Opinion of the Advocate General — ECLI:EU:C:2019:66
Date: 2019-01-24
Language of the case: German
Subject matter: External relations;Free movement of capital;Common foreign and security policy
Procedure: Reference for a preliminary ruling
Origin: Germany

summary of the reasons why the conditions for renewed listing remained justified; and (iv) after the renewal decision had been adopted, sent a final version of the statement of reasons to the LTTE containing the justification for the renewed listing. (49) 52. That document described the LTTE as a terrorist group formed in 1976 and recorded a series of 12 acts carried out by the LTTE that the Council considered fell within the definition of terrorist act given in Article 1(3) of Common Position 2001/931. It then referred to a decision of the United Kingdom Secretary of State for the Home Department on 29 March 2001 to proscribe the LTTE under the UK Terrorism Act 2000, a decision of the United Kingdom Treasury on 6 December 2001 to freeze the assets of LTTE and a decision by the Indian authorities to proscribe LTTE in 1992 (all three of which, according to the Council, fell within the definition of a ‘decision’ in Article 1(4) of Common Position 2001/931 and all three of which remained in force). 53. In my view, the three sources identified in paragraph 51 above contained sufficient details to allow the LTTE to know the actual and specific reasons why the Council considered that the relevant rules were applicable to it as well as the facts and the legal considerations that had decisive importance in the context of the renewal listing. There were, in other words, sufficient elements to enable the LTTE to understand the accusations made against it and the scope of the measures taken. The LTTE was thus placed in a position effectively to dispute the merits of the renewal measure. Had it chosen to, it could have exercised its rights of defence both by submitting comments prior to the adoption of the renewal measure — as the Official Journal of the European Union notice invited it to do — and/or by challenging the renewal measure under Article 230 EC (now Article 263 TFEU) before the General Court within the prescribed time limit after its adoption. 54. It is true that the Court has stated clearly in general terms that statements of reasons must be communicated prior to the adoption of a renewal measure, (50) whereas the various final versions of the statements of reasons were dated and dispatched after the adoption of each contested measure. I nevertheless consider that the Council has fulfilled the spirit of the Court’s requirement. In particular, I emphasise the context in which Decision 2007/445 (and the other renewal measures) was adopted. In reality, the LTTE was in possession of an unchanged statement of reasons at all times prior to the adoption of each renewal measure. It cannot therefore be said that the LTTE was ever in a position where it did not know the facts and reasons behind the decision to maintain it on the Article 2(3) list. 55. Could the facts and reasons for each of the renewal measures simply be repeated verbatim every six months or did they require to be updated because they had become obsolete as a result of a change in circumstance and/or the passage of time? 56. Only one major change in circumstance has been brought to the Court’s attention: the military defeat of the LTTE in May 2009. That change occurred after the adoption of Decisions 2007/445, 2007/868, 2008/583 and 2009/62. The Council cannot therefore be criticised for failing to take it into account when it adopted those decisions. 57. Mr K. P. focuses his criticism of the statement of reasons on, first, the fact that the Council omitted to take into consideration an alleged truce between the LTTE and the Sri Lankan Government which started in 2002 and, second, the fact that one of the terrorist acts listed by the Council in the statement of reasons (the murder of a Sri Lankan Government minister) was not, he says, committed by the LTTE. In my view, neither of those claimed facts constitutes a change in circumstance between the original listing decision and any of those four decisions such as to require their author to modify its statements of reasons. The inference which can reasonably be drawn from the 11 other acts of terrorist activity relied on by the Council is, on the contrary, that the alleged truce did not bring the LTTE’s terrorist activities to an end. 58. I therefore conclude that no material change in circumstance has been brought to the Court’s attention which required the Council to modify the content of its statement of reasons for Decisions 2007/445, 2007/868, 2008/583 and 2009/62 from that of the original listing decision. 59. Did the passage of time of itself require a change in the statement of reasons? 60. In Council v Hamas (51) and in Kadi II (52)the Court indicated that respectively a gap of between 9 and 13 years and a gap of 16 years meant that ‘old’ reasoning could no longer be relied upon. Let us therefore look at the periods of time at issue in the present case. I take 16 October 2006 — the date of the last act of terrorism relied upon by the Council in its various statements of reasons for the EU acts at issue — as the starting point. The first renewal decision after the initial listing decision (namely Decision 2007/445 of 28 June 2007) was taken eight and a half months later. Decision 2009/62 of 26 January 2009 was adopted 27 months later. (Council Decision 2007/868 of 20 December 2007 and Council Decision 2008/583 of 15 July 2008 were adopted between these two dates.) In my view, it cannot be said that the terrorist acts of 