**Joined Cases C-399/06 P and C-403/06 P**

**Faraj Hassan**

**v**

**Council of the European Union and European Commission**

**and**

**Chafiq Ayadi**

**v**

**Council of the European Union**

(Common foreign and security policy (CFSP) – Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban
– Regulation (EC) No 881/2002 − Freezing of the funds and economic resources of a person following his inclusion in a list
drawn up by a body of the United Nations − Sanctions Committee − Subsequent inclusion in Annex I to Regulation (EC) No 881/2002
− Action for annulment − Fundamental rights − Right to respect for property, right to be heard and right to effective judicial
review)

Summary of the Judgment

1.        *Appeals – Interest in bringing proceedings – Examination by the Court of its own motion*

2.        *Community law – Principles – Fundamental rights – Obligation to observe – Condition of lawfulness of every Community measure,
including measures giving effect to Security Council resolutions adopted under Chapter VII of the Charter of the United Nations
– Observance ensured by the Community judicature*

*(Arts 220 EC and 307 EC; Art. 6(1) TEU; Council Regulation No 881/2002)*

3.        *European Communities – Judicial review of the legality of the acts of the institutions – Regulation imposing restrictive measures
taken against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – Rights
of the defence – Scope*

*(Council Regulation No 881/2002)*

4.        *European Communities – Judicial review of the legality of the acts of the institutions – Regulation imposing restrictive measures
taken against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – General
and continuing freezing of the funds, assets and other economic resources of those persons and entities without those persons
or entities having been heard – Breach of the right to property*

*(Council Regulation No 881/2002)*

1.        The Court may, of its own motion, raise the objection that a party has no interest in bringing or in maintaining an appeal
because an event occurring after the judgment of the General Court removes the prejudicial effect thereof as regards the appellant,
and declare the appeal inadmissible or devoid of purpose for that reason.

The adoption of Regulation No 954/2009 amending for the 114th time Regulation No 881/2002 imposing certain specific restrictive
measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban
cannot be considered to constitute a fact occurring after the judgments dismissing the actions brought by the appellants for
annulment of that regulation capable of rendering the appeals brought against those judgments devoid of purpose.

The adoption of Regulation No 954/2009, which retroactively replaces Regulation No 881/2002, is not to be regarded as equivalent
to annulment pure and simple of that latter regulation in so far as it concerns the appellants by which they have obtained
the only result that their actions could have secured for them, and which would mean that there was no longer any need for
the Court to adjudicate.

(see paras 58, 61-62, 64)

2.        The Community judicature must, in accordance with the powers conferred on it by the Treaty, ensure the review, in principle
the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of
the general principles of Community law, including review of Community measures which, like Regulation No 881/2002 imposing
certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda
network and the Taliban, are designed to give effect to resolutions adopted by the Security Council under Chapter VII of the
Charter of the United Nations.

(see para. 71)

3.        Because, when adopting restrictive measures, such as those imposed by Regulation No 881/2002 imposing certain specific restrictive
measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban,
the Council neither communicated to the persons concerned the evidence used against them to justify the restrictive measures
imposed on them nor afforded them the right to be informed of that evidence within a reasonable period after those measures
were enacted, those persons did not have the opportunity to make their point of view in that respect known to advantage. Their
rights of defence, in particular the right to be heard, were therefore not respected.

Moreover, given the failure to inform them of the evidence adduced against them and having regard to the relationship between
the rights of defence and the right to an effective legal remedy, the parties concerned were also unable to defend their rights
with regard to that evidence in satisfactory conditions before the Community judicature, with the result that it must be held
that their right to an effective legal remedy was infringed also.

(see paras 83-86)

4.        The imposition of restrictive measures, such as the freezing of funds, laid down by Regulation No 881/2002 imposing certain
specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda
network and the Taliban, in respect of certain persons, by including them in the list contained in Annex I to that regulation,
constitutes an unjustified restriction of their right to property, for that regulation was adopted without furnishing any
guarantee enabling them to put their case to the competent authorities, in a situation in which the restriction of their property
rights must be regarded as significant, having regard to the general application and actual continuation of the freezing measures
affecting them.

(see paras 92-93)


JUDGMENT OF THE COURT (Second Chamber)

3 December 2009 ([\*](#Footnote*))

(Common foreign and security policy (CFSP) – Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban
– Regulation (EC) No 881/2002 − Freezing of the funds and economic resources of a person following his inclusion in a list
drawn up by a body of the United Nations − Sanctions Committee − Subsequent inclusion in Annex I to Regulation (EC) No 881/2002
− Action for annulment − Fundamental rights − Right to respect for property, right to be heard and right to effective judicial
review)

In Cases C‐399/06 P and C-403/06 P,

TWO APPEALS under Article 56 of the Statute of the Court of Justice, brought on 20 and 22 September 2006, respectively,

**Faraj Hassan,** residing in Leicester (United Kingdom), represented by E. Grieves, Barrister, instructed by H. Miller, Solicitor, and subsequently
by J. Jones, Barrister, instructed by M. Arani, Solicitor,

appellant,

the other parties to the proceedings being:

**Council of the European Union,** represented by S. Marquardt, M. Bishop and E. Finnegan, acting as Agents,

**European Commission,** represented by P. Hetsch and P. Aalto, acting as Agents, with an address for service in Luxembourg,

defendants at first instance,

supported by:

**French Republic,**

**United Kingdom of Great Britain and Northern Ireland,**

interveners on appeal (C‐399/06 P),

**Chafiq Ayadi,** residing in Dublin (Ireland), represented by S. Cox, Barrister, instructed by H. Miller, Solicitor,

appellant,

the other parties to the proceedings being:

**Council of the European Union**, represented by M. Bishop and E. Finnegan, acting as Agents,

defendant at first instance,

supported by:

**French Republic,**

intervener on appeal,

**United Kingdom of Great Britain and Northern Ireland,**

**European Commission,** represented by P. Hetsch and P. Aalto, acting as Agents, with an address for service in Luxembourg,

interveners at first instance (C-403/06 P),

THE COURT (Second Chamber),

composed of J.-C. Bonichot, President of the Fourth Chamber, acting as President of the Second Chamber, C. Toader, C.W.A.
Timmermans (Rapporteur), K. Schiemann and P. Kūris, Judges,

