter; thirdly, that the applicant had the possibility of bringing an action before the EU Courts; and, fourthly, that it could make an application to the competent national authorities to obtain an authorisation to use frozen funds for certain needs.
That statement of reasons was the same as that relating to the January 2011 measures, except that the reference to the UK Treasury’s decision had been removed.
The applicant did not respond to that letter.
4.

December 2011 measures
On 15 November 2011, the Council sent to the applicant’s lawyer a letter informing her that it had been provided with new information relevant to the listing of persons, groups and entities subject to the restrictive measures provided for in Regulation No 2580/2001 and that it had amended the statement of reasons accordingly. It accorded a period of two weeks in which to submit observations.
The applicant did not respond to that letter.
On 22 December 2011, the Council adopted Decision 2011/872/CFSP updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931 and repealing Decision 2011/430 (
OJ 2011 L 343, p. 54
) and Implementing Regulation (EU) No 1375/2011 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation (EU) No 687/2011 (
OJ 2011 L 343, p. 10
) (together, ‘the December 2011 measures’). The name ‘Hamas (including Hamas-Izz al-Din al-Qassem)’ was maintained on the lists annexed to those measures (‘the December 2011 lists at issue’).
By letter of 3 January 2012, the Council sent to the applicant’s lawyer the statement of reasons justifying the retention of the name ‘Hamas (including Hamas-Izz al-Din al-Qassem)’ on the December 2011 lists at issue, informing her, first, that the applicant could submit to it at any time a request for reconsideration of those lists under Article 2(3) of Regulation No 2580/2001 and Article 1(6) of Common Position 2001/931; secondly, that, in order for requests to be considered at the next review, in accordance with Article 1(6) of Common Position 2001/931, they had to be submitted to it before 29 February 2012; thirdly, that the applicant had the possibility of bringing an action before the EU Courts; and, fourthly, that it could make an application to the competent national authorities to obtain an authorisation to use frozen funds for certain needs.
In that statement of reasons, the Council supplemented the statement of facts used to classify the applicant (including Hamas-Izz al-Din al-Qassem) as a terrorist organisation with three new facts, dating from 2011.
The applicant did not respond to that letter.
5.

June 2012 measures
On 25 June 2012, the Council adopted Decision 2012/333/CFSP updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931 and repealing Decision 2011/872 (
OJ 2012 L 165, p. 72
) and Implementing Regulation (EU) No 542/2012 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation (EU) No 1375/2011 (
OJ 2012 L 165, p. 12
) (together, ‘the June 2012 measures’). The name ‘Hamas (including Hamas-Izz al-Din al-Qassem)’ was maintained on the lists annexed to those measures (‘the June 2012 lists at issue’).
By letter of 26 June 2012, the Council sent to the applicant’s lawyer the statement of reasons justifying the retention of the name ‘Hamas (including Hamas-Izz al-Din al-Qassem)’ on the June 2012 lists at issue, informing her, first, that the applicant could submit to it at any time a request for reconsideration of those lists under Article 2(3) of Regulation No 2580/2001 and Article 1(6) of Common Position 2001/931; secondly, that, in order for requests to be considered at the next review, in accordance with Article 1(6) of Common Position 2001/931, they had to be submitted to it before 27 August 2012; thirdly, that the applicant had the possibility of bringing an action before the EU Courts; and, fourthly, that it could make an application to the competent national authorities to obtain an authorisation to use frozen funds for certain needs.
That statement of reasons was identical to that concerning the December 2011 measures.
The applicant did not respond to that letter.
6.

December 2012 measures
On 10 December 2012, the Council adopted Decision 2012/765/CFSP updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931 and repealing Decision 2012/333 (
OJ 2012 L 337, p. 50
) and Implementing Regulation (EU) No 1169/2012 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation (EU) No 542/2012 (
OJ 2012 L 337, p. 2
) (‘the December 2012 measures’). ‘Hamas (including Hamas-Izz al-Din al-Qassem)’ was maintained on the lists annexed to those measures (‘the December 2012 lists at issue’).
By letter of 11 December 2012, the Council sent to the applicant’s lawyer the statement of reasons justifying the retention of the name ‘Hamas (including Hamas-Izz al-Din al-Qassem)’ on the December 2012 lists at issue, informing her, first, that the applicant could submit to it at any time a request for reconsideration of those lists under Article 2(3) of Regulation No 2580/2001 and Article 1(6) of Common Position 2001/931; secondly, that, in order for requests to be considered at the next review, in accordance with Article 1(6) of Common Position 2001/931, they had to be submitted to it before 11 February 2013; thirdly, that the applicant had the possibility of bringing an action before the EU Courts; and, fourthly, that it could make an application to the competent national authorities to obtain an authorisation to use frozen funds for certain needs.
That statement of reasons was identical to that concerning the June 2012 measures.
The applicant did not respond to that letter.
7.

July 2013 measures
On 25 July 2013, the Council adopted Decision 2013/395/CFSP updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931 and repealing Decision 2012/765 (
OJ 2013 L 201, p. 57
) and Implementing Regulation (EU) No 714/2013 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation (EU) No 1169/2012 (
OJ 2013 L 201, p. 10
) (‘the July 2013 measures’). The name ‘Hamas (including Hamas-Izz al-Din al-Qassem)’ was maintained on the lists annexed to those measures (‘the July 2013 lists at issue’).
By letter of 26 July 2013, the Council sent to the applicant’s lawyer the statement of reasons justifying the retention of the name ‘Hamas (including Hamas-Izz al-Din al-Qassem)’ on the July 2013 lists at issue, informing her, first, that the applicant could submit to it at any time a request for reconsideration of those lists under Article 2(3) of Regulation No 2580/2001 and Article 1(6) of Common Position 2001/931; secondly, that, in order for requests to be considered at the next review, in accordance with Article 1(6) of Common Position 2001/931, they had to be submitted to it before 10 September 2013; thirdly, that the applicant had the possibility of bringing an action before the EU Courts; and, fourthly, that it could make an application to the competent national authorities to obtain an authorisation to use frozen funds for certain needs.
That statement of reasons was identical to that concerning the December 2012 measures.
The applicant did not respond to that letter.
8.

February 2014 measures
On 10 February 2014, the Council adopted Decision 2014/72/CFSP updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931 and repealing Decision 2013/395 (
OJ 2014 L 40, p. 56
) and Implementing Regulation (EU) No 125/2014 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation No 714/2013 (
OJ 2014 L 40, p. 9
) (together, ‘the February 2014 measures’). The name ‘Hamas (including Hamas-Izz al-Din al-Qassem)’ was maintained on the lists annexed to those measures (‘the February 2014 lists at issue’).
By letter of 11 February 2014, the Council sent to the applicant’s lawyer the statement of reasons justifying the retention of the name ‘Hamas (including Hamas-Izz al-Din al-Qassem)’ on the February 2014 lists at issue, informing her, first, that the applicant could submit to it at any time a request for reconsideration of those lists under Article 2(3) of Regulation No 2580/2001 and Article 1(6) of Common Position 2001/931; secondly, that, in order for requests to be considered at the next review, in accordance with Article 1(6) of Common Position 2001/931, they had to be submitted to it before 28 February 2014; thirdly, that the applicant had the possibility of bringing an action before the EU Courts; and, fourthly, that it could make an application to the competent national authorities to obtain an authorisation to use frozen funds for certain needs.
That statement of reasons was identical to that concerning the July 2013 measures.
The applicant did not respond to that letter.
9.

July 2014 measures
On 22 July 2014, the Council adopted Decision 2014/483/CFSP updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931 and repealing Decision 2014/72 (
OJ 2014 L 217, p. 35
) and Implementing Regulation (EU) No 790/2014 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation No 125/2014 (
OJ 2014 L 217, p. 1
) (together, ‘the July 2014 measures’). The name ‘Hamas (including Hamas-Izz al-Din al-Qassem)’ was maintained on the lists annexed to those measures (‘the July 2014 lists at issue’).
By letter of 23 July 2014, the Council sent to the applicant’s lawyer the statement of reasons justifying the retention of the name ‘Hamas (including Hamas-Izz al-Din al-Qassem)’ on the July 2014 lists at issue, informing her, first, that the applicant could submit to it at any time a request for reconsideration of those lists under Article 2(3) of Regulation No 2580/2001 and Article 1(6) of Common Position 2001/931; secondly, that, in order for requests to be considered at the next review, in accordance with Article 1(6) of Common Position 2001/931, they had to be submitted to it before 30 September 2014; thirdly, that the applicant had the possibility of bringing an action before the EU Courts; and, fourthly, that it could make an application to the competent national authorities to obtain an authorisation to use frozen funds for certain needs.
In the statement of reasons, the Council added that the classification of the applicant as a foreign terrorist organisation by the United States decision based on section 219 of the US Immigration and Nationality Act had been maintained by a decision of 18 July 2012.
The applicant did not respond to that letter.
10.

August 2017 measures
On 4 August 2017, the Council adopted Decision (CFSP) 2017/1426 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931 and repealing Decision (CFSP) 2017/154 (
OJ 2017 L 204, p. 95
) and Implementing Regulation (EU) 2017/1420 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation (EU) 2017/150 (
OJ 2017 L 204, p. 3
) (together, ‘the August 2017 measures’). The name ‘Hamas (including Hamas-Izz al-Din al-Qassem)’ was maintained on the lists annexed to those measures (‘the August 2017 lists at issue’).
By letter of 7 August 2017, the Council sent to the applicant’s lawyer the statement of reasons justifying the retention of the name ‘Hamas (including Hamas-Izz al-Din al-Qassem)’ on the August 2017 lists at issue, informing her, first, that the applicant could submit to it at any time a request for reconsideration of those lists under Article 2(3) of Regulation No 2580/2001 and Article 1(6) of Common Position 2001/931; secondly, that, in order for requests to be considered at the next review, in accordance with Article 1(6) of Common Position 2001/931, they had to be submitted to it before 4 September 2017; thirdly, that the applicant had the possibility of bringing an action before the EU Courts; and, fourthly, that it could make an application to the competent national authorities to obtain an authorisation to use frozen funds for certain needs.
That statement of reasons underwent significant amendments in relation to those for previous measures.
The applicant did not respond to that letter.
II.

