Judgment — ECLI:EU:C:2017:466
Date: 2017-06-15
Language of the case: English
Court formation: Eighth Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment;Appeal - unfounded
Origin: United Kingdom

summary form, coherently and intelligibly in the application itself. Whilst the body of the application may certainly be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which must appear in the application (judgments of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 40, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 50). 55 Second, the brief statement of the pleas in law which must be contained in any application, as provided for by those articles, means that the application must specify the nature of the grounds on which the action is based (judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 39). 56 It is evident, on examination of the application which the appellants submitted at first instance, that although, according to its actual heading, the third plea formally alleged a breach of the right to property and of the right to respect for private life, the very brief explanations provided in support of that plea challenged only the Commission’s assessment of the evidence justifying the appellants’ entry on the list at issue. 57 The appellants maintained that the Commission had failed to take into account the view of the government of the United Kingdom that they had long since ceased to satisfy the criteria laid down by Resolution 1617 (2005) for entry on that list. Their arguments thus related essentially to the standard of proof required in criminal matters, not to the right to property. 58 Consequently, the General Court was fully entitled to consider that the appellants’ third plea did not satisfy the requirements of Article 44 of its Rules of Procedure of 2 May 1991, as amended. 59 It cannot, moreover, be held that the General Court misinterpreted that plea, since the appellants failed, in their application, to establish any link between the evidential requirements they were asserting and any breach of their right to property and of their right to respect for private life. 60 It follows from this that the General Court did not err in law when, in paragraph 90 of the judgment under appeal, it rejected the appellants’ third plea in law. 61 The first ground of appeal must therefore be rejected. The second ground of appeal Arguments of the parties 62 By their second ground of appeal, directed against paragraphs 78 and 79 of the judgment under appeal, the appellants submit that the General Court failed to carry out the judicial review which it was required to carry out in accordance with the judgment of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 120 and 121). It neither required any substantiation of the facts alleged by the Commission, nor assessed whether the allegations made against the appellants were too old. Nor did it take formal notice of the detailed representations made by the appellants to the Commission and to the General Court as to why the allegations made against them were not well founded. 63 The Council contends, principally, that the appellants’ second ground of appeal is imprecise and confuses considerations pertaining to the procedural legality of the acts at issue — in particular the obligation to state reasons, an essential procedural requirement — and their substantive legality, concerning the question whether the grounds for listing are well founded. This ground of appeal does not, therefore, satisfy the formal requirements set out in Article 169(2) of the Rules of Procedure of the Court of Justice and should be rejected as manifestly inadmissible. In the alternative, the Council submits that, by this ground of appeal, the appellants are merely reformulating the first ground of appeal, concerning the substantive challenge to the statements of reasons on which the Commission based the appellants’ re-listing, and that it should therefore, in any event, be rejected for the same reasons as those set out in the examination of the first ground of appeal. 64 It is the Commission’s contention that this ground of appeal, which concerns paragraphs 78 and 79 of the judgment under appeal, in which the General Court found that Regulation No 1139/2010 was not vitiated by any infringement of the obligation to state reasons, is manifestly unfounded. The General Court applied precisely the legal test set out in the judgment of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 118), which requires that the statement of reasons identify the individual, specific and concrete reasons why the competent authorities consider that a particular person must be subject to restrictive measures. The Commission adds that paragraphs 120 and 121 of the latter judgment do not relate to the obligation to state reasons but to the substantive assessment of the reasons given, and thus that ‘the appellants’ arguments ... are misdirected’. Findings of the Court 65 In paragraph 80 of the judgment under appeal, the General Court rejected as unfounded the second plea in law put forward by the appellants, relating to the Commission’s alleged infringement of the obligation to state reasons for the acts at issue. By that plea, they challenged the vague and insufficient nature of the statements of reasons on which the Commission relied in order to re-enter them on the list at issue. 66 Recalling, in paragraphs 74 to 76 of that judgment, the requirements stemming from the obligation to state the reasons on which an act adversely affecting a person is based, to which the institutions are subject under Article 296 TFEU, the General Court pointed out, in particular, that, in accordance with paragraph 116 of the judgment of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518), that obligation entails in all circumstances, not least when the reasons stated for the EU measure represent reasons stated by an international body, that that statement of reasons identifies the individual, specific and concrete reasons why the competent authorities consider that the individual concerned must be subject to restrictive measures. 