Advocate General: M. Poiares Maduro,

Registrar: M.-A. Gaudissart, Head of Unit,

having regard to the written procedure and further to the hearing on 24 September 2009, in Case C‐399/06 P,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

**Judgment**

1        By their appeals, Mr Hassan (Case C‐399/06 P) and Mr Ayadi (Case C‐403/06 P) seek to have set aside the judgments of the Court
of First Instance of the European Communities of 12 July 2006 in Case T‐49/04 *Hassan* v *Council and Commission* [2006] ECR II‐52 (‘*Hassan*’) and in Case T‐253/02 *Ayadi* v *Council* [2006] ECR II‐2139 (‘*Ayadi*’) (together, ‘the judgments under appeal’).

2        By the judgments under appeal the Court of First Instance dismissed the actions brought by Mr Hassan and Mr Ayadi for annulment
of Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain
persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, and repealing Council Regulation
(EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending
the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ 2002 L 139, p. 9, ‘the contested
regulation’), in so far as that act concerned them. Mr Hassan’s action was particularly directed against the contested regulation
as amended by Commission Regulation (EC) No 2049/2003 (OJ 2003 L 303, p. 20). By its judgment in *Hassan* the Court of First Instance also dismissed Mr Hassan’s claim for compensation.

**History of the cases**

3        The history of the cases was set out in *Hassan*, paragraphs 6 to 34, and in *Ayadi*, paragraphs 11 to 49.

4        For the purpose of this judgment, those histories may be briefly summarised as follows.

5        On 19 October 2001, the committee established by Resolution 1267 (1999) of the Security Council of the United Nations (‘the
Sanctions Committee’) published an addendum to its consolidated list of 8 March 2001 of entities and individuals to be subject
to the freezing of funds under Resolutions 1267 (1999) and 1333 (2000) of the Security Council of the United Nations (see
press release SC/7180), including inter alia the name of Mr Ayadi, who was identified as being a person associated with Usama
bin Laden.

6        On the same day, the Commission of the European Communities adopted Regulation (EC) No 2062/2001 of 19 October 2001 amending,
for the third time, Council Regulation (EC) No 467/2001 (OJ 2001 L 277, p. 25). By Regulation No 2062/2001 Mr Ayadi’s name
was added, with others, to the list forming Annex I to Council Regulation No 467/2001 of 6 March 2001 (OJ 2001 L 67, p. 1).

7        On 16 January 2002 the Security Council of the United Nations (‘the Security Council’) adopted Resolution 1390 (2002), which
lays down the measures to be directed against Usama bin Laden, members of the Al-Qaeda network and the Taliban and other associated
individuals, groups, undertakings and entities. Paragraphs 1 and 2 of that resolution provide, in essence, that the measures,
in particular the freezing of funds, imposed by paragraph 4(b) of Resolution 1267 (1999) and by paragraph 8(c) of Resolution
1333 (2000) are to be maintained.

8        Considering that action by the European Community was necessary in order to implement Resolution 1390 (2002), on 27 May 2002
the Council of the European Union adopted Common Position 2002/402/CFSP concerning restrictive measures against Usama bin
Laden, members of the Al-Qaeda organisation and the Taliban and other individuals, groups, undertakings and entities associated
with them and repealing Common Positions 96/746/CFSP, 1999/727/CFSP, 2001/154/CFSP and 2001/771/CFSP (OJ 2002 L 139, p. 4).
Article 3 of Common Position 2002/402 prescribes, inter alia, the continuation of the freezing of the funds and other financial
assets or economic resources of the individuals, groups, undertakings and entities referred to in the list drawn up by the
Sanctions Committee in accordance with Security Council Resolutions 1267 (1999) and 1333 (2000).

9        On 27 May 2002 the Council adopted the contested regulation on the basis of Articles 60 EC, 301 EC and 308 EC.

10      According to the fourth recital in the preamble to that regulation, the measures laid down, inter alia, by Resolution 1390
(2002) ‘fall [within] the scope of the [EC] Treaty and, therefore, notably with a view to avoiding distortion of competition,
Community legislation is necessary to implement the relevant decisions of the Security Council as far as the territory of
the Community is concerned.’

11      Article 1 of the contested regulation defines the concepts of ‘funds’ and ‘freezing of funds’ in terms substantially identical
to those in Article 1 of Regulation 467/2001. In addition, it defines what is meant by ‘economic resources’.

12      Article 2 of the contested regulation states:

‘1.      All funds and economic resources belonging to, or owned or held by, a natural or legal person, group or entity designated
by the Sanctions Committee and listed in Annex I shall be frozen.

2.      No funds shall be made available, directly or indirectly, to, or for the benefit of, a natural or legal person, group or entity
designated by the Sanctions Committee and listed in Annex I.

3.      No economic resources shall be made available, directly or indirectly, to, or for the benefit of, a natural or legal person,
group or entity designated by the Sanctions Committee and listed in Annex I, so as to enable that person, group or entity
to obtain funds, goods or services.’

13      Annex I to Regulation No 881/2002 contains the list of persons, entities and groups affected by the freezing of funds imposed
by Article 2 of that regulation. That list includes, inter alia, Mr Ayadi’s name.

14      While Mr Ayadi’s name remains to this day included in that list, the wording of the entry referring to him has on several
occasions been replaced by Commission regulations adopted on the basis of Article 7(1) of the contested regulation and conferring
on the Commission the power to amend or add to Annex I to that regulation, most recently by Regulation (EC) No 76/2006 of
17 January 2006 (OJ 2006 L 12, p. 7).

15      On 20 December 2002 the Security Council adopted Resolution 1452 (2002), intended to facilitate the implementation of counter‐terrorism
obligations. Paragraph 1 of that resolution provides for a number of derogations from and exceptions to the freezing of funds
and economic resources imposed by Resolutions 1267 (1999) and 1390 (2002), which may be granted by the Member States on humanitarian
grounds, on condition that the Sanctions Committee gives its consent.

