# C_2004251EN.01000902.xml

| 9.10.2004 | EN | Official Journal of the European Union | C 251/9 |
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9.10.2004

EN

Official Journal of the European Union

C 251/9

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Appeal brought on 17 August 2004 by Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti against the order delivered on 7 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-333/02 between Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti and the Council of the European Union, supported by the Kingdom of Spain and the United Kingdom

(Case C-354/04 P)

(2004/C 251/17)

An appeal against the order made on 7 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-333/02 between Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti and the Council of the European Union, supported by the Kingdom of Spain and the United Kingdom, was brought before the Court of Justice of the European Communities on 17 August 2004 by Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti, represented by D. Rouget, avocat.

The appellant claims that the Court should:

| 1. | hold that the present appeal is well-founded and annul the contested order; |
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1.

hold that the present appeal is well-founded and annul the contested order;

| 2. | give, by virtue of Article 61 of the Protocol on the Statute of the Court of Justice, a final ruling on the present case and uphold the arguments put forward by the applicants at first instance, namely, to reiterate, ordering the defendant to pay compensation amounting to EUR 1 000 000 to the association Gestoras Pro Amnistía and EUR 100 000 to each of the other two applicants, Juan Mari Olano Olano and Julen Zelarain Errasti. Payment of default interest on those sums is sought at the rate of 4.5 % per annum from the date of the Court's judgment until payment is made. An order is sought that the Council bear its own costs and those of the applicants. |
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2.

give, by virtue of Article 61 of the Protocol on the Statute of the Court of Justice, a final ruling on the present case and uphold the arguments put forward by the applicants at first instance, namely, to reiterate, ordering the defendant to pay compensation amounting to EUR 1 000 000 to the association Gestoras Pro Amnistía and EUR 100 000 to each of the other two applicants, Juan Mari Olano Olano and Julen Zelarain Errasti. Payment of default interest on those sums is sought at the rate of 4.5 % per annum from the date of the Court's judgment until payment is made. An order is sought that the Council bear its own costs and those of the applicants.

Pleas and main arguments

The Community Courts have jurisdiction to hear the actions for damages in respect of the loss caused by the inclusion of the applicant association on the list of persons, groups or entities drawn up under the legislation on the fight against terrorism.

The legal basis for that jurisdiction is found in the present case in the Council Declaration of 18 December 2001, the eighth recital to Council Decision 2003/48/JHA (1) and Article 6 EU viewed together. In essence, at the time of adoption of Common Position 2001/931/CFSP, (2) the Council declared on 18 December 2001 that ‘any error as to persons, groups or entities named gives the injured party the right to seek legal compensation’. Furthermore, the right to an effective remedy against injurious acts of the institutions is one of the foundations of the European Union and the provisions which enshrine that right are therefore to be interpreted widely in order to fulfil the requirements arising out of Articles 1, 6(1) and 13 of the ECHR which must be applicable in the present case.

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With regard to the existence of a loss, the inclusion of the applicant association in the disputed list causes particularly serious harm to its reputation and to its freedom of expression in that it implies that the association is accused of being a terrorist organisation. In the same way, its inclusion in the list harms the reputation, the freedom of expression, the freedom of association and the private lives of the other two applicants, who are spokesmen for the association. With regard to the causal link between the Council's behaviour and the loss suffered, the repercussions on their reputation are an inescapable and immediate consequence of the inclusion in the list.

Finally, the Council has fraudulently exploited the division into three pillars of European Union activities. In its choice of legal basis, the Council was guided by considerations of expediency such as the wish to avoid the scrutiny of the Parliament, the Ombudsman and the Court of Justice and therefore to deprive the persons concerned of the right to an effective remedy and in particular of the right to an action seeking compensation for the harm suffered. That behaviour constitutes an abuse of process.

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(1)  Council Decision 2003/48/JHA of 19 December 2002 on the implementation of specific measures for police and judicial cooperation to combat terrorism in accordance with Article 4 of Common Position 2001/931/CFSP (OJ L 16, 22.1.2003, p. 68).

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(2)  Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism (OJ L 344, 28.12.2001, p. 93).

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