2005/2006, taken in conjunction with the competent authority decisions of 2001, were obsolete reference points for those four EU acts. 61. It is important to recall here the context in which renewal measures are adopted. Six months is a short time-frame within which to conduct a mandatory review. The fact that no terrorist activity may have taken place within a particular six-month period may mean that the restrictive measures imposed are indeed having their intended effect. Alternatively, however, it may mean that the persons concerned are hoping to convey the impression that activity has ceased when in reality further terrorist acts are being planned and prepared. Renewal for one or perhaps several further six-month periods may be prudent even if there are no new terrorist acts, given, in particular, the Council’s broad discretion in that regard (53) and the public interest in taking preventive measures to forestall terrorist activity. (54) 62. It follows that in my view the notice in the Official Journal of the European Union, the recitals of Decision 2007/445 and the final statement of reasons taken together provided sufficient information to satisfy the Article 296 TFEU requirements in supporting the Council’s judgment that, in context, the LTTE posed an ‘on-going risk’. I reach the same conclusion in respect of Decisions 2007/868, 2008/583 and 2009/62. Given that the facts and surrounding circumstances relating to the LTTE do not appear to have changed significantly over the period during which those decisions were in force, it would indeed have seemed contradictory had the Council’s statements differed substantively, if at all. 63. However, I take a different view of Regulation No 501/2009, which was adopted on 15 June 2009 to replace and repeal Decision 2009/62. That regulation shares similarities with the measures that were annulled by the Court in its judgment in LTTE. (55) 64. Here I note that by the date of the adoption of Regulation No 501/2009, there had been the same significant and material change in circumstance as the Court identified in the judgment in LTTE — namely the military defeat incurred by the LTTE in May 2009. (56) That defeat pre-dated the adoption of Regulation No 501/2009 on 15 June 2009. The statement of reasons for that measure, like its predecessors, refers to a list of terrorist acts all of which pre-date that military defeat. I also note that over 31 months had elapsed between the date of the last act of terrorism relied upon by the Council (October 2006) and the adoption of Regulation No 501/2009. That gap is longer than for one of the measures annulled by the Court in the judgment in LTTE (Regulation No 83/2011). (57) 65. The Council correctly pointed out at the hearing that it would have had just under a calendar month (between 17 May and 15 June 2009) in which to modify its draft Regulation No 501/2009. Such is, however, the context in which the mandatory 6-month reviews must take place. Had the military defeat been declared mere days before the date on which Regulation No 501/2009 was to be adopted, I would readily have accepted that it would be unreasonable to have expected the Council to take that fact into account. Here, however, the Council did have enough time to re-consider the renewal; yet nothing in the statement of reasons suggests that it did so. 66. The Council sought to argue that it did not matter that the statement of reasons contained nothing on this important new development. Had a sentence been added to the statement of reasons to the effect that the Council was aware of the military defeat but considered it premature to remove the LTTE from the Article 2(3) list, the result would have been substantively the same: the decision to renew would still have been taken. Perhaps that might well have been the case; but the Council’s argument misses the point. The absence of any reference to the change in circumstance and of any explanation as to why, nevertheless, the listing was to be renewed means that the Council failed to fulfil its obligations under Article 296 TFEU as interpreted by the Court in the context of terrorist listing renewal measures. (58) 67. The Council also argued at the hearing that it was for the LTTE to take the necessary steps to inform the Council of the military defeat, not for the Council actively to seek out that information. That submission sits uneasily with the fact (in the public domain) that the General Affairs and External Relations Council met on 18 and 19 May 2009 precisely to discuss ‘the recent developments’ in Sri Lanka, devoting 9 paragraphs of Council conclusions specifically to addressing the situation ‘as the fighting draws to an end’. (59) Moreover, the Court has expressly held that the Council can refer to recent material from the press and the internet to justify the renewal of a listing. (60) It must follow that the Council is also able to do so for the purposes of evaluating a possible removal from the list. I add that immediate lawyerly communication with administrative authorities on another continent may not be possible or, at least, not a top priority for a group that has just suffered a military defeat in which its leader appears to have been killed. (61) 68. I therefore consider Regulation No 501/2009 to be invalid for essentially the same reasons as those given by the Court in its judgment in LTTE. I add that, whilst the defect may or may not be remediable, any remedy cannot be applicable retroactively in the context of the criminal proceedings against Mr K. P. (62) Conclusion 69. Accordingly, I propose that the Court should give the following answer to the question referred for a preliminary