16      On 17 January 2003 the Security Council adopted Resolution 1455 (2003), intended to improve the implementation of the measures
imposed in paragraph 4(b) of Resolution 1267 (1999), paragraph 8(c) of Resolution 1333 (2000) and paragraphs 1 and 2 of Resolution
1390 (2002). In accordance with paragraph 2 of Resolution 1455 (2003), those measures were again to be improved after 12 months
or earlier if necessary

17      Taking the view that action by the Community was necessary in order to implement Security Council Resolution 1452 (2002),
the Council adopted Common Position 2003/140/CFSP of 27 February 2003 concerning exceptions to the restrictive measures imposed
by Common Position 2002/402/CFSP (OJ 2003 L 53, p. 62). Article 1 of Common Position 2003/140 provides that, when implementing
the measures set out in Article 3 of Common Position 2002/402, the European Community is to provide for the exceptions permitted
by that resolution.

18      On 27 March 2003 the Council adopted Regulation (EC) No 561/2003 amending, as regards exceptions to the freezing of funds
and economic resources, Regulation (EC) No 881/2002 (OJ 2003 L 82, p. 1). In the fourth recital in the preamble to that regulation,
the Council states that it is necessary, in view of Resolution 1452 (2002), to adjust the measures imposed by the Community.

19      On 12 November 2003 the Sanctions Committee adopted an addendum to its consolidated list of entities and individuals to be
subject to the freezing of funds under Resolutions 1267 (1999), 1333 (2000) and 1390 (2002). That addendum includes, inter
alia, the name of Mr Hassan, identified as being a person associated with the Al-Qaeda organisation.

20      On 20 November 2003 the Commission adopted Regulation No 2049/2003 amending for the 25th time Regulation No 881/2002. By Regulation
No 2049/2003 Mr Hassan’s name was added, with others, to the list forming the Annex to the contested regulation.

21      On 30 January 2004 the Security Council adopted Resolution 1526 (2004), designed, first, to improve the implementation of
the measures imposed by paragraph 4(b) of Resolution 1267 (1999), paragraph 8(c) of Resolution 1333 (2000) and paragraphs
1 and 2 of Resolution 1390 (2002), and, secondly, to strengthen the mandate of the Sanctions Committee. In accordance with
Paragraph 3 of Resolution 1526 (2004), those measures were to be further improved in 18 months, or sooner if necessary.

22      On 29 July 2005 the Security Council adopted Resolution 1617 (2005). This provides, inter alia, for the continuation of the
measures imposed by paragraph 4(b) of Resolution 1267 (1999), paragraph 8(c) of Resolution 1333 (2000) and paragraphs 1 and
2 of Resolution 1390 (2002). In accordance with paragraph 21 of Resolution 1617 (2005), those measures were to be reviewed
within 17 months with a view to their possible further strengthening or sooner if necessary.

23      Mr Ayadi remains included in the list forming Annex I to the contested regulation. The entry concerning him has been replaced
by Commission Regulation No 1210/2006 of 9 August 2006 (EC) amending for the 67th time Regulation (EC) No 881/2002 (OJ L 219,
p. 14).

24      Similarly, while Mr Hassan’s name too still appears in that list, the entry concerning him has been replaced by Commission
Regulation (EC) No 46/2008 of 18 January 2008 amending for the 90th time Regulation (EC) No 881/2002 (OJ L 16, p. 11.

**The actions before the Court of First Instance and the judgments under appeal**

25      By application lodged at the Registry of the Court of First Instance on 12 February 2004, Mr Hassan brought an action against
the Council and the Commission for annulment of the contested regulation and claimed that the Court of First Instance should:

–        principally, annul in whole or in part the contested regulation as amended by Regulation No 2049/2003, or the latter regulation
only;

–        or, alternatively, declare the contested regulation and Regulation No 2049/2003 inapplicable to him;

–        take such further action as it might deem appropriate;

–        order the Council to pay the costs and

–        order the Council to pay him damages.

26      At the hearing before the Court of First Instance, Mr Hassan stated that his action challenged the contested regulation and
Regulation No 2049/2003 only in so far as they were of direct and individual concern to him.

27      By application lodged at the Registry of the Court of First Instance on 26 August 2002, Mr Ayadi brought an action against
the Council for annulment of the contested regulation, claiming that the Court of First Instance should:

–        annul Article 2 of the contested regulation and, in so far as it refers to Article 2, Article 4 thereof;

–        or, alternatively, annul the entry mentioning him in the list forming Annex I to the contested regulation, and

–        order the Council to pay the costs.

28      At the hearing before the Court of First Instance, Mr Ayadi stated that his action challenged the contested regulation only
in so far as it was of direct and individual concern to him.

29      In the case concerning Mr Ayadi, the United Kingdom of Great Britain and Northern Ireland and the Commission were granted
leave to intervene before the Court of First Instance in support of the forms of order sought by the Council.

30      In support of his claims, Mr Hassan raised a single plea in law alleging breach of certain of his fundamental rights and of
the general principle of proportionality. His complaints related more particularly to the alleged breach of the right to respect
for property and of the right to respect for private and family life, on the one hand, and to the alleged breach of the right
to be heard and of the right to a fair hearing, on the other.

31      Mr Ayadi, for his part, based his claims on three pleas in law, the first alleging that the Council was not competent to adopt
Articles 2 and 4 of the contested regulation and a misuse of powers, the second alleging breach of the fundamental principles
of subsidiarity, proportionality and respect for his fundamental rights and the third alleging infringement of an essential
procedural requirement.

32      Because, without prejudice to the claim for compensation in Mr Hassan’s appeal, these appeals are confined to the parts of
the judgments under appeal relating to the pleas in law alleging breach of the appellants’ fundamental rights, only those
parts of those judgments will be summarised below.

