Opinion of the Advocate General — ECLI:EU:C:2006:606
Date: 2006-09-27
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment;Appeal - unfounded;Action for annulment - inadmissible;Appeal - successful
Origin: United Kingdom

Summary of the Judgment 1. Appeals – Grounds – Mere repetition of the pleas and arguments put forward before the Court of First Instance – Error of law pleaded not identified – Inadmissibility – Challenge to the interpretation or application of Community law by the Court of First Instance – Admissibility (Art. 225 EC) 2. Appeals – Grounds – Mistaken assessment of the facts – Inadmissibility – Review by the Court of the assessment of the evidence – Possible only where the clear sense of the evidence has been distorted (Art. 225 EC) 3. Appeals – Grounds – Plea submitted for the first time on appeal – Inadmissibility (Rules of Procedure of the Court, Arts 42(2) and 118) 4. Appeals – Grounds – Possibilities for raising arguments – Restriction (Statute of the Court of Justice, Art. 58; Rules of Procedure of the Court, Art. 113(2)) 5. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them (Art. 230, fourth para., EC; Council Regulation No 2580/2001) 6. Community law – Principles – Right to effective judicial protection (Council Regulation No 2580/2001) 7. Actions for annulment – Natural or legal persons – Locus standi (Art. 230, fourth para., EC) 1. An appeal is inadmissible if, without even including an argument specifically identifying the error of law allegedly vitiating the decision under appeal, it merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance. By contrast, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose. (see para. 32) 2. Complaints based on findings of fact and on the assessment of those facts in the contested decision are admissible on appeal where the appellant contends that the Court of First Instance has made findings which the documents in the file show to be substantially incorrect or that it has distorted the clear sense of the evidence before it. There is such distortion where, without recourse to new evidence, the assessment of the existing evidence appears to be clearly incorrect. (see paras 35, 37) 3. Under Article 118 of the Rules of Procedure of the Court of Justice, Article 42(2) of those rules, which prohibits generally the introduction of new pleas in law in the course of the procedure, applies to the procedure before the Court of Justice on appeal from a decision of the Court of First Instance. In an appeal the Court’s jurisdiction is thus confined to review of the assessment by the Court of First Instance of the pleas argued before it. (see para. 61) 4. It follows from Article 58 of the Statute of the Court of Justice, in conjunction with Article 113(2) of the Rules of Procedure of the Court of Justice, that, on appeal, an appellant may put forward any relevant argument, provided only that the subject-matter of the proceedings before the Court of First Instance is not changed in the appeal. There is no requirement that each argument put forward on appeal must previously have been discussed at first instance. A restriction to this effect cannot be accepted because an appeal would thereby be deprived of a significant part of its purpose. (see para. 66) 5. Fundamental rights form an integral part of the general principles of law the observance of which the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories. The European Convention on Human Rights has special significance in that respect. The case-law of the European Court of Human Rights, as it currently stands, appears to indicate that an organisation which does not appear on the list of persons, groups and entities subject to the restrictive measures laid down by Regulation No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism would not be able to establish that it has the status of a victim within the meaning of Article 34 of the ECHR and therefore would not be able to bring an action before that court. Consequently, where the Community judicature concludes that such an organisation is not individually concerned within the meaning of the fourth paragraph of Article 230 EC, as interpreted by the case-law, and its action for annulment is therefore inadmissible, there is no conflict between the ECHR and the fourth paragraph of Article 230 EC. (see paras 74, 76, 82-83) 6. The European Community is a community based on the rule of law in which its institutions are subject to judicial review of the compatibility of their acts with the Treaty and with the general principles of law which include fundamental rights. Individuals are therefore entitled to effective judicial protection of the rights they derive from the Community legal order, and the right to such protection is one of the general principles of law stemming from the constitutional traditions common to the Member States. That right has also been enshrined in Articles 6 and 13 of the European Convention on Human Rights. In that respect, as regards Regulation No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, it is particularly important for that judicial protection to be effective because the restrictive measures laid down by Regulation No 2580/2001 have serious consequences. Not only are all financial transactions and financial services thereby prevented in the case of a person, group or entity covered by the regulation, but also their reputation and political activity are damaged by the fact that they are classified as terrorists. Under Article 2(3) of Regulation No 2580/2001, read in conjunction with Article 1(4) to (6) of Common Position 2001/931, a person, group or entity can be included in the list of persons, groups and entities to which that regulation applies only if there is certain reliable information, and the persons, groups or entities covered must be precisely identified. In addition, it is made clear that the names of persons, groups or entities can be kept on the list only if the Council reviews their situation periodically. All these matters must be open to judicial review. It follows that, where the Community legislature takes the view that an entity retains an existence sufficient for it to be subject to the restrictive measures laid down by Regulation No 2580/2001, it must be accepted, on grounds of consistency and justice, that that entity continues to have an existence sufficient to contest those measures. The effect of any other conclusion would be that an organisation could be included in the list of persons, groups and entities to which that regulation applies without being able to bring an action challenging its inclusion. (see paras 109-112) 7. The provisions of the Statute of the Court of Justice, in particular Article 21, the Rules of Procedure of the Court of Justice, in particular Article 38, and the Rules of Procedure of the Court of First Instance, in particular Article 44, were not devised with a view to the commencement of actions by organisations lacking legal personality. In that exceptional situation, the procedural rules governing the admissibility of an action for annulment must be applied by adapting them, to the extent necessary, to the circumstances of the case. It is a question of avoiding excessive formalism which would amount to the denial of any possibility of applying for annulment even though the entity in question has been the object of restrictive Community measures. (see para. 114)