ruling by the Landgericht Saarbrücken (Regional Court, Saarbrücken, Germany): Council Regulation (EC) No 501/2009 of 15 June 2009 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 Decision 2009/62/EC is invalid insofar as it applies to the Liberation Tigers of Tamil Eelam. Examination of the material before the Court has disclosed no factor affecting the validity of Council Decision 2007/445/EC of 28 June 2007 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 Decisions 2006/379/EC and 2006/1008/EC, Council Decision 2007/868/EC of 20 December 2007 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 Decision 2007/445/EC, Council Decision 2008/583/EC of 15 July 2008 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 Decision 2007/868/EC, or Council Decision 2009/62/EC of 26 January 2009 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 Decision 2008/583/EC. 1 Original language: English. 2 OJ 2001 L 344, p. 70. 3 S/RES/1373 (2001). 4 OJ 2001 L 344, p. 93. 5 Recitals 1, 2 and 5. 6 OJ 2006 L 144, p. 25. 7 That organisation has subsequently been maintained on the list referred to in Article 1(6) of Common Position 2001/931, most recently by 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 (CFSP) 2018/475(OJ 2018 L 194, p. 144). 8 Recitals 2, 3, 4, 5, 12 and 14. 9 Decision of 29 May 2006 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 Decision 2005/930/EC (OJ 2006 L 144, p. 21). 10 The LTTE is currently maintained on the Article 2(3) list by 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 (EU) 2018/468 (OJ 2018 L 194, p. 23). 11 Decision of 28 June 2007 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 Decisions 2006/379/EC and 2006/1008/EC (OJ 2007 L 169, p. 58). 12 Recital 3 to Decision 2007/445. 13 Recital 4 to Decision 2007/445. 14 I shall refer to Decision 2007/445 and the subsequent acts listed in point 18 as ‘the EU acts at issue’. 15 Decision of 20 December 2007 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 Decision 2007/445/EC (OJ 2007 L 340, p. 100). 16 Decision of 15 July 2008 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 Decision 2007/868/EC (OJ 2008 L 188, p. 21). 17 Decision of 26 January 2009 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 Decision 2008/583/EC (OJ 2009 L 23, p. 25). 18 Regulation of 15 June 2009 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 Decision 2009/62/EC (OJ 2009 L 151, p. 14). 19 The referring Court states that Paragraphs 34(4)(2) and 34(6)(2) of the AWG were worded as follows: ‘(4) A person shall be liable to a custodial sentence of six months to five years if he … 2. infringes a directly applicable prohibition, published in the Bundesanzeiger, on exports, sales, supply, making available, transmission, services, investment, support or circumvention provided for in a legislative measure of the European Communities which serves to implement an economic sanction adopted by the Council of the European Union in the field of the Common Foreign and Security Policy … (6) A person shall be liable to a custodial sentence of a minimum of two years if he … 2. commits an act specified in subparagraphs 1, 2 or 4 for the purposes of commercial gain or as a member of a group formed with a view to the continuing commission of such offences in collaboration with another member of the group …’. From 24 April 2009 to 11 November 2010, Paragraphs 34(4)(2) and 34(6)(2) of the AWG were worded as follows: ‘(4) A person shall be liable to a custodial sentence of six months to five years if he … 2. infringes a directly applicable prohibition, published in the Bundesanzeiger, on exports, imports, transit, removal, sales, supply, making available, transmission, services, investment, support or circumvention provided for in a legislative measure of theEuropean Communities which serves to implement an economic sanction adopted by the Council of the European Union in the field of the Common Foreign and Security Policy … (6) A person shall be liable to a custodial sentence of a minimum of two years if he … 2. commits an act specified in subparagraphs 1, 2 or 4 for the purposes of commercial gain or as a member of a group formed with a view to the continuing commission of such offences in collaboration with another member of the group …’ Following amendments to the national law, since 1 September 2013 these provisions are to be found in Paragraph 18(1)(a) and (8) of the AWG. 20 Judgment of 29 June 2010, C‑550/09, EU:C:2010:382. 21 Judgment of 29 June 2010, C‑550/09, EU:C:2010:382, paragraphs 56 and 57. 22 Judgment of 16 October 2014, T‑208/11 and T‑508/11, EU:T:2014:885. That ruling was upheld by this Court in judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583. 23 Council Implementing Regulations (EU) No 83/2011 of 31 January 2011, No 687/2011 of 18 July 2011, No 1375/2011 of 22 December 2011, No 542/2012 of 25 June 2012, No 1169/2012 of 10 December 2012, No 714/2013 of 25 July 2013, No 125/2014 of 10 February 2014 and No 790/2014 of 22 July 2014 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 Regulations (EU) Nos 610/2010, 83/2011, 687/2011, 1375/2011, 542/2012, 1169/2012, 714/2013 and 125/2014. 24 Judgment of 9 March 1994, TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraphs 17, 18 and 24. 25 See, inter alia, judgment of 15 July 1963, 25/62, Plaumann v Commission, EU:C:1963:17. See also my discussion on admissibility in analogous circumstances, albeit by reference to the more relaxed standing rules introduced in the TFEU after 1 December 2009, in my Opinion in A and Others, C‑158/14, EU:C:2016:734, points 58 to 88, endorsed by the Court in its judgment of 14 March 2017, A and Others, C‑158/14, EU:C:2017:202, paragraphs 59 to 75. 