CELEX: 62016TJ0643
Common foreign and security policy
Specific restrictive measures directed against certain persons and entities with a view to combating terrorism
Freezing of funds
Whether an authority of a third State can be classified as a competent authority within the meaning of Common Position 2001/931/CFSP
Factual basis of the decisions to freeze funds
Obligation to state reasons
Authentication of Council acts

Background to the dispute and events subsequent to the bringing of the present action
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.
EU Law
On 27 December 2001, considering 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 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
).
On 2 May 2002, the name ‘Gama’a al-Islamiyya (Islamic Group), (a.k.a. Al-Gama’a al-Islamiyya, IG)’ was included by the Council in the list annexed to Common Position 2002/340/CFSP updating Common Position 2001/931 (
OJ 2002 L 116, p. 75
) and the list in Decision 2002/334/EC implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2001/927 (
OJ 2002 L 116, p. 33
).
Those lists have been updated in accordance with Article 1(6) of Common Position 2001/931 and Article 2(3) of Regulation No 2580/2001.
On 21 December 2015, the Council maintained the applicant’s name on those lists by Decision (CFSP) 2015/2430 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931 and repealing Decision (CFSP) 2015/1334 (
OJ 2015 L 334, p. 18
) and Implementing Regulation (EU) 2015/2425 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation (EU) 2015/1325 (
OJ 2015 L 334, p. 1
).
On 22 December 2015, the Council published in the
Official Journal of the European Union
a 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 2015 C 430, p. 5
). That notice informed those persons, groups and entities that their name had been maintained on those fund-freezing lists and that they could submit a request to obtain the Council’s statement of reasons justifying that retention.
On 20 May 2016, the applicant’s lawyer asked the Council to send her the statement of reasons for her client’s initial inclusion in the fund-freezing lists and subsequently for maintaining it on those lists by Implementing Regulation 2015/2425, whilst questioning whether her client was in fact subject to those lists.
On 26 May 2016, the Council communicated to her eleven statements of reasons, stating:
‘Please find attached the statements of reasons for the inclusion and retention of your client on the list contained in [Implementing] Regulation 2015/2425 … implementing Article 2(3) of Regulation … No 2580/2001.’
Contested measures
July 2016 measures
On 12 July 2016, the Council adopted, first, Decision (CFSP) 2016/1136 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931 and repealing Decision 2015/2430 (
OJ 2016 L 188, p. 21
) and, second, Implementing Regulation (EU) 2016/1127 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation (EU) 2015/2425 (
OJ 2016 L 188, p. 1
) (together ‘the July 2016 measures’). The applicant’s name was maintained on the lists annexed to those measures (‘the July 2016 lists at issue’).
By letter of 13 July 2016, the Council sent to the applicant’s lawyer the statement of reasons for maintaining its name on the July 2016 lists at issue and informed her of the possibility of requesting that those lists be reviewed under Article 2(3) of Regulation No 2580/2001 and Article 1(6) of Common Position 2001/931. In that letter, the Council also stated the following:
‘The Council considered that there was no new evidence in the file to justify it changing its position. Accordingly, it takes the view that the reasons that it previously communicated to you in its letter of 26 May 2016 are still valid.’
It is clear from the statement of reasons for the July 2016 measures that the inclusion of the applicant’s name in the lists at issue was based on four national decisions.
The first national decision was Order 1261 of the United Kingdom’s Secretary of State for the Home Department (‘the Home Secretary’) of 29 March 2001 amending the United Kingdom Terrorism Act 2000 and proscribing the applicant, considered to be an organisation concerned in terrorism (‘the Home Secretary’s decision’).
The second national decision was a decision of the United States Secretary of State of 8 October 1997 designating, for the purposes of the United States Immigration and Nationality Act, the applicant as a ‘foreign terrorist organisation’ (‘the 1997 US decision’).
The third national decision was by the United States Secretary of State and was taken on 31 October 2001 pursuant to Executive Order 13224 (‘the 2001 US decision’).
The fourth national decision was dated 23 January 1995 and was taken pursuant to Executive Order 12947 (‘the 1995 US decision’).
In the main part of the statement of reasons relating to the July 2016 measures, first, the Council found that those national decisions constituted a decision of a competent authority within the meaning of Article 1(4) of Common Position 2001/931 and that they were still in force. It went on to state that it had considered whether there was any information in its possession that would militate for the applicant’s removal from the July 2016 lists at issue and that it had found none. Last, it stated that it considered that the reasons justifying the inclusion of the applicant in the fund-freezing lists were still valid and concluded that the applicant should remain on the July 2016 lists at issue.
In addition, the statement of reasons relating to the July 2016 measures included an Annex A concerning the ‘decision of the competent authority of the United Kingdom’ and an Annex B concerning the ‘decisions of the competent authorities of the United States’. Each of those annexes contained a description of the national legislation under which the decisions of the national authorities had been adopted, a presentation of the definitions of terrorism in the legislation concerned, a description of the procedures for reviewing those decisions, a description of the facts on which those authorities had relied and the finding that those facts constituted terrorist acts within the meaning of Article 1(3) of Common Position 2001/931.
In paragraph 16 of Annex A to the statement of reasons relating to the July 2016 measures, the Council stated that, in November 2013, the Home Secretary had concluded, on the basis of the available evidence, that ‘the group was involved in terrorism in another way and that, consequently, the proscription had to be maintained’.
In paragraph 10 of Annex B to the July 2016 measures, the Council stated that, in the United States, the most recent review of the applicant’s designation as a foreign terrorist organisation was on 15 December 2010 and that the US Government had concluded that that designation should be maintained. Moreover, in paragraph 18 of Annex B, it referred to ‘Department of State administrative records for Gama’a al-Islamiyya for 2010 and 2003’.
January 2017 measures
On 27 January 2017, the Council adopted Decision (CFSP) 2017/154 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931 and repealing Decision 2016/1136 (
OJ 2017 L 23, p. 21
) and Implementing Regulation (EU) 2017/150 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation (EU) 2016/1127 (
OJ 2017 L 23, p. 3
) (together ‘the January 2017 measures’). The applicant’s name was maintained on the lists annexed to those measures (‘the January 2017 lists at issue’).
By letter of 30 January 2017, the Council sent to the applicant’s lawyer the statement of reasons for maintaining its name on the January 2017 lists at issue and informed her of the possibility of requesting that those lists be reviewed under Article 2(3) of Regulation No 2580/2001 and Article 1(6) of Common Position 2001/931.