Procedure and forms of order sought before referral back
By application lodged at the Court Registry on 12 September 2010, the applicant brought the present action.
In the application, the applicant claimed that the Court should:
–
annul the July 2010 notice;
–
annul the July 2010 measures;
–
order the Council to pay the costs.
By document lodged at the Court Registry on 21 December 2010, the European Commission applied for leave to intervene in the proceedings in support of the form of order sought by the Council. By order of 7 February 2011, the President of the Second Chamber of the General Court granted that leave to intervene.
By letter of 17 February 2011, lodged at the Court Registry on the same day, the applicant referred to the January 2011 measures and to the letter of 2 February 2011. It stated that it maintained the pleas in the application against those ‘measures’ and that, in the reply, it would develop its criticisms against the reasons for maintaining its name on the January 2011 lists at issue, as notified by the letter of 2 February 2011.
After hearing the other parties, the Court, by letter from the Registry of 15 June 2011 addressed to the applicant, authorised the applicant to amend, in its reply, the pleas in law and form of order sought in its action with respect to the January 2011 measures, if appropriate in the light of the reasons set out in the letter of 2 February 2011. However, the Court did not authorise the applicant to amend the form of order sought in so far as the letter of 2 February 2011 was concerned. The time limit for lodging the reply was set at 27 July 2011.
By letter of 27 July 2011, the applicant referred to the July 2011 measures and to the letter of 19 July 2011 as replacing the measures initially contested. It stated that the publication or notification of those measures caused a new two-month period for bringing an action to begin to run and stated the reasons why the reply had not been lodged.
The letter of 27 July 2011 was placed on the file as an application for an extension of the period for lodging the reply.
By letters from the Registry of 16 September 2011, the Court informed the parties that it had decided not to accede to that application for an extension and set at 2 November 2011 the time limit for the Commission to lodge the statement in intervention.
On 28 September 2011, the applicant lodged a supplementary pleading at the Court Registry. In that pleading, the applicant stated that it ‘was extending the form of order seeking annulment to include [the July 2011 measures]’, in so far as they concerned it, including Hamas-Izz al-Din al-Qassem. It also stated that, in the light of the initial application, the letter of 17 February 2011 and the supplementary pleading, the present action should henceforth be considered to be brought against the July 2010 measures as well as against the January and July 2011 measures. The applicant added that the claims submitted against the July 2010 notice were also maintained and made clear that its applications for annulment related to the measures at issue solely in so far as they concerned the applicant.
On 28 October 2011, the Commission lodged the statement in intervention.
By decision of the Court of 8 December 2011, the supplementary pleading was placed on the file.
By letter of 20 December 2011, the Court informed the parties that, since the period within which an action for annulment of the January 2011 measures could be brought had expired before the supplementary pleading was lodged, the amendment of the form of order sought in the action to include those measures, which was in itself admissible, since it had already been requested and put into effect to the requisite legal standard by the applicant’s letter of 17 February 2011, would be examined solely in the light of the pleas and arguments put forward by that party before the expiry of the period within which an action for annulment of those measures could be brought, that is to say, the pleas and arguments put forward in the application initiating the proceedings.
The Court set 17 February 2012 as the deadline by which the Council and the Commission were to lodge their observations on the amendment of the form of order sought to include the January 2011 measures and, on 5 March 2012, it extended until 3 April 2012 the deadline by which those parties had to lodge their observations on the supplementary pleading.
By letter lodged at the Court Registry on 1 February 2012, the applicant amended the form of order sought in order to take account of the December 2011 measures, in so far as they concerned it, including Hamas-Izz al-Din al-Qassem.
By documents lodged at the Court Registry on 13 and 16 February 2012, the Commission and the Council, at the Court’s invitation, lodged their observations on the amendment of the form of order sought to include the January 2011 measures, in so far as they concerned the applicant, including Hamas-Izz al-Din al-Qassem.
By documents lodged at the Court Registry on 3 April 2012, the Council and the Commission, at the Court’s invitation, lodged their observations on the supplementary pleading.
By document lodged at the Court Registry on 28 June 2012, the applicant, at the Court’s invitation, lodged its observations in response to the observations of the Council and the Commission of 3 April 2012.
By document lodged at the Court Registry on 10 July 2012, the applicant amended the form of order sought in order to take account of the June 2012 measures, in so far as they concerned Hamas, including Hamas-Izz al-Din al-Qassem.
By documents lodged at the Court Registry on 20 and 23 July 2012, the Commission and the Council, at the Court’s invitation, lodged their observations on the amendment of the form of order sought in order to include the June 2012 measures.
By documents lodged at the Court Registry on 5 and 6 September 2012, the Commission and the Council, at the Court’s invitation, replied to the applicant’s observations of 28 June 2012.
By letter lodged at the Court Registry on 11 February 2013, the applicant amended the form of order sought in order to take account of the December 2012 measures, in so far as they concerned it, including Hamas-Izz al-Din al-Qassem.
By documents lodged at the Court Registry on 11 and 13 March 2013, the Commission and the Council, at the Court’s invitation, lodged their observations on the amendment of the form of order sought in order to include the December 2012 measures.
By letter of 24 September 2013, the applicant amended the form of order sought in the present action in order to take account of the July 2013 measures, in so far as they concerned Hamas, including Hamas-Izz al-Din al-Qassem.
By letter of 4 October 2013, the Court invited the Council, which complied with that request by document of 28 October 2013, to produce certain documents, and put certain questions to the parties with a view to the hearing.
By documents lodged at the Court Registry on 28 and 30 October 2013, the Council and the Commission, at the Court’s invitation, lodged their observations on the amendment of the form of order sought in order to include the July 2013 measures.
On 28 February 2014, the applicant amended the form of order sought in the present action in order to take account of the February 2014 measures, in so far as they concerned Hamas, including Hamas-Izz al-Din al-Qassem.
By documents lodged at the Court Registry on 4 and 5 March 2014, the Commission and the Council, at the Court’s invitation, lodged their observations on the amendment of the form of order sought in order to include the February 2014 measures.
On 21 September 2014, the applicant amended the form of order sought in order to take account of the July 2014 measures, in so far as they concerned it, including Hamas-Izz al-Din al-Qassem.
By documents lodged at the Court Registry on 23 October and 3 November 2014, the Council and the Commission, at the Court’s invitation, lodged their observations on the amendment of the form of order sought in order to include the July 2014 measures.
It is clear from the foregoing considerations that, by the present action, the applicant claimed that the Court should:
–
annul the July 2010 notice and the July 2010 to July 2014 measures, in so far as they concern it, including Hamas-Izz al-Din al-Qassem;
–
order the Council to pay the costs.
The Council, supported by the Commission, contended that the Court should:
–
dismiss the action;
–
order the applicant to pay the costs.
By judgment of 17 December 2014, Hamas v Council (
T‑400/10
,
EU:T:2014:1095
, ‘the initial judgment’), the Court:
–
declared the application for annulment of the July 2010 notice inadmissible;
–
annulled the July 2010 to July 2014 measures, in so far as they concerned the applicant (including Hamas-Izz al-Din al-Qassem);
–
maintained the effects of the July 2014 measures for three months from delivery of that judgment or, if an appeal were to be lodged within the period prescribed in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union, until the Court of Justice were to give judgment on that appeal;
–
ordered the Council, in addition to bearing its own costs, to pay the costs of the applicant, the Commission being ordered to bear its own costs.
In order to rule to that effect, the Court upheld the fourth and sixth pleas raised against the July 2011 to July 2014 measures, alleging, respectively, the failure to take sufficient account of the development of the situation owing to the passage of time and a breach of the obligation to state reasons. The Court held, in paragraphs 101 and 125 of the initial judgment, that the list of terrorist acts which the applicant was said to have committed since 2005, set out in the statements of reasons relating to the July 2011 to July 2014 measures, had played a decisive role in the Council’s decision to continue to freeze its funds. In paragraphs 110 and 127 of the initial judgment, the Court held that the reference to any new terrorist act which the Council had inserted in its statement of reasons during a review pursuant to Article 1(6) of Common Position 2001/931 had to be the subject of an examination and a national decision adopted by a competent authority. Having found, inter alia in paragraphs 109 and 131 of the initial judgment, that the Council had based its allegations concerning terrorist acts which the applicant is said to have committed from 2005 onwards not on such decisions but on information which it had obtained from the press and the Internet, the Court annulled the July 2011 to July 2014 measures accordingly.
In paragraph 141 of the initial judgment, the Court also annulled the July 2010 and January 2011 measures on the ground that they likewise contained no reference to decisions of competent authorities relating to the facts imputed to the applicant and that they were therefore vitiated by the same breach of the obligation to state reasons.
By document lodged at the Registry of the Court of Justice on 20 February 2015, the Council brought an appeal against the initial judgment, which was registered as Case C‑79/15 P.
By document lodged at the Registry of the Court of Justice on 11 May 2015, the French Republic applied for leave to intervene in support of the form of order sought by the Council. The Court of Justice granted that leave to intervene.
By judgment of 26 July 2017, Council v Hamas (
C‑79/15 P
,
EU:C:2017:584
, ‘the judgment on appeal’), the Court of Justice set aside the initial judgment.
In the judgment on appeal, the Court of Justice held that:
–
the General Court had not erred in law in considering that the United States decisions and/or the Home Secretary’s decision did not in themselves constitute a sufficient basis for the July 2010 to July 2014 measures (paragraph 33);
–
the General Court had erred in law in ruling that the Council had infringed Article 1 of Common Position 2001/931 by relying, in the statements of reasons relating to the July 2010 to July 2014 measures, on material from sources other than national decisions adopted by competent authorities (paragraph 50);
–
accordingly, the General Court had erred in law in its finding that the Council had infringed the obligation to state reasons (paragraph 53).
Since the General Court had ruled only on the fourth and sixth pleas in law in the application made by the applicant for annulment of the July 2011 to July 2014 measures, and since the other pleas in law relied on before the General Court raised, in part, questions relating to the assessment of facts, the Court of Justice, in the judgment on appeal, referred the case back to the General Court and reserved the costs (paragraph 56).
III.

Procedure and forms of order sought following the referral back
The case referred back to the General Court was registered under number T‑400/10 RENV at the Court Registry and was, on 27 September 2017, assigned to the First Chamber.
By documents lodged at the Court Registry on 3 September, and on 4 and 5 October 2017 respectively, the applicant, the Council and the Commission submitted their observations on the remainder of the procedure, in accordance with Article 217(1) of the Rules of Procedure of the General Court.
In its observations, the applicant claims that the Court should:
–
annul the July 2010 to July 2014 measures, in so far as they concern it, ‘including Hamas-Izz al-Din al-Qassem’;
–
order the Council to pay all the costs, including those incurred in connection with the proceedings before the Court of Justice.
In their observations, the Commission and the Council contend that the Court should:
–
dismiss the action as manifestly unfounded;
–
order the applicant to pay the costs.
By separate document lodged at the Registry on 3 October 2017, the applicant, on the basis of Article 86 of the Rules of Procedure, lodged a statement for the modification of the application designed to take account of the August 2017 measures.
By documents lodged at the Court Registry on 27 October and 23 November 2017, the Council and the Commission, at the Court’s invitation, lodged their observations on the statement of modification of 3 October 2017.
The Council, supported by the Commission, submits that the Court should:
–
reject the statement of modification as manifestly inadmissible;
–
in the alternative, reject it as unfounded;
–
order the applicant to pay the costs incurred by the Council at first instance, in the appeal and in the present proceedings following referral back.
On 27 March 2018, the General Court (First Chamber), in accordance with Article 89 of the Rules of Procedure, put written questions to the main parties and invited them to produce certain documents. The parties complied with those requests within the period prescribed.
On 15 May 2018, the Court allowed the applicant to submit its observations on the responses given by the Council. The applicant replied within the period prescribed.
On the proposal of the First Chamber, the Court decided, in accordance with Article 28 of the Rules of Procedure, to refer the case to the First Chamber in Extended Composition.
The parties presented oral argument and answered the questions put to them by the Court at the hearing on 11 July 2018.
IV.

Law
A.

Preliminary remarks concerning the subject matter of the action and the scope and admissibility of the applicant’s observations of 28 June 2012
1.

The requests to amend the form of order sought in the action in respect of the July 2010 to July 2014 measures
As is apparent from the statement of facts, the July 2010 measures were repealed and replaced, successively, by the January, July and December 2011, June and December 2012, July 2013 and then the February and July 2014 measures.
The applicant successively modified the initial form of order sought in such a way that its action seeks the annulment of those various measures.
In addition, it expressly maintained its claims seeking annulment of the repealed measures.
Under Article 86(1) of the Rules of Procedure, where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter, the applicant may, before the oral part of the procedure is closed, modify the application in order to take account of that new factor. In accordance with Article 86(2) of the Rules of Procedure, that request must be made within the time limit laid down in the sixth paragraph of Article 263 TFEU.
In the present case, the requests to modify the application referred to in paragraph 112 above concern measures which repeal and replace measures the annulment of which had previously been sought in the context of the action. Moreover, those requests were made before the date on which the oral part of the procedure before referral back closed, 20 November 2014, and within the time limit laid down in the sixth paragraph of Article 263 TFEU. The requests to modify the application are therefore admissible.
In accordance with settled case-law in the field of actions brought against successive fund-freezing measures, and contrary to what the Commission asserts in its statement in intervention with regard to the July 2010 measures, an applicant retains an interest in securing annulment of a decision imposing restrictive measures which has been repealed and replaced by a subsequent decision, in so far as the repeal of an act of an institution does not constitute recognition of the unlawfulness of that act and has only prospective effect, unlike a judgment annulling an act, by which the annulled act is eliminated retroactively from the legal order and is deemed never to have existed (judgment of 12 December 2006, Organisation des Modjahedines du peuple d’Iran v Council,
T‑228/02
,
EU:T:2006:384
, paragraph
; see, also, judgments of 23 October 2008, People’s Mojahedin Organization of Iran v Council,
T‑256/07
,
EU:T:2008:461
, paragraphs
to
and the case-law cited, and of 30 September 2009, Sison v Council,
T‑341/07
,
EU:T:2009:372
, paragraphs
and
and the case-law cited).
Consequently, the applicant retains an interest in bringing proceedings against the July 2010 to July 2014 measures, even though these have been repealed and replaced in the course of the proceedings.
The present action is therefore admissible in so far as it concerns the July 2010 to July 2014 measures.
2.

The admissibility of the application for annulment directed against the July 2010 notice
The Council, supported by the Commission, contends that the application for annulment of the July 2010 notice is inadmissible since that notice does no more than invite persons and entities to exercise their rights without affecting their legal situation. It is therefore not, in their view, a challengeable act for the purposes of Article 263 TFEU, as interpreted by the case-law.
In accordance with the first paragraph of Article 263 TFEU, acts against which an action may be brought are acts ‘intended to produce legal effects vis-à-vis third parties’.
According to settled case-law, only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in its legal position are acts or decisions which may be the subject of an action for annulment (see order of 14 May 2012, Sepracor Pharmaceuticals v Commission,
C‑477/11 P
, not published,
EU:C:2012:292
, paragraphs
and
and the case-law cited).
In the present case, the applicant’s name was maintained on the July 2010 lists at issue by the July 2010 measures.
As is clear from paragraph 11 above, the sole purpose of the July 2010 notice, published in the
Official Journal
on the day following the adoption of the July 2010 measures, was to inform the persons and entities whose funds remained frozen pursuant to those measures of the possibilities provided to them to ask the competent national authorities to authorise use of the frozen funds for certain needs, to ask the Council to state the reasons for maintaining their name on the July 2010 lists at issue, to ask that institution to review its decision to maintain them on that list and, lastly, to bring an action before the Courts of the European Union.
In those circumstances, the 2010 notice did not produce legal effects which were binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in its legal position.
The action must therefore be declared inadmissible in so far as it concerns the 2010 notice.
3.