33      With regard to those pleas in law, the Court of First Instance held in *Hassan*, paragraph 91, and *Ayadi*, paragraph 115, that, subject only to a single point of law specific to each of those cases, all the points of law raised
by the applicants had already been settled in its judgments of 21 September 2005 in Case T‐306/01 *Yusuf and Al Barakaat International Foundation* v *Council and Commission* [2005] ECR II‐3533 (‘*Yusuf* at first instance’), paragraphs 226 to 346, and Case T‐315/01 *Kadi* v *Council and Commission* [2005] ECR II‐3649 (‘*Kadi* at first instance’), paragraphs 176 to 291 (together, ‘*Yusuf* and *Kadi* at first instance’).

34      In paragraph 92 of *Hassan*, as in paragraph 116 of *Ayadi*, similarly worded, it was noted that, in *Yusuf* and *Kadi* at first instance, the Court of First Instance had in particular ruled as follows:

‘–      ...

from the standpoint of international law, the obligations of the Member States of the United Nations under the Charter of
the United Nations clearly prevail over every other obligation of domestic law or of international treaty law including, for
those of them that are members of the Council of Europe, their obligations under the [European Convention for the Protection
of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’),] and, for those that are also members
of the Community, their obligations under the EC Treaty (*Yusuf* at first instance, paragraph 231, and *Kadi* at first instance, paragraph 181);

–      that primacy extends to decisions contained in a resolution of the Security Council, in accordance with Article 25 of the
Charter of the United Nations (*Yusuf* at first instance, paragraph 234, and *Kadi* at first instance, paragraph 184);

–      although not a member of the United Nations, the Community must be considered to be bound by the obligations under the Charter
of the United Nations in the same way as its Member States, by virtue of the Treaty establishing it (*Yusuf* at first instance, paragraph 243, and *Kadi* at first instance, paragraph 193);

–      first, the Community may not infringe the obligations imposed on its Member States by the Charter of the United Nations or
impede their performance and, second, in the exercise of its powers it is bound, by the very Treaty by which it was established,
to adopt all the measures necessary to enable its Member States to fulfil those obligations (*Yusuf* at first instance, paragraph 254, and *Kadi* at first instance, paragraph 204);

–      as a result, the arguments challenging the contested regulations and based, on the one hand, on the autonomy of the Community
legal order vis-à-vis the legal order under the United Nations and, on the other, on the necessity of transposing Security
Council resolutions into the domestic law of the Member States, in accordance with the constitutional provisions and fundamental
principles of that law, must be rejected (*Yusuf* at first instance, paragraph 258, and *Kadi* at first instance, paragraph 208);

–      [the contested] regulation ..., adopted in the light of Common Position 2002/402, constitutes the implementation at Community
level of the obligation placed on the Member States of the Community, as Members of the United Nations, to give effect, if
appropriate by means of a Community act, to the sanctions against Usama bin Laden, members of the Al-Qaeda network and the
Taliban and other associated individuals, groups, undertakings and entities, which have been decided and later strengthened
by several resolutions of the Security Council adopted under Chapter VII of the Charter of the United Nations (*Yusuf* at first instance, paragraph 264, and *Kadi* at first instance, paragraph 213);

–      in that situation, the Community institutions acted under circumscribed powers, with the result that they had no autonomous
discretion (*Yusuf* at first instance, paragraph 265, and *Kadi* at first instance, paragraph 214);

–      in light of the considerations set out above, the claim that the Court of First Instance has jurisdiction to review indirectly
the lawfulness of decisions of the Security Council or of the Sanctions Committee according to the standard of protection
of fundamental rights as recognised by the Community legal order cannot be justified either on the basis of international
law or on the basis of Community law (*Yusuf* at first instance, paragraph 272, and *Kadi* at first instance, paragraph 221);

–      the resolutions of the Security Council at issue therefore fall, in principle, outside the ambit of the Court’s judicial review
and the Court has no authority to call in question, even indirectly, their lawfulness in the light of Community law; on the
contrary, the Court is bound, so far as possible, to interpret and apply that law in a manner compatible with the obligations
of the Member States under the Charter of the United Nations (*Yusuf* at first instance, paragraph 276, and *Kadi* at first instance, paragraph 225);

–      none the less, the Court is empowered to check, indirectly, the lawfulness of the resolutions of the Security Council in question
with regard to jus cogens, understood as a body of higher rules of public international law binding on all subjects of international
law, including the bodies of the United Nations, and from which no derogation is possible (*Yusuf* at first instance, paragraph 277, and *Kadi* at first instance, paragraph 226);

–      the freezing of funds provided for by [the contested r]egulation ... infringes neither the fundamental right of the persons
concerned to make use of their property nor the general principle of proportionality, measured by the standard of universal
protection of the fundamental rights of the human person covered by jus cogens (*Yusuf* at first instance, paragraphs 288 and 289, and *Kadi* at first instance, paragraphs 237 and 238);

–      since the Security Council resolutions concerned do not provide a right for the persons concerned to be heard by the Sanctions
Committee before their inclusion in the list in question and since it appears that no mandatory rule of public international
law requires a prior hearing for the persons concerned in circumstances such as those of this case, the arguments alleging
breach of such a right must be rejected (*Yusuf* at first instance, paragraphs 306, 307 and 321, and *Kadi* at first instance, paragraphs 261 and 268);

–      in these circumstances in which what is at issue is a temporary precautionary measure restricting the availability of the
property of the persons concerned, observance of their fundamental rights does not require the facts and evidence adduced
against them to be communicated to them, once the Security Council or its Sanctions Committee is of the view that there are
grounds concerning the international community’s security that militate against it (*Yusuf* at first instance, paragraph 320, and *Kadi* at first instance, paragraph 274);

–      nor were the Community institutions obliged to hear the persons concerned before [the contested r]egulation ... was adopted
(*Yusuf* at first instance, paragraph 329) or in the context of the adoption and implementation of that act (*Kadi* at first instance, paragraph 259);