That statement of reasons was identical to that concerning the July 2016 measures.
The applicant did not respond to that letter.
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 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 applicant’s name 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 for maintaining its name on the August 2017 lists at issue and informed her of the possibility of requesting that those lists be reviewed under Article 2(3) of Regulation No 2580/2001 and Article 1(6) of Common Position 2001/931.
That statement of reasons was identical to that concerning the July 2016 and January 2017 measures.
The applicant did not respond to that letter.
March 2018 measures
On 21 March 2018, the Council adopted Decision (CFSP) 2018/475 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931 and repealing Decision 2017/1426 (
OJ 2018 L 79, p. 26
) and Implementing Regulation (EU) 2018/468 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation (EU) 2017/1420 (
OJ 2018 L 79, p. 7
) (together ‘the March 2018 measures’). The applicant’s name was maintained on the lists annexed to those measures (‘the March 2018 lists at issue’).
By letter of 22 March 2018, the Council sent to the applicant’s lawyer the statement of reasons for maintaining its name on the March 2018 lists at issue and informed her of the possibility of requesting that those lists be reviewed under Article 2(3) of Regulation No 2580/2001 and Article 1(6) of Common Position 2001/931.
That statement of reasons was identical to that concerning the July 2016 measures and the January and August 2017 measures.
The applicant did not respond to that letter.
July 2018 measures
On 30 July 2018, the Council adopted Decision (CFSP) 2018/1084 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931 and repealing Decision 2018/475 (
OJ 2018 L 194, p. 144
) and Implementing Regulation (EU) 2018/1071 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation (EU) 2018/468 (
OJ 2018 L 194, p. 23
) (together ‘the July 2018 measures’). The applicant’s name was maintained on the lists annexed to those measures (‘the July 2018 lists at issue’).
By letter of 31 July 2018, the Council sent to the applicant’s lawyer the statement of reasons for maintaining its name on the July 2018 lists at issue and informed her of the possibility of requesting that those lists be reviewed under Article 2(3) of Regulation No 2580/2001 and Article 1(6) of Common Position 2001/931.
That statement of reasons was identical to that relating to the July 2016, January and August 2017 and March 2018 measures, with the exception of a few formal differences and a reference, in paragraph 16 of Annex B, to the ‘right to effective judicial protection’ and no longer to the ‘right to judicial protection’.
The applicant did not respond to that letter.
Procedure and forms of order sought
By application lodged at the Court Registry on 11 September 2016, the applicant brought the present action in which it sought the annulment of the July 2016 measures in so far as they concerned it.
On 18 October 2016, the case was assigned to the Fifth Chamber of the General Court.
On 2 December 2016, the President of the Fifth Chamber of the General Court decided, pursuant to Article 69(d) of the Rules of Procedure of the General Court, to stay the proceedings pending the final decisions of the Court of Justice in Cases C‑599/14 P,
Council
v
LTTE
, and C‑79/15 P,
Council
v
Hamas
.
By document lodged at the Court Registry on 21 December 2016, the European Commission sought leave to intervene in the present proceedings in support of the form of order sought by the Council.
By separate document lodged at the Court Registry on 27 March 2017, the applicant, on the basis of Article 86 of the Rules of Procedure, modified the application to take account of the January 2017 measures, in so far as they concerned it.
By letter of 16 August 2017, the parties were requested to submit their observations on the conclusions to be drawn from the judgments of 26 July 2017, Council v LTTE (
C‑599/14 P
,
EU:C:2017:583
), and of 26 July 2017, Council v Hamas (
C‑79/15 P
,
EU:C:2017:584
), for the present case.
The applicant replied to that request on 3 September 2017.
On 18 September 2017, the Council lodged its defence which contained, in addition, the response to the statement of modification of 27 March 2017 and the observations referred to in paragraph 43 above.
By decision of 26 September 2017, the President of the Fifth Chamber of the General Court granted the Commission leave to intervene.
By separate document lodged at the Court Registry on 3 October 2017, the applicant, on the basis of Article 86 of the Rules of Procedure, modified the application to take account of the August 2017 measures.
On 12 October 2017, the Council, at the Court’s invitation, responded to the statement of modification of 3 October 2017.
On 8 November 2017, the applicant lodged a reply.
On 9 November 2017, the Commission lodged a statement in intervention.
On 28 November 2017, the Council, at the Court’s invitation, lodged its observations on the Commission’s statement in intervention.
On 15 January 2018, the Council lodged a rejoinder.
On 13 April 2018, pursuant to Article 27(2) of the Rules of Procedure, the President of the General Court reassigned the case, for reasons relating to the fact that the cases are connected, to another Judge-Rapporteur, assigned to the First Chamber.
By separate document lodged at the Court Registry on 13 May 2018, the applicant, on the basis of Article 86 of the Rules of Procedure, modified the application to take account of the March 2018 measures.
By documents dated 4 and 19 June 2018, the Council and the Commission, at the Court’s invitation, responded to the statement of modification of 13 May 2018.
By separate document lodged at the Court Registry on 14 September 2018, the applicant, on the basis of Article 86 of the Rules of Procedure, modified the application to take account of the July 2018 measures.
By documents dated 27 September and 17 October 2018, the Council and the Commission, at the Court’s invitation, responded to the statement of modification of 14 September 2018.
Acting on a proposal from the Judge-Rapporteur, the First Chamber of the General Court decided to open the oral part of the procedure.
The parties presented oral argument and answered the questions put to them by the Court at the hearing on 6 November 2018.
The applicant claims that the Court should:
–
annul the July 2016, January and August 2017 and the March and July 2018 measures in so far as they concern it (together, ‘the contested measures’);
–
order the Council to pay all the costs.
The Council, supported by the Commission, contends that the Court should:
–
dismiss the action as unfounded;
–
order the applicant to pay the costs.
Law
The applicant puts forward eight pleas in law, alleging:
–
infringement of Article 1(5) of Common Position 2001/931;
–
infringement of Article 1(4) of Common Position 2001/931;
–
errors as to the accuracy of the facts;
–
an error of assessment as to whether the applicant is a ‘terrorist group’;
–
infringement of Article 1(6) of Common Position 2001/931;
–
infringement of the obligation to state reasons;
–
infringement of the rights of the defence and the right to effective judicial protection;
–
a failure to authenticate the statements of reasons.
The Court considers that it is appropriate to examine the first, second, third and sixth pleas in law, in so far as, in the latter plea, the applicant accuses the Council of having failed to indicate, in the contested measures, the serious evidence or clues within the meaning of Article 1(4) of Common Position 2001/931, as well as the eighth plea in law.