The scope and admissibility of the applicant’s observations of 28 June 2012
On 28 June 2012, the applicant, in response to an invitation by the Court, lodged its observations on the observations of the Council and the Commission of 3 April 2012 relating to the supplementary pleading.
As the applicant had entitled its observations ‘Reply’, the Council, in its observations of 6 September 2012, raised the objection that the applicant could not be authorised to lodge a reply covering the entire case, as initially brought by the lodging of the application and in respect of which it had not lodged a reply within the period prescribed.
The Council took the view that the exchanges of pleadings relating to the substance of the case ought to have come to an end when the applicant lodged the supplementary pleading and the Council lodged its observations on that pleading.
It should be observed that the applicant’s observations of 28 June 2012, lodged at the Court’s invitation, cannot indeed constitute a reply, within the meaning of Article 83(1) of the Rules of Procedure of the General Court, in the present case.
As is clear from paragraphs 67 to 70 above, the applicant did not, in the present case, lodge a reply within the prescribed period and the application for an extension of the time limit for lodging a reply, which the Court inferred from the applicant’s letter of 27 July 2011, was rejected.
The fact, however, remains that, although the observations of 28 June 2012 cannot be taken into consideration in the present action in so far as they seek annulment of the July 2010 and January 2011 measures (see, in the latter regard, paragraph 73 above), they are admissible in the context of the application for annulment of the July 2011 measures (introduced by the lodging of the supplementary pleading), in so far as they respond to the Council’s observations on the new pleas in the supplementary pleading directed against the July 2011 measures, and also in the context of the applications for annulment of the Council’s subsequent measures.
Furthermore, it is precisely because the Court considered it necessary to allow the applicant to respond, in that context, to the Council’s observations of 3 April 2012 on the supplementary pleading that it invited the applicant to submit observations.
Lastly, it follows from the actual wording of paragraph 1 of the observations of 28 June 2012 that they seek only to respond to the Council’s observations of 3 April 2012 on the supplementary pleading.
In the light of that explanation as to the scope of the observations of 28 June 2012, the Council’s objections to the admissibility of those observations must be rejected.
4.

The application to modify the form of order sought in the action in respect of the August 2017 measures
By a statement of modification dated 3 October 2017, the applicant requested that the action be extended to the August 2017 measures.
In its observations on that statement, the Council submitted that that request was inadmissible on the ground, first, that, contrary to the provision made in Article 86(1) of the Rules of Procedure, to which Article 218 of those rules referred, the application was modified after the oral part of the procedure had closed, on 21 November 2014, and, secondly, that the August 2017 measures did not replace the measures contested in the present case.
At the hearing, the Council stated that, with regard to that plea of inadmissibility, it deferred to the assessment of the Court.
In any event, it should be noted that, being a matter of public policy, the General Court may examine the admissibility of actions of its own motion (see, to that effect, judgment of 22 February 2006, Standertskjöld-Nordenstam and Heyraud v Commission,
T‑437/04 and T‑441/04
,
EU:T:2006:62
, paragraph
and the case-law cited).
In accordance with Article 218 of the Rules of Procedure, where the Court of Justice sets aside a judgment of the General Court and refers the case back to the General Court, the procedure before the General Court, which is seized of the case by the decision so referring it, is to be conducted, subject to the provisions of Article 217 of those rules, in accordance with the provisions of Title III or of Title IV of those rules, as the case may be.
Since Title IV of the Rules of Procedure concerns proceedings relating to intellectual-property rights, reference in the present case should be made to Title III of the Rules of Procedure. In Title III of the Rules of Procedure, Article 86(1) sets out two conditions which must be satisfied in order for a request seeking to modify the application to be admissible. First, the modification of the application must have been requested before the oral part of the procedure was closed. Secondly, the measures covered by the request for modification must replace and amend one or several measures the annulment of which has been sought previously.
Without it being necessary to rule on the first condition, it should be noted that the second condition has not been satisfied in the present case. The measures repealed by the August 2017 measures were not covered by the request or by the statements of modification lodged previously.
The applicant submits that a different conclusion should be drawn on the basis of the judgment of 28 January 2016, Klyuyev v Council (
T‑341/14
,
EU:T:2016:47
, paragraph
), in which the Court granted a request for modification submitted in a similar situation.
In that regard, it should be noted that the judgment cited by the applicant is irrelevant on this point since, in that case, unlike the present case, the second condition laid down in Article 86 of the Rules of Procedure was satisfied as the measures covered by the statement of modification amended measures which had indeed been contested in the document initiating the proceedings.
It is clear from those factors that the request to modify the application made by the applicant on 3 October 2017 must be rejected as inadmissible.
B.

The application for annulment of the July 2010 measures
In support of its application for annulment of the July 2010 measures, the applicant puts forward, in the application, four pleas in law, alleging, first, a manifest error of assessment, secondly, an infringement of the rights of the defence, thirdly, an infringement of the right to property and, fourthly, an infringement of the obligation to state reasons.
1.

The first plea in law, alleging a manifest error of assessment as regards whether the fund-freezing measures apply to the applicant
In its first plea, the applicant submits that, like States and legitimate governments, it is exempt, as a matter of principle, from the possibility of being included on fund-freezing lists.
In that regard, the applicant points out that it has obtained its legitimacy from the ballot box, that it constitutes a political party which is currently in power and that, in 2007, it participated in a government of national unity, those three factors implying that it too must benefit from the exemption recognised in respect of States and legitimate governments.
The Council, supported by the Commission, takes issue with the merits of that plea.
It should be noted that, according to Article 1(1) of Common Position 2001/931, the measures taken concerning the freezing of funds apply to persons, groups and entities involved in terrorist acts.
According to Article 1(3) of Common Position 2001/931, the term ‘terrorist act’ is to mean an intentional act which, given its nature or its context, may seriously damage a country or an international organisation, as defined as an offence under national law, where committed with the aim of seriously intimidating a population, or unduly compelling a government or an international organisation to perform or abstain from performing any act, or of seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.
Among the acts which are deemed to have been committed with the aim of seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation, Article 1(3) of Common Position 2001/931 mentions, inter alia, attacks upon a person’s life which may cause death, attacks upon the physical integrity of a person, kidnapping or hostage taking, as well as the manufacture, possession, acquisition, transport, supply or use of weapons.
It follows from those provisions that, according to Common Position 2001/931, the relevant factor in determining whether the rules contained therein should be applied to a person or entity is connected to the acts that they perform and not to the nature of that person or that entity.
In those circumstances, the factors mentioned by the applicant, namely the holding of power following elections, the political nature of the organisation or the participation in a government, cannot be regarded as allowing exemption from the application of the rules contained in Common Position 2001/931.
In any event, even on the assumption that the applicant’s argument that the fund-freezing measures provided for by Common Position 2001/931 may not be applied to States or to legitimate governments is well founded, the applicant is not in a position which enables it to claim that that alleged exception applies.
The applicant is not a State within the meaning of international law since that concept is used, in that area of law, to designate territorial entities and not organisations of the kind which it has created.
As regards legitimate-government status, this provides governments, where appropriate, with some protection; however, this cannot be extended to groups and organisations to which some of their members are delegated, as the applicant claims to be (see, by analogy, judgment of 16 October 2014, LTTE v Council,
T‑208/11 and T‑508/11
,
EU:T:2014:885
, paragraph
and the case-law cited).
In those circumstances, the first plea in law must be rejected as being unfounded.
2.

The second plea in law, alleging infringement of the rights of the defence
By its second plea, the applicant submits that the Council infringed the principle of respect for the rights of the defence by failing to communicate to it, before adopting the July 2010 measures, the evidence that had been used against it, and by not allowing it to be heard, in accordance with Article 6(3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), and with Article 41(2)(a) of the Charter of Fundamental Rights of the European Union.
The Council, supported by the Commission, disputes the merits of the plea.
In that regard, it should be noted that, according to the case-law, a distinction must be drawn between, on the one hand, the inclusion of the name of a person or entity on a fund-freezing list and, on the other, maintaining that listing, in order to determine the obligations required by the principle of respect for the rights of the defence.
When it includes, for the first time, the name of a person or entity on a list referred to in Article 2(3) of Regulation No 2580/2001, the Council is not obliged to inform that person or entity beforehand of the grounds on which it intends to rely (see, to that effect, judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran,
C‑27/09 P
,
EU:C:2011:853
, paragraph
).
That rule is due to the fact that, in order to be effective, such a decision must be able to take advantage of a surprise effect (see, to that effect, judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran,
C‑27/09 P
,
EU:C:2011:853
, paragraph
).
Thus, in the context of a first listing, it is, in principle, sufficient to communicate to the person or entity referred to the reasons for the decision at the same time as, or immediately after, that decision is adopted, allowing that person or entity to be heard at that point (see, to that effect, judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran,
C‑27/09 P
,
EU:C:2011:853
, paragraph
).
The situation is different in respect of decisions to maintain the inclusion of the name of a person or entity on such a list since, in that case, a surprise effect is no longer necessary.
In accordance with the case-law, the obligations differ, in respect of such decisions, depending on whether or not the statement of reasons contains new evidence.
Where there is new evidence, the adoption of the measure must be preceded by the disclosure, to the person or entity referred to, of the incriminating evidence, allowing that person or entity to be heard in relation to that evidence (see, to that effect, judgments of 21 December 2011, France v People’s Mojahedin Organization of Iran,
C‑27/09 P
,
EU:C:2011:853
, paragraph
, and of 28 July 2016, Tomana and Others v Council and Commission,
C‑330/15 P
, not published,
EU:C:2016:601
, paragraph
).
By contrast, that obligation does not apply in the absence of such evidence (see, to that effect, judgments of 13 September 2013, Makhlouf v Council,
T‑383/11
,
EU:T:2013:431
, paragraphs
and
, and of 18 September 2017, Uganda Commercial Impex v Council,
T‑107/15 and T‑347/15
, not published,
EU:T:2017:628
, paragraph
), since the person or entity referred to is deemed to have been informed of the earlier reasons and to have had the opportunity to submit its observations.
In the present case, it appears that the July 2010 measures come into the latter category since the reasons underpinning those measures are no different from those mentioned in the statement of reasons relating to the measures adopted on 22 December 2009, namely Council Decision 2009/1004/CFSP updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931 (
OJ 2009 L 346, p. 58
) and Council Implementing Regulation (EU) No 1285/2009 implementing Article 2(3) of Regulation (EC) No 2580/2001 and repealing Regulation (EC) No 501/2009 (
OJ 2009 L 346, p. 39
), which was made available to the applicant by the notice concerning Implementing Regulation No 1285/2009, published in the
Official Journal
of 23 December 2009 (
OJ 2009 C 315, p. 11
, ‘the December 2009 notice’).
With regard to the December 2009 notice, it is important to note that publication in the
Official Journal
of the operative part of the decision and a general statement of reasons has been held to be sufficient, having regard to the fact that a detailed publication of the complaints put forward against the persons and entities concerned might conflict with overriding considerations of public interest, but might also jeopardise their legitimate interests, it being understood, however, that the actual, specific statement of reasons for that decision must, moreover, be formalised and brought to the knowledge of the parties concerned by any other appropriate means (see, to that effect, judgment of 12 December 2006, Organisation des Modjahedines du peuple d’Iran v Council,
T‑228/02
,
EU:T:2006:384
, paragraph
).
In the case of restrictive measures, those other means must in principle consist in an individual notification since such measures are such as to affect significantly the persons or entities concerned and may restrict the exercise of their fundamental rights (see, to that effect, judgment of 14 October 2009, Bank Melli Iran v Council,
T‑390/08
,
EU:T:2009:401
, paragraph
).
In that regard, the Council submits that it was unable to send an individual notification as it could not identify an address to which a letter could have been sent to the applicant. Moreover, the applicant had never given the Council a contact address and had never asked it to explain why its name had been included on the fund-freezing lists.
In that regard, the applicant’s lawyer stated, at the hearing, in response to questions put to her by the Court, that she could not inform the Council of that address since, for security reasons, she did not have it herself.
For its part, the Commission noted that, even for the proceedings brought before the Court, the applicant had not provided an actual address.
In that regard, it should be noted that the obligation to notify a specific and precise statement of reasons individually to the persons and entities against whom restrictive measures are adopted is essentially intended to supplement the publication of a notice in the
Official Journal
, the latter informing the persons or entities concerned that restrictive measures have been adopted against them and inviting them to request that the statement of reasons for those measures be communicated by providing the exact address to which that request may be sent. Therefore, notifying the persons and entities concerned individually is not the only mechanism used in order to inform them of the measures taken against them.
Moreover, it is clear from the case-law that the obligation to notify individually the statement of reasons for the restrictive measures does not apply in all cases, but only where it is possible (see, to that effect, judgment of 16 July 2014, Hassan v Council,
T‑572/11
,
EU:T:2014:682
, paragraph
).
In the present case, however, it appears that, even in the present proceedings, the applicant’s address is still unknown since the only information that the applicant has provided to the Court is limited to the name of a city and a country and, in addition, those details have changed twice since the application was lodged (Beirut in Lebanon, then Damascus in Syria, and finally Doha in Qatar).
Furthermore, at the hearing, the applicant stated that since the European Union has a network of representatives abroad, the Council had the means to identify the address to which an individual notification could have been made and that it was up to that institution, and not up to the applicant, to take initiatives in that respect since the measures adopted in the July 2010 measures were capable of producing negative effects for the applicant.
In that regard, it should be noted that the obligation imposed on the institutions, within the limits noted in paragraph 176 above, of individual notification cannot have the effect of exempting the applicant from every procedure enabling it to find out about its legal position and, in particular, to identify the complaints which have been raised against it. As is clear from paragraphs 4 and 5 above, the applicant’s name has been included on the fund-freezing lists since December 2001. Given that discussions had taken place within the Council with regard to the retention of its name on those lists, the applicant had the option to make the necessary approaches to that institution in order to obtain specific and precise information concerning the reasons justifying the measures to which it was subject, by designating, where appropriate, a lawyer to represent it, which it did so, moreover, in the proceedings which it has brought before the General Court and to defend it in an appeal before the Court of Justice. As it did not make use of that option, the applicant cannot rely, as against the Council, on the consequences of its own inaction.
The Council was therefore able, without infringing the principle of respect for the rights of the defence, to combine the publication of the December 2009 measures in the
Official Journal
with the publication of a notice inviting the applicant to request from it the statement of reasons relating to those measures, without individually notifying it, since, in the circumstances of the present case, such a notification did not appear to be possible.
In those circumstances, the second plea in law must be rejected as being unfounded.
3.