–      in dealing with an action for annulment such as the present action, the Court carries out a complete review of the lawfulness
of that regulation with regard to observance by the institutions of the rules of jurisdiction and the rules of external lawfulness
and the essential procedural requirements which bind their actions; the Court also reviews the lawfulness of the contested
regulations having regard to the Security Council’s regulations which that act is supposed to put into effect, in particular
from the viewpoints of procedural and substantive appropriateness, internal consistency and whether those regulations are
proportionate to the resolutions; the Court reviews the lawfulness of the contested regulations and, indirectly, the lawfulness
of the resolutions of the Security Council at issue, in the light of the higher rules of international law falling within
the ambit of jus cogens, in particular the mandatory prescriptions concerning the universal protection of the rights of the
human person (*Yusuf* at first instance, paragraphs 334, 335 and 337, and *Kadi* at first instance, paragraphs 279, 280 and 282);

−      on the other hand, it is not for the Court to review indirectly whether the Security Council’s resolutions in question are
themselves compatible with fundamental rights as protected by the Community legal order; nor does it fall to the Court to
verify that there has been no error of assessment of the facts and evidence relied on by the Security Council in support of
the measures it has taken or, subject to the limited extent defined in paragraph 337 above, to check indirectly the appropriateness
and proportionality of those measures (*Yusuf* at first instance, paragraphs 338 and 339, and *Kadi* at first instance, paragraphs 283 and 284);

–      to that extent, there is no judicial remedy available to the persons concerned, the Security Council not having thought it
advisable to establish an independent international court responsible for ruling, in law and on the facts, in actions brought
against individual decisions taken by the Sanctions Committee (*Yusuf* at first instance, paragraph 340, and *Kadi* at first instance, paragraph 285);

–      the lacuna thus found to exist in the previous indent in the judicial protection available to the persons involved is not
in itself contrary to jus cogens, for (a) the right of access to the courts is not absolute; (b) the limitation of the right
of the persons concerned to access to a court, as a result of the immunity from jurisdiction enjoyed as a rule, in the domestic
legal order of the Member States, by resolutions of the Security Council adopted under Chapter VII of the Charter of the United
Nations, is inherent in that right; (c) such a limitation is justified both by the nature of the decisions that the Security
Council is led to take under Chapter VII and by the legitimate objective pursued, and (d) in the absence of an international
court having jurisdiction to ascertain whether acts of the Security Council are lawful, the setting-up of a body such as the
Sanctions Committee and the opportunity, provided for by the legislation, of applying at any time to that committee in order
to have any individual case re-examined, by means of a procedure involving the governments concerned, constitute another reasonable
method of affording adequate protection of the fundamental rights of the persons concerned as recognised by jus cogens (*Yusuf* [at first instance], paragraphs 341 to 345, and *Kadi* [at first instance], paragraphs 286 to 290);

–      the arguments relied on to challenge the contested regulations alleging breach of the right to an effective judicial remedy
must consequently be rejected (*Yusuf* [at first instance], paragraph 346, and *Kadi* [at first instance], paragraph 291).’

35      In paragraphs 95 to 124 of *Hassan*, the Court of First Instance added a number of points in response to the arguments more specifically propounded by Mr Hassan
at the hearing concerning, on the one hand, the allegedly excessive strictness of the measure freezing all his funds and economic
resources and, on the other, the alleged invalidity, in the circumstances, of the conclusions reached by the Court of First
Instance in *Yusuf* and *Kadi* at first instance concerning the compatibility with jus cogens of the lacuna found in those judgments to exist in the judicial
protection of the persons concerned.

36      Similarly, in paragraphs 117 to 154 of *Ayadi*, the Court of First Instance added a number of points to those set out in paragraph 34 above in response to the arguments
more specifically propounded by Mr Ayadi concerning, on the one hand, the alleged ineffectiveness of the exemptions to and
derogations from the freezing of funds provided for by Regulation No 561/2003, especially as regards carrying on a trade or
business and, on the other, the alleged invalidity, in the circumstances, of the conclusions reached by the Court in *Yusuf* and *Kadi* at first instance concerning the compatibility with jus cogens of the lacuna found to exist in the judicial protection of
the persons concerned.

37      The Court of First Instance examined those arguments, concluding that they could not call in question the assessment it had
made of the points of law raised in *Yusuf* and *Kadi* at first instance.

38      In paragraphs 126 to 128 of *Hassan*, the Court of First Instance went on to examine Mr Hassan’s complaints relating to a breach of his right to respect for private
and family life and an attack on his reputation, and rejected them for the essential reason that, according to the standard
of jus cogens, it must be held that that applicant had not suffered any arbitrary interference with the exercise of those
rights.

39      Similarly, in paragraph 156 of *Ayadi*, the Court of First Instance rejected the argument, not yet examined in *Yusuf* and *Kadi* at first instance, that the Member States of the United Nations are not bound to apply as they stand the measures that the
Security Council ‘calls upon’ them to adopt.

40      The Court of First Instance therefore dismissed the appellants’ claims for annulment as unfounded.

41      Lastly, the Court of First Instance declared inadmissible Mr Hassan’s claim for compensation because it lacked all detail,
adding that with regard to the other evidence he had produced the claim was on any view unfounded.

42      In consequence, the Court of First Instance dismissed the two actions in their entirety.

**Procedure before the Court**

43      By order of the President of the Court of 5 November 2008, the French Republic and the United Kingdom were given leave to
intervene in support of the form of order sought by the Council and the Commission in Case C‐399/06 P. By order of the President
of the Court of 30 March 2009, the French Republic was given leave to intervene in support of the form of order sought by
the Council in Case C‐403/06 P.

44      By application lodged at the Court Registry on 7 January 2009, Mr Ayadi applied for the legal aid provided for by Article
76 of the Court’s Rules of Procedure.

45      By order of 2 September 2008 the Court granted his application.

46      The parties and the Advocate General having been heard on this point, these cases must, on account of the connection between
them, be joined for the purposes of the judgment, in accordance with Article 43 of the Court’s Rules of Procedure.

**Forms of order sought by the parties to the appeals**

47      By his appeal, Mr Hassan claims that the Court should:

–        set aside the judgment in *Hassan*;

–        annul the contested regulation and/or Regulation No 2049/2003 in their entirety or in respect of the measures directed against
him;

–        or, alternatively, declare those regulations inapplicable to him;

–        take such further action as the Court may deem appropriate;

–        order the Council to pay the costs and

–        order the Council to pay him damages.