The sixth plea in law will be examined after the second.
The first plea in law, alleging infringement of Article 1(5) of Common Position 2001/931
The applicant takes the view that the Council has infringed Article 1(5) of Common Position 2001/931 since it did not indicate, in its name as set out in the July 2016, January and August 2017 and March and July 2018 lists at issue (‘the lists at issue’), its location, namely Egypt. It notes, in that regard, that, over time, its name has changed in the Council measures and that a number of groups exist which have a similar name to itself. Those names differ only by a few letters and mean, in all cases, ‘Islamic group’. It claims that, on account of that imprecision, it has found itself in a situation of uncertainty as to whether it was subject to the lists at issue.
The Council, supported by the Commission, disputes the merits of the plea.
As a preliminary point, it should be noted that the subject matter of the action is limited to the contested measures and therefore the plea may be examined only in so far as it relates to those measures.
In that regard, it should be noted that Article 1(5) of Common Position 2001/931 provides as follows:
‘The Council shall work to ensure that names of natural or legal persons, groups or entities listed in the Annex have sufficient particulars appended to permit effective identification of specific human beings, legal persons, entities or bodies, thus facilitating the exculpation of those bearing the same or similar names.’
In the present case, in all of the contested measures, the Council has designated the applicant as follows: ‘“Gama’a al-Islamiyya” (a.k.a. “Al-Gama’a al-Islamiyya”) (“Islamic Group” – “IG”)’.
As the applicant points out, that name contains no indication of the organisation’s location.
However, that information is not required by the provision cited in paragraph 68 above, the only requirement being that the name used by the Council is sufficiently precise to avoid confusion with organisations bearing the same or similar names.
In the present case, the name of the applicant as mentioned in the contested measures and reproduced in paragraph 69 above is sufficiently specific since it differs, in part in all cases, from the name of those groups and entities whose name may, in its view, have been confused with its name, namely ‘Al-Jamâ’h al-Islâmiyah’, ‘Jemaah Islamiyah’, ‘Al-Jama’ah Al-Islamiyah’, ‘Jamaat al-Islamiya’ and ‘Jamaa Islamiya’.
Even if a risk of confusion existed, as the Council points out, that risk could not have been detrimental to the applicant since it was able to take note of the contested measures knowing that they concerned it, as demonstrated by the Council’s letters dated 13 July 2016, 30 January and 7 August 2017 and 22 March and 31 July 2018 (see paragraphs 12, 23, 27, 31 and 35 above) and the procedural documents by which it requested the annulment of those measures.
In those circumstances, the first plea in law must be rejected as unfounded.
The second plea in law, alleging infringement of Article 1(4) of Common Position 2001/931
The applicant accuses the Council of having infringed Article 1(4) of Common Position 2001/931 by classifying the Home Secretary’s decision and the 1995, 1997 and 2001 US decisions (together ‘the US decisions’) as decisions taken by competent authorities within the meaning of that provision.
The retention 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 of 26 July 2017, Council v Hamas,
C‑79/15 P
,
EU:C:2017:584
, paragraph
).
The plea is therefore effective.
It is appropriate to examine the criticisms that are specific to the decisions of the United States authorities before those that are common to both the United States and the United Kingdom authorities.
The criticisms specific to the decisions of the United States authorities
Primarily, the applicant considers that the Council was not entitled to base the contested 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 those States are not ‘competent authorities’ within the meaning of Article 1(4) of Common Position 2001/931.
On that point, the applicant submits that the system established by Article 1(4) of Common Position 2001/931 is underpinned by confidence in national authorities, which is based on the principle of sincere cooperation between the Council and the Member States of the European Union and relies on the sharing of common values enshrined in the Treaties, and being subject to shared rules, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and the Charter of Fundamental Rights of the European Union. It argues that the authorities of third States would be unable to enjoy that confidence.
In that regard, it should be noted that, according to the Court of Justice, the term ‘competent authority’ used in Article 1(4) of Common Position 2001/931 is not limited to the authorities of the Member States but is capable, in principle, of also including the authorities of third States (judgment of 26 July 2017, Council v LTTE,
C‑599/14 P
,
EU:C:2017:583
, paragraph
).
The interpretation adopted by the Court, 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, second, 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
).
Alternatively, in the event that it is accepted that the authority of a third State can constitute a competent authority within the meaning of Article 1(4) of Common Position 2001/931, the applicant submits that the validity of the measures adopted by the Council is also contingent on the checks which the Council is required to carry out in order to satisfy itself, in particular, that the United States legislation is compatible with the principle of respect for the rights of the defence and the right to effective judicial protection.
In the present case, however, the Council had, in its reasoning for the contested measures, in essence merely described the review procedures and observed that it was possible to bring an appeal, without verifying whether the rights of the defence and the right to effective judicial protection were safeguarded.
In that regard, it must be held that, according to the Court of Justice, when the Council acts on the basis of a decision by a third State, it must verify, first, whether that decision was adopted in accordance with the rights of the defence and the right to effective judicial protection (see, to that effect, judgment of 26 July 2017, Council v LTTE,
C‑599/14 P
,
EU:C:2017:583
, paragraph
).
In the statements of reasons relating to its own acts, the Council must provide 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 refer, in those statements of reasons, to the reasons which led it to consider that the decision of the third State on which it is relying has been adopted in accordance with the principle of 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
).
According to the case-law, the information to be included in the statements of reasons in relation to that assessment may, if necessary, be brief (see, to that effect, judgment of 26 July 2017, Council v LTTE,
C‑599/14 P
,
EU:C:2017:583
, paragraph
).
The Court must examine the arguments raised by the applicant with regard, first, to the right to effective judicial protection and, second, to the principle of respect for the rights of the defence in the light of the case-law recalled in paragraphs 85 to 88 above.
The Court considers that it is appropriate to start with the second question.
In that regard, the applicant submits that, in the statement of reasons relating to the contested measures, the Council failed to indicate the reasons that caused it to consider, after checking, that, in the United States, the rights of the defence were guaranteed in the administrative procedures for the designation of organisations as terrorist organisations.
Moreover, in the applicant’s submission, United States legislation does not require that decisions adopted by the relevant authorities be notified or even that they be reasoned decisions. According to the applicant, although Section 219 of the US Immigration and Nationality Act, which underpins the 1997 US decision, contains an obligation to publish the designation decision in the Federal Register, the same does not apply to Executive Order 13224, which underpins the 2001 US decision and makes no provision for any measure of that nature.