The third plea in law, alleging infringement of the right to property
In its third plea, the applicant submits that the freezing of funds by the July 2010 measures infringes the right to property guaranteed by Article 17 of the Charter of Fundamental Rights and by Article 1 of Protocol No 1 to the ECHR. It refers, in that regard, to the judgments of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (
C‑402/05 P and C‑415/05 P
,
EU:C:2008:461
), and of 11 June 2009, Othman v Council and Commission (
T‑318/01
,
EU:T:2009:187
).
The Council disputes the merits of this plea and is supported on this point by the Commission.
In this regard, it should be recalled that fundamental rights, including the right to property, do not enjoy absolute protection under EU law. The exercise of those rights may be restricted, provided, first, that those restrictions are duly justified by objectives of public interest pursued by the European Union and, secondly, that they do not constitute, in relation to those objectives, a disproportionate and intolerable interference, impairing their substance (see, to that effect, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa,
C‑539/10 P and C‑550/10 P
,
EU:C:2012:711
, paragraph
and the case-law cited).
As regards the first condition, it should be recalled that the freezing of the funds, financial assets and other economic resources of the persons and entities identified in accordance with the rules laid down in Regulation No 2580/2001 and by Common Position 2001/931 as being involved in the financing of terrorism pursues an objective of general interest since it forms part of the fight against the threats to international peace and security posed by acts of terrorism (see, to that effect, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa,
C‑539/10 P and C‑550/10 P
,
EU:C:2012:711
, paragraph
and the case-law cited).
With regard to the second condition, it should be noted that the measures establishing the freezing of funds and, in particular, maintaining the applicant’s name on the July 2010 lists at issue do not appear to be disproportionate, intolerable or to impair the substance of the fundamental rights or of some of them.
That type of measure is necessary in a democratic society in order to combat terrorism (see, to that effect, judgment of 23 October 2008, People’s Mojahedin Organization of Iran v Council,
T‑256/07
,
EU:T:2008:461
, paragraph
and the case-law cited).
Furthermore, the measures establishing the freezing of funds are not absolute, but provide for the possibility, first, to authorise the use of frozen funds in order to meet essential needs or to satisfy certain commitments and, secondly, to grant specific authorisation, under certain specific conditions, to unfreeze funds, other financial assets or other economic resources (see judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa,
C‑539/10 P and C‑550/10 P
,
EU:C:2012:711
, paragraph
and the case-law cited).
In addition, the maintenance of the names of persons and entities on the fund-freezing lists is subject to periodic review so as to ensure that those who no longer meet the necessary criteria for inclusion are removed (judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa,
C‑539/10 P and C‑550/10 P
,
EU:C:2012:711
, paragraph
).
Those factors are not affected by the case-law developed in the judgments cited by the applicant.
In those judgments, the Court of Justice found that an unjustified restriction had taken place on the ground that the restrictive measures had been decided on by the United Nations Security Council against the applicant without the latter having had the benefit of the procedural safeguards enabling it to submit its observations before the UN authorities responsible for their adoption or, within the European Union, before the Council, which had implemented those measures in the territory of the Member States.
Such a situation is different from that in the present case, in which the July 2010 measures do not concern an initial listing and are not based on a United Nations Security Council resolution and in which, as a result of the publication of the December 2009 notice, the applicant had the opportunity to submit its observations on the evidence used against it (see paragraphs 170 to 180 above).
In those circumstances, the third plea in law must be rejected as being unfounded.
4.

The fourth plea in law, alleging infringement of the obligation to state reasons
By its fourth plea, the applicant accuses the Council of having failed to include, in the July 2010 measures as published in the
Official Journal
, the reasons for maintaining its name on the July 2010 lists at issue.
The Council, supported by the Commission, disputes the merits of that plea.
In that regard, it should be pointed out that, on 13 July 2010, the Council published in the
Official Journal
, first, the operative part of and the general reasons for the July 2010 measures and, secondly, the July 2010 notice inviting the persons and entities concerned to request from it the statement of reasons relating to those measures.
As stated in paragraph 170 above, it has already been held that, in the case of restrictive measures, the Council was able, without infringing the obligation to state reasons and the principle of respect for the rights of the defence, to limit the publication in the
Official Journal
of the acts containing restrictive measures to the operative part and to a general statement of reasons, since the actual, specific statement of reasons had to be formalised and brought to the knowledge of the parties concerned by any other appropriate means.
In those circumstances, contrary to the applicant’s submissions, the Council was not required to include in the July 2010 measures, as published in the
Official Journal
, the actual and specific reasons for their adoption.
The applicant submits, however, that the statement of reasons concerning the July 2010 measures should have been notified to it and should not have been the subject of a notice published in the
Official Journal
. It also notes that, as that notice did not expressly mention it, it was difficult for the applicant to access it. Finally, it claims that that notice reduced to two months the period in which the statement of reasons for the July 2010 measures could have been requested from the Council, which, in its view, was not a reasonable period of time.
In that regard, it should be recalled that, as is clear from paragraphs 176 to 180 above, since the Council did not have the applicant’s exact address, it was prevented from individually notifying the applicant of the statement of reasons for the July 2010 measures and was for that reason able to limit itself to publication of the July 2010 notice.
Moreover, the fact that the July 2010 notice did not expressly cite the names of the persons and entities whom it concerned cannot be regarded, in itself, as an infringement of the obligation to state reasons since that notice referred to the July 2010 regulation in which those names were mentioned.
Finally, it is incorrect that, according to the July 2010 notice, the request to obtain the statement of reasons for the measures concerned had to be made within two months of its publication. Contrary to what the applicant claims, the July 2010 notice did not limit to two months the period in which the statement of reasons for the July 2010 measures could have been requested, but specified only that the Council would review regularly the fund-freezing lists in accordance with Article 1(6) of Common Position 2001/931 and that, if the persons and entities concerned made a request for reconsideration of the decision and wished that that request be considered at the next review, that request had to be submitted to the Council within two months from the date of publication of that notice.
In the light of the foregoing considerations, it must be held that the Council complied with the obligation to state reasons and that the fourth plea in law must therefore be rejected as being unfounded.
5.

Conclusion
In the light of the foregoing considerations, the action must be dismissed in so far as it concerns the July 2010 measures.
C.

The application for annulment of the January 2011 measures
It is clear from paragraph 73 above that, in support of the application for annulment of the January 2011 measures, the applicant puts forward the same pleas for annulment as those raised against the July 2010 measures.
1.

The first plea in law, alleging a manifest error of assessment
Since the first plea is the same as that invoked against the July 2010 measures and the assessment of that plea is not dependent on the specific circumstances in which those measures were adopted, it must be rejected for the same reasons as those set out in paragraphs 150 to 157 above.
The first plea in law is therefore rejected.
2.

The second plea in law, alleging infringement of the principle of respect for the rights of the defence
In this second plea, the applicant takes the view that the principle of respect for the rights of the defence has been infringed on the ground that the evidence used against it, in order to form the basis of the January 2011 measures, was not communicated to it before those measures were adopted.
The Council, supported by the Commission, takes issue with the merits of that plea.
In the present case, it must be pointed out that, prior to the adoption of the January 2011 measures, the Council published in the
Official Journal
of 20 November 2010 a notice informing the persons and entities concerned by Implementing Regulation No 610/2010 that, as a result of new information, it had amended the statement of reasons concerning that regulation and inviting those persons and entities to request from it that statement of reasons (see paragraph 13 above).
In paragraphs 176 to 180 above, it has been held that the failure to notify the applicant individually of the statement of reasons concerning Implementing Regulation No 1285/2009 could not, due to the circumstances of the case, be regarded as an infringement of the principle of respect for the rights of the defence. The same must also apply in respect of the statement of reasons concerning the January 2011 measures.
The applicant states that, by the letter dated 10 December 2010 referred to in paragraph 14 above, the Council sent to the applicant’s lawyer the statement of reasons which led it to consider maintaining the applicant’s name on the January 2011 lists at issue. The applicant takes the view that such a letter should have been sent to it and not to its lawyer, who had not been given a mandate authorising her to receive such letters.
When questioned on this matter at the hearing, the Council acknowledged that it had sent that letter to the applicant’s lawyer for the purpose of informing the applicant, without there being any need to regard that letter as an individual notification.
In that regard, it should be noted that, according to the case-law recalled in paragraph 176 above, an individual notification is required only where such a notification is possible, which was not the case here, as stated in paragraphs 177 to 180 above, since there appeared to be no address, or no address had been given to the Council, and the applicant had not come forward to obtain the statement of reasons.
That conclusion is not affected by the fact that a letter was addressed to the applicant’s lawyer without the lawyer having been given by the applicant a mandate authorising her to receive it. The absence of a mandate does not contradict, but rather confirms, the finding in the preceding paragraph that the Council had no means by which to notify the applicant individually of the statement of reasons.
In those circumstances, the second plea in law must be rejected as being unfounded.
3.

The third plea in law, alleging infringement of the right to property
Since the plea is the same as that invoked against the July 2010 measures, it must be rejected for the same reasons as those set out in paragraphs 184 to 189 above.
With regard to the reference to the judgments of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (
C‑402/05 P and C‑415/05 P
,
EU:C:2008:461
), and of 11 June 2009, Othman v Council and Commission (
T‑318/01
,
EU:T:2009:187
), it should be noted that the circumstances of the present case are also different from those which gave rise to those judgments, since, as is clear from paragraphs 210 to 215 above, the statement of reasons for the January 2011 measures was duly made available to the applicant prior to their adoption.
The third plea in law must therefore be rejected.
4.

The fourth plea in law, alleging infringement of the obligation to state reasons
In its fourth plea, the applicant accuses the Council of not having included the explicit reasons for maintaining its name on the January 2011 lists at issue in the January 2011 measures, as published in the
Official Journal
.
In this regard, it was recalled in paragraphs 170 and 197 above that, according to the case-law, it is acceptable, in respect of fund-freezing measures, for the version of the acts containing those measures published in the
Official Journal
to contain only the operative part and a general statement of reasons, it being understood that the actual, specific statement of reasons for those measures must be brought to the knowledge of the parties concerned by any appropriate means.
In paragraph 200 above, it was acknowledged that, in respect of the July 2010 measures, the Council was able, for the reasons set out in paragraphs 176 to 180, to satisfy the requirements stemming from the case-law by bringing the actual, specific statement of reasons for the restrictive measures to the applicant’s knowledge by the publication of a notice in the
Official Journal
inviting the applicant to request from it that statement of reasons. The same must also apply in respect of the January 2011 measures.
For the reason given in paragraph 215 above, the impossibility of making a notification was not affected, in the circumstances of the present case, by the fact that a letter was sent to the applicant’s lawyer without that lawyer having been given a mandate by the applicant to receive communications of that kind.
Consequently, the fourth plea in law must be rejected as being unfounded.
5.

Conclusion
In the light of the foregoing considerations, the action must be dismissed in so far as it concerns the January 2011 measures.
D.

The application for annulment of the July 2011 to July 2014 measures
In support of the application for annulment of the July 2011 to July 2014 measures, the applicant puts forward, in the supplementary pleading and the statements of modification, eight pleas for annulment, alleging respectively:
–
infringement of Article 1(4) of Common Position 2001/931;
–
errors as to the accuracy of the facts;
–
an error of assessment as to the terrorist nature of the applicant;
–
failure to take sufficient account of the development of the situation owing to the passage of time;
–
infringement of the principle of non-interference;
–
infringement of the obligation to state reasons;
–
infringement of the principle of respect for the rights of the defence and of the right to effective judicial protection;
–
infringement of the right to property.
First of all, the first plea must be examined, and then the sixth plea and the second plea, in so far as that latter plea alleges infringement of the obligation to state reasons, then the second plea, in so far as it alleges an error as to the accuracy of the facts, and finally the third, fourth, fifth, seventh and eighth pleas.
1.

