Opinion of the Advocate General — ECLI:EU:C:2012:50
Date: 2012-01-31
Language of the case: English
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - unfounded

Summary of the Judgment 1. Acts of the institutions — Choice of legal basis — Criteria — Act of the Union pursuing a twofold objective or having twofold components — Reference to the main or predominant aim or component — Inseparable aims or components — Cumulation of legal bases — Limits — Incompatibility of procedures 2. European Union — Common foreign and security policy — Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban — Regulation No 1268/2009 — Freezing of funds and economic resources — Procedure for entering names in the list drawn up in accordance with Resolutions 1267 (1999) and 1333 (2000) of the United Nations Security Council — Choice of legal basis — Article 215 TFEU (Arts 3(2) TEU and 21(2)(c) TEU; Art. 215(2) TFEU; Council Common Position 2002/402; (Council Regulations No 881/2002 and No 1286/2009) 3. European Union — Common foreign and security policy — Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban — Regulation No 1286/2009 — Freezing of funds and economic resources — Procedure for entering names in the list drawn up in accordance with Resolutions 1267 (1999) and 1333 (2000) of the United Nations Security Council — Procedure guaranteeing observance of fundamental rights — Choice of legal basis — Article 215 TFEU and not Article 75 TFEU — Whether lawful (Arts 75 TFEU and 215(2) TFEU; Council Regulation No 1286/2009) 4. European Union — Common foreign and security policy — Restrictive measures against certain persons and entities in the fight against terrorism — Joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and from the Commission — Lack of connection in time — Whether lawful (Art. 215 TFEU) 5. European Union — Common foreign and security policy — Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban — Common Position 2002/402 — Effects after the Treaty of Lisbon entered into force (Art. 9 of Protocol No 36 annexed to the EU, FEU and EAEC Treaties; Council Common Position 2002/402) 1. See the text of the decision. (see paras 42-45) 2. Article 215(2) TFEU may constitute the legal basis of restrictive measures, including those designed to combat terrorism, taken against natural or legal persons, groups or non-State entities by the Union when the decision to adopt those measures is part of the Union’s action in the sphere of the common foreign and security policy (the CFSP). While admittedly the combating of terrorism and its financing may well be among the objectives of the area of freedom, security and justice, as they appear in Article 3(2) TEU, the objective of combating international terrorism and its financing in order to preserve international peace and security corresponds, nevertheless, to the objectives of the Treaty provisions on external action by the European Union, as laid down in Article 21(2)(c) TEU. The object of actions undertaken by the Union in the sphere of the CFSP, and the measures taken in order to give effect to that policy in the Union’s external actions, in particular, restrictive measures for the purpose of Article 215(2) TFEU, can accordingly be to combat terrorism. It follows that Article 215(2) TFEU constitutes the proper legal basis for Regulation No 1286/2009 amending 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. That regulation introduces a procedure for entering names in the list drawn up in accordance with Resolutions 1267 (1999) and 1333 (2000) of the United Nations Security Council that guarantees observance of fundamental rights of the defence. It amends Regulation No 881/2002, which is one of the instruments by which the European Union has put into effect an action decided upon within the Security Council and intended to preserve international peace and security and, in the light of its objectives and its wording, relates to a decision taken by the Union under the CFSP. (see paras 61, 63, 65, 71, 76) 3. Regulation No 1286/2009 amending 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, containing safeguards for the respect of the fundamental rights of the persons whose names appear in the list drawn up in accordance with United Nations Security Council Resolutions 1267 (1999) and 1333 (2000), may be adopted on the basis of Article 215(2) TFEU and not on that of Article 75 TFEU. Although participation by the Parliament in the legislative process is the reflection, at EU level, of the fundamental democratic principle that the people should participate in the exercise of power through the intermediary of a representative assembly, it is not contrary to EU law for it to be possible for measures to be adopted that impinge directly on the fundamental rights of individuals and groups by means of a procedure excluding the Parliament’s participation. The duty to respect fundamental rights is imposed, in accordance with Article 51(1) of the Charter of Fundamental Rights of the European Union, on all the institutions and bodies of the European Union. In addition, under both Article 75 TFEU and Article 215(3) TFEU, the acts referred to in those two articles are to include necessary provisions on legal safeguards. (see paras 81, 83, 84) 4. Article 215 TFEU requires no more than a joint proposal of the Commission and the High Representative, and does not make it necessary for the High Representative to present a separate statement of reasons or to supplement that in the Commission’s proposal. (see para. 105) 5. In accordance with Article 9 of the Protocol (No 36) on transitional provisions, the legal effects of the acts of the institutions, bodies, offices and agencies of the European Union adopted on the basis of the EU Treaty before the entry into force of the Treaty of Lisbon are to be preserved until those acts are repealed, annulled or amended in implementation of the Treaties. That is the case for Common Position 2002/402 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, whose effects have thus been preserved after the Treaty of Lisbon entered into force until that Position is repealed, annulled or amended. In consequence, lest Article 9 of the Protocol (36) be rendered largely redundant, the fact that the EU Treaty no longer provides for common positions but for decisions in matters relating to the Common Foreign and Security Policy does not have the effect of rendering non-existent those common positions adopted before the Treaty of Lisbon entered into force. Although the legal contexts of those two classes of legal acts are not the same, common positions not repealed, annulled or amended after the Treaty of Lisbon entered into force may be considered to correspond, for the purpose of implementing Article 215 TFEU, to the decisions adopted in accordance with Chapter 2 of Title V of the EU Treaty to which that article refers. (see paras 107-110)