In that regard, it should be noted that, in accordance with the case-law, the principle of respect for the rights of the defence requires that the persons covered by decisions that significantly affect their interests be placed in a position in which they may effectively make known their views on the evidence on which the decisions in question are based (see, to that effect, judgment of 26 September 2013, Texdata Software,
C‑418/11
,
EU:C:2013:588
, paragraph
and the case-law cited).
In the case of measures to place the names of persons or entities on a fund-freezing list, that principle entails the grounds for those measures being notified to those persons or entities at the same time as, or immediately after, the measures are adopted (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
).
In paragraph 16 of Annex B to the statement of reasons relating to the contested measures, the Council states as follows:
‘With respect to the review procedures and the description given of the legal remedies available, the Council considers that the United States legislation ensures protection of the rights of the defence …’
The information provided by the Council in the statement of reasons relating to the contested measures then differs depending on the United States decision being considered.
First, for Executive Orders 12947 and 13224, which underpin the 1995 and 2001 US decisions, the general description provided by the Council does not refer to any obligation on the part of the United States authorities to disclose a statement of reasons to the persons concerned, or even to publish those decisions.
It follows from this that compliance with the principle of the rights of the defence is not ensured in respect of those two decisions and that, therefore, in accordance with the case-law recalled in paragraphs 85 to 88 above, they cannot serve as the basis for the contested measures.
Second, with regard to the 1997 US decision, it is admittedly apparent from paragraphs 10 and 11 of Annex B to the contested measures that, under the US Immigration and Nationality Act, designations of foreign terrorist organisations or decisions following an application for revocation of those designations are published in the Federal Register. However, the Council provides no indication as to whether, in the present case, the publication of the 1997 US decision contained any statement of reasons. Nor, moreover, is it apparent from the statement of reasons relating to the contested measures that, apart from the operative part of the decision, a statement of reasons of any kind was made available to the applicant in any form.
In those circumstances, the Court must consider whether the indication that a decision is published in an official journal of the third State is sufficient to conclude that the Council has, in accordance with the case-law cited in paragraphs 85 to 88 above, fulfilled its obligation to verify whether, in the third States in which the decisions underpinning the contested measures originate, the rights of the defence have been respected.
To that end, reference must be had to the case that gave rise to the judgments of 26 July 2017, Council v LTTE (
C‑599/14 P
,
EU:C:2017:583
), and of 16 October 2014, LTTE v Council (
T‑208/11 and T‑508/11
,
EU:T:2014:885
). In that case, the Council had indicated, in the statement of reasons for one of the measures concerned, that the decisions of the authorities of the third State in question had been published in that State’s official journal, without providing further information (judgment of 16 October 2014, LTTE v Council,
T‑208/11 and T‑508/11
,
EU:T:2014:885
, paragraph
).
In the judgment of 26 July 2017, Council v LTTE (
C‑599/14 P
,
EU:C:2017:583
, paragraphs
and
), the Court of Justice, considering as a whole all the particulars relating to the decisions of the authorities of the third State that were set out in the statement of reasons for the Council’s regulation, held that those particulars were insufficient for the purpose of establishing that the Council had carried out the requisite verification as to whether the rights of the defence had been respected in that third State.
The same conclusion must be drawn, on the same grounds, in the present case with regard to the single reference in the statement of reasons relating to the contested measures, according to which the 1997 US decision had been published in the United States in the Federal Register.
For those reasons, and without there being any need to examine whether the right to effective judicial protection was respected, it must be held that, in the present case, the statement of reasons relating to the United States decisions is insufficient, and that therefore those decisions cannot serve as a basis for the contested measures.
Since Article 1(4) of Common Position 2001/931 does not require Council measures to be based on several decisions of competent authorities, the contested measures could, however, as regards the inclusion of the applicant’s name in the lists at issue, refer to the Home Secretary’s decision alone, and it is therefore appropriate for the Court to proceed in its examination of the action by limiting that examination to the contested measures in so far as they are based, originally, on the latter decision.
The criticisms common to the decisions of the United Kingdom authorities and to those of the United States authorities
The applicant submits that, for three reasons, the decisions of the United States authorities and of the United Kingdom authorities on which the contested 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 105 above.
–
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 competence in the fight against terrorism. However, that is not the case here, since, in the United Kingdom, the judicial authorities do have competence in that area. The Home Secretary’s decision could not, therefore, have been taken into consideration by the Council in the contested measures.
The Council, supported by the Commission, disputes the validity of that argument.
In that 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 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 the courts of the relevant State have powers concerning the suppression of terrorism does not preclude the Council from taking account of decisions taken 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 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 would determine 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 a court of appeal with the permission of the POAC or, if permission is refused, of the appeal 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 111 and 112 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
, paragraph
, and of 16 October 2014, LTTE v Council,
T‑208/11 and T‑508/11
,
EU:T:2014:885
, paragraphs
to
).
It follows from the above that the contested measures cannot be annulled on the basis that the Council referred, in the statement of reasons for those measures, to a decision of the Home Secretary, who is an administrative authority.
–
The fact that the Home Secretary’s decision consists of a list of terrorist organisations
The applicant submits that the action taken by the competent authorities concerned by the contested 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, supported by the Commission, disputes the validity of that argument.
It should be noted in that regard that, according to the case-law, Common Position 2001/931 does not require that the decision of the competent authority should 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 does 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 the present case, the Home Secretary’s decision imposes measures proscribing organisations considered to be terrorist organisations 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 that 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 the 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, as the question whether that activity is carried out with sufficient safeguards to allow the Council to rely on it 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 to accept 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 unaffected by the other arguments advanced 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 only to afford the Council an additional listing possibility alongside the listings which it can make on the basis of decisions of competent national authorities.
In the second place, the applicant claims 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 which thus comes within the scope of national administrative measures adopted, in some cases, by the authorities of third States without the relevant persons being informed of this and without those persons being in a position to defend themselves effectively.
In that regard, it should be noted that, as the applicant indicates, when the Council identifies the persons or entities to be made subject to fund-freezing measures, it relies on the findings made by the 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 conducted by the competent national authorities (see, to that effect, 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, where the applicant disputes, on the basis of concrete evidence, that the authorities of the Member States observed fundamental rights, that the Court must ascertain whether those rights were indeed observed (see, by analogy, judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the System of Justice),
C‑216/18 PPU
,
EU:C:2018:586
, paragraph
).
However, where authorities of third States are involved, the Council is automatically required, as has been noted in paragraphs 85 and 86 above, to satisfy itself that those safeguards were in fact applied and to give reasons for its decision on that point.