The first plea in law, alleging infringement of Article 1(4) of Common Position 2001/931
In the context of the first plea, the applicant, after having commented on the identification of the organisations covered by the decisions of the United Kingdom and United States authorities, criticises the Council on the ground that it infringed Article 1(4) of Common Position 2001/931 by classifying those decisions as decisions taken by competent authorities within the meaning of that provision.
The retention of the name of a person or entity on the fund-freezing list is, in essence, an extension of the original listing and presupposes, therefore, that there is an ongoing risk of the person or entity concerned being involved in terrorist activities, as initially established by the Council on the basis of the national decision on which that original listing was based (judgments of 26 July 2017, Council v LTTE,
C‑599/14 P
,
EU:C:2017:583
, paragraph
, and Council v Hamas,
C‑79/15 P
,
EU:C:2017:584
, paragraph
).
The plea is therefore effective.
In the light of the judgment on appeal, it is necessary, first of all, to determine the organisations covered by the respective decisions of the United Kingdom and United States authorities, and then to examine, in the first place, the criticisms that are specific to the decisions of the United States authorities and, in the second place, the criticisms that are common to the decisions of the United Kingdom and United States authorities.
(a)

The identification of the organisations referred to by the decisions of the United Kingdom authorities and those of the United States authorities
The applicant notes that, according to the statements of reasons supplied by the Council, the July 2011 to July 2014 measures are based on a decision of the Home Secretary proscribing Hamas-Izz al-Din al-Qassem, the armed wing of Hamas, and on two United States decisions, which refer to Hamas without providing further details.
The applicant doubts whether the United States authorities intended to list Hamas in its entirety and expresses the view that the Council, in considering that they did so intend, gave their decisions a broad interpretation which did not follow clearly from the lists published by the authorities of that State.
In that regard, it should be noted that the United States decisions explicitly mention Hamas, that designation being supplemented, in the decision designating it as a foreign terrorist organisation, by a dozen or so other names, including ‘Izz al-Din Al-Qassam Brigades’, by which Hamas was also known.
That fact cannot be interpreted, contrary to the applicant’s suggestion, as meaning that the United States authorities thereby intended to restrict the designation to ‘Hamas-Izz al-Din al-Qassem’ alone. First of all, those additional names include names that refer to Hamas as a whole, such as ‘Islamic Resistance Movement’, which is the English translation of ‘Harakat Al-Muqawama Al-Islamia’, another name that is included and of which ‘Hamas’ is the acronym. Further, the references to those various names are merely intended to ensure that the measure adopted in respect of Hamas is actually effective, by making it possible for that measure to reach Hamas through all of its known names and branches.
It follows from those considerations that the Home Secretary’s decision relates to Hamas-Izz al-Din al-Qassem, whereas the United States decisions relate to Hamas, including Hamas-Izz al-Din al-Qassem.
(b)

The criticisms specific to the decisions of the United States authorities
According to the applicant, the Council was not entitled to base the July 2011 to July 2014 measures on the decisions of the United States authorities because the United States is a third State and, as a matter of principle, the authorities of such States are not ‘competent authorities’ within the meaning of Article 1(4) of Common Position 2001/931.
On that point, the applicant submits, principally, that the system established by Article 1(4) of Common Position 2001/931 is underpinned by confidence in national authorities, a confidence which is based on the principle of sincere cooperation between the Council and the Member States of the European Union, the sharing of common values enshrined in the Treaties, and the fact of being subject to shared rules, including the ECHR and the Charter of Fundamental Rights. It argues that the authorities of third States cannot enjoy that confidence.
Alternatively, in the event that it is accepted that the authority of a third State may be a competent authority within the meaning of Article 1(4) of Common Position 2001/931, the applicant submits that it is for the Council to carry out various checks, something which it did not do in the present case.
Thus, when it relies on a decision by an authority of a third State, the Council should check whether that authority has respected the rights of the defence and the right to effective judicial protection, the first of those principles meaning that the reasoning for the decision by the authority of a third State is notified to the party concerned as soon as possible and that that party is afforded the opportunity to make known its views on that decision.
According to the applicant, the examination of the relevant United States provisions reveals that the national procedure does not meet EU standards. Those provisions, it argues, do not lay down any obligation to notify the decisions adopted, let alone to communicate the statement of reasons, or even to state reasons, while, moreover, the time limits for bringing proceedings are very short. As they are not informed of the reasons for, or even the existence of, decisions taken in their regard, the persons concerned are unable to make their views known or to decide whether to institute proceedings. That was the case with regard to the applicant, which did not receive any notification or information concerning its classification as a foreign terrorist organisation and as an entity expressly identified as an international terrorist entity and was not given an opportunity to assert its rights.
Moreover, the United States legislation does not provide for any right of access to the file and the possibilities for an administrative review of the situation of the persons concerned are very limited. Infringement of the rights of the defence in administrative appeals cannot be offset by access to the file in judicial proceedings since the court must rely on the file compiled by the authority, the parties concerned have only a short period within which to adduce evidence and that evidence may be rejected by the authority. Even in judicial proceedings, the right to have access to the file is very partial and the parties concerned may plead infringement of their constitutional rights only if they have a particular connection to the United States.
The Council takes issue with that line of argument.
In this regard, it must be noted, in respect of the main argument raised by the applicant, that, in the judgment of 26 July 2017, Council v LTTE, (
C‑599/14 P
,
EU:C:2017:583
, paragraph
), the Court of Justice held that the term ‘competent authority’ used in Article 1(4) of Common Position 2001/931 was not limited to the authorities of Member States but was capable, in principle, of also including the authorities of third States.
The interpretation adopted by the Court of Justice is justified, first, by the wording of Article 1(4) of Common Position 2001/931, which does not limit the concept of ‘competent authorities’ to the authorities of the Member States, and, secondly, by the objective of that common position, which was adopted in order to implement United Nations Security Council Resolution 1373 (2001), which seeks to intensify the global fight against terrorism through the systematic and close cooperation of all States (judgment of 26 July 2017, Council v LTTE,
C‑599/14 P
,
EU:C:2017:583
, paragraph
).
With regard to the argument put forward in the alternative, it must be held that, when the Council acts on the basis of the decision taken by a third State, it must first verify whether that decision was adopted in accordance with the rights of the defence and the right to effective judicial protection and must provide, in the statements of reasons relating to its decisions, the particulars from which it may be concluded that it has carried out that check (see, to that effect, judgment of 26 July 2017, Council v LTTE,
C‑599/14 P
,
EU:C:2017:583
, paragraph
).
For that purpose, the Council must, if only briefly, refer in the statement of reasons relating to a decision to freeze funds to the reasons why it considers the decision of the third State on which it intends to rely to have been adopted in accordance with the rights of the defence and the right to effective judicial protection (judgment of 26 July 2017, Council v LTTE,
C‑599/14 P
,
EU:C:2017:583
, paragraph
).
In paragraph 36 of the judgment of 26 July 2017, Council v LTTE, (
C‑599/14 P
,
EU:C:2017:583
), the Court of Justice assessed, in the light of those rules, the statement of reasons relating to Implementing Regulation No 790/2014, in which the Council, first, had stated that the Indian Government had proscribed the Liberation Tigers of Tamil Eelam (LTTE) in 1992 under the Unlawful Activities Act 1967 and had subsequently included them on the list of terrorist organisations in the schedule to the Unlawful Activities Prevention (Amendment) Act 2004 and, secondly, had mentioned that Sections 36 and 37 of the Unlawful Activities Act 1967 included provisions concerning the review and revision of the Indian list of persons and entities subject to restrictive measures, that the decision proscribing the LTTE as an unlawful association had been periodically reviewed by the Indian Home Affairs Minister, that the last revision had taken place on 14 May 2012, and that, following a revision by the tribunal established under the Unlawful Activities Act 1967, the designation of the LTTE as an entity involved in terrorist acts had been confirmed by the Indian Home Affairs Minister on 11 December 2012.
In the light of that information, the Court of Justice took the view, in paragraph 37 of the judgment of 26 July 2017, Council v LTTE, (
C‑599/14 P
,
EU:C:2017:583
), that Implementing Regulation No 790/2014 did not refer to anything that might suggest that the Council had verified whether the Indian decisions had been adopted in compliance with the rights of the defence and the right to effective judicial protection and that, therefore, the statement of reasons for that regulation did not disclose whether the Council had fulfilled its obligation to carry out a verification.
In the July 2011 to July 2014 measures, in respect of all information in that regard, the Council claims that the classification of the applicant as a foreign terrorist organisation ‘is amenable to judicial review in accordance with United States legislation’ and that its classification as an entity expressly identified as an international terrorist entity ‘is amenable to administrative and judicial review in accordance with United States legislation’.
The fact remains that, as in the case that gave rise to the judgment of 26 July 2017, Council v LTTE, (
C‑599/14 P
,
EU:C:2017:583
), those claims do not make it possible to take the view that the Council verified that the United States decisions had been adopted in compliance with the rights of the defence and the right to effective judicial protection of the persons and entities concerned.
In those circumstances, the United States decisions cannot serve as a basis for the July 2011 to July 2014 measures.
However, since Article 1(4) of Common Position 2001/931 does not require Council measures to be based on several decisions of competent authorities, the July 2011 to July 2014 measures could have referred to the Home Secretary’s decision alone and it is therefore appropriate for the examination of the action to proceed in so far as the July 2011 to July 2014 measures are based on that decision.
(c)

The criticisms that are common to the decisions of the United States and United Kingdom authorities
The applicant submits that, for three reasons, the decisions of the United States and United Kingdom authorities on which the July 2011 to July 2014 measures are based are not ‘decisions of competent authorities’ for the purposes of Article 1(4) of Common Position 2001/931.
Those reasons will be examined below in so far as they concern the Home Secretary’s decision, in accordance with paragraph 253 above.
(1)

The preference to be given to judicial authorities
The applicant maintains that, according to Article 1(4) of Common Position 2001/931, the Council can rely on administrative decisions only if the judicial authorities have no jurisdiction in the fight against terrorism. However, it submits, that is not the case here, since, in the United Kingdom, the judicial authorities do have jurisdiction in that area. The Home Secretary’s decision could not, therefore, have been taken into consideration by the Council in the July 2011 to July 2014 measures.
The Council takes issue with that line of argument.
In this regard, it should be noted that, according to the case-law, the administrative and non-judicial nature of a decision is not decisive for the application of Article 1(4) of Common Position 2001/931, since the actual wording of that provision expressly provides that a non-judicial authority may be classified as a competent authority for the purposes of that provision (judgments of 23 October 2008, People’s Mojahedin Organization of Iran v Council,
T‑256/07
,
EU:T:2008:461
, paragraphs
and
, and of 16 October 2014, LTTE v Council,
T‑208/11 and T‑508/11
,
EU:T:2014:885
, paragraph
).
Even if the second subparagraph of Article 1(4) of Common Position 2001/931 contains a preference for decisions from judicial authorities, it in no way excludes the taking into account of decisions from administrative authorities where (i) those authorities are actually vested, in national law, with the power to adopt restrictive decisions against groups involved in terrorism and (ii) those authorities, although only administrative, may nevertheless be regarded as ‘equivalent’ to judicial authorities (judgment of 16 October 2014, LTTE v Council,
T‑208/11 and T‑508/11
,
EU:T:2014:885
, paragraph
).
According to the case-law, administrative authorities must be regarded as equivalent to judicial authorities if their decisions are open to judicial review (judgment of 23 October 2008, People’s Mojahedin Organization of Iran v Council,
T‑256/07
,
EU:T:2008:461
, paragraph
).
Consequently, the fact that courts of the relevant State have powers concerning the suppression of terrorism does not preclude the Council from taking account of decisions made by the national administrative authority entrusted with the adoption of restrictive measures in relation to terrorism (see, to that effect, judgment of 16 October 2014, LTTE v Council,
T‑208/11 and T‑508/11
,
EU:T:2014:885
, paragraph
).
In the present case, it is apparent from the information provided by the Council that appeals against decisions of the Home Secretary may be brought before the Proscribed Organisations Appeal Commission (POAC) (United Kingdom), which determines the matter in the light of judicial-review principles, and that either party may bring an appeal on a question of law against the decision of the POAC before an appellate court with the permission of the POAC or, if permission is refused, of the appellate court (see, to that effect, judgment of 12 December 2006, Organisation des Modjahedines du peuple d’Iran v Council,
T‑228/02
,
EU:T:2006:384
, paragraph
).
In those circumstances, it appears that decisions of the Home Secretary are open to judicial review and therefore that, in accordance with the case-law referred to in paragraphs 259 and 260 above, that administrative authority must be regarded as equivalent to a judicial authority and thus as a competent authority, as contended by the Council, within the meaning of Article 1(4) of Common Position 2001/931, as has repeatedly been held in the case-law (judgments of 23 October 2008, People’s Mojahedin Organization of Iran v Council,
T‑256/07
,
EU:T:2008:461
, and of 16 October 2014, LTTE v Council,
T‑208/11 and T‑508/11
,
EU:T:2014:885
).
The applicant acknowledges that, in a number of judgments, the Court has accepted that the Home Secretary had the capacity of a competent authority, but emphasises that, in those cases, the Home Secretary’s decisions were coupled with a judicial decision, which the applicant submits is not the case here.
It must be noted in this regard that, contrary to what is asserted by the applicant, the decisions of the administrative authorities in question were not accompanied, in every case of a judgment concerning acts based on a decision of the Home Secretary, by a judicial decision. Thus, there was no such decision in the case that gave rise to the judgment of 16 October 2014, LTTE v Council (
T‑208/11 and T‑508/11
,
EU:T:2014:885
, paragraph
). In the case that gave rise to the judgment of 23 October 2008, People’s Mojahedin Organization of Iran v Council,
T‑256/07
,
EU:T:2008:461
), the Court referred to a judicial decision in addition to the administrative decision. However, that reference was made in a very particular context in which the administrative decision had been challenged at national level by the applicant, which is not the case here.
It follows from the foregoing considerations that the July 2011 to July 2014 measures cannot be annulled on the basis that, in the statement of reasons for those measures, the Council referred to a decision of the Home Secretary, who is an administrative authority.
(2)