48      By his appeal, Mr Ayadi claims that the Court should:

–        set aside the judgment in *Ayadi* in its entirety;

–        declare null and void Articles 2 and 4 of and Annex I to the contested regulation in so far as they are of direct and individual
concern to him and

–        order the Council to pay the costs of the proceedings before the Court and the Court of First Instance.

49      In the two cases the Council and the Commission contend that the Court should dismiss the appeals, with the exception of the
grounds similar to those held to be well founded by the Court in its judgment of 3 September 2008 in Joined Cases C‐402/05
P and C‐415/05 P *Kadi and Al Barakaat* v *Council and Commission* [2008] ECR I‐6351 (‘*Kadi* on appeal’) and order the appellants to pay so much of the costs as the Court may deem appropriate.

**The grounds put forward in support of the appeals**

50      In his first ground of appeal Mr Hassan argues that the Court of First Instance erred in law in its examination of the pleas
he raised before it with regard to the breach of certain of his fundamental rights, in that it did not determine directly
whether the Security Council offered protection equivalent to that offered by the ECHR, more particularly by Articles 6, 8
and 13 thereof and by Article 1 of Protocol 1 of the ECHR, but rather examined indirectly the actions of the Security Council
by virtue of the principle of jus cogens.

51      In his second ground of appeal Mr Hassan maintains that the Court of First Instance erred in law in considering that restriction
of the use of property was not relevant with regard to the actual substance of the right to property.

52      It is clear from Mr Ayadi’s reply that, in the light of *Kadi* on appeal, he now means to submit only two grounds of appeal, the first of which is that the Court of First Instance erred
in law in finding that the Community judicature may evaluate the lawfulness of a Community measure giving effect to a resolution
of the Security Council only with regard to jus cogens and in not holding that it could annul such a measure in order to guarantee
the protection of the fundamental rights recognised by the legal order of the United Nations, and the second of which is that
the Court of First Instance erred in law in not holding that the parts of the contested regulation which are under challenge
constitute a breach of Mr Ayadi’s fundamental rights.

**Concerning the appeals**

*The effect of Regulation (EC) No 954/2009 on whether it is necessary to adjudicate*

53      By Regulation (EC) No 954/2009 of 13 October 2009 amending for the 114th time Regulation No 881/2002 (OJ L 269, p. 20), the decisions to include Mr Hassan and Mr Ayadi in the list forming Annex
I to the contested regulation were replaced by fresh decisions confirming and amending their inclusion.

54      According to the preamble to Regulation No 954/2009, the Commission adopted that regulation, having regard to the case-law
of the Court of Justice, in particular to *Kadi* on appeal, after apprising Mr Hassan and Mr Ayadi of the grounds for their inclusion in the list, as provided by the Sanctions
Committee and after examining the comments made by the appellants concerning those grounds.

55      In that preamble it is also stated that, after careful examination of those comments, the Commission considered, given the
preventive nature of freezing of funds and economic resources, that the inclusion of the two appellants in the list in question
was justified by reason of their association with the Al-Qaeda network.

56      In accordance with Article 2 of Regulation No 954/2009, the latter entered into force on the day following its publication
in the *Official Journal of the European Union*, that is to say, 15 October 2009, and has applied as from 30 May 2002 as regards Mr Ayadi and from 21 November 2003 as regards
Mr Hassan.

57      The question therefore arises whether, in the light of the withdrawal of the contested regulation and its retroactive replacement
by Regulation No 954/2009 with effect from those dates with regard to the appellants, it is still necessary to adjudicate
on these cases.

58      It is to be borne in mind that the Court may, of its own motion, raise the objection that a party has no interest in bringing
or in maintaining an appeal because an event occurring after the judgment of the Court of First Instance removes the prejudicial
effect thereof as regards the appellant, and declare the appeal inadmissible or devoid of purpose for that reason (see, in
particular, Case C‐535/06 P *Moser Baer India* v *Council* [2009] ECR I‐0000, paragraph 24, and the case-law cited).

59      In the present case, Article 2 of Regulation No 954/2009 provides that the latter is to apply from the original inclusion
of Mr Ayadi and Mr Hassan in the list forming Annex I to the contested regulation, that is to say, since 30 May 2002 and 21
November 2003 respectively.

60      Mr Ayadi and Mr Hassan have been included in that list for a period of seven and six years respectively and have, therefore,
been subject to the restrictive measures provided by the contested regulation which the Court has held to have a considerable
impact on the rights and freedoms of the persons concerned (see *Kadi* on appeal, paragraph 375), while they have maintained, first before the Court of First Instance and then before the Court
of Justice in proceedings covering nearly the whole of those periods, that the inclusion of their names in that list was unlawful,
for it failed, in particular, to have regard to their fundamental rights, which is not now denied by either the Council or
the Commission, in the light of *Kadi* on appeal.

61      Regulation No 954/2009 has kept the names of Mr Ayadi and Mr Hassan in that list with retroactive force, so that the resulting
restrictive measures continued to apply to them for the period for which the contested regulation, as referred to in their
actions, was applicable, although the purpose of their actions is to have their names removed from that list.

62      The adoption of Regulation No 954/2009 cannot, therefore, be considered to constitute a fact occurring after the judgments
under appeal and capable of rendering the appeals devoid of purpose.

63      Furthermore, Regulation No 954/2009 is not yet definitive, inasmuch as it may be the object of an action for annulment. It
is therefore not inconceivable that, supposing that that measure were annulled as a result of such proceedings, the contested
regulation might come back into force so far as the appellants are concerned.

64      Those matters supply confirmation that the adoption of Regulation No 954/2009 cannot be regarded as equivalent to annulment
pure and simple of the contested regulation in so far as it concerns the appellants by which they have obtained the only result
that their actions could have secured for them and that there is accordingly no longer any need for the Court to adjudicate.
In that regard the contested regulation differs from the measure at issue in the order of 8 March 1993 in Case C‐123/92 *Lezzi Pietro* v *Commission* [1993] ECR I‐809.