–
The lack of 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 to establish that that decision was ‘based on serious and credible evidence or clues’, as Article 1(4) of Common Position 2001/931 requires.
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, that argument will be examined in the context of the second and sixth pleas in so far as they concern the serious and credible evidence or clues within the meaning of that provision.
In the light of all the foregoing considerations and without prejudice to the line of argument mentioned in paragraph 134 above, the second plea in law must be rejected as unfounded.
The second and sixth pleas in law, in so far as they concern the serious and credible evidence or clues within the meaning of Article 1(4) of Common Position 2001/931
In the context of the second and sixth pleas, the applicant submits that, in the statements of reasons relating to the contested measures, the Council should have indicated ‘the serious and credible evidence and clues’ on which the decisions of the competent authorities were based. Admittedly, the deeds are mentioned in those measures. However, they are mentioned in vague and abstract terms.
As is clear from paragraph 134 above, in the context of the second plea, the applicant also considers that the Council does not provide any evidence with regard to the deeds mentioned in the contested measures.
In the light of what was decided in paragraph 105 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 general wording of that provision that the Council’s obligation to verify, before adding the names of persons or entities to fund-freezing lists on the basis of decisions taken by competent authorities, that those decisions are ‘based on serious and credible evidence or clues’ concerns only decisions to instigate investigations or prosecution, and not condemnation decisions.
The distinction thus made between those two types of decision flows from the application of the principle of sincere cooperation between the institutions and the Member States, a principle which encompasses the adoption of restrictive measures in the fight against terrorism and pursuant to which the Council must base the entry of terrorist persons or entities on the fund-freezing lists on decisions adopted by the national authorities, without being required, or even able, to call them into question.
As thus defined, the principle of sincere cooperation applies to national condemnation decisions and, as a result, the Council is not required to verify, before adding the names of persons or entities to the fund-freezing lists, that those decisions are based on serious and credible evidence or clues and must defer, in that respect, to the national authority’s appraisal.
National decisions relating to the instigation of investigations or prosecution are, by definition, taken at the beginning or in the course of a procedure that has not yet been concluded. To ensure that this fight is effective, it has been considered necessary for the Council to be able to rely on such decisions for the purpose of adopting restrictive measures, even if those decisions are merely preparatory in nature, whilst also making provision, to ensure that the persons affected by those procedures are protected, for that practice to be subject to verification by the Council that the decisions are based on serious and credible evidence or clues.
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, its purpose is to ban the applicant in the United Kingdom, with consequences in 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, but must be treated as a condemnation decision, and therefore, 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 contested 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 114 and 115 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.
Consequently, the Council cannot be criticised for not having indicated, in the statements of reasons relating to the contested measures, ‘the serious and credible evidence and clues’ that underpinned the Home Secretary’s decision.
Since they did not need to be indicated, those facts do not, a fortiori, need to be proven.
The second and sixth pleas in law, in so far as they concern the serious and credible evidence or clues within the meaning of Article 1(4) of Common Position 2001/931, must therefore be rejected.
The third plea in law, alleging errors as to the accuracy of the facts
The applicant criticises the facts mentioned by the Council in the statements of reasons relating to the contested measures on the ground that they are too imprecise, that they are not established and that they are too old to justify maintaining the applicant’s name on the lists at issue.
This third plea must be examined only in so far as it concerns the facts on which the Council relied in order to maintain the applicant’s name on the lists at issue. As is clear from the examination of the preceding plea, the facts underpinning the Home Secretary’s decision do not have to be indicated in the contested measures.
As regards maintaining the applicant’s name on the lists at issue, the Council, in paragraph 7 of the statement of reasons relating to the contested measures, noted that, in the present case, the decisions of the competent authorities on which it had relied for the initial listing were still in force.
It follows from the case-law that, where a significant period of time elapsed between the national decision that served as the basis for the original listing and the adoption of the measures aimed at maintaining that listing, the Council, in order to conclude that there is an ongoing risk of the person or entity concerned being involved in terrorist activities, cannot merely state that that decision has remained in force, rather it must carry out an up-to-date assessment of the situation, and take into account more recent facts which demonstrate that that risk still exists (see, to that effect, judgments of 26 July 2017, Council v LTTE,
C‑599/14 P
,
EU:C:2017:583
, paragraphs
and
, and of 26 July 2017, Council v Hamas,
C‑79/15 P
,
EU:C:2017:584
, paragraphs
and
).
It also follows from the case-law cited in paragraph 154 above that the more recent facts which form the basis of the retention of a person or entity on the fund-freezing lists may come from sources other than national decisions adopted by competent authorities (see, to that effect, judgments of 26 July 2017, Council v LTTE,
C‑599/14 P
,
EU:C:2017:583
, paragraph
, and of 26 July 2017, Council v Hamas,
C‑79/15 P
,
EU:C:2017:584
, paragraph
).
In the present case, the Home Secretary’s initial decision dates from 2001 whereas the contested measures were adopted between July 2016 and July 2018.
Given the considerable period between the Home Secretary’s initial decision and the contested measures, of between fifteen and seventeen years, the Council could not, in accordance with the case-law recalled in paragraph 154 above, merely state that the Home Secretary’s decision had remained in force without taking into account more recent facts which demonstrate that the risk of the applicant’s involvement in terrorist activities still existed.
With regard to those facts, in the first place, the Council stated, in paragraph 16 of Annex A to the statement of reasons relating to the contested measures, in relation to the review procedure which took place in 2013 in the United Kingdom:
‘In November 2013, the Home Secretary concluded, on the basis of the available evidence, that the group was involved in terrorism in another way since it possessed weapons and remained committed to using violence to attain its objective of an Islamic State …’
According to the applicant, that fact is too imprecise to justify maintaining its name on the lists at issue.
In that regard, it should be pointed out that, in the case of subsequent fund-freezing decisions, the Court of Justice considered that the Courts of the European Union were required to determine, inter alia, on the one hand, whether the obligation to state reasons laid down in Article 296 TFEU had been complied with, and, on the other, whether those reasons were substantiated (judgments of 26 July 2017, Council v LTTE,
C‑599/14 P
,
EU:C:2017:583
, paragraph
, and of 26 July 2017Council v Hamas,
C‑79/15 P
,
EU:C:2017:584
, paragraph
).
As regards the obligation to state reasons, it should be noted that, 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 (see judgment of 15 November 2012, Council v Bamba,
C‑417/11 P
,
EU:C:2012:718
, paragraph
and the case-law cited).