The fact that the Home Secretary’s decision consists of a list of terrorist organisations
In addition, the applicant submits that the action taken by the competent authorities concerned by the July 2011 to July 2014 measures, including the Home Secretary, consists, in practice, in drawing up lists of terrorist organisations in order to impose a restrictive regime on them. This listing activity does not, in the applicant’s submission, constitute a criminal jurisdiction akin to the ‘instigation of investigations or prosecution’ or to ‘condemnation’, to cite the powers which, according to Article 1(4) of Common Position 2001/931, the ‘competent authority’ should have.
The Council takes issue with that line of argument.
It should be noted in this regard that, according to the case-law, Common Position 2001/931 does not require the decision of the competent authority to be taken in the context of criminal proceedings
stricto sensu
, provided that, in the light of the objectives of Common Position 2001/931 in implementing United Nations Security Council Resolution 1373 (2001), the purpose of the national proceedings in question is to combat terrorism in the broad sense (judgment of 16 October 2014, LTTE v Council,
T‑208/11 and T‑508/11
,
EU:T:2014:885
, paragraph
).
In that sense, the Court of Justice has held that protection of the persons concerned is not called into question if the decision taken by the national authority did not form part of a procedure seeking to impose criminal sanctions, but of a procedure aimed at the adoption of preventive measures (judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa,
C‑539/10 P and C‑550/10 P
,
EU:C:2012:711
, paragraph
).
In a similar vein, the Court has held that a decision to ‘instigat[e] investigations or prosecut[e]’ should, if the Council is validly to invoke it, form part of national proceedings seeking, directly and primarily, the imposition on the person concerned of measures of a preventive or punitive nature, in connection with the combating of terrorism and by reason of that person’s involvement in terrorism (judgment of 30 September 2009, Sison v Council,
T‑341/07
,
EU:T:2009:372
, paragraph
).
In the present case, the Home Secretary’s decision imposes measures proscribing organisations considered to be terrorist organisations.
Such a decision does not, strictly speaking, constitute a decision for the ‘instigation of investigations or prosecutions for an act of terrorism’ or ‘condemnation for such deeds’, within the strict criminal sense of the term, but leads to the ban on the applicant in the United Kingdom and therefore forms part, as required by the case-law, of national proceedings seeking, primarily, the imposition on the applicant of measures of a preventive or punitive nature, in connection with the fight against terrorism (see, to that effect, judgment of 16 October 2014, LTTE v Council (
T‑208/11 and T‑508/11
,
EU:T:2014:885
, paragraph
).
As to the fact that the activity of the authority in question results in the establishment of a list of persons or entities involved in terrorism, it should be pointed out that this does not mean, in itself, that that authority did not carry out an individual appraisal in respect of each of those persons or entities prior to their inclusion in those lists, or that that appraisal must necessarily be arbitrary or unfounded (see, to that effect, judgment of 16 October 2014, LTTE v Council,
T‑208/11 and T‑508/11
,
EU:T:2014:885
, paragraph
).
Thus, it is not so much the fact that the activity of the authority in question leads to the establishment of a list of persons or entities involved in terrorism that is at issue, but the question whether that activity is carried out with sufficient safeguards to allow the Council to rely on it in order to found its own listing decision (see, to that effect, judgment of 16 October 2014, LTTE v Council,
T‑208/11 and T‑508/11
,
EU:T:2014:885
, paragraph
).
Consequently, the applicant is wrong to claim that acknowledgement that a listing power may characterise a competent authority would, as a matter of principle, be inconsistent with Common Position 2001/931.
That position is not invalidated by the other arguments put forward by the applicant.
In the first place, the applicant maintains that, according to Article 1(4) of Common Position 2001/931, only lists drawn up by the United Nations Security Council may be taken into account by the Council.
That argument cannot be accepted since the purpose of the last sentence of the first subparagraph of Article 1(4) of Common Position 2001/931 is solely to afford the Council an additional listing possibility alongside the listings which it is able to make on the basis of decisions of competent national authorities.
In the second place, the applicant points out that, in so far as it reproduces lists put forward by the competent authorities, the EU list can be described as a list of lists and as thus coming within the scope of national administrative measures adopted, in some cases, by the authorities of third States without the relevant persons being informed and without those persons being in a position to defend themselves effectively.
In that regard, it should be noted that, as the applicant indicates, the Council, when it identifies the persons or entities to be made subject to fund-freezing measures, relies on the findings made by competent authorities.
In the context of Common Position 2001/931, a specific form of cooperation was introduced between the authorities of the Member States and the EU institutions, giving rise, for the Council, to an obligation to defer as far as possible to the assessment carried out by the competent national authorities (see judgments of 23 October 2008, People’s Mojahedin Organization of Iran v Council,
T‑256/07
,
EU:T:2008:461
, paragraph
, and of 4 December 2008, People’s Mojahedin Organization of Iran v Council,
T‑284/08
,
EU:T:2008:550
, paragraph
).
As a rule, it is not for the Council to decide whether the fundamental rights of the party concerned were observed by the authorities of the Member States, that being a power that belongs to the competent national courts (see, to that effect, judgment of 11 July 2007, Sison v Council,
T‑47/03
, not published,
EU:T:2007:207
, paragraph
).
It is only exceptionally, in the case where the applicant disputes, on the basis of concrete evidence, that authorities of the Member States observed fundamental rights, that the Court must ascertain whether those rights were indeed respected.
By contrast, in the case where authorities of third States are involved, the Council is required, as has been noted in paragraphs 246 and 247 above, to satisfy itself of its own motion that those safeguards were in fact applied and to give reasons for its decision on that point.
(3)

The failure to indicate the serious and credible evidence and clues underpinning the Home Secretary’s decision
The applicant considers that, in so far as it relied on an administrative decision and not on a judicial decision, the Council had an obligation to establish, in the July 2011 to July 2014 measures, that that decision was ‘based on serious and credible evidence or clues’, as required by Article 1(4) of Common Position 2001/931.
Since that argument does not concern the classification of a ‘decision taken by a competent authority’ within the meaning of Article 1(4) of Common Position 2001/931, which is the subject of the present plea, but the statement of reasons for the July 2011 to July 2014 measures, that argument will be examined in the context of the sixth plea, in which it is also invoked.
(d)

Conclusion
It is apparent from paragraphs 246 to 252 above that the United States decisions cannot serve as a basis for the July 2011 to July 2014 measures, since the Council failed to fulfil its obligation to state reasons with regard to verification that the principle of the rights of the defence and that of the right to effective judicial protection had been observed in the United States.
In addition, it is evident from paragraphs 234 to 236 above that the decisions of the United States authorities to which that plea relates concerned Hamas as a whole, whereas the decision of the United Kingdom authorities related only to Hamas-Izz al-Din al-Qassem.
According to the applicant, this means that the July 2011 to July 2014 measures must be annulled in so far as they concern Hamas and can be maintained only in so far as they relate to Hamas-Izz al-Din al-Qassem.
For its part, the Council contends that no distinction can be made between those two ‘movements’ or ‘parts of a movement’, the applicant having presented its organisation as encompassing both of them.
In that regard, it should be noted that, according to paragraphs 7 and 8 of the application:
‘Hamas has a Political Bureau and an armed wing: the Ezzedine Al-Qassam Brigades … “Although the armed wing is relatively independent, it is still subject to the general strategies drawn up by the Political Bureau”. The Political Bureau takes the decisions, and the Brigades comply with them because of the strong sense of solidarity engendered by the religious component of the movement.’
That statement has a strong probative value, since, first, as the Council points out, it is made by the applicant and, secondly, the applicant put it at the forefront of its arguments in the application.
In the remainder of its pleadings, the applicant explained that, in fact, the two ‘movements’ or ‘parts of a movement’ could not be confused or even associated with each other, as they operate entirely independently.
In the context of measures of organisation of procedure, the Court requested the applicant to provide proof of its assertions, but the applicant was unable to produce any document in that regard.
In those circumstances, it cannot be concluded, for the purpose of determining the effects of the response given to the first plea in the present action, that Hamas-Izz al-Din al-Qassem is an organisation that is separate from Hamas (see, to that effect, judgments of 29 April 2015, National Iranian Gas Company v Council,
T‑9/13
,
EU:T:2015:236
, paragraphs
and
, and Bank of Industry and Mine v Council,
T‑10/13
,
EU:T:2015:235
, paragraphs
,
and
).
That is particularly so since, although it has been subject to fund-freezing measures for several years, Hamas did not seek to demonstrate to the Council that it was not in any way involved in the acts which triggered the adoption of those measures, by dissociating itself unequivocally from Hamas-Izz al-Din al-Qassem, which, according to the applicant, was solely responsible for them.
It follows that the plea must be rejected.
2.

The sixth plea in law and the second plea in law, in so far as that latter plea alleges infringement of the obligation to state reasons
It is clear from paragraphs 19 to 24 above that the Council based the retention of the applicant’s name on the July and December 2011, June and December 2012, July 2013 and February and July 2014 lists at issue (‘the July 2011 to July 2014 lists at issue’), first, on the fact that decisions classified as decisions of competent authorities in accordance with Article 1(4) of Common Position 2001/931 remained in force and, secondly, on its own assessments of a series of incidents attributed to the applicant and classified as terrorist acts within the meaning of Article 1(3) of Common Position 2001/931.
The Court will examine the criticisms regarding the obligation to state reasons which relate, first, to the decisions of the competent authorities and, secondly, to the subsequent facts invoked by the Council.
(a)

The decisions of the competent authorities
As already indicated in paragraph 286 above, the applicant submits that, in the July 2011 to July 2014 measures, the Council ought to have indicated ‘the serious and credible evidence and clues’ on which the decisions of the competent authorities were based.
The Council, supported by the Commission, considers that argument to be unfounded.
In the light of paragraph 253 above, this plea must be examined only in so far as it concerns the Home Secretary’s decision.
In that regard, it must be noted that, according to the first subparagraph of Article 1(4) of Common Position 2001/931, fund-freezing lists are to be drawn up on the basis of precise information or material in the relevant file which indicates that a decision has been taken by a competent authority in respect of the persons and entities concerned, irrespective of whether it concerns the instigation of investigations or prosecution for a terrorist act, an attempt to perpetrate, participate in or facilitate such an act, ‘based on serious and credible evidence or clues’, or condemnation for such deeds.
It follows from the wording of that provision that the requirement for the decisions of competent authorities to be ‘based on serious and credible evidence or clues’ concerns decisions to instigate investigations or prosecution, but does not apply to decisions concerning condemnations (see, to that effect, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa,
C‑539/10 P and C‑550/10 P
,
EU:C:2012:711
, paragraph
).
In decisions concerning the instigation of investigations or prosecution, that requirement protects the persons concerned by ensuring that the inclusion of their name in the fund-freezing lists has a sufficiently solid factual basis (see, to that effect, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa,
C‑539/10 P and C‑550/10 P
,
EU:C:2012:711
, paragraph
), whereas, in condemnation decisions, that requirement need no longer apply since the evidence gathered previously during the investigation or prosecutions has in principle been examined in detail.
In the present case, the Home Secretary’s decision is final in the sense that it does not have to be followed by an investigation. Furthermore, as is apparent from the Council’s answer to a question put by the Court, its purpose is to ban the applicant in the United Kingdom, with consequences under criminal law for anyone maintaining any kind of link with the applicant.
In those circumstances, the Home Secretary’s decision does not constitute a decision in respect of the instigation of investigations or prosecution, and must be treated as a condemnation decision, with the result that, pursuant to Article 1(4) of Common Position 2001/931, the Council was not required to indicate, in the statement of reasons relating to the July 2011 to July 2014 measures, the serious evidence and clues underpinning that authority’s decision.
In that regard, the fact that the Home Secretary is an administrative authority is irrelevant, since, as is apparent from paragraphs 262 and 263 above, the Home Secretary’s decisions are open to judicial review and, accordingly, the Home Secretary must be regarded as equivalent to a judicial authority.
(b)