65      In these particular circumstances, the appeals have not become devoid of purpose and it is necessary for the Court to adjudicate
on them in that regard.

*Substance*

66      A preliminary point to be noted is, in the first place, that at the hearing before the Court of Justice Mr Hassan expressly
withdrew his ground of appeal relating to the claim for compensation. There is, therefore, no longer any need to consider
that ground in this appeal.

67      In the second place, as regards the subject-matter of the grounds of appeal, it must be observed that that must be understood
to concern, in so far as it relates to each of the appellants respectively, the contested regulation as amended, in connection
with Mr Ayadi’s case, by Regulation No 1210/2006 and, in Mr Hassan’s, by Regulation No 46/2008.

*The appellants’ grounds of appeal relating to the contested regulation’s failure to observe their fundamental rights*

68      It is necessary to consider the grounds advanced by the appellants in support of their appeals, in which they object that
the Court of First Instance dismissed their pleas in law alleging that the contested regulation failed to observe their fundamental
rights.

69      In the judgments under appeal, and relying on its judgments in *Yusuf* and *Kadi*, the Court of First Instance essentially held that it follows from the principles governing the relationship between the
international legal order under the United Nations and the Community legal order that the contested regulation, because it
is designed to give effect to a resolution adopted by the Security Council under Chapter VII of the Charter of the United
Nations affording no latitude in that respect, may not be the subject of judicial review of its internal lawfulness save with
regard to its compatibility with the norms of jus cogens and therefore enjoys, subject to that reservation, immunity from
jurisdiction (*Hassan*, paragraph 92, and *Ayadi*, paragraph 116).

70      Again relying on its judgments in *Yusuf* and *Kadi*, the Court of First Instance held, therefore, that it is with regard to *jus cogens*, understood as a public international order binding on all subjects of international law, including the bodies of the United
Nations, and from which no derogation is possible, that the lawfulness of the contested regulation may be examined, in relation
also to the appellants’ pleas alleging breach of their fundamental rights (*Hassan*, paragraph 92, and *Ayadi*, paragraph 116).

71      It is apparent from paragraphs 326 and 327 of *Kadi* on appeal that that reasoning amounts to an error of law. The Community judicature must, in accordance with the powers conferred
on it by the Treaty, ensure the review, in principle the full review, of the lawfulness of all Community acts in the light
of the fundamental rights forming an integral part of the general principles of Community law, including review of Community
measures which, like the contested regulation, are designed to give effect to the resolutions adopted by the Security Council
under Chapter VII of the Charter of the United Nations.

72      The Court concluded, in paragraph 328 of *Kadi* on appeal, that the grounds of appeal put forward by the persons concerned being well founded on that point, it was necessary
to set aside *Yusuf* and *Kadi* at first instance in that respect.

73      In addition, the Court held, in paragraph 330 of *Kadi* on appeal, that because in the latter parts of *Yusuf* and *Kadi* at first instance, relating to the specific fundamental rights invoked by the appellants, the Court of First Instance had
confined itself to examining the lawfulness of the contested regulation in the light of the rules of jus cogens alone, when
it was its duty to carry out an examination, in principle a full examination, in the light of the fundamental rights forming
part of the general principles of Community law, the latter parts of those judgments also had to be set aside.

74      It follows that, given that the legal grounds of the judgments under appeal are, as pointed out in paragraphs 69 and 70 above,
the same as those relied on in *Yusuf* and *Kadi* at first instance, the judgments under appeal are marred by the same error in law and must, therefore, for the same reasons,
be set aside in so far as they contain the Court of First Instance’s response to the appellants’ arguments alleging breach
of certain of their fundamental rights.

75      That conclusion is not called in question by the addition, in paragraphs 95 to 125 of *Hassan* and in paragraphs 117 to 155 of *Ayadi*, of a number of points in response to the arguments more specifically propounded by the appellants, given that the Court
of First Instance concluded that those points demonstrate the correctness of the legal grounds of *Yusuf* and *Kadi* at first instance and, in consequence, of the judgments under appeal.

76      Lastly, it is to be noted that at the hearing before the Court Mr Hassan acknowledged that the head of claim raised before
the Court of First Instance and dismissed by the latter, relating to the alleged breach of his right to respect for private
and family life, guaranteed by Article 8 of the ECHR, had not been included in his appeal. In the circumstances, there is
no need to examine it.

77      The grounds of appeal put forward by the appellants are therefore well founded with the result that the judgments under appeal
must be set aside.

**Concerning the actions before the Court of First Instance**

78      As provided in the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice, the latter,
when it quashes the decision of the Court of First Instance, may give final judgment in the matter where the state of proceedings
so permits

79      In the circumstances, the Court considers that the actions for annulment of the contested regulation brought by the appellants
are ready for judgment and that it is necessary to give final judgment in them.

80      It is appropriate to examine, in the first place, the claims made by the appellants with regard to the breach of the rights
of defence, in particular the right to be heard, and of the right to effective judicial review, caused by the measures for
the freezing of funds as they were imposed on the appellants by the contested regulation.

81      In this regard it has to be found that it is not disputed that the actual circumstances surrounding the inclusion of the appellants’
names in the list of persons and entities covered by the restrictive measures contained in Annex I to the contested regulation
are identical to those in which the names of the parties concerned in the cases giving rise to *Kadi* on appeal had been entered in that list.

82      In the light of those circumstances, the Court held in paragraph 334 of *Kadi* on appeal that the rights of defence, in particular the right to be heard, and the right to effective judicial review of
observance of those rights, had patently not been respected.

83      In paragraph 348 of that judgment the Court likewise held that, because the Council had neither communicated to the persons
concerned the evidence used against them to justify the restrictive measures imposed on them nor afforded them the right to
be informed of that evidence within a reasonable period after those measures were enacted, those persons had not had the opportunity
to make their point of view in that respect known to advantage. The Court concluded in that paragraph that their rights of
defence, in particular the right to be heard, had not been respected.

84      That conclusion must be reached in the instant cases, and for the same reasons, so that it must be found that the appellants’
rights of defence have not been respected.