The reasoning does not need 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 are 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, the fact remains that, where it stated in paragraph 16 of Annex A to the statement of reasons that ‘[the applicant] possessed weapons and remained committed to using violence to attain its objective of an Islamic State’, the Council does not comply with the obligation to state reasons as defined above.
On the one hand, in such a statement, the Council is merely evoking, in general terms, the possession of weapons, without providing a date or a location. On the other, the Council implies that the applicant had an intention which is not substantiated by any given or even determinable fact.
In those circumstances, in relation to that fact, it is impossible for the applicant, even with the aid of knowing the context, to identify the accusations against it, whereas the Court finds itself in a situation where, for the same reason, it is impossible for it to carry out the review required by the Court of Justice.
The statement of reasons therefore does not satisfy the requirements laid down in the case-law recalled in paragraphs 160 to 163 above.
Second, in paragraph 18 of Annex B to the statement of reasons relating to the contested measures, the Council listed facts from the ‘Department of State administrative records for Gama’al-Islamiyya for 2010 and 2003’ stating, in paragraph 10 of that annex, that the most recent assessment of the applicant’s designation as a foreign terrorist organisation was on 15 December 2010.
Those facts are as follows:
–
‘[the applicant] claimed responsibility for the attempted assassination of the Egyptian President Hosni Moubarak in June 1995’;
–
‘in 1997, [the applicant] attacked tourists in Luxor (Egypt), killing 58 people’;
–
‘in a 2006 bulletin, the [Federal Bureau of Investigation (FBI)] warned the authorities that Rahman, a leader of [the applicant], had called for retaliation attacks to be carried if he were to die in prison. The bulletin cited Rahman’s last wishes and will, distributed at an Al-Qaeda conference in 1998’.
As can be seen from the case-law recalled in paragraphs 154 and 155 above, those facts are capable of justifying the retention of the applicant’s name on the fund-freezing list and the source used to report them is irrelevant, the main point being that the Council has sufficient recent evidence to substantiate its position.
Of those deeds, the first two pre-date the Home Secretary’s decision which is the basis for the applicant’s initial listing. They cannot, therefore, be taken into account in order to justify maintaining that listing.
As to the third, the applicant submits that it is recalled without detail and, in particular, that the person named as Rahman is not clearly identified. It adds that the statements made by that person are not attributable to its organisation and that that deed, like the others mentioned in the contested measures, was too long ago.
In that regard, it should be pointed out that the degree of reasoning required on the part of the Council must be assessed in the light of the context in which the contested measure was adopted and the applicant’s potential knowledge of that context. In the present case, it is widely known that Omar Abdel-Rahman was a leader of the applicant, that he was imprisoned in the United States in 1993 following attacks committed on US territory and that he remained in prison until his death in 2017.
Given that known context, it must be considered that that deed has been described in a sufficiently precise manner and therefore the obligation to state reasons is satisfied.
In particular, the person named as Rahman could have been identified easily and it was not unreasonable, given his position, to attribute his statements to the applicant.
However, that deed is not sufficient, on its own, to justify the retention of the applicant’s name on the lists at issue.
The press conference at which Mr Rahman’s last wishes were distributed took place in 1998 and it therefore pre-dates the Home Secretary’s decision, adopted in 2001. As for the FBI bulletin, this was distributed in 2006, thus ten years before the contested measures were adopted.
The foregoing analysis is disputed by the Council, which takes the view that the Court cannot carry out the review described in paragraph 160 above of the facts mentioned in the statement of reasons relating to the contested measures since they stem from decisions adopted by competent national authorities in the context of reviewing the decisions taken, originally, by those authorities in order to carry out the applicant’s initial listing.
According to the Council, those review decisions should be treated in the same way as those covered by Article 1(4) of Common Position 2001/931 and therefore the facts underlying those decisions do not need to be reviewed by the Court with respect to their reasoning and accuracy, even where they are challenged.
That argument has no factual or legal basis.
In the first place, with regard to the facts set out in paragraph 16 of Annex A to the statement of reasons relating to the contested measures, it must be noted, first of all, that, within the framework of the questions put by the Court, the Council stated that, in November 2013, the Home Secretary’s decision had been reviewed by the cross-government proscription review group. However, at the hearing, it acknowledged, formally, that that review had not given rise to the adoption, by the United Kingdom authorities, of a specific measure that could be produced before the Court. Therefore, there is no decision capable of being regarded as a decision by a competent authority within the meaning of Article 1(4) of Common Position 2001/931.
Moreover, as regards the facts mentioned in paragraph 18 of Annex B to the statement of reasons relating to the contested measures, it must be noted that a specific link has not been clearly established with a review decision taken in the United States. Paragraph 18 of Annex B solely states the facts derived from the administrative records, without the status of the latter being clarified in the light of the review mentioned in paragraph 10 of that annex and the date assigned to one of those records does not correspond to the date of that review.
Moreover, it should be noted that the United States decisions cited by the Council in the contested measures cannot serve as a basis for those measures since the Council did not verify, in the statement of reasons, that the requirements relating to respect for the rights of the defence had been satisfied in accordance with the case-law of the Court of Justice.
It follows from those various factors that the Council cannot rely on national review decisions which satisfy the requirements laid down in Article 1(4) of Common Position 2001/931.
In the second place, even if the review of the decisions of the competent authorities which were used as the basis for the initial listing has been the subject of decisions which satisfy the requirements laid down in Article 1(4) of Common Position 2001/931, it would have to be found that, in any event, those decisions do not underpin a first listing for the purposes of that provision, but a decision to maintain a listing in accordance with Article 1(6) of that common position.
The Court of Justice held, in an action brought against a decision to maintain a listing, that the person or entity concerned may dispute all the material relied on by the Council to demonstrate that the risk of their 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 (judgments of 26 July 2017, Council v LTTE,
C‑599/14 P
,
EU:C:2017:583
, paragraph
, and of 26 July 2017, Council v Hamas,
C‑79/15 P
,
EU:C:2017:584
, paragraph
).
The fact that the facts mentioned in paragraph 16 of Annex A and paragraph 18 of Annex B to the statements of reasons for the contested measures underpin more recent decisions by national authorities, satisfying the requirements of Article 1(4) of Common Position 2001/931, would not therefore remove the right, for the applicant, to criticise their reasoning and their accuracy and the obligation, for the Court to review them, in accordance with the case-law recalled in paragraph 160 above.