The deeds invoked independently by the Council
In the context of its second plea, the applicant submits that the deeds invoked independently by the Council in the July 2011 to July 2014 measures are too imprecise to be capable of forming the basis of a retention decision since some are undated, do not state locations or are not imputed to it.
In that regard, it should be noted that, in paragraph 32 of the judgment on appeal, the Court of Justice considered that, in certain situations, on account of the passage of time or the circumstances of the case, the mere fact that the national decision that served as the basis for the original listing remains in force no longer supports the conclusion that there is an ongoing risk of the person or entity concerned being involved in terrorist activities.
In the same paragraph of that judgment, the Court of Justice held that, in such situations, the Council is obliged to base the retention of that person or entity on the fund-freezing list on an up-to-date assessment of the situation, and to take into account more recent facts which demonstrate that that risk continues to exist.
The Court of Justice also took the view, in paragraph 33 of the judgment on appeal, that, in that case, a significant period of time had elapsed between, on the one hand, the adoption of the national decisions, dating from 2001, which served as the basis for the original inclusion of the applicant’s name on the fund-freezing lists and, on the other, the adoption of the July 2010 to July 2014 measures.
The Court of Justice therefore took the view that the Council was obliged to base the retention of the applicant’s name on those lists on more recent evidence demonstrating that that organisation was still involved in terrorist activities and that that material could be derived from sources other than national decisions adopted by competent authorities (see, to that effect, the judgment on appeal, paragraph 33 and paragraphs 35 to 50; see also, to that effect, judgment of 26 July 2017, Council v LTTE,
C‑599/14 P
,
EU:C:2017:583
, paragraphs
and
to
).
In the July 2011 to July 2014 measures, in order to maintain the applicant’s name on the fund-freezing lists, the Council, in addition to maintaining the decisions of the United States and United Kingdom authorities, relied on the following deeds:
–
‘from 1988 onwards, Hamas, (including Hamas-Izz al-Din al-Qassem) carried out, and acknowledged responsibility for, regular attacks against Israeli targets, including kidnapping, stabbing and shooting attacks against civilians, and suicide bomb attacks on public transport and in public places. Hamas mounted attacks in both “Green Line” Israel and Occupied Territories’ (July 2011 to July 2014 measures);
–
‘on 21 September 2005 a Hamas cell kidnapped and later killed an Israeli. In a video statement Hamas claimed to have kidnapped the man in an attempt to negotiate the release of Palestinian prisoners held by Israel’ (July 2011 to July 2014 measures);
–
‘Hamas militants have taken part in the firing of rockets from Gaza into southern Israel’ (July 2011 to July 2014 measures);
–
‘for the purpose of carrying out terrorist attacks against civilians in Israel, Hamas has in the past recruited suicide bombers by offering support to their families’ (July 2011 to July 2014 measures);
–
‘in June 2006, Hamas (including Hamas-Izz al-Din-al-Qassem) was involved in the operation which led to the kidnap of an Israeli soldier, Gilad Shalit, who remains a hostage’ (July 2011 measures). ‘On 18 October 2011, Hamas released Gilad Shalit, after holding him for five years, as part of a prisoner swap deal with Israel’ (December 2011 to July 2014 measures);
–
‘on 20 August 2011, Hamas claims responsibility for the firing of rockets into southern Israel which injured two Israeli citizens’ (December 2011 to July 2014 measures);
–
‘on 7 April 2011, a rocket attack by Hamas against a school bus killed a civilian’ (December 2011 to July 2014 measures);
–
‘on 2 September 2010, a vehicle was shot at, injuring two Israelis’ (July 2011 to July 2014 measures);
–
‘on 31 August 2010, four Israeli settlers were assassinated by inhabitants of Hebron’ (July 2011 to July 2014 measures);
–
‘on 14 June 2010, an attack by an alleged Hamas cell killed a police officer and injured two others in the Southern Hebron Hills’ (July 2011 to July 2014 measures);
–
‘on 26 March 2010, two Israeli soldiers were killed in the Gaza Strip’ (July 2011 to July 2014 measures);
–
‘on 5 January 2010, an Egyptian border guard was killed in armed clashes in the northern part of Sinai’ (July 2011 to July 2014 measures).
With regard to those deeds, it should be recalled that the Court of Justice has held that the Courts of the European Union are required to determine, in particular, whether the obligation to state reasons laid down in Article 296 TFEU has been complied with and, therefore, whether the reasons relied on are sufficiently detailed and specific (judgment of 26 July 2017, Council v LTTE,
C‑599/14 P
,
EU:C:2017:583
, paragraph
, and the judgment on appeal, paragraph 48).
It is settled case-law that the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the act in such a way as to enable the person concerned to ascertain the reasons for the measures and to enable the court having jurisdiction to exercise its power of review (judgment of 15 November 2012, Council v Bamba,
C‑417/11 P
,
EU:C:2012:718
, paragraph
and the case-law cited).
It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter (judgments of 15 November 2012, Council v Bamba,
C‑417/11 P
,
EU:C:2012:718
, paragraph
, and of 14 October 2009, Bank Melli Iran v Council,
T‑390/08
,
EU:T:2009:401
, paragraph
).
In particular, the reasons given for a measure adversely affecting a person will be sufficient if that measure was adopted in a context which was known to that person and which enables him to understand the scope of the measure concerning him (judgments of 15 November 2012, Council v Bamba,
C‑417/11 P
,
EU:C:2012:718
, paragraph
, and of 14 October 2009, Bank Melli Iran v Council,
T‑390/08
,
EU:T:2009:401
, paragraph
).
In the present case, since they took place in a known context, it must be held that the deeds mentioned by the Council in the July 2011 to July 2014 measures are described in a sufficiently detailed and specific way to be challenged by the applicant and reviewed by the Court, even if the precise location where they took place is not stated.
Moreover, the link between those deeds and Hamas or Hamas-Izz al-Din al-Qassem may be taken to be established, since it is clear from the wording before those deeds are listed that they must be attributed to ‘Hamas (including Hamas-Izz al-Din al-Qassem)’.
The only exceptions to that finding are the deeds mentioned in the first, third and fourth places in paragraph 315 above, which are undated, and therefore the applicant would find it difficult to contest them and the General Court would find it difficult to carry out the review required by the Court of Justice, since the date is a key factor in identifying certain actions.
However, the deeds other than those mentioned in the first, third and fourth places in paragraph 315 above provide an independent and sufficient statement of reasons for the July 2011 to July 2014 measures.
Although, of those, the deeds in 2005 and 2006 may be regarded as rather old, this is not the case with regard to the deeds in 2010 mentioned in the July 2011 measures and the deeds in 2010 and 2011 which are mentioned in the December 2011 to July 2014 measures.
Consequently, the sixth plea in law and the second plea in law, in so far as that latter plea alleges infringement of the obligation to state reasons, must be rejected as being unfounded.
3.

The second plea in law, in so far as it alleges an error as to the accuracy of the facts
In the supplementary pleading, the applicant states that it is for the Council to prove the accuracy of the facts set out in the July 2011 to July 2014 measures and listed in paragraph 315 above. However, that proof has not, in its view, been furnished in the present case. Certain deeds have been attributed to Hamas militants without any indication as to how that status has been established. Moreover, restrictive measures cannot be taken against it on account of those deeds.
In particular, the applicant denies that it committed the deed which took place on 5 January 2010 on the ground that Hamas intervened only to maintain order after the death of the official. It also disputes the deed which took place on 14 June 2010, which is imputed to an ‘alleged’ Hamas cell, on the ground that that assumption is insufficient.
At the hearing, the applicant’s lawyer confirmed that Hamas disputed all of the deeds mentioned by the Council in the July 2011 to July 2014 measures and set out in paragraph 315 above.
In response to a question put by the Court in the context of a measure of organisation of procedure, the Council provided a number of articles and publications to demonstrate the reality of the deeds mentioned in paragraph 315 above and their attribution to Hamas or Hamas-Izz al-Din al-Qassem.
In that regard, it should be pointed out that, in the case of subsequent fund-freezing decisions, the Court of Justice takes the view that the Courts of the European Union are required to determine not only whether the obligation to state reasons has been complied with, as addressed in the preceding plea, but also whether those reasons are substantiated (judgment of 26 July 2017, Council v LTTE,
C‑599/14 P
,
EU:C:2017:583
, paragraph
, and the judgment on appeal, paragraph 48).
The Court of Justice also takes the view that the person or entity concerned may, in the action challenging the retention of his or its name on the lists at issue, dispute all the material relied on by the Council to demonstrate that the risk of his or its involvement in terrorist activities is ongoing, irrespective of whether that material is derived from a national decision adopted by a competent authority or from other sources (judgment of 26 July 2017, Council v LTTE,
C‑599/14 P
,
EU:C:2017:583
, paragraph
, and the judgment on appeal, paragraph 49).
The Court of Justice adds that, in the event of challenge, it is for the Council to establish that the facts alleged are well founded and for the Courts of the European Union to determine whether they are made out (judgment of 26 July 2017, Council v LTTE,
C‑599/14 P
,
EU:C:2017:583
, paragraph
, and the judgment on appeal, paragraph 49).
In that regard, it should be noted that, if the evidence adduced by one party is challenged by the other party, that other party must satisfy two cumulative requirements.
In the first place, its challenge may not be made in general terms, but must be specific and detailed (see, to that effect, judgment of 16 September 2013, Duravit and Others v Commission,
T‑364/10
, not published,
EU:T:2013:477
, paragraph
).
In the second place, challenges relating to the accuracy of the facts must feature clearly in the first procedural document concerning the contested measure (see, to that effect, judgment of 22 April 2015, Tomana and Others v Council and Commission,
T‑190/12
,
EU:T:2015:222
, paragraph
). This means, in the present case, that only the challenges set out in the supplementary pleading and in the subsequent statements of modification can be taken into consideration. Those pleadings are, in fact, the first procedural documents in which the applicant set out its pleas contesting the July 2011 to July 2014 measures.
In the present case, among the deeds mentioned in paragraph 315 above, only those which took place on 5 January and 14 June 2010 have been the subject of challenges by the applicant which satisfy those two requirements.
However, those challenges are ineffective, since, even if they prove to be well founded, the other acts mentioned by the Council in the July 2010 to July 2014 measures are sufficient to prove the persistent nature of the risk of the applicant’s participation in terrorist activities. This is the case, in particular, with regard to the deeds listed in paragraph 315 above which are dated 26 March 2010, 31 August 2010, 7 April 2011 and 20 August 2011.
Those deeds are also sufficiently recent to justify the measures adopted between July 2011 and July 2014.
As to the assertion that they have not been clearly imputed to Hamas or to Hamas-Izz al-Din al-Qassem, that argument is also irrelevant, since, as is clear from paragraphs 292 to 297 above, those two entities must be regarded, at this stage, as one and the same organisation for the purpose of applying the rules on combating terrorism.
The second plea in law, in so far as it alleges an error as to the accuracy of the facts, must therefore be rejected as unfounded.
4.

The third plea in law, alleging an error of assessment as to the terrorist nature of the applicant
The applicant takes the view that, in adopting the July 2011 to July 2014 measures, the Council made an error of assessment as regards the applicant’s classification as a terrorist organisation. In its opinion, the Court’s jurisdiction extends to verification of the Council’s classification of the deeds which it invokes as acts of terrorism, and that verification is required both in respect of the deeds invoked independently by the Council and in respect of those invoked in the decisions of the competent authorities.
(a)

The decisions of the competent authorities
So far as concerns the deeds invoked in the decisions of the competent authorities, the Court should, according to the applicant, verify that the classification adopted is based on the definition of terrorism in Common Position 2001/931. In the present case, it submits, that check could not be undertaken because of the Council’s failure to provide information concerning that classification.
In view of the answer given to the first plea, this part of the plea will be considered only in so far as it concerns the Home Secretary’s decision.
Since, in response to the first and sixth pleas, it has been held that the evidence and clues on which that decision is based do not have to be indicated in the statement of reasons for the July 2011 to July 2014 measures, the Council cannot be required to verify the national authority’s classification of those deeds and to indicate in those measures the outcome of that classification.
In the present case, that is particularly so since the decision emanates from a Member State for which Article 1(4) of Common Position 2001/931 and Article 2(3) of Regulation No 2580/2001 introduced a specific form of cooperation with the Council, entailing, for that institution, the obligation to defer as far as possible to the assessment conducted by the competent national authority (judgments of 23 October 2008, People’s Mojahedin Organization of Iran v Council,
T‑256/07
,
EU:T:2008:461
, paragraph
, and of 4 December 2008, People’s Mojahedin Organization of Iran v Council,
T‑284/08
,
EU:T:2008:550
, paragraph
).
(b)

The deeds invoked independently by the Council
In the statements of reasons for the July 2011 to July 2014 measures, the Council classified the deeds mentioned in paragraph 315 above as terrorist acts within the meaning of Article 1(3)(iii)(a), (b), (c), (d), (f) and (g) of Common Position 2001/931 for the purpose of achieving the aims set out in Article 1(3)(i), (ii) and (iii) of that common position.
In the first place, the applicant considers that classification to be too general and imprecise.
That argument cannot be accepted, since, in the light of the provisions concerned, that statement of reasons, although concise, is sufficiently clear to enable the applicant to understand the reasons why its name had been maintained on the July 2011 to July 2014 lists at issue and to dispute the merits of that classification, which, moreover, it did in the remainder of this plea in law.
In the second place, the applicant submits that the Council erred in classifying the deeds concerned as terrorist acts. First, the fact that the acts in question all took place in the context of the war of occupation conducted by Israel in Palestine should have caused the Council not to accept that classification in the applicant’s case. Next, even if those deeds were established, it would not follow that they were committed with the aims referred to by the Council and mentioned in Article 1(3)(i), (ii) and (iii) of Common Position 2001/931.
Those two arguments relate to the question whether, when classifying the deeds mentioned in paragraph 315 above, the Council should have taken into consideration the fact that the Israeli-Palestinian conflict came within the scope of the law governing armed conflict.
In that regard, it must be noted that, according to settled case-law, the existence of an armed conflict within the meaning of international humanitarian law does not exclude the application of provisions of EU law concerning the prevention of terrorism, such as Common Position 2001/931 and Regulation No 2580/2001, to any acts of terrorism committed in that context (judgment of 16 October 2014, LTTE v Council,
T‑208/11 and T‑508/11
,
EU:T:2014:885
, paragraph
; see also, to that effect, judgment of 14 March 2017, A and Others,
C‑158/14
,
EU:C:2017:202
, paragraphs
to
).
Common Position 2001/931 makes no distinction as regards its scope according to whether or not the act in question is committed in the context of an armed conflict within the meaning of international humanitarian law. Moreover, the objectives of the European Union and its Member States are to combat terrorism, whatever form it may take, in accordance with the objectives of current international law (judgment of 16 October 2014, LTTE v Council,
T‑208/11 and T‑508/11
,
EU:T:2014:885
, paragraph
).
It is notably in order to implement, at EU level, United Nations Security Council Resolution 1373 (2001) (see paragraph 1 above), which ‘reaffirm[s] the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts’ and which ‘calls on Member States to complement international cooperation by taking additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism’, that the Council adopted Common Position 2001/931 (see recitals 5 to 7 thereof) and subsequently, in accordance with that common position, Regulation No 2580/2001 (see recitals 3, 5 and 6 of that regulation) (judgment of 16 October 2014, LTTE v Council,
T‑208/11 and T‑508/11
,
EU:T:2014:885
, paragraph
).
Accordingly, the third plea in law must be rejected as being unfounded.
5.