26 See, by analogy, judgment of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraph 49. 27 Judgment of 29 June 2010, C‑550/09, EU:C:2010:382. 28 Judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 51 and 61. 29 Judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 59 and 60. 30 Judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 60. 31 Judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 46, and of 26 July 2017, Council v Hamas, C‑79/15 P, EU:C:2017:584, paragraph 25. 32 Judgment of 29 June 2010, C‑550/09, EU:C:2010:382. 33 See point 24 above. 34 See points 16 to 19 above. The Council would not necessarily have had contact addresses for all those concerned by any given listing decision; but publication of the notice in the Official Journal of the European Union coupled with the possibility of requesting the statement of reasons may reasonably be taken to satisfy the requirement to provide reasons. So far as I am aware, there is no suggestion that such a mechanism is in itself generically unlawful. 35 Recital 3 to Decision 2007/445 states that ‘the Council has provided all the persons, groups and entities for which this was practically possible with statements of reasons explaining the reasons why they have been listed in Decisions 2006/379/EC …’. At the hearing, the Council also confirmed (without being contradicted) that a statement of reasons had been communicated to the LTTE on 23 April 2007. 36 All measures of the EU institutions — even though irregular — are deemed to be valid until such time as they are withdrawn, repealed, annulled or declared invalid. See, to that effect, judgments of 1 April 1982, Dürbeck v Commission, 11/81, EU:C:1982:120, paragraph 17, and of 5 October 2004, Commission v Greece, C‑475/01, EU:C:2004:585, paragraph 18. 37 Judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 61. 38 It is perhaps also worth recalling that, in the context of this very type of measure, even if the Court finds that the original listing decision is invalid for lack of an adequate statement of reasons, it may exercise its discretion to leave the ‘irregular’ measure in effect for a period of time so as to allow the Council to take steps to remedy the absence of the statement of reasons. See, for example, judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraphs 375 and 376, and the Court’s third finding in the operative part. 39 Judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583. 40 See, for example, 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 138. 41 Judgment of 18 July 2013, Commission and Others v Kadi (‘Kadi II’), C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 100 and the case-law cited; see also Charter of Fundamental Rights of the European Union (OJ 2012 C 326, p. 391). 42 See, for example, judgment of 18 July 2013, Kadi II, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 116 and the case-law cited. 43 Judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 30. 44 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, paragraphs 139 to 140. See also judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 53 and the case-law cited. 45 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 146. 46 Judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 54 and the case-law cited. 47 Judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 54; and of 26 July 2017, Council v Hamas, C‑79/15 P, EU:C:2017:584, paragraph 32; see also judgment of 18 July 2013, Kadi II, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 156. 48 Judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 62, and of 26 July 2017, Council v Hamas, C‑79/15 P, EU:C:2017:584, paragraph 40. 49 The Council states in its written observations that only its communication of the statement of reasons relating to Regulation No 501/2009 (dated 16 June 2009) was ‘returned-to-sender’. 50 See, inter alia, judgment of 18 July 2013, Kadi II, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 113. 51 Judgment of 26 July 2017, C‑79/15 P, EU:C:2017:584, paragraph 33. 52 Judgment of 18 July 2013, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 156. 53 See judgment of 23 October 2008, People’s Mojahedin Organisation of Iran v Council, T‑256/07, EU:T:2008:461, paragraph 112 and the case-law cited. 54 Judgment of 18 July 2013, Kadi II, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 130. 55 Judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583. 56 According to the Guardian newspaper in the United Kingdom, the Sri Lankan Government formally declared an end to the 25-year civil war in a victory address on 19 May 2009. See https://www.theguardian.com/world/2009/may/18/tamil-tigers-killed-sri-lanka. The parties at the hearing did not dispute that this event took place in mid-May 2009. 57 Council Implementing Regulation (EU) No 83/2011 of 31 January 2011 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against persons and entities with a view to combating terrorism and repealing Implementing Regulation (EU) No 610/2010 (OJ 2011 L 28, p. 14). See judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 78 to 80. 58 Judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 33. 59 See http://europa.eu/rapid/press-release_PRES-09-137_en.htm. 60 See judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 72. 61 Mr K. P.’s lawyer submitted at the hearing, without being contradicted, that that had occurred. See also the article referred to in footnote 56 above. 62 See judgment of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraph 59, and the View of Advocate General Mengozzi in that case, C‑550/09, EU:C:2010:272, points 115 to 123.