Therefore, in paragraphs 161 to 177 above, it is indeed necessary to examine the reasoning and the accuracy of the facts invoked by the Council to maintain the applicant’s name on the fund-freezing lists, even if they stem from a national review decision.
Following that examination, it must be held, in the present case, that the facts mentioned by the Council in the statements of reasons relating to the contested measures are not capable of justifying the retention of the applicant’s name on the lists at issue.
The third plea in law must therefore be considered to be well founded.
The Court considers it appropriate, however, to continue by examining the eighth plea.
The eighth plea in law, alleging a failure to authenticate the statements of reasons for the contested measures
In the application, the applicant observes that the statements of reasons relating to the contested measures that were sent to its lawyer by Council letters dated 26 May and 13 July 2016, 30 January and 7 August 2017 and 22 March and 31 July 2018 were not signed by the President of that institution and, therefore, they had not been authenticated, as required under Article 15 of the Council’s Rules of Procedure, as adopted by Decision 2009/937/EU of 1 December 2009 (
OJ 2009 L 325, p. 35
).
The applicant submits that, in the absence of such authentication, it cannot be certain that the statements of reasons that were sent to it correspond precisely to those adopted by the Council and that they have been reproduced in their entirety without any changes having been made following their adoption.
In that regard, the applicant observes that the statements of reasons that were sent to it by letter of 26 May 2016 were all dated 24 May 2016, which implies that they have undergone amendments, in any case in so far as their dates are concerned, since they were adopted at different times, and it is not possible to determine whether that change is the only one to have been made to them.
As a preliminary point, it is important to note that the plea is fully effective only in so far as it concerns the statements of reasons relating to the contested measures. Therefore, the statements of reasons that were sent by letter dated 26 May 2016, which relate to measures which pre-date the contested measures, cannot usefully be taken into account.
In essence, it should be recalled that the first subparagraph of Article 297(2) TFEU provides as follows:
‘Non-legislative acts adopted in the form of regulations, directives or decisions, when the latter do not specify to whom they are addressed, shall be signed by the President of the institution which adopted them.’
In addition, Article 15 of the Rules of Procedure of the Council provides:
‘The text of the acts adopted by the Council … shall be signed by the President in office at the time of their adoption and by the Secretary-General. The Secretary-General may delegate his or her power to sign to Directors-General of the General Secretariat.’
In the judgment of 15 June 1994, Commission v BASF and Others (
C‑137/92 P
,
EU:C:1994:247
, paragraph
), cited by the applicant, the Court of Justice held, with regard to a decision adopted by the Commission, that the authentication provided for by the rules of procedure of that institution could not be assessed as a mere formality for archival purposes, but was intended to guarantee legal certainty by ensuring that the text adopted by the college of Commissioners became fixed in the languages which were binding.
According to the Court of Justice, the authentication provided for by the Rules of Procedure of the Commission, in the event of a dispute, enable it to be verified that texts notified or published correspond precisely to the text adopted by the college and so with the intention of the author (judgment of 15 June 1994, Commission v BASF and Others,
C‑137/92 P
,
EU:C:1994:247
, paragraph
).
According to the Court of Justice, it follows that the authentication required by the Rules of Procedure of the Commission constitutes, within the meaning of Article 263 TFEU, an essential procedural requirement the breach of which gives rise to an action for annulment (judgment of 15 June 1994, Commission v BASF and Others,
C‑137/92 P
,
EU:C:1994:247
, paragraph
).
Those rules, set out in the judgment of 15 June 1994, Commission v BASF and Others (
C‑137/92 P
,
EU:C:1994:247
, paragraphs
and
) with regard to Commission acts, must be transposed to Council acts.
As is the case for Commission acts, the principle of legal certainty requires that third parties have a means of verifying that the Council acts that are published or notified correspond to those that have been adopted.
This applies even though, unlike the Commission, the Council is not a college. In the judgment of 15 June 1994, Commission v BASF and Others (
C‑137/92 P
,
EU:C:1994:247
), the Court relied in particular, to justify the obligation to authenticate acts, on the need to guarantee legal certainty by enabling it to be verified, in the event of a dispute, that the texts notified or published correspond precisely to the text adopted by the institution. Legal certainty is a general principle of law which applies to all institutions, irrespective of their nature, particularly where, as in the present case, they adopt acts which are intended to affect the legal situation of legal or private persons.
Moreover, as is the case for the Commission, Council acts are, in accordance with Article 215 TFEU in particular, subject to majority rules, in respect of which it is important to be able to verify that they have been observed.
In the present case, it has been established that the statements of reasons relating to the contested measures, which were sent to the applicant, are not signed, but appear, per se, to be typewritten documents with no letterhead and with no reference, not even a date, which would enable them to be identified as acts emanating from the Council and to determine the date on which they were adopted.
In the defence, the Council explained that the statements of reasons sent to the applicant had been excerpts from the notes sent to the Permanent Representatives Committee (Coreper) before the contested measures were approved by the Council in accordance with the applicable procedure. In addition, it submitted Annex B 25, which contained:
–
note 10272/16 sent to Coreper on 17 June 2016, to which the statement of reasons relating to the July 2016 measures was annexed;
–
the provisional agenda for the 2591st meeting of Coreper on 21 and 22 June 2016; point 25 of the provisional agenda of Coreper of 21 June 2016 contained, in point I, the drafts of the July 2016 measures with a reference to note 10272/16 and to other documents;
–
the agenda for the 3480th meeting of the Council on 12 July 2016, concerning ‘A’ items; point 21 of that agenda mentioned the drafts of the July 2016 measures with a reference to note 10272/16 and the other documents mentioned in the Coreper agenda, in addition to other documents.
By a measure of organisation of procedure, on 29 June 2018 the Court asked the Council to send it the contested measures, signed in accordance with the second subparagraph of Article 297 TFEU and Article 15 of its Rules of Procedure.
On 20 July 2018, the Council sent to the Court the contested measures, which were dated and signed by its President and Secretary-General, but without the statement of reasons justifying their adoption.
Ultimately, the Council acknowledged at the hearing that the statements of reasons relating to the contested measures had not been signed by its President and Secretary-General.
It therefore appears that there was a failure to comply with an essential procedural requirement when the contested measures were adopted and that, consequently, the contested measures must be annulled.
The Council disputes that analysis.
In the first place, the Council states that the acts were signed in accordance with the Rules of Procedure and that the signature is missing only on the statements of reasons. Since the formality had been observed in respect of the acts, the Council considers that they should not be annulled.
In that regard, it should be noted that the argument raised by the Council establishes a separation between the measures and their reasoning which is not acceptable.