67 The General Court concluded from this, in paragraph 77 of its judgment, that it ‘would be possible to rely solely on the statement of reasons placing the names of the persons concerned on the list at issue, provided that that statement contains the individual, specific and concrete reasons and those reasons remain valid in the light of the observations of the persons listed’. 68 As is evident from paragraphs 78 and 79 of the judgment under appeal, the General Court stated that Regulation No 1139/2010 referred to the communication to the appellants of the statements of reasons and to the observations which the appellants were able to submit in that regard, and, moreover, assessed the reasons given in those statements, finding in this instance that they conformed to the requirements stemming from the judgment of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 116), since they contained the individual, specific and concrete reasons for placing the appellants’ names on the list at issue. 69 It cannot, therefore, be claimed that, on the basis of the grounds set out in those paragraphs, which the General Court applied in assessing the statement of reasons for the appellants’ re-listing, the General Court failed to ascertain that the Commission had discharged its obligation to state reasons for the acts at issue. 70 Consequently, while it must be made clear that the appellants have not claimed that the General Court misinterpreted their second plea in law in the proceedings at first instance, the second ground of appeal must be rejected as unfounded. The third ground of appeal Arguments of the parties 71 By their third ground of appeal, the appellants submit that the General Court wrongly found that the Commission had conducted a careful, impartial and independent analysis for itself of the facts relied on in the statement of reasons for the acts at issue and of the exculpatory material and observations they had produced. They state, in that regard, that the General Court appears to have overlooked the written observations and oral submissions which they presented in the course of the proceedings, since it did not address any of the arguments they had put forward. 72 In their submission, at the time when the acts at issue were adopted, the Commission simply gave the appearance of reviewing the file. In essence, it observed only in the most formal sense the appellants’ rights of defence, and did not envisage calling into question the Sanctions Committee’s findings in the light of their observations, conduct which the General Court had already had occasion to condemn in its judgment of 30 September 2010, Kadi v Commission (T‑85/09, EU:T:2010:418, paragraph 71), and subsequently in its judgments of 21 March 2014, Yusef v Commission (T‑306/10, EU:T:2014:141, paragraphs 103 and 104), and of 14 April 2015, Ayadi v Commission (T‑527/09 RENV, not published, EU:T:2015:205, paragraphs 72 and 73). They submit that the fact that the Commission made no approach to the United Kingdom — although that was the Member State responsible for their inclusion on the lists of persons subject to fund-freezing measures and it no longer supported their re-listing when the acts at issue were adopted — is evidence of that conduct. 73 According to the appellants, the General Court merely noted, in paragraphs 66 and 67 of the judgment under appeal, that the Commission had ‘reviewed’ the grounds for the listings on 16 April 2010 and corresponded with the Sanctions Committee on 27 May, 14 September and 26 October 2010. There is nothing, however, that might establish that the Commission actually carried out an assessment of the exculpatory material and as to whether the alleged reasons were well founded. Simply communicating the appellants’ observations to the Sanctions Committee on 27 May 2010 and then asking for reasons as to why the appellants had not been removed from the list at issue is not evidence of the Commission having evaluated the material held by the United Kingdom authorities for itself. The General Court had thus, in paragraphs 66 to 70 of the judgment under appeal, maintained an ‘irrational’ view of the facts. 74 The Council contends that the appellants’ third ground of appeal relates to findings of fact made by the General Court and must therefore be rejected as inadmissible. It submits that, on the basis of the process of review followed by the Commission, the General Court did not distort any facts presented under the first and second pleas raised by the appellants in the proceedings at first instance. They had not, according to the Council, provided sufficient material in the course of the present appeal to demonstrate that the General Court manifestly distorted the evidence in respect of the facts related to the procedure followed by the Commission, which had complied with the principles set out in the judgment of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518). 75 The Commission also contends that the appellants, who, it claims, are in essence asking the Court to reassess the evidence and the facts underpinning their entry on the list at issue, have not identified any particular document which shows the General Court’s findings to be substantially incorrect or demonstrates that the General Court distorted the clear sense of the evidence before it, and concludes that their third ground of appeal should therefore be declared inadmissible. 