85      Moreover, the Court ruled in paragraph 349 of *Kadi* on appeal that, given the failure to inform them of the evidence adduced against them and having regard to the relationship,
referred to in paragraphs 336 and 337 of that judgment, between the rights of defence and the right to an effective legal
remedy, the parties concerned had also been unable to defend their rights with regard to that evidence in satisfactory conditions
before the Community judicature, with the result that it must be held that their right to an effective legal remedy had also
been infringed.

86      The same conclusion must be reached in the instant cases with regard to the appellants’ right to an effective legal remedy,
so that it must be found that, in the circumstances, that fundamental right of Mr Hassan and Mr Ayadi has not been respected.

87      It must, furthermore, be stated that that infringement has not been remedied in the course of these actions. Indeed, given
that, according to the fundamental position adopted by the Council, no evidence of that kind may be the subject of investigation
by the Community judicature, the Council has adduced no evidence to that effect (see, by analogy, *Kadi* on appeal, paragraph 350). What is more, although the Council took formal note in these appeals of the guidance given in
*Kadi* on appeal, it must be found that it has produced no information concerning the evidence adduced against the appellants.

88      The Court cannot, therefore, do other than find that it is not able to undertake the review of the lawfulness of the contested
regulation in so far as it concerns the appellants, with the result that it must be held that, for that reason too, the fundamental
right to an effective legal remedy which they enjoy has not, in the circumstances, been observed (see, by analogy, *Kadi* on appeal, paragraph 351).

89      It must, therefore, be held that the contested regulation, in so far as it concerns the appellants, was adopted without any
guarantee being given as to the communication of the evidence adduced against them or as to their being heard in that connection,
so that it must be found that that regulation was adopted according to a procedure in which the appellants’ rights of defence
were not observed, which has had the further consequence that the principle of effective judicial protection has been infringed
(see, by analogy, *Kadi* on appeal, paragraph 352).

90      It follows from all the foregoing considerations that the pleas in law raised by Mr Hassan and Mr Ayadi in support of their
actions for annulment of the contested regulation and alleging breach of their rights of defence, especially the right to
be heard, and of the principle of effective judicial protection, are well founded (see, by analogy, *Kadi* on appeal, paragraph 353).

91      In the second place, so far as the heads of claim relating to a breach of the right to respect for property caused by the
fund-freezing measures imposed by the contested regulation are concerned, the Court held, in paragraph 366 of *Kadi* on appeal, that the restrictive measures imposed by that regulation constituted restrictions of the right to property which
might, in principle, be justified.

92      It is, however, established that the contested regulation, in so far as it concerns Mr Hassan and Mr Ayadi, was adopted without
furnishing any guarantee enabling them to put their case to the competent authorities, in a situation in which the restriction
of their property rights must be regarded as significant, having regard to the general application and actual continuation
of the freezing measures affecting them (see, by analogy, *Kadi* on appeal, paragraph 369).

93      It must therefore be held that, in the circumstances of these cases, the imposition of the restrictive measures laid down
by the contested regulation in respect of Mr Hassan and Mr Ayadi, by including them in the list contained in Annex I to that
regulation, constitutes an unjustified restriction of their right to property (see, by analogy, *Kadi* on appeal, paragraph 370).

94      The appellants’ claims that their fundamental right to respect for property has been infringed are therefore well founded.

95      In the circumstances, it is no longer necessary to examine Mr Hassan’s heads of claim concerning the alleged breach of his
right to respect for his private and family life, guaranteed by Article 8 of the ECHR.

96      It follows from all the foregoing that the contested regulation, so far as it concerns the appellants, must be annulled, account
being taken of the clarification in paragraph 67 above as to the version of that regulation concerned by the appellants’ respective
appeals.

**Costs**

97      Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is well founded and the Court of Justice
itself gives final judgment in the case, it is to make a decision as to costs. Under Article 69(2) of the Rules of Procedure,
applicable to appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs
if they have been applied for in the successful party’s pleadings. The first paragraph of Article 69(4) provides that the
Member States which have intervened in the proceedings are to bear their own costs.

98      Because Mr Hassan and Mr Ayadi’s appeals must be upheld and because the contested regulation must be annulled in so far as
it concerns the appellants and within the limits described in paragraph 67 above, the Council must be ordered to pay, in addition
to its own costs, those incurred by Mr Hassan and Mr Ayadi, both at first instance and on appeal in accordance with the forms
of order sought by the appellants.

99      The United Kingdom is to bear its own costs both at first instance and in the appeals.

100    The French Republic is to bear its own costs relating to the appeals.

101    The Commission is to bear its own costs at first instance and in the appeal in the case concerning Mr Hassan. In the case
concerning Mr Ayadi, the Commission is to bear its own costs, in respect both of its intervention before the Court of First
Instance and of the proceedings before the Court.

On those grounds, the Court (Second Chamber) hereby:

1.      **Sets aside the judgments of the Court of First Instance of the European Communities****of 12 July 2006 in Case T‐49/04 *Hassan* v *Council and Commission* and in Case T‐253/02 *Ayadi* v *Council*;**

2.      **Annuls Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against
certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, and repealing Council
Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight
ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, as amended by
Commission Regulation (EC) No 46/2008 of 18 January 2008, in so far as it concerns Mr Hassan;**

3.      **Annuls Regulation No 881/2002, as amended by Commission Regulation (EC) No 1210/2006 of 9 August 2006, in so far as it concerns
Mr Ayadi;**

4.      **Orders the Council of the European Union to pay, in addition to its own costs, the costs incurred by Mr Hassan and Mr Ayadi
both at first instance and in these appeals;**

5.      **Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs, both at first instance in the case
concerning Mr Ayadi and in these appeals;**

6.      **Orders the French Republic to bear its own costs;**

7.      **Orders the European Commission to bear its own costs both at first instance and in the appeal in the case concerning Mr Hassan.
Orders the European Commission, in the case concerning Mr Ayadi, to bear its own costs, in respect both of its intervention
before the Court of First Instance of the European Communities and of the proceedings before the Court of Justice of the European
Union.**

[Signatures]

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[\*](#Footref*) Language of the case: English.