The fourth plea in law, alleging failure to take sufficient account of the development of the situation owing to the passage of time
The applicant criticises the Council on the ground that it failed to take sufficient account, in the July 2011 to July 2014 measures, of the development of the situation owing to the passage of time. According to the applicant, the Council should have studied the national decisions taken in re-examination procedures, and checked whether those decisions were based on serious and credible evidence or clues and that the alleged deeds should still have been classified as terrorist acts within the meaning of Common Position 2001/931.
In view of the response given to the first plea, only the Home Secretary’s decision must be taken into consideration for the purpose of assessing this fourth plea in law.
In that regard, it should be noted that, in the judgment of 26 July 2017, Council v LTTE (
C‑599/14 P
,
EU:C:2017:583
, paragraph
), and the judgment on appeal (paragraph 29), the Court of Justice held that, in the context of a review pursuant to Article 1(6) of Common Position 2001/931, the Council was able to maintain the name of the person or entity concerned on the fund-freezing lists if it concluded that there was an ongoing risk of that person or entity being involved in the terrorist activities which justified the initial listing.
In those judgments, the Court of Justice added that, in the process of verifying whether the risk of the person or entity concerned being involved in terrorist activities is ongoing, the subsequent fate of the national decision that served as the basis for the original entry of that person or entity on the lists for the freezing of funds should be duly taken into consideration, in particular the repeal or withdrawal of that national decision as a result of new facts or material or any modification of the competent national authority’s assessment (judgment of 26 July 2017, Council v LTTE,
C‑599/14 P
,
EU:C:2017:583
, paragraph
, and the judgment on appeal, paragraph 30).
In the present case, it is clear from the July 2011 to July 2014 measures that the Council respected the approach imposed by the Court of Justice when it stated that the Home Secretary’s decision remained in force.
It does not follow from the judgments of the Court of Justice cited in paragraphs 357 and 358 above or from Article 1(6) of Common Position 2001/931 that the Council should have set out, in the fund-freezing decisions, the detailed rules for reviewing the decisions of the competent authorities.
Moreover, since it has been held that the Council was not required to indicate, in its decisions, the deeds which formed the basis for the decisions of the competent authorities justifying the inclusion of the applicant’s name (see paragraphs 304 to 309 above), or to verify the classification of those deeds as terrorist acts within the meaning of Common Position 2001/931 (see paragraphs 344 and 345 above), the Council cannot be obliged to indicate the deeds underpinning the review decisions, or to verify the classification of those deeds.
Finally, the confirmation that the decisions of the competent authorities remained in force was sufficient to enable the applicant to launch a challenge and the EU Courts to exercise their power of review, with the result that there has been compliance with the obligation to state reasons.
In those circumstances, it must be considered that, contrary to what is asserted by the applicant, the Council duly took into consideration, in the July 2011 to July 2014 measures, the subsequent fate of the national decision that had served as the basis for the original inclusion of the applicant’s name on the fund-freezing lists and that those measures contain sufficient reasoning in that regard.
The fourth plea in law must therefore be rejected as being unfounded.
6.

The fifth plea in law, alleging infringement of the principle of non-interference
The applicant claims that, by adopting the July 2011 to July 2014 measures, the Council infringed the principle of non-interference which stems from Article 2 of the Charter of the United Nations and constitutes a principle of
jus cogens
that flows from the sovereign equality of States in international law and which precludes a State, as well as the government of a State, from being regarded as a terrorist entity.
The applicant submits that it is not merely a non-governmental organisation, and much less an informal movement, but a legitimate political movement that won the elections in Palestine and forms the heart of the Palestinian Government. Since Hamas has had to assume functions going beyond those of an ordinary political party, its actions in Gaza are in fact tantamount to those of a State authority and cannot therefore be censured from the aspect of antiterrorist measures. The applicant is the only one among the individuals and entities included in the July 2011 to July 2014 lists at issue to be in such a situation.
In that regard, it should be noted that the principle of non-interference, which is a principle of customary international law, also called the principle of non-intervention, concerns the right of any sovereign State to conduct its affairs without external interference and is a corollary of the principle of sovereign equality of States.
As the Council points out, that principle of international law is set out for the benefit of sovereign States, and not for the benefit of groups or movements (see judgment of 16 October 2014, LTTE v Council,
T‑208/11 and T‑508/11
,
EU:T:2014:885
, paragraph
and the case-law cited).
Since it is neither a State nor the government of a State, Hamas cannot benefit from the principle of non-interference.
The fifth plea in law must therefore be rejected as being unfounded.
7.

The seventh plea in law, alleging infringement of the principle of respect for the applicant’s rights of defence and of the right to effective judicial protection
The seventh plea comprises two parts.
(a)

The first part
In the first part of the seventh plea, the applicant submits, in the event that the Court should hold, in response to the first plea, that the United States procedures adequately protect procedural rights and that the United States Government may therefore be regarded as a competent authority within the meaning of Article 1(4) of Common Position 2001/931, that, in the present case, its rights of defence and its right to effective judicial protection were infringed during the part of the procedure in the United States, namely during the part which led to the adoption of the United States decisions relating to it. Consequently, the July 2011 to July 2014 measures should, it argues, be annulled on the ground that they infringe the principle of respect for the applicant’s rights of defence and that of the right to effective judicial protection.
There is no need to rule on the first part of the seventh plea inasmuch as it is raised as an alternative to the first plea, which has been upheld as regards the United States decisions.
(b)

The second part
In the second part of the seventh plea, the applicant submits that, for two reasons, the principle of respect for the rights of the defence was infringed during the European part of the procedure which led to the adoption by the Council of the July 2011 to July 2014 measures.
In the first place, the applicant criticises the Council on the ground that it did not send it the serious evidence and clues underpinning the decisions of the competent authorities on which it relied.
In view of the answer given to the first plea, this argument must be considered only in so far as it concerns the Home Secretary’s decision.
Therefore, it is appropriate to examine whether that decision had to be communicated by the Council to the applicant.
In this regard, in accordance with the case-law, it follows from Article 1(4) of Common Position 2001/931 and from the obligation to state reasons laid down in Article 296 TFEU that the Council must indicate, in its measures, the precise information and material in the file which show that a decision was taken by a competent authority in respect of the parties concerned (see, to that effect, judgment of 12 December 2006, Organisation des Modjahedines du peuple d’Iran v Council,
T‑228/02
,
EU:T:2006:384
, paragraph
).
By contrast, when sufficiently precise information has been disclosed, enabling the party concerned properly to state its point of view on the evidence adduced against it by the Council, the principle of respect for the rights of the defence does not mean that that institution is obliged spontaneously to grant access to the documents in its file.
It is only on the request of the party concerned that the Council is required to provide access to all non-confidential official documents concerning the measure at issue (see, to that effect, judgments of 16 November 2011, Bank Melli Iran v Council,
C‑548/09 P
,
EU:C:2011:735
, paragraph
; of15 November 2012, Council v Bamba,
C‑417/11 P
,
EU:C:2012:718
, paragraph
; and of 28 July 2016, Tomana and Others v Council and Commission,
C‑330/15 P
, not published,
EU:C:2016:601
, paragraph
and the case-law cited).
In the present case, the Council set out, in the statements of reasons sent to the applicant, the reference for the Home Secretary’s decision.
It must be inferred from this that the applicant had in its possession sufficiently precise information within the meaning of the case-law referred to in paragraph 378 above.
In those circumstances, if it wished to obtain the Home Secretary’s decision, it was for the applicant, in accordance with that case-law, to request that the Council send the decision to it, something which it did not do.
In the second place, with regard to the deeds used independently by the Council, the applicant criticises that institution for failing to communicate to it, prior to the adoption of the July 2011 to July 2014 measures, the information that was available to it. Consequently, the applicant claims, it was unable to submit its observations in respect of that information.
In that regard, it must be borne in mind that the material in the file used by the Council to maintain the name of a person or entity on fund-freezing lists must be communicated to that person or entity prior to the retention decision only if it contains something new in relation to the material contained in the statement of reasons for the previous measures (see paragraph 167 above).
Among the July 2011 to July 2014 measures, only the statements of reasons relating to the July 2011 and December 2011 measures contained modifications in relation to those relating to the preceding measures.
The drafts of those statements of reasons were notified by the Council to the applicant’s lawyer by letters dated 30 May and 15 November 2011, and thus prior to the adoption of the July and December 2011 measures.
Contrary to what is asserted by the applicant, there was no requirement for that communication to be accompanied by the evidence that was in the Council’s possession. In accordance with the case-law referred to in paragraph 380 above, if the applicant wished to obtain that evidence, it had to request it from the Council, something which it did not do.
Furthermore, for the reasons given in paragraphs 214 and 215, the Council also cannot be criticised for having sent those draft statements of reasons to the applicant’s lawyer.
For those reasons, the second part and, consequently, the seventh plea in law must therefore be rejected as being unfounded.
8.

The eighth plea in law, alleging infringement of the right to property
The applicant submits that the freezing of funds by the July 2011 to July 2014 measures constitutes an interference with its right to property that is unjustified since those measures are unlawful for the reasons explained in the preceding pleas. Accordingly, it contends, those measures should be annulled on the ground that they infringe the right to property.
The Council, supported by the Commission, takes issue with that position.
It does not follow from the responses to the previous pleas that the July 2011 to July 2014 measures are unlawful. The right to property cannot, therefore, be considered to be infringed for that reason.
Furthermore, for the reasons given in the examination of the third plea in respect of the July 2010 measures (see paragraphs 184 to 192 above), it cannot be claimed that the July 2011 to July 2014 measures infringe the applicant’s right to property.
Consequently, the eighth plea in law is rejected as being unfounded.
9.

Conclusion
It follows from all of the foregoing that the action must be dismissed in so far as it concerns the July 2011 to July 2014 measures.
The action must therefore be dismissed in its entirety.
V.

Costs
Under Article 134(1) 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 applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Council, in accordance with the form of order sought by the latter.
Moreover, in accordance with Article 138(1) of the Rules of Procedure, Member States and institutions which have intervened in the proceedings are to bear their own costs.
Consequently, the French Republic and the Commission must bear their own costs.

On those grounds,
THE GENERAL COURT (First Chamber, Extended Composition)
hereby:

1.
Dismisses the action;

2.
Orders Hamas to bear its own costs and to pay those incurred by the Council of the European Union;

3.
Orders the French Republic and the European Commission to bear their own costs.

Pelikánová
Valančius
Nihoul
Svenningsen
Öberg
Delivered in open court in Luxembourg on 14 December 2018.
[Signatures]
Table of contents

I. Background to the dispute and events subsequent to the bringing of the present action

A. Resolution 1373 (2001) of the United Nations Security Council

B. EU Law

C. Contested measures

1. July 2010 measures

2. January 2011 measures

3. July 2011 measures

4. December 2011 measures

5. June 2012 measures

6. December 2012 measures

7. July 2013 measures

8. February 2014 measures

9. July 2014 measures

10. August 2017 measures

II. Procedure and forms of order sought before referral back

III. Procedure and forms of order sought following the referral back

IV. Law

A. Preliminary remarks concerning the subject matter of the action and the scope and admissibility of the applicant’s observations of 28 June 2012

1. The requests to amend the form of order sought in the action in respect of the July 2010 to July 2014 measures

2. The admissibility of the application for annulment directed against the July 2010 notice

3. The scope and admissibility of the applicant’s observations of 28 June 2012

4. The application to modify the form of order sought in the action in respect of the August 2017 measures

B. The application for annulment of the July 2010 measures

1. The first plea in law, alleging a manifest error of assessment as regards whether the fund-freezing measures apply to the applicant

2. The second plea in law, alleging infringement of the rights of the defence

3. The third plea in law, alleging infringement of the right to property

4. The fourth plea in law, alleging infringement of the obligation to state reasons

5. Conclusion

C. The application for annulment of the January 2011 measures

1. The first plea in law, alleging a manifest error of assessment

2. The second plea in law, alleging infringement of the principle of respect for the rights of the defence

3. The third plea in law, alleging infringement of the right to property

4. The fourth plea in law, alleging infringement of the obligation to state reasons

5. Conclusion

D. The application for annulment of the July 2011 to July 2014 measures

1. The first plea in law, alleging infringement of Article 1(4) of Common Position 2001/931

(a) The identification of the organisations referred to by the decisions of the United Kingdom authorities and those of the United States authorities

(b) The criticisms specific to the decisions of the United States authorities

(c) The criticisms that are common to the decisions of the United States and United Kingdom authorities

(1) The preference to be given to judicial authorities

(2) The fact that the Home Secretary’s decision consists of a list of terrorist organisations

(3) The failure to indicate the serious and credible evidence and clues underpinning the Home Secretary’s decision

(d) Conclusion

2. The sixth plea in law and the second plea in law, in so far as that latter plea alleges infringement of the obligation to state reasons

(a) The decisions of the competent authorities

(b) The deeds invoked independently by the Council

3. The second plea in law, in so far as it alleges an error as to the accuracy of the facts

4. The third plea in law, alleging an error of assessment as to the terrorist nature of the applicant

(a) The decisions of the competent authorities

(b) The deeds invoked independently by the Council

5. The fourth plea in law, alleging failure to take sufficient account of the development of the situation owing to the passage of time

6. The fifth plea in law, alleging infringement of the principle of non-interference

7. The seventh plea in law, alleging infringement of the principle of respect for the applicant’s rights of defence and of the right to effective judicial protection

(a) The first part

(b) The second part

8. The eighth plea in law, alleging infringement of the right to property

9. Conclusion

V. Costs
(
*1
)	Language of the case: French