76 It also states that the three very general arguments put forward by the appellants in support of their claim that the General Court took an irrational view of the facts are unfounded. First of all, the assertion that the ground set out in paragraph 70 of the judgment under appeal is unsubstantiated is untenable, the General Court having correctly found that the Commission had carried out a careful, independent and critical review of the appellants’ observations and of their entry on the list of persons subject to restrictive measures that was decided upon by the Sanctions Committee, and, moreover, that it had not automatically reproduced that committee’s conclusions. Next, in the Commission’s submission, the appellants’ arguments that the grounds set out in paragraphs 66 to 70 of the judgment under appeal are incompatible with the judgments of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518); of 21 March 2014, Yusef v Commission (T‑306/10, EU:T:2014:141); and of 14 April 2015, Ayadi v Commission (T‑527/09 RENV, not published, EU:T:2015:205) are unfounded, since the question as to whether there is an infringement of the rights of the defence and of the right to effective judicial protection must be examined in relation to the specific circumstances of each particular case. Lastly, the argument that paragraphs 66 to 70 of the judgment under appeal are vitiated by an error of law because no approach was made to the United Kingdom at all, at any time, is unfounded. It does not follow from that case-law that the Commission is obliged to approach the United Kingdom. In any event, the Commission had consulted the EU Committee for the review of listings, on which all the Member States are represented. Findings of the Court 77 Having examined, in paragraphs 59 to 70 of the judgment under appeal, the first plea in law advanced by the appellants, alleging procedural irregularity in the review conducted by the Commission, the General Court rejected that plea. 78 In the first place, it recalled, in paragraphs 59 to 65 of the judgment under appeal, the terms in which the Court of Justice, in its judgment of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518), set out the obligations to which the institutions are subject, in accordance with respect for the rights of the defence and the right to effective judicial protection, when they adopt a decision placing a person’s name on a list of persons subject to restrictive measures. 79 In the second place, in paragraphs 66 to 70 of the judgment under appeal, it examined the various stages of the procedure which the Commission followed in order to adopt Regulation No 1139/2010 re-listing the appellants. 80 It concluded from this that the Commission had respected the three procedural guarantees referred to by the Court of Justice in its judgment of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518), by carrying out a careful, independent and critical review of the parties’ observations and of the listing decided upon by the Sanctions Committee, and by subjecting that committee’s conclusions to thorough personal scrutiny. Accordingly, it held, in paragraph 71 of its judgment, that the appellants’ first plea in law had to be rejected. 81 In the context of their third ground of appeal, the appellants have not put forward anything that might establish that the General Court’s findings were based on substantially inaccurate information or were attributable to a distortion of the clear sense of the evidence before it. 82 They merely argue that the General Court was wrong to find that the Commission had carried out a careful, impartial and independent analysis of their case. They rely in that respect on the fact that the United Kingdom, which was responsible for their inclusion on the United Nations list, had radically changed its stance towards them from November 2009, and on the exchange of letters between the Commission and the Sanctions Committee from September 2009. 83 It must, however, be held that, while that circumstance was capable of justifying the appellants’ removal from the list at issue — a removal ultimately occasioned by the adoption of Implementing Regulation No 640/2011 — it could not, by itself, lead the General Court to rule that the Commission had failed to fulfil its obligations and infringed the appellants’ rights of defence by adopting Regulation No 1139/2010. 84 It should be recalled, first of all, that the appellants were first entered on the list at issue by Regulation No 246/2006, following a decision of the Sanctions Committee of 7 February 2006 placing them on the list of persons and entities subject to restrictive measures that was drawn up pursuant to Resolution 1390 (2002). Article 2 of Regulation No 881/2002 was subsequently annulled, in so far as it concerned the appellants, by the judgment of 29 September 2010, Al-Faqih and Others v Council (T‑135/06 to T‑138/06, not published, EU:T:2010:412), referred to in paragraph 6 of the present judgment. They were then re-listed by Regulation No 1139/2010, the subject matter of the action for annulment which the General Court dismissed by the judgment under appeal. The appellants were subsequently removed from the list at issue by Implementing Regulation No 640/2011, adopted following a decision of the Sanctions Committee of 22 June 2011 removing them from the United Nations list. 85 As is apparent from recitals 2 to 6, Regulation No 1139/2010 had retroactive effect, being principally intended to replace Regulation No 881/2002, as amended by Regulation No 246/2006, in so far as it concerned the appellants. The second paragraph of Article 2 of Regulation No 1139/2010 expressly stated that that regulation applied from 11 February 2006. 86 The appellants’ arguments must, therefore, be considered ineffective. 87 It follows that the third ground of appeal must be rejected. Costs 88 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) of those rules, which is applicable to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 89 Since the Council and the Commission have applied for costs and the appellants have been unsuccessful, Mr Al-Bashir Mohammed Al-Faqih, Mr Ghunia Abdrabbah and Mr Taher Nasuf must be ordered to pay the costs. On those grounds, the Court (Eighth Chamber) hereby: 1. Dismisses the appeal; 2. Orders Mr Al-Bashir Mohammed Al-Faqih, Mr Ghunia Abdrabbah and Mr Taher Nasuf to pay the costs. Vilaras Malenovský Šváby Delivered in open court in Luxembourg on 15 June 2017. A. Calot Escobar M. Vilaras Registrar President of the Eighth Chamber * Language of the case: English.