In accordance with Article 296 TFEU, the acts adopted by the Council must state the reasons on which they are based, that provision requiring, in accordance with the settled case-law, the institution concerned to set out the reasons which prompted it to adopt those acts, in order 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 (see, to that effect, judgment of 15 November 2012, Council v Bamba,
C‑417/11 P
,
EU:C:2012:718
, paragraph
and the case-law cited).
The operative part of a measure can be understood, and its full effect ascertained, only in the light of its statement of reasons. Since the operative part and the statement of reasons constitute an indivisible whole (judgments of 15 June 1994, Commission v BASF and Others,
C‑137/92 P
,
EU:C:1994:247
, paragraph
, and of 18 January 2005, Confédération Nationale du Crédit Mutuel v Commission,
T‑93/02
,
EU:T:2005:11
, paragraph
), it is for the institution to adopt both of them.
In the light of those considerations, no distinction can be drawn between the reasons for and the operative part of an act for the purposes of provisions requiring that that act is authenticated. Where, as in the present case, the act and the statement of reasons are in separate documents, both must be authenticated, as required by those provisions, and the presence of a signature on one may not lead to a presumption, be it rebuttable or irrebuttable, that the other has also been authenticated.
In the second place, the Council submits that, in the present case, the factual context is different from that in the case giving rise to the judgment of 15 June 1994, Commission v BASF and Others (
C‑137/92 P
,
EU:C:1994:247
), in so far as, in the present case, the contested measures and the statements of reasons relating to them have been adopted, in their entirety, by the institution concerned.
In that regard, it should be noted that, according to the case-law, it is the mere failure to authenticate an act which constitutes the infringement of an essential procedural requirement and it is not necessary also to establish that the act is vitiated by some other defect or that the lack of authentication resulted in harm to the person relying on it (judgments of 6 April 2000, Commission v ICI,
C‑286/95 P
,
EU:C:2000:188
, paragraph
, and of 6 April 2000, Commission v Solvay,
C‑287/95 P and C‑288/95 P
,
EU:C:2000:189
, paragraph
).
In the present case, since the statement of reasons has not been authenticated, an essential procedural requirement has not been complied with, which must result in the contested measures being annulled without there being any need to examine whether the documents sent to the applicant correspond precisely to those adopted by the Council.
In the third place, the Council submits that the case-law requires that, within the framework of Common Position 2001/931, it separates the statements of reasons from the measures themselves. With regard to the restrictive measures adopted by the Council, the Council states that it is therefore the case-law itself which has led to the current situation in which the measures are signed, but not the statements of reasons, and therefore the Council cannot be criticised in that regard and the measures cannot, consequently, be annulled.
In that regard, it should be noted that, in accordance with the second paragraph of Article 296 TFEU, all acts must state the reasons on which they are based and, as noted in paragraph 215 above, the operative part and the reasons for a decision constitute an indivisible whole.
Admittedly, having regard to the fact that the detailed publication of the complaints put forward against the persons and entities concerned might conflict with the overriding considerations of public interest and jeopardise their legitimate interests, it was acknowledged that the publication in the Official Journal of the operative part and a general statement of reasons for the fund-freezing measures was sufficient, it being understood that the actual, specific statements of reasons for that decision must 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
).
However, that tolerance concerns only the publication of acts and not those acts themselves and, consequently, the obligation, laid down in Article 15 of the Rules of Procedure of the Council, to sign them.
In the fourth place, the Council submits that the procedure used for its operation enabled it to be verified, in the present case, using methods other than a signature, that the statements of reasons sent to the applicant’s lawyer corresponded to those which it had adopted.
The Council considers that it has demonstrated this since, on 5 October 2018, in response to questions put to it by the Court, it outlined the procedure it had followed to adopt the July 2016 measures and sent a number of documents relating to those measures from which it inferred that the statements of reasons sent to the applicant corresponded to those which it had approved.
It follows from that line of argument that, in the Council’s view, an alternative to the signature may be implemented by the institutions where they consider it useful or necessary.
That argument cannot be upheld.
Where the Treaty and the rules of procedure of an institution require the institution to carry out a particular formality in a specific context, that institution cannot replace that requirement with practices which are not provided for in the rules applicable to it. As they serve a Union based on the rule of law, no institution may bypass the rules applicable to it.
In any event, the Council has not demonstrated that it is possible for a third party to be sure that the statements of reasons which have been sent to it correspond to those which the Council adopted.
In the light of the foregoing, the third and eighth pleas must be upheld and the contested measures must be annulled, in so far as they concern the applicant, and it is unnecessary to examine the fourth, fifth and seventh pleas and the parts of the sixth plea which do not concern the serious and credible evidence or clues within the meaning of Article 1(4) of Common Position 2001/931.
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 Council has been unsuccessful, it must be ordered to bear its own costs as well as those incurred by the applicant, in accordance with the form of order sought by the latter.
Moreover, in accordance with Article 138(1) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs.
The Commission must therefore bear its own costs.

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

1.
Annuls Council Decision (CFSP) 2016/1136 of 12 July 2016 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision (CFSP) 2015/2430, Council Implementing Regulation (EU) 2016/1127 of 12 July 2016 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, and repealing Implementing Regulation (EU) 2015/2425, Council Decision (CFSP) 2017/154 of 27 January 2017 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2016/1136, Council Implementing Regulation (EU) 2017/150 of 27 January 2017 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, and repealing Implementing Regulation 2016/1127, Council Decision (CFSP) 2017/1426 of 4 August 2017 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2017/154, Council Implementing Regulation (EU) 2017/1420 of 4 August 2017 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, and repealing Implementing Regulation 2017/150, Council Decision (CFSP) 2018/475 of 21 March 2018 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2017/1426, Council Implementing Regulation (EU) 2018/468 of 21 March 2018 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation 2017/1420, Council Decision (CFSP) 2018/1084 of 30 July 2018 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2018/475, and Council Implementing Regulation (EU) 2018/1071 of 30 July 2018 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation 2018/468, to the extent that those acts concern ‘“Gama’a al-Islamiyya” (a.k.a. “Al Gama’a al-Islamiyya” (“Islamic Group” – “IG”)’;

2.
Orders the Council of the European Union to bear its own costs and to pay those incurred by Al-Gama’a al-Islamiyya Egypt;

3.
Orders the European Commission to bear its own costs.

Pelikánová
Nihoul
Svenningsen
Delivered in open court in Luxembourg on 10 April 2019.
[Signatures]
(
*1